SYED HAMID ALI SHAH, J.--- Briefly stated the facts of the case in hand are that land in dispute is 7 Kanals 8 Marlas, forming part of Khasra Nos. 348 and 349. The piece of land was originally owned by Muhammad Amin son of Budh Singh. He was owner of land 48 Kanals 8 Marlas other than the land in dispute. He sold the said land twice, firstly to Muhammad Amin son of Muhammad Din (Predecessor of respondents Nos. 2 & 3) through an agreement to sell {{URDU TEXT}}( ) dated 9-6-1960. The same land was sold to Khaqaan Babar through registered sale-deed dated 22-61960. Disputed Khasra numbers and land appurtant thereto, was not included in either of the document. It was, however, incorporated in each deed that any other land of the vendor in the village, is included in the transaction of sale to the vendee.
Respondents Nos. 2 & 3 filed suit for declaration and injunction wherein sale in favour of second vendee was assailed as ineffective in law being later. In time. Learned Trial Court decreed the suit vide judgment and decree dated 21-9-1985 and appeal against the decree met the fact of dismissal on 1-2-1986. The lis terminated in favour of respondent Nos. 2 and 3, when revision petition against the concurrent findings was dismissed in limine on 28-4-1987, with observation that sale made in favour of Muhammad Amin, will prevail against subsequent sale in favour of Khaqaan Babar. Decree-holders (respondents Nos. 2 & 3) initiated execution proceedings, which bore fruit on 5-41989. Questions to the validity of sale in favour of Muhammad Amin to the extent of 48 Kanal and 8 Marlas and it's possession to first vendee stood resolved.
2. Respondents Nos. 2 & 3 subsequently filed an application under Section 152, seeking amendment in , decree sheet by addition of land measuring 7 Kanals .8 Marlas, forming part of Khasra Nos. 348 & 349. Learned Trial Court allowed application vide order dated 26-10-1991 and permitted respondents Nos. 2 & 3, to add, property in dispute, in the decree sheet. The petitioner assailed the order of the Trial Court dated 20-10-1991, through an application under Section 12(2),C.P.C.
Respondents Nos.. 2 & 3 contended application, filed reply, controverted therein the assertions of the application and raised various preliminary objections. Learned Court framed as many as issues, recorded evidence of the parties and vide order dated 24-6-1,999, accepted the application. Respondents Nos. 2 & 3, challenge the order in revision which was accepted vide order dated 23-7-2001 and the application of the petitioner under Section 12(2) was dismissed, hence, this Constitutional petition.
3. Learned counsel for the petitioner has submitted that Khasra Nos. 348 & 349, were never subject- matter of litigation and suit property was sold on 18-3-1965 at the time when no litigation was pending. He has submitted that the land as well as the specific khasra numbers, were not mentioned in the plaint. Predecessor-in-interest of respondents Nos, 2 & 3, filed appeal before Collector on 1211-1965 and the property in dispute was described in detail excluding these khasra numbers. Learned counsel emphasized that principle of lis pendence is not applicable in ' respect of property, which was not actively or specifically in dispute in litigation. Learned counsel added that respondents Nos. 2 & 3 procedure through impugned order amendment in decree sheet concealment of material facts. Ownership and possession of the petitioners was suppressed. The order was passed at the back of the petitioner, without impleading the petitioner as a party.
Learned counsel referred to the case of Baqar v. Muhammad Rafique and others (PLJ 2003 S.C.
697) and contended that power of Court to amend a judgment under Section 152, is restricted to arithmetical, clerical error or accidental slips or omission. He has relied upon Muslim Commercial Bank Limited v. Continental Engineers Limited and others (PLD 1992 Lahore 261) and submitted that a question which has not been raised in the pleadings or in main suit, cannot be incorporated in the decree through seeking amendment. Learned counsel support his other contention by referring to the of Banque lndo-Suez v. Rehmani Brothers (1993 CLC 257), Kedarnath Lal and another v.
Sheonarain Ram and others (AIR 1957 Patna.. 408), Ganpat v. Dada and others (AIR 1920 Nagpur).
4. Learned counsel for respondents Nos. 2 & 3 supported the impugned judgment and submitted that in the earlier around of litigation, the sale in favour of Muhammad Amin, matured into decree and as a result thereof a sale-deed was registered in favour of the vendee by the Registrar. The petitioners derive title from Khaqaan Babar but disputed khasra numbers are not included in the sale transaction. Learned counsel has referred to mutation No. 6, wherein it hae been mentioned the specific khasras are being sold and any other land if found in the name of vendor, shall be deemed to be subject-matter of sale.
Learned counsel has submitted that land in dispute was transferred to Mst. Khadija Bibi on 31-1- 1982, when the suit was pending. The sale im favour of the petitioner was made on 16-101985, when the suit had already been decreed in favour of the respondent. The legal heirs of original vendor (Muzaffar Hussain) were declared not entitled to the property in view of right of respondent in the property. Learned counsel referred to the findings of Trial Court on issue No. 5 and submitted that whole of the properly was sold, including disputed khasra numbers. Learned counsel has submitted that transfer pende lite, cannot maintain application under Section 12(2), C.P.C. And such transferee is neither necessary nor proper party.. Learned counsel supported this contention by placing reliance on the cases Haider All and another v. Akbar A.I-and another (PLD 1973 Lahore 546), Mian Tahir Shah and another v.- Additional District Judge, Swabi and others (1998 SCMR 858), Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and.
Others (1999 SCMR 2874), Muhammad Khan and another v. Nawaz through legal heirs (2001 MLD 844) and Muhammad lmtiaz v. Nasir All and others (2004 YLR 487). Learned counsel has submitted that writ for illegal benefits cannot be issued and found support this contention from Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others (PLD 1973 S.C. 236) . Learned counsel summed up his submissions with contention that writ against the judgment passed in revision, is not competent and referred to the case of Qamarud Din v. Muhammad Din and others (PLD 2001 S.C. 518) and Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 S.C. 131).
5. Heard learned counsel for the parties and record perused.
6. It is reflected from the plaint that respondents Nos. 2 & 3 have purchased property through an agreement to sell, measuring 48 kanals 8 marlas. The agreement contains the detail of specific khasra number. Disputed khasra numbers 348 and 329 are not mentioned in agreement to sell. It is evident from assertions made in the plaint that respondents Nos. 2 & 3, have instituted the suit with regard to the land measuring 48 kanals 8 marlas comprising of khasra Nos. 350(6K), 351.(6K-4M), 352 (7K-2M), 353 (10K), 364 (8K), 365 (8K) and 366 (3K 2M) in village chand. This land has been described in para No. 1 of the plaint. There is no mention of khasra Nos. 348 and 349 in this para. Respondents Nos. 2 & 3 after having given the detail and description of the property made following prayer in the suit:-- {{URDU TEXT}}f4_ tiejl/..,loijis'LL.k....> Lde)61,(3?Liv:?4,...4.----1...:Lr1A5c)1*-4 Land'in dispute was sold to Khaqaan Babar, who then sold the same to Muzaffar Hussain. The petitioner being subsequent vendee was not impleaded as defendant. No doubt that sale agreement in favour of respondents Nos. 2 and 3, contains the following conditions:--- {{URDU TEXT}}elI " Ljy-%"01, jt)); Li! j ,.;r: L.) g*,-Iji,k);"1,1, (j/11,11 Respondents Nos. 2 & 3 have omitted to claim additional land (disputed land) on the basis of above condition. The omission is apparent in prayer clause, in the identical manner . Land in dispute has not been mentioned, in the description of suit property (para No. 1 of the plaint), secondly plaintiffs have not prayed for any declaration in the prayer clause, thirdly, despite impleadment of subsequent vendee, the petitioner was not impleaded as a party. These omissions may be intentional relinquishment or accidental slip, but in either case the plaintiff/ respondents Nos. 2 & 3 cannot sue in respect of the claim so omitted, due to bar contained in Order II, Rule 2(2), C.P.C.
7. Respondents Nos. 2 & 3,have invoked provisions of Section 152,C.P.C., to bring the disputed claim, within the ambit of suit and the decree. Provisions of Section 152 are attached when there is accidental slip, arithmetical or clerical mistake in judgment and decree. Principle of finality is attached to a judgment. A judgment once pronounced, cannot be altered, as envisaged in Order XX, Rule 3, C.P.C. The Court is rendered functus officio, after pronouncement of the decree. There are two exceptions to it namely review or correction of arithmetical and clerical Mistake in the judgment. Learned Trial Court has passed judgment and decree dated 21-9-1985, according to the prayer made in the plaint and pertaining to property subject-matter of, suit, according to it's description as given by the plaintiffs in para No. 1 of the plaint. Scope of Section 152 is restricted to mistake in the judgment, decree and order, which is accidental or omission. Omission or mistake in the instant case, is in the suit of the plaintiff, which cannot be corrected by invoking provisions of Section 152 ibid. It has been held by the Apex Court in the case of Muhammad Rafique (supra). That Court cannot rectify decree, because it was wrong or unfair or the parties did not realize their rights. The Apex Court observed that non-inclusion of khasra in.- -question is neither arithmetical mistake nor an error arising from accidental slip or omission. Case of the petitioner (case in hand) is identical and I have, therefore, no hesitation to hold that questions involved are contentious, it's decision depends upon arguable questions of law; construction of documents , determination of right, therefore, provisions of Section 152 are not attracted and learned revisional Court has erroneously extended it's jurisdiction.
8. Advertising to maintainability of this petition, the respondent's contention that Constitutional petition assailing the order of Court passed in it's revisional jurisdiction, is not convincing. The case referred by the learned counsel for the respondents Qamarud Din (supra) requires mention where the Hon'ble Supreme Court of Pakistan has held as under:--- "..................... Revisional Court by setting aside the order of Trial Court had committed serious illegality of the nature, which could have the effect of depriving the legitimate right of a party. Merely because revision was decided, it would not by itself be a bar for an aggrieved party to file writ for seeking complete justice in appropriate cases.......... "
9. For the foregoing, this petition is accepted, order impugned passed by Additional District Judge in his revisional jurisdiction, is hereby set aside being illegal, without jurisdiction and of no legal effect. Resultantly, the judgment/order dated 24-6-1999 passed by the learned Civil Judge, Gujranwala, stands affirmed. No order as to costs. .