HAFIZ ABDUL REHMAN ANSARI, J.---Through this constitutional petition, petitioner has assailed order dated 12-3-2010 passed by the learned Additional District Judge Lodhran whereby the A revision petition of the petitioner filed against the order dated 9-2-2009 passed by the learned Civil Judge, Lodhran dismissing the application of the petitioner under section 12(2), C.P.C., has been dismissed.
2. Brief facts of the case are that father of respondent No,1 filed a suit for specific performance regarding the land measuring 101-Kanals in Khewat No,25 transfer 17/120 share measuring 14- Kanals 7-Marlas according to the register Haqdaran Zamin for the year 1972-73 situated at Mouza Galandra Tehsil Lodhran against Mst. Imam Sain alias Channan, widow, Wajid Ali, son, Mst. Noor Jamal alias Noor Zaman, Mst. Maro Khan daughters of Fateh Muhammad, Sarwa Ali, on 22-3-1980.
The respondents Nos.1 to 4 are legal and lawful owner of the property whereas the defendants No,5 is special attorney of respondents Nos.1 to 4. The defendant No,5 being special attorney of respondent Nos.1 to 4 of the petitioner and respondent No,6, namely, Muhammad Din got paying Rs.9000 get registered the land in their favour through registered deed and nothing remained and the plaintiff also raised some other disputed claims. The respondents filed written reply on 16-6- 1980 by controverting the facts and denied the claim of the plaintiff. Out of divergent pleadings of the parties learned trial Court in order to resolve the controversy between the parties framed as many as eight issues including the relief. Both the parties in order to prove their contention led their evidence plaintiff produced as many as four witnesses but he did not appear before the court himself and produced his son as special attorney. On 5-6-1986 respondent No,6 appeared in the witness and got recorded his statement along with his counsel as he has no objection if the suit is decreed to the extent of half of land. Learned trial Court in the light of the statement of the plaintiff as the right of evidence was closed by the learned trial Court to the extent of respondent/ defendants Nos.1 to 5 subsequently learned trial Court in the light of statement made by respondent No,6 decreed the suit of the plaintiff vide judgment and decree dated 5-6-1987.
3. The petitioner moved an application under section 12(2), C.P.C. For setting aside the judgment and decree dated 5-6-1987 passed by the learned Civil Judge, Lodhran by contending that Sardar son of Rehmat purchased the suit land from respondents Nos.1 to 4 vide Registered Sale-Deed No,3454 dated 13-12-1978, subsequently Mutation No,228 was passed on 30-3-1979. Petitioner Atta Muhammad, subsequently, purchased the suit land from said Sardar Muhammad vide Registered sale-deed No,438 dated 1-2-1981 and took over the possession of the land since then the land is under the cultivation of the petitioner and petitioners are enjoying possession of the land since their purchase; neither the plaintiff made party to the petition whereas it was mandatory for the plaintiff to include the names of the petitioner in the array of respondents because petitioners were bona fide purchaser; the petitioner had obtained the decree against the petitioner by concealing the facts and by putting the court in dark which was liable to be set aside; respondents Nos.1 to 11 filed to the application whereas respondents Nos.12, 13, 14, 16, 17-A have given statement that they have no objection on acceptance of the application under section 12(2), C.P.C.
4. Learned counsel for the petitioner submits that petitioner of application under section 12(2), C.P.C. Purchased the suit property from Sardar Ali respondent through registered sale-deed No,438 dated 1-2-1981; that Musharaf Din filed suit against Mst. Imam Hussain and others which was decreed while the petitioner purchased the suit land before that decree in good faith and he was bona fide purchaser without notice with consideration; that the plaintiff of that suit, did not implead the revision petitioners as part of the suit; while they were necessary parties to that suit; decree was obtained with misrepresentation and fraud; that it was filed after one month from notice regarding decree.
5. The petition was contested by the respondents Nos.1 to 11 by submitting that suit for specific performance was filed earlier while registered sale-deed in favour of petitioner was registered later on, so, D under the rule of lis pendens the petitioner could not challenge the decree. Respondent No,16, namely, Sardar Ali filed written statement and raised no objection regarding the acceptance of application under section 12(2), C.P.C. Learned trial Court framed six issues:-
(1) Whether the suit is time barred ? OPD
(2) Whether the description of respondent No,5 is incorrect? OPD
(3) Whether defendant No,5 was attorney of defendants Nos.1 to 4? If so, its effect ? OPP
(4) Whether defendant No,5 executed sale-deed in dispute in favour of the plaintiff and defendant No,6 ? OPP.
(5) Whether defendant No,5 received Rs.9000 from the plaintiff and defendant No,6? OPP.
(6) Whether the plaintiff is responsible for not getting the sale-deed registered in accordance with the terms and conditions prescribed by the parties with regard to the registration of the sale-deed in dispute? OPD.
(7) Whether the plaintiff is entitled to specific performance of agreement to sell and registration of the sale-deed in dispute? If so, on what terms and conditions? OPP
(8) Relief.
6. One of the petitioner namely Dilshad Ahmad appeared as A.W .1, whereas, learned counsel for the petitioners got exhibited documents Exh.A-1 to Exh.A-7. Muhammad Ahmad, one of the respondents appeared as RW-1.
7. I have heard the learned counsel for the parties and perused the record.
8. Dilshad Ahmad petitioner while appearing as A. W.1 deposed that his father purchased the suit land from Sardar Muhammad, while the said Sardar Muhammad purchased the suit land from Imam Sain and others. The ancestor of respondents Nos.1 to 11 namely Sharaf Din filed a suit against the said Imam Sain and others. He does not know whether Imam Sain had ever executed any agreement to sell in favour of Sharaf Din. The said Sharaf Din got decree fraudulently. His father came to know about the said suit on 12-1-1992. Perusal of Exh.A-4 shows that ancestor of the respondents Nos.1 to 11 filed a suit for specific performance on 22-3-1980, which was decreed on 5- 6-1986. Perusal of Exh.A-1 shows that father of the petitioners namely Atta Muhammad purchased the suit land on 1-2-1981 it means that he purchased the suit land during the pendency of the suit. It is also note worthy that the petitioners purchased the suit land from Sardar Muhammad, who was party in the aforesaid suit for specific performance and it was never disclosed by the vendee about the alienation of the suit property in favour of Atta Muhammad, so much so, after decreed on 5-6- 1986 the execution petition was filed which remained pending for some time. The suit property was alienated during the pendency of the suit, in which the vendee himself was party.
9. It is an admitted fact that respondent/plaintiff namely, Musharaf Din filed suit on 12-3-1980 while the registered sale-deed in favour of predecessor of Atta Muhammad was executed on 1-2-1981. It means the registered sale-deed in favour of predecessor of petitioners was executed after about 11 months from the date of filing of the suit. At the filing of civil suit there was no reason to implead predecessor of the petitioners as party who purchased the suit property after 11 months for the date of filing of suit. He purchased land during the pendency of suit. The predecessor of the petitioners purchased the land from Sardar Ali who was defendant No,5 in original suit. It means the predecessor of the petitioners derived title from Sardar Ali who was party of that suit.
' The original owner namely Mst. Imam Hussain and others executed a registered special power of attorney in favour of Sardar Ali defendant No,5 and in that power of attorney dated' 17-12-1976 Mst.
Imam Sain, Wajid Ali, Mst. Noor Zaman and Mst. Maroofan executed that special attorney deed in favour of Sardar Ali defendant and that document was registered before the Sub-Registrar. All the executants of special power deed admitted their sale in favour of Musharaf Din and Muhammad Din sons of Nosher. They admitted the sale and appointed special attorney for the execution of sale-deed. Musharaf Din filed suit for specific performance of contract and Muhammad Din was also party of that suit. Sardar Ali was party of that suit while Mst. Imam Sain and others were also impleaded as defendants. The suit was not decided in hurry manner and it was decreed on 5-6- 1986. It means the suit remained pending for about 6 years and 2/3 months. The predecessor of revision petitioners if got executed a registered sale-deed in his favour from Sardar Ali during the pendency of suit and after about 11 months from filing of the suit he could not get better title than that of Sardar Ali and nothing more. Sardar gave land to them who was attorney of the original owner and later on derived title from this, so, it was not the duty of the plaintiff to implead predecessor of revision petitioners as party of the suit. The petitioners cannot take plea of bona fide purchaser with consideration without notice F because they did not purchase the land before filing of suit. Sardar Ali filed consenting written reply regarding application under section 12(2), C.P.C. To the effect that he was in connivance with the petitioners while he was party of the suit but did not point out any such registered sale-deed before the learned trial Court. The plaintiff of the suit cannot be made responsible regarding any fraud if any committed by defendants. No plea of fraud, committed by plaintiff has been proved, agitated or raised. Learned counsel for the petitioner was not able to point out any act or fraud or mis-representation on the part of the plaintiff. The concurrent findings of both the courts below are based on best appraisal of evidence which are not arbitrary, fanciful, based on cogent reasons. Learned counsel for the petitioner could not point out any non-reading or misreading of evidence in the impugned judgments. Learned counsel for the petitioner has failed to prove any illegal exercise of jurisdiction or failure to exercise jurisdiction legally vested in the court or any jurisdictional defect in the said judgments and decrees nor there is any illegality or material irregularity pointed out to have been committed by the learned Trial Court or Lower Appellate Court. I would not like to interfere in the judgments of the courts below.
10. Further it is held in the following judgments of honourable Supreme Court of Pakistan that revisional order passed in H Revision cannot be assailed in writ jurisdiction; the cases reported are Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 13 others (1991 SCM R 970), Ghulam Hussain v. Malik Shahbaz Khan (1985 SCM R 1925), Muhammad Bukhsh v. Ghulam Hussain (1989 SCM R 443) and Muhammad Zahoor v. Lal Muhammad (1988 SCM R 322).
11. In the light of the above discussion, this writ petition is dismissed with no order as to costs.