1. ' ARSHAD NOOR KHAN, J.---By this revision application, the applicant has challenged the judgment dated 25-2-1987 and decree dated 28-2-1987 passed by learned Ist Additional District Judge, Khairpur in Civil Appeal No,43 of 1983 Bakhat Mal v. Ghulam Hyder and another thereby the appeal was dismissed and judgment dated 15-3-1983 and decree dated 19-3-1983 passed by the learned 1st Senior Civil Judge, Khairpur thereby decreed the suit filed by the respondent No,1 for specific performance of contract and cancellation of sale-deed and possession, was maintained.
2. ' The facts leading to the present application in brief are that on 9-1-1969 the respondent No,2 executed sale agreement with respondent No,1 for purchase of shop bearing Custodian No,P-III-71 Shahi Bazar Pir-jo-Goth for the consideration of Rs,4,500 and a sum of Rs,1500 as an advance was paid at the time of execution of sale agreement and it was agreed between the parties that after issuance of PTD and Income Tax Certificate from the concerned authority, the respondent No,2 will execute the sale-deed in favour of respondent No,
1. It is further stated in the plaint that subsequently the respondent No,1 also paid Rs,400 to the respondent No,2 towards the balance of the sale agreement and remaining amount had to pay at the time of execution of the sale-deed. It is further stated in the plaint that thereafter the respondent No,2 illegally, dishonestly and in deceitful manner after obtaining PTD disposed of the property to the present applicant and since the respondent No,2 failed to execute sale-deed in favour of respondent No,1, as such the respondent No,1 filed a suit for specific performance of contract and possession but on filing of the written statement by the respondent No, 2 it revealed that the property in question, was sold out to the present applicant, therefore, the present applicant was also impleaded as party before the learned trial Court. The applicant and the respondent No,2 filed the written statement the respondent No,2 alleged the violation of terms and conditions of the sale agreement by the respondent No,1, which according to him, disentitle the respondent No,l. For specific performance of the contract. The applicant pleaded the purchase of the property from the respondent No,2 by way of sale deed, as such they both challenged the maintainability of the suit. After pleading of the parties, the learned trial Court framed as many as 11 issues. After framing the issues the parties led evidence in support of their respective claim and after conclusion of the evidence, the learned trial Court after hearing of the learned counsel for the parties, was of the view that the suit filed by respondent No,1 was neither barred by limitation nor the sale-deed executed by the respondent No,2 in favour of applicant, was legal in view of section 52 of the Transfer of Property Act and that the applicant was neither bona fide purchaser of the shop in question nor the issue regarding statutory tenancy, was pressed by the applicant. The suit filed by respondent No,1, was therefore, decreed by the learned 1st. Senior Civil Judge, Khairpur. The judgment and decree passed by the learned Civil Judge was therefore challenged in Civil Appeal No,43/1983, which was entrusted to the learned 1st Additional District Judge, Khairpur, who vide judgment and decree impugned herein, maintained the judgment and decree passed by the learned Senior Civil Judge and dismissed the appeal; hence the present revision application.
3. ' I have heard Mr.A.M. Mubeen Khan, learned counsel for the applicant and respondent No,11 in person.
4. ' The learned counsel for the applicant very frankly conceded that the decree was rightly passed by the learned Courts below but pressed the sole ground that since the applicant was in possession of property in question since 1969, as such he became the statutory tenant of the respondent No,2 therefore on purchase of the property by respondent No,1 he being tenant and lawful occupier of the property in question, could not be evicted otherwise than due course of law, as such this Court may direct the respondents to adopt the legal and proper procedure for ejectment of the applicant as envisaged under the provisions of Rent Restriction Ordinance, 1979.
5. ' The respondent present in person has contended that the property was purchased by his father in the year, 1969 and about 40 years have passed away but they have been denied to reap the fruit of the decree passed by the Courts below in their favour, as such he prays for dismissal of the revision application.
6. ' I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
7. ' Initially the respondent No,2 sold out the property in question to the respondent No,1 on 9-1-1969 but after obtaining PTD and other necessary documents, he did not pass on or convey the property in question to the Respondent No,
1. Who fraudulently transferred the same to the applicant by way of sale deed. The applicant before the learned trial Court took the defence being owner of the property in question on the basis of sale-deed executed by respondent No,2 in his favour. The legality, validity and propriety of the sale-deed has been considered by the learned trial Court in its judgment and while dealing with the issue No,7 was pleased to observe that the property in question was transferred by the respondent No,2 in favour of applicant during the subsistence of the status quo, therefore, section 52 of the Transfer of Property Act comes in operation which speaks about the principle of lis pendence and since the property could not be conveyed during the course of the pendency of the suit, therefore, the said sale-deed was adjudged to be non- existent in the eye of law. The finding of the trial Court has also been affirmed by the learned appellate Court. There are therefore, concurrent findings on the point of execution of sale agreement by the respondent No,2 in favour of respondent No,1 and subsequent disposal of the property by respondent No,2 to the applicant by way of sale deed, has been adjudged as void. The applicant throughout the proceedings did not press the point that he remained in possession of the property in question being statutory tenant of the respondents Nos.1 and 2. The stand, which has now been taken by learned counsel for the applicant before this Court that being tenant, he could not be evicted from the property otherwise than due course of law as his rights have been safeguarded under the provisions of rent laws has no force and the fact remains that after about four decades he cannot change his instance so as to nullify the judgment and decree passed by the Court below.
8. ' The respondent No,1 also prayed for possession of the property in question in his suit before the learned trial Court and the respondent No,1 being plaintiff could claim possession of the property in dispute on his success before the trial Court. There was no restriction or embargo on the part of the respondent No,1 not to claim the possession of the property in question simultaneously at the time of praying specific performance of the contract. After about four decades the respondent No,1 could not be reverted back at a zero point by accepting the version of the applicant that he being tenant of the property in question, could not be evicted otherwise than due course of law. Even execution of the decree in the suit for specific performance of contract and possession in any way, could not be termed to be illegal or in excess of powers of the Court and the parties regarding execution of the decree by the competent Court. The submissions of the learned counsel for the applicant that the applicant being statutory tenant could not be evicted otherwise than due course of law at this belated stage of the proceedings, therefore, could not be acceded.
9. ' After appraisal of the whole material available on record. I am of- the opinion that the jurisdiction vested with the learned Courts below was exercised by them legally and the jurisdiction exercised by them in any way could not be said to be fanciful, arbitrary or against the material available on record. The judgment and decree passed by the Courts below therefore, does not suffer from any illegality or infirmity so as to interfere in this revision application. The revision application has, therefore, no merits. The revision application was dismissed by short order dated 14-4-2009 for the reasons to be recorded later on, and these are the reasons for the same.