Anwar Zaheer Jamali, J.--This civil appeal, by leave of this Court vide order dated 16.2.2006, challenges the legality and merits of the judgment dated 19.7.2005 in R.S.A No, 625/1977, passed by learned single Judge in Chambers of Lahore High Court, Multan Bench, whereby the said RSA filed by Mst. Niaz Bibi, the predecessor-in-interest of the appellants herein (in short referred to as "appellant"), was dismissed and consequently the judgments of the two Courts below challenged therein, which were also against Mst. Niaz Bibi, thereby dismissing her suit for possession, being Suit No, 63/1972, were maintained. As the main parties to this litigation are in Courts for a period of over four decades by way of two rounds of litigation, in order to understand their respective case, it will be useful that before proceeding further, a brief history of such litigation may be recorded hereunder.
2. In the first round of litigation, on 25.1.1958, Mst. Niaz Bibi had instituted a suit for possession through pre-emption before the Court of Senior Civil Judge Multan, being Suit No, 47 of 1959, in respect of 81-kanals, 16-marlas land, situated at moza Khanpur (in short referred to as "suit land"), which was owned by her husband Ghulam Mustafa and sold to M/s. Khuda Bakhsh, Ghulam Farid, Ghulam Sarwar, Allah Wasaya and Allah Bakhsh etc. vide registered sale-deed dated 31.1.1957. This suit was compromised on 17.1.1959, precisely, in the terms that 19/20 share from the suit land devolved upon the appellant/pre-emptor on payment of Rs, 20,000/- as pre-emption money, while remaining 1/20 share of suit land remained with the vendees/ defendants in the said suit.
Such amount was admittedly paid by the appellant within time and received by vendees/defendants in the suit. Further, according to her, joint possession of suit land was also devolved/delivered to her as per report dated 24.9.1959. As it appears from the record, incidentally, the mutation of this pre-emption decree drawn in terms of Order XX, Rule 14 CPC, could not be effected in the revenue record due to some mistake in khasra number in the warrant of possession issued by the executing Court and the execution application filed by the appellant was also eventually dismissed for non-prosecution on 1.7.1960.
3. The second round of litigation commenced when the appellant filed a declaratory suit in order to challenge some other sale transactions of the suit land made by her husband Ghulam Mustafa in favour of same vendees etc. This suit was, however, withdrawn on 2.3.1970 with permission from the Court to file a fresh one, and thereafter on 13.7.1970, another suit for possession was instituted by her against the respondents/their predecessors to challenge various transactions of sale of suit land, including sales vide mutation Entry No, 30 dated 9.11.1965, and mutation Entry No, 61 dated 26.5.1967, etc. This suit was hotly contested by the defendants, except Defendant No, 1 Ghulam Mustafa, who, in his written statement dated 20.1.1972, conceded to the claim of the appellant (his wife). Defendant No, 2 to 6, in their written statement dated 10.12.1971, so also Defendants No, 7 to 9 in their written statement filed in Court on 2.10.1970, did not dispute most of the factual assertions made by the appellant in her plaint regarding previous litigation about the suit land, but disputed the claim of the appellant for passing a fresh decree for possession in her favour, mainly on the plea, they being bona fide purchasers of the suit land for valuable consideration. They also challenging the authenticity of the earlier decree dated 17.1.1959, passed in Suit No, 47/1959 by way of compromise, being not executed in time and in accordance with law, thus extinguished. It is pertinent to mention here that in all the transactions of sale challenged by the appellant in her subsequent Suit No, 63/1972, transacting parties were either the same, who were parties to the earlier round of litigation, i,e, Suit No, 47/1959, or those who had subsequently transacted and purchased different portions of suit land through them.
4. On the pleadings of the parties, following issues were framed by the trial Court of civil Judge, Multan on 23.2.1972:-- "1. Whether the suit is collusive? OPD Defendant No, 1, 7 to 11.
2. Whether the suit is barred by time? OPD No, 7 to 11.
3. Whether the suit is bad for mis-joinder of parties and causes of action? OPD No, 7 to 11.
4 Whether the plaintiff is estopped by her conduct from bringing this suit? OPD No, 7 to 11.
5. Whether Defendant No, 7 is a bona fide purchaser for value from an ostensible owner, if so what is its effect? OPD No, 7 to 10.
6. Whether the alleged decree of pre-emption in favour of the plaintiff has become ineffective as it was not executed within time? OPD No, 7 to 10.
7. What is the effect on the present suit of the previous suit filed by the plaintiff on the same cause of action? OPD 11.
8. Whether the suit is not maintainable without depositing the mortgage money under protest?
OPD No, 11.
9. Whether the plaintiff is the owner of the land in dispute, free of encumbrance, under a decree of pre-emption dated 17.1.59? OPP
10. Whether Defendant No, 1 was not competent to effect any sale in favour of Defendants No, 5 to 7 or to mortgage in favour of Defendant No, 11? OPP."
After recording of evidence and due contest between the parties, the suit of appellant was dismissed by the Court on Civil Judge, Multan vide its judgment dated 7.9.1973, precisely, for the reasons that said suit was barred by Section 47(1) CPC and due to non-execution of earlier preemption decree in time, it became infructuous and un-executable.
5. The appellant being aggrieved by this judgment, then preferred an appeal under. Section 96, C.P.C. before the Court of District Judge, Multari, being Civil Appeal No, 625/1977. During the pendency of this appeal, in order to bring on record some documents regarding the earlier round of litigation between the parties, which according to the appellant were necessary for just and proper decision of the controversy involved in the suit, an application under Order-XL, Rule-27, CPC was moved by the appellant on 13.11.1974, which was, however, dismissed by the appellate Court, vide its order dated 26.11.1974. This order of the appellate Court on an interlocutory application moved by the appellant was then challenged by her before the High Court, in a C.R.A., but unsuccessfully, as the said civil revision application was also dismissed, with the observations that miscellaneous appeal was incompetent as this ground/grievance could be agitated/urged by the appellant after final disposal of main appeal by the District Judge. Eventually, the said first appeal was heard by the Court of Additional District Judge, Multan and dismissed, vide judgment dated 14.7.1977, thereby concurring with the conclusion regarding the dismissal of the suit recorded by the trial Court of senior Civil Judge, Multan.
6. Against such concurrent findings of the two Courts below, on 13.8.1977, the appellant filed RSA No, 625/1977, before the Lahore High Court, Multan Bench, which was heard by learned single Judge in chambers of the Lahore High Court on 19.7.2005 and by his impugned judgment dated 28.7.2005, it was also dismissed. Against these concurrent findings of the three Courts below, civil petition for leave to Appeal No, 2181/2005, out of which this civil appeal arises, was filed before this Court wherein leave to appeal was granted to consider similar points in dispute as involved in another C.P.L.A. No, 1369/2002, wherein, leave to appeal was earlier granted, vide order dated 8.2.2003.
7. Although, in terms of leave granting order dated 16.2.2006, this appeal has been clubbed with Civil Appeal No, 14 of 2003 (re: Noor Khan versus Muhammad Rafique etc.) arising out of C.P. No, 1369 of 2002), but as the facts and circumstances of the two appeals are drastically different, we propose to decide the other Civil Appeal No, 14 of 2003 by a separate judgment, and therefore, confine ourselves in this judgment only to the extent of Civil Appeal No, 831 of 2006.
8. Mr. Gulzarin Kiani, learned Sr. ASC for the appellant, addressing this Court, in the first instance, gave detailed history of litigation between the parties, as already noted above, and contended that after the compromise decree in Suit No, 47 of 1959, and payment of pre-emption money strictly in terms thereof, which is an admitted position, 19/20 share in the suit land admeasuring 81 Kanals 16 Marlas at Mouza Khanpur had exclusively devolved upon the present appellant, irrespective of the fact whether she had received its possession in terms of report of the tapedar dated 24.9.1959, which is otherwise quite clear on this point, or not. As an alternate plea, he also contended that in case the actual physical possession of suit land was not delivered to the appellant, as disputed by the respondents, still, by operation of law, being co-owner in the suit land with some of the defendants in the proceedings, she remained in joint constructive possession of the suit land. Thus, she cannot be non-suited on this hyper-technical ground raised by the defendants in order to protect their baseless claim over the suit land. In the same context, in order to establish the clear title of the appellant towards the suit land, learned Senior ASC also made reference to some reported cases, which, according to him, lays down the principle that in terms, of Order XX, Rule 14 CPC, the moment pre-emption money was deposited by the pre-emptor in compliance of the decree passed by the Court in a pre-emption suit, he/she acquires complete title in suit land, irrespective of the fact, whether necessary mutation was effected in the revenue record or possession, physical or constructive, was delivered to him/her, or not.
9. Learned Sr. ASC for the appellant also made specific reference to sub-section (2) of Section 47 CPC, to amplify the legal position that the bar of filing another suit envisaged under sub-section (1) to Section 47 CPC had no application to the facts and circumstances of the case, as under sub- section (2) (ibid) the Civil Court had ample power to convert the proceedings of a suit into any other proceedings and vice-versa. Making reference to the documents, now placed on record on behalf of the appellant through C.M.A. No, 1281 of 2010, most of which relate to the earlier round of litigation between the parties by way of Suit No, 47 of 1959 and execution proceedings arising there from, submission of the learned Sr. ASC was that these documents are nothing but admitted record of previous litigation, which the appellant wanted to place on record for perusal and proper assistance of the appellate Court, but to his misfortune in.this regard, she was non-suited by the appellate Court as well as by the High Court, on mere technical ground, least realizing the relevancy and importance of these documents for just and fair adjudication of the whole controversy between the parties. While addressing this Court, he also contended that the order regarding rejection of application under Order XLI Rule 27 CPC by the. appellate Court, vide its order dated 26.11.1974 and the honourable High Court vide its order dated 25.3,1977, were also challenged by the appellant in his RSA before the High Court, but this aspect of the matter remained untouched and unattended in the impugned judgment, therefore, to meet the ends of justice, now production of these documents may be allowed or they be taken into consideration in order to foster the cause of justice and to save both the parties from another round of litigation, which is a possibility, consequent to an order of remand of the case; if passed on this ground. To fortify his submissions, in this regard he made reference to Article 112 of the Qanun-e-Shahadat Order, 1984 (Section 57 of the Evidence Act, 1872), and the case of Habibullah versus Muhammad Ahmad Khan (PLD 1973 Note 109). He also placed reliance upon the case of Zar Wali Shah versus Yousaf Ali Shah (NLR 1992 SW 655), which lays down as under: "Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed documents/signatures, the Court has ample power to collect the same evidence, and to do the needful so as to advance justice rather injustice. The concept of bar against filling gaps through additional evidence is no more available in present Pakistan Jurisprudence and the law; including the precedent law on Islamic principles; which are being made applicable progressively to proceedings before Courts and other forums which are required to record/admit evidence.
10. To further dislodge the claim of respondents, learned counsel vehemently contended that the judgment of all the three Courts below against the appellant are based on misreading and non- reading of evidence, inasmuch as, none of the three Courts below realized/noticed a hard fact that in terms of pre-emption decree in favour of appellant passed in Suit No, 47 of 1959 dated 17.1.1959, Ghulam Mustafa, subsequent vendor of the suit land in favour of defendants had, in any case, completely divested himself of all rights, title and interest in the suit land, which therefore, could not have been passed on by him again to any third party. He also urged that the observations of the Courts below that the appellant and her husband Ghulam Mustafa were in league with each other are contrary to record and have also no force, as Ghulam Mustafa was a known cheater, who had been defrauding different people and, for his sins, the appellant cannot be penalized; more so, when throughout she had been vigilant in pursuing her remedy against him before the Courts of law, with particular reference to his character/conduct, and other defendants, who again fraudulently acquired title in the suit land from him through mutation entries etc. were already well aware about the past chequerred history of litigation regarding the suit land. Addressing the Court, on the plea of bona fide purchaser for valuable consideration raised by some of the defendants in the suit (now their successors-in-interest), learned Sr. ASC contended that the previous history of litigation regarding the suit land qua acquiring clear title by the appellant in respect of suit land in terms of the decree dated 17.1.1959 was well within the knowledge of all these parties, therefore, such plea is absolutely untenable in law. Making further submission in the some context, he also urged that the plea of bona fide purchaser for valuable consideration in terms of Section 41 of the Transfer of Property Act, pre-supposes a clear transferable right, title or interest in favour of the vendor, which was lacking in the instant case. Obviously, if some person has purchased a property from a stranger/person having no title over it, he cannot resist the title of actual owner of the property by taking such plea, as in the instant case. Addressing the Court on the point of maintainability of the suit, further submission of the learned Sr. ASC was that in view of fraudulent transactions of sale between appellant's husband/ Ghulam Mustafa and the defendants, so also the defendants inter se, which have caused clouds over the clear title of the appellant, a distinct and fresh cause of action has accrued in her favour and for this reason the subsequent suit was competently instituted, which was not barred either by virtue of subsection (1) to Section 47 CPC or on the principles of resjudicata or estoppel. He also contended that till today, the legal heirs of the appellant are in possession of the suit land and even otherwise in view of the judgment of the Shariat Appellate Bench of this Court in the case Maqbool Ahmad versus Hakoomat-e-Pakistan (1991 SCMR 2063), the plea of adverse possession raised by anyone of the defendants was not tenable in law. Therefore, considering all his submissions this appeal may be allowed, concurrent findings of three Courts below, which are bereft of merits, may be set aside and the suit of the appellant may be decreed as prayed. In the end, to fortify his submissions, learned counsel made reference to the following case law:--
(i) Ali Ahmad versus Muhammad Fazal (PLD 1973 Lahore 207)
(ii) Ali Ahmad versus Muhammad Fazal (1972 SCMR 322)
(iii)Moulvi Abdul Qayyum versus Ali Asghar Shah (1992 SCMR 241)
(iv) Muhammad Inayat versus Ghulam Murtaza (PLD 1987 Lahore 537)
(v) Shahra versus Member, Board of Revenue (2004 SCMR 117)
(vi) Mst. Hakam Bibi versus Khushi Muhammad (2007 SCMR 983)
(vii) Sita Ram Pande versus Madho Pande (AIR 1914 Allahabad 440)
(viii) Muhammad Fazal versus Member, Board of Revenue, West Pakistan, Lahore (PLD 1974 Notes 56)
(i) In the first case of Ali Ahmad relating to the execution of compromise decree in a pre-emption suit, a learned Division Bench of Lahore High Court held that where the trial Court passed a decree for possession on the basis of pre-emption in favour of the respondent/pre-emptor as a result of compromise which was arrived at between the parties. The respondent paid the entire amount in the Court, the decree conclusively determines the rights of the parties with regard to the matters in controversy in the suit. The suit for pre-eniption has special incidents. The property vests in the vendee by virtue of the sale made in his favour by the vendor. Therefore, when a person files a suit to pre-empt the sale, he does not do so in the exercise of any right in the property but on the basis of his statutory right to pre-empt the sale. He, therefore, does not have any existing right in the property when he .institutes the suit. It is only when the decree is passed and the payment is made that the decree becomes final in his favour and he becomes vested with the property. The . decree in a pre-emption case is passed in accordance with the provisions contained in Order XX, Rule 14 (1), C.P.C., which lays down that where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid in the Court the decree shall (a) specify a date on or before which the purchase money shall be so paid; and (b) direct that on payment into Court of such purchase money together with the costs (if any), decree against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver the possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment........
(ii)In the, second case of Ali Ahmad, which was a petition before this Court against the above discussed judgment of Lahore High Court, it was held by this Court that when a valid decree in a pre-emption suit was passed in favour of a party he became owner of the property on payment of purchase price, and thus, became vested with the right, interest and title in the land from that date.
He was, therefore, entitled to get mutation effected on the basis of the decree. Mere fact that the decree was barred by time, therefore, it has lost its utility was not correct as the revenue authorities were under obligation to enter mutation on the basis of such decree.
(iii)In the third case of Maulvi Abdul Qayyum, with reference to the provisions of Order XX, Rule 14 CPC, scope of decree framed in a pre-emption suit was discussed and it was held that such decree being of a particular nature, title of property would accrue to decree-holder on payment in Court of purchase money together with costs, if any. Such requirement as envisaged by provision of Order XX, Rule 14 Civil Procedure Code, 1908, having already been complied with by the preemptor/decree holder, irrespective of the fact whether possession was delivered to him or not, title in the property would vest in him and he would be owner of the land in question. The opposition of execution of such decree by defendant/judgment debtor was thus all the more ethereal.
(iv)In the fourth case of Muhammad Inayat, judgment authored by learned Single Judge of Lahore High Court, Lahore, lays down the principle that where in a preemption suit in the earlier execution proceedings only constructive possession was delivered, another miscellaneous application was maintainable to secure actual physical possession of the suit land, which cannot be termed as filing of fresh execution petition. In the same context, examining the powers of the executing Court qua scope of Section 47 of the CPC, it was held that although the executing Court cannot go beyond the decree at the stage of execution, but at the same time, it was bound to determine the true intent of the decree so as to effectually implement it.
(v)In the fifth case Shahra relating to sanction of mutation on the basis of decree for pre-emption passed by the Civil Court, it was held that on deposit of pre-emption money as ordered in pre- emption decree, the pre-emptor/decree -holder was vested with full ownership rights of land the subject matter of the suit of pre-emption about which decree was passed. In such circumstances, sanction of mutation could be made on the basis of decree under revenue law, without resorting to Executing Court. The executing Court in such matters would be involved in case the judgment- debtor failed to deliver possession of the land which was required to be delivered by Executing- Court by issuance of warrant of possession. Law did not require that before sanction of mutation on the basis of pre-emption decree, the Revenue Authorities should have required the pre-emptors to obtain order from Executing Court.
(vi)In the sixth case of Mst. Hakam B6bi again the provisions of Section 48, Order XX Rule 14 and Order XXI Rule 36 were discussed with reference to execution of a preemption decree, and it was held that the judgment in favour of the petitioner/pre-emptor was conditional, subject to payment of balance amount, which had been deposited by him within the prescribed period, therefore, he should be awarded relief in terms of Order XX, Rule 14 CPC, wherein after satisfying the decree regarding payment, decree holder was not required to file execution petition. In order to sustain the claim of the preemptor/decree holder further reliance was placed on the principle laid down in the case of Moulvi Abdul Qayyum, referred to above, and to the case of Syed Phul Shah (PLD 1991 S.C. 1051), which lays down as under:-- "It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the whiner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle; justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional principles in Islam come to the aid when, one exerts.".
(vii) In the next case of Sita Ram Pande from Indian jurisdiction, provisions of Section 47, Order XXI Rule 36 CPC were discussed and it was held that where sale price was deposited in Court on obtaining preemption decree, the mortgagee/pre-emptor for became full owner and further execution was not necessary.
(viii) In the last case of Muhammad Fazal dealing with a decree passed in a suit for pre-emption, it was held that in such cases title in the suit land passes to the pre-emptor/decree-holder on or from the date the money was paid by him in Court and the Revenue Authorities have, thus, no jurisdiction to refuse sanction of mutation.
11. Conversely, Syed Iftikhar Hussain Gillani, representing Respondents No, 2 to 4, before us, who have purchased the suit land from Respondent No, 10, during the pendency of this litigation, vide registered sale-deed dated 21.10.2009, strongly supported concurrent findings of three Courts below in favour of his clients' predecessors. For this purpose, his first submission was that due to none delivery of actual physical possession of the suit land to the appellant in terms of the compromise decree dated 17.1.1959, as evident from the dismissal of execution application, vide order dated 1.7.1960, which is an admitted position, the title of the appellant in the suit land to the extent of 81 Kanals 16 Marlas, Mouza Khanpur extinguished and therefore, she had no locus standi to challenge the subsequent transaction of sale of suit land by her husband Ghulam Mustafa in favour of defendants from whom subsequently his clients have purchased the suit land for valuable consideration. At this stage, when learned counsel was confronted with a question, as to whether Respondents No, 2 to 4, represented by him, who have acquired title in the suit land in the year 2009, through Respondent No, 10 can independently resist the claim of appellant over the suit land, Mr. Gillani conceded that any judgment passed in this appeal against the original buyers of the property from Ghulam Mustafa will be binding on them, as after purchase of suit land for whatever consideration they have stepped into their shoes. In order to challenge the maintainability of the suit filed by the appellant, he also made reference to Sections 47 & 48 CPC, which respectively amplify the legal position regarding bar of filing of second suit on the same cause of action, subject to sub-section (2) (ibid), and bar for filing fresh execution proceedings on expiry of six years period of limitation prescribed for this purpose. The ,pith and substance of arguments of Mr. Gillani was that after passing of compromise decree dated 17.1.1959, in favour of appellant, due to non-delivery of actual physical possession and non-change of mutation, after dismissal of execution application on 1.7.1960, the appellant ceased to hold any legally enforceable title in the suit land: However, when the learned counsel was posed another question as to how Ghulam Mustafa could sale or alienate the same land twice in favour of predecessor-in-interest of his clients and how, despite compromise decree dated 17.1.1959, he retained/acquired transferable title in the suit land, he could not offer any satisfactory reply, but contended that, to him also, it looks strange that Ghulam Mustafa could again sale the same suit land to the predecessor-in- interest of his clients, though not only they were party and had full knowledge of previous round of litigation between him, his wife Mst. Niaz Bibi, and original vendees, who again purchased the suit land from him through Mutations No, 30 dated 9.11.1965 and No, 61 dated 26.5.1967 etc. He also strongly disputed the interpretation of the provisions of Order XX, Rule 14 CPC advanced by Mr. Kiani, in aid of the claim of appellant, who in this regard had placed reliance upon the case of Muhammad Inayat versus Ghulam Murtaza (PLD 1987 Lahore 537). In the end, learned Sr. ASC also argued that the norms of justice, fair play and equity, which are to be strictly followed in dispensation of justice, also demand dismissal of this appeal as both Mst. Niaz Bibi the original plaintiff in the suit and Ghulam Mustafa her husband, who was Defendant No, 1 in the suit, and had sold the suit land to the predecessor of his clients, are no more in the world and they have been substituted by the same legal heirs. In such circumstances, in case this appeal is allowed, due to the collusive game between the plaintiff and Defendant No, 1, who were wife and husband inter se, their common legal heirs will be benefited, while the defendants shall suffer irreparable loss both in terms of money and reputation, as their huge investment in the suit land will be wasted flue to such fraudulent game. To gain support to his submissions, Mr. Gillani, learned Sr. ASC for Respondents No, 2 to 4 also cited following case law:-- (a)Riaz Hussain versus Muhammad Akbar (2003 SCMR 181)
(b)Mst. Ikram Bibi versus Province of Punjab (PLD 2003 Lahore 102)
(c)Haji Abdul Wali Khan versus Muhammad Hanif (1991 SCMR 2457)
(a) In the case of Haii Abdul .Wali Khan, dealing with two connected civil appeals relating to execution proceedings regarding an order of eviction under Section 17 of the Balochistan Urban Rent Restriction Ordinance, 1959, provisions of Section 47 CPC and Order XX, Rules 100 and 101 were examined and it was observed that the principle underlined for execution of decrees and orders was that every Court had inherent powers to have its order carried out or enforced, otherwise orders of Courts would be a mere farce. Legislature had empowered. Courts executing decrees to determine all questions relating to execution_ discharge or satisfaction of decree and not by separate suit and the object of Section 36 CPC was to save unnecessary expenses and delay and to afford relief finally, at low cost and speedily without necessity of a fresh proceedings. It was further observed that Rules 100 and 101 of Order XXI CPC gives special power to the executing Court to also decide the claim of third party in his own rights, if affected by execution of decree.
(b)In the case of Riaz Hussain and others, scope of Section 47 CPC was examined, and it was held that a statute should be interpreted in a manner, which suppresses a mischief and advance the remedy, therefore, mere technicalities, unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of words should yield to the logic of realities.
(c)In the case of Mst. Ikram Bibi again the scope of Section 47 CPC was examined with reference to the execution of decree in a suit for specific performance and it was held that contentions that despite the fact that the deed has been executed in favour of decree hold by the concerned Government Department, but because the process of execution under Civil Procedure Code, 1908 had not been followed to achieve the goal, the transfer of title was invalid, was misconceived and had no force.
12.It will be pertinent to observe here that none of the above-cited three cases at the Bar, have any material nexus to the provisions of Order XX, Rule 14 CPC relating to a decree passed in a pre- emption suit, thus, the same are distinguishable and of no help to the case of Respondents No, 2 to 4.
13.Mr. Kanwar Intizar. learned ASC for Respondents No, 7 to 10, while adopting the arguments of Syed Iftikhar Hussain Gillani, also added that story of delivery of actual physical possession pleaded by the appellant on the basis of report of tapadar dated 24.9.1959 available at page 156 of the Court file, is a managed document, which is materially contradicted by other documents placed on record by the appellant with her C.M.A. No, 1281 of 2010, clearly showing that no warrant of possession issued by the executing Court was served and eventually due to non-prosecution, such execution application was dismissed on 1.7.1960, and thereafter neither its restoration was sought nor any fresh execution application, to seek implementation/execution of such decree dated 17.1.1959 in Suit No, 47 of 1959, was filed. Learned ASC, however, could not controvert the fact that in terms of compromise decree, all the defendants in that suit, except Defendant No, 1 Ghulam Mustafa, and on the other hand appellant, after payment of pre-emption money, had become co- owner in the suit land to the extent of 1/20 and 19/20 share respectively, therefore, legally and technically, possession of one co-owner shall be deemed to be the possession of all co-owners.
Learned ASC was also unable to controvert the fact that the benefit available to a bona fide purchaser for valuable consideration, in terms of Section 41 of Transfer of Property Act, 1882, protects only such transactions, which had taken place at the hands of a party, who was lawful owner of subject property and any transaction based on fraudulent sale made by a stranger/ person having no right, title or interest in the property cannot be protected on this score.
14. We have carefully considered the arguments advanced before us by the parties' counsel at length and minutely perused the whole case record, which reveals that the facts relating to the first round of litigation to the extent of passing of compromise decree dated 17.1.1959; filing of execution proceedings relating to said compromise decree, which were dismissed for non-prosecution vide order dated 1.7.1960; filing of declaratory suit by the appellant, which was withdrawn with permission to file fresh suit, vide order dated 2.3.1970; filing of fresh suit for possession against the respondents/their predecessor; purchase of suit land by Defendants No, 2 to 4 from Defendant No, 10 during the pendency of this appeal, vide registered deed dated 21.10.2009 are some of the admitted facts in this case. In a nutshell, the whole stress on behalf of appellant is that in the light of judgment referred to above, the moment pre-emption money was deposited by her in Court and received by vendees in terms of the compromise decree dated 17.1.1959, absolutely clear title of the suit land admeasuring 81 Kanals 16 Marlas, Mouza Khanpur devolved upon her to the extent of 19/20 share, and therefore, subsequent dismissal of her execution application due to non- prosecution has no bearing over it, firstly, for the reason that actual physical possession was delivered to her as per report of tapadar dated 24.9.1959, and secondly, admittedly, she was co- owner in the suit land; thus, possession of the defendants having 1/20th share in the suit land in terms of compromise decree, was also her joint legal possession for all practical purposes. Further, from any stretch of imagination, defendant Ghulam Mustafa, husband of the appellant Mst. Niaz Bibi had no legal/saleable title in the suit land, which fact was well within the knowledge of the defendants/buyers of the suit land from him, being party to the earlier round of litigation. Mere fact that the appellant and Respondent No, 1 were wife and husband inter se, in this background of litigation, cannot be accepted as collusion between them, as held by the revisional Court in its impugned judgment. In order to further examine the valuable submissions made by learned Sr.
ASC for the appellant, it will be advantageous to reproduce here the provisions of Order XX, Rule 14 CPC, relating to decree in pre-emption suit as well as the provisions of Section 47(1) and (2) CPC, strongly relied upon by the respondents on the question of maintainability of said Suit No, 63 of 1972, the same are, therefore, reproduced as under:-- "Order XX
14. Decree in pre-emption suit.--(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall-- (a)specify a day on or before which the purchase-money shall be so paid, and (b)direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,-- (a)if and insofar as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing, to comply with the said provisions would, but for such default, have taken effect; and (b)if any insofar as the claims decreed are different in decree, that the claim of the inferior pre- emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provision.".
47. Questions to be determined by the Court executing decree.--(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2)The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees.
(3) ..................
15. A plain reading of above reproduced Rule 14 of Order XX reveals that for preparation and implementation of decree passed in a pre-emption suit, a particular procedure has been laid down, which provides the manner for payment of purchase money, in case it has not been paid in the Court earlier, with delivery of possession of the property to the pre-emptor and the mode and manner through which the title of the pre-empted property shall be automatically acquired by the preemptor from the date of payment of pre-emption money. The specific' language of Order XX, Rule 14 (ibid) has been subjected to detailed discussion in some of the judgments cited by Mr. Kiani, learned Sr. ASC for the appellant, as referred to and discussed above.
16.From the reading of these judgments, ratio &mat the scope and import of Order XX, Rule 14 CPC is quite evident, that irrespective of the fact that actual physical possession was received by the appellant/pre-emptor in terms of the compromise decree or not. Upon payment/deposit of pre-emption money in Court in terms of the decree which was also received by concerned respondents in the instant case, she acquired absolute title of suit land in her favour. On the other hand, language of Section 47(1) & (2), CPC goes to show that all questions relating to execution, discharge or satisfaction of the decree, arising between the parties or their respective legal representatives to a suit wherein decree was passed, are to be determined by the executing Court and filing of separate suit for this purpose is barred, but subject to the eventuality that proceedings in the suit can be treated as proceedings under this section and vice versa. However, this section does not bar filing another suit regarding the same subject matter, when based on fresh/distinct cause of action. This being the legal position, dismissal of her pending execution proceedings on 1.7.1960 for non-prosecution had no adverse bearing to her claim. Moreover, the position regarding delivery of possession emerging from the case record, over and above the facts stated in the report of tapedar dated 24.9.1959, also gain corroboration from the record of execution proceedings, showing issuance of warrant of possession by the executing Court, or in the alternate delivery of constructive possession over the suit land to her, being admittedly co-owner to the extent of 19/20th share alongwith the defendants in the earlier suit for pre-emption, except Defendant No, 1.
17.When we look at the judgments of the three Courts below, keeping in view the above factual and legal position in mind, we find that all the three Courts below misread the case record and misdirected themselves as regards the correct factual and legal position qua execution of a decree passed in a pre-emption suit in terms of Order XX, Rule-14, and thus, formed an erroneous view in the matter by giving undue importance to the factum of dismissal of earlier execution application on 1.7.1960 for non-prosecution. As a matter of fact, this Court is justified in recording a presumption in favour of appellant that it was consequent to the delivery of actual physical possession of the suit land in terms of the report of tapadar, referred to above, or in the alternate joint possession as co-owner that having already acquired title of the suit land in her favour after payment of pre-emption money to the buyers, she did not felt necessity to further pursue the said execution proceedings.
18.Looking at the case record from another angle, we find that it is also an admitted position from the record that after the execution of registered sale-deed dated 31.1.1957 by Defendant No, 1 Ghulam Mustafa in favour of other defendants in the earlier suit, which completely divested him from all his rights, title and interest in the suit land, irrespective of the compromise decree dated 17.1.1959, he had no conveyable right, interest or title in the suit land, as neither he was authorized representative of his wife Mst. Niaz Bibi under any law nor she had delegated him any such powers for sale of suit land to the defendants, while mere entry in the revenue record in his name was not a proof of his title in suit lard. More so, in the background that the buyers of the suit land, to whom Ghulam Mustafa again sold different pieces of suit land, vide mutation Entries No, 30 dated 9.11.1965 and 61 dated 26.5.1967, etc were party to the earlier round of litigation; thus, had full knowledge of the fact that Ghulam Mustafa had no locus standi to deal with the suit land on behalf of his wife Mst. Niaz Bibi. The alleged cordial relationship of appellant with her husband, as observed by the revisional Court in its impugned judgment could be very well judged/understood from the fact that she twice opted to go into litigation with him to seek/save title of the suit land in her favour. Further, it has also come on record that the appellant, when she appeared in the witness box to depose, had no knowledge about the whereabouts of her husband Ghulam Mustafa, who was also not putting up with her since long. In our opinion, these were some of the material facts circumstances of the case, which ought to have been taken into consideration by the revisional Court in order to fortify the genuine claim of appellant over the suit land, and to discard the plea of defendants regarding any collusion between the appellant and her husband Ghulam Mustafa, but a contrary view was taken by the revisional Court, which seems to be conjectural.
19.When we look at the arguments of Mr. Gillani, from yet another angle we find material contradictions in the case of Respondents Nos, 2 to 10, who have common interest in this lis. In case earlier decree dated 17.1.1959, in favour of appellant in respect of suit land admeasuring 81 Kanals 16 Marlas had lost its legal status or it extinguished or had become in-executable, as claimed on behalf of these respondents, then in such a situation, automatically the earlier sale transaction of suit land, vide registered sale-deed dated 13.1.1957, in favour of defendants in the earlier suit, except defendant Ghulam Mustafa, which was subject matter of litigation in the earlier suit for preemption should have revived in their favour. Thus, in that situation there was no occasion for fresh transaction of sale of suit land between Ghulam Mustafa as seller, and the defendants as buyers, so as to give legal sanctity to any subsequent sale mutations etc. of the suit land, which were, therefore, lawfully challenged by the appellant in her subsequent Suit No, 63/1972, being fraudulent and based on fresh cause of action.
20.Reverting to the arguments of Mr. Gillani, learned Sr. ASC, premised on Section 47(1) CPC, as reproduced above, keeping in view the submission of Mr. Kiani, learned Sr. ASC for the appellant, as noted above, we have no hesitation to held that fresh cause of action had accrued in favour of appellant for filing another Suit No, 63 of 1972, and such proceedings had no nexus with the proceedings in the earlier suit for pre-emption; compromise in terms of decree dated 17.1.1959 or dismissal of earlier execution application for non-prosecution. Therefore, the provisions of Section 47 were not attracted to operate as bar for institution of such suit. In addition to it, sub-section (2) to Section 47 CPC also provided a safety valve in favour of the appellant to meet such a situation and to save failure of her legitimate claim against other party on such technical ground. Moreover, as we have held in the earlier part of this judgment that clear title of suit land had devolved upon the appellant on payment of pre-emption money to the vendor in terms of compromise decree in a pre-emption suit, therefore, Section 47 CPC totally lost its efficacy and applicability to the extent of Suit No, 63 of 1972, which was based on fresh and distinct cause of action. A reference to Section 48 CPC made by learned Sr. ASC for Respondents No, 2 to 4 is also equally devoid of force, as we have already held in favour of appellant that for filing subsequent suit, she had a fresh cause of action, therefore, it was not overshadowed in any manner by the earlier litigation between the parties in the form of Suit No, 47 of 1959 etc. 21.As a sequel of above discussion, we record our conclusion that findings of all the three Courts below, impugned through this appeal, being based on misreading and non-reading of evidence, are not sustainable in law, and liable to be set aside. Accordingly this appeal is allowed, the impugned judgments of the revisional Court as well as other two Courts below are set aside and the suit of the appellant is decreed as prayed.