DOST MUHAMMAD KHAN, J.---The petitioner, through this constitutional petition, has sought that a writ be issued to respondent No,1/Sub-Registrar Peshawar to the following effect:-- To declare the act of respondent No,1, attesting the registered sale-deed dated 14-7-2005 despite of receiving copy of the judgment and decree of the competent Civil Court dated 16-7-2003, as null and void.
(ii) That the respondent No,4 be restrained from posing himself to be the owner of the suit property, as the same is the result of transaction based on fraud.
(iii) That the respondent No,1 may be directed to cancel the registered deed dated 14-7-2005.
(iv) That the respondent No,1 be further directed to declare the deed of. General Power of Attorney dated 2-11-2001 having been duly cancelled.
And
(v) That the petitioner be declared as owner of the suit house and respondents Nos.3 and 4 be declared having no connection or concern with the suit house in any manner. Arguments heard and record perused.
2. Brief background of the controversy is that the petitioner executed a deed of General Power of Attorney dated 21-11-2001 in favour of his agent, investing him with powers to alienate the suit house. It was also stipulated that the needful be done within a period of one month and the deed shall remain irrevocable.
3. Suspecting a foul play and fraud on the part of his agent, the petitioner approached the Sub- Registrar for cancellation of the said deed, however, in the meanwhile, the agent transferred the suit property in favour of the second respondent through registered sale deed. Confronted with such hostile circumstances, the petitioner brought a suit for decree of declaration and injunction, seeking cancellation of the deed of General Power of Attorney and the very transaction of sale. The suit was instituted on 30-11-2001, however, the same was dismissed in default due to non- appearance of the plaintiff vide order datedlA 2-1-2002.
4. For restoration of the suit, application was filed and vide order dated 22-1-2002 the suit of the petitioner was restored. During the vacuum period, the suit property was transferred, as stated above, by the agent to the second respondent thus, amended plaint was filed, challenging the very transaction effected during the pendency of a suit having been hit by the principle of lis pendens.
5. The learned trial Judge vide judgment dated 16-7-2003 albeit dismissed the suit, advising the petitioner to approach the Sub-Registrar for cancellation of the deed, however, while deciding vital Issue No,9, held the following view:- "Admittedly the suit of plaintiffs was dismissed in default on 2-1-2002 and later on it was restored vide order dated 22-1-2002. The record of the case file reveals that during this period, defendant No,1 sold out/alienated the suit property to defendant No,2. This transfer/alienation of the suit property being hit by the principle of lis pendens, is illegal. Section 52 of Transfer of Property Act, 1882 reads as follows:-- TRANSFER OF PROPERTY PENDING SUIT RELATING THERETO:- During the pendency in any court having authority in Pakistan or established beyond the limits of Pakistan by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
"Explanation attached to the said provision of law states that:- ' For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
The period between dismissal of a suit in default and its restoration has been settled as lis pendens in a case titled as "Ashutash Roay v. Seeta Ram" (1919 I.C. 727) it is observed by their lordships that:- "If a suit is dismissed for default and then restored, the order of restoration relates back and a transfer after dismissal and before restoration is subjected to the principle of lb pendens."
' Keeping in view the relevant provision of law and the verdicts of the Hon'ble Superior Judiciary, I hold the said transaction of transfer/ alienation of the suit property by defendant No,1 to defendant No,2 as illegal and ineffective.
7. Admittedly, in the instant case the second transfer in favour of respondent No,4 is affected more worstly because by that time the copy of judgment was submitted to the Sub-Registrar and a petition for cancellation of the deed of General Power of Attorney in the shape of `Abtalnamah' was already submitted, therefore, the transaction was manifestly given effect by fraudulently, concealment of facts and by way of misrepresentation.
8. The respondent No,4 is claiming protection of being bona fide purchaser, therefore, he was required under the provision of section 41 of the Transfer of Property Act to have fulfilled all the essential prerequisites before availing the same. It is imperative for a purchaser, claiming bona fide purchase, to inquire into the title of his vendor right from point-A to point-Z and the entire chain of his ownership must be probed into to see that there is no missing link in the chain nor it is clouded by suspicious and doubtful circumstances.
9. In the instant case, the judgment and decree of the competent civil court was attached to the record of the Sub-Registrar along with the petition, seeking cancellation of the deed of General Power of Attorney, moreso, the findings on Issue No,9 conclusively determining the legal position with regard to the first transaction in favour of respondent No,3 thus, nothing was left for speculation because respondent No,3 was declared not to be the lawful owner of the property.
10. It is also bedrock principle of the Transfer of Property Act that one, who has got a better title in a property, can only convey it to another one and because in the instant case title of respondent No,3 in the property was already judicially determined to be illegal, ineffective being hit by the principle of lis pendens, therefore, he was having no title in the property thus, could not convey the same lawfully to respondent No,4 and- when respondent No,4 has not taken the essential required precautions before purchasing the suit property from respondent No,3 then, he is not entitled to the protection of section 41 of the Transfer of Property Act.
11. The plea that the deed of General Power of Attorney was irrevocable, has lost its judicial efficacy and legal worth because the decision rendered by the learned Civil Judge vide judgment dated 16- 7-2003 was never questioned/challenged by the agent in the court of appeal or revision and when it had attained finality then, this plea is fallacious one and would not protect the illegal transaction made in favour of respondent No,4.
12. We suspect that the role of Sub-Registrar, in the entire episode, im not free from foul play having been committed by him or his staff because once he was approached by the petitioner to cancel the deed of General Power of Attorney and the earlier transaction with regard to the suit house was declared by the competent court null and void then, endorsing and attesting further transaction with regard to the suit house was a clear act of mala fide and foul play on the part of the Sub- Registrar and his staff. In any case, under the law, the last transaction in favour of respondent No,4 and the series of transactions so effected, keeping in view the principle of Transfer of Property Act, were null and void and could not be legally protected. Accordingly, for what has been discussed above, this petition is allowed and all the reliefs prayed for, highlighted above, are granted in favour of the petitioner against the respondents. The deed of General Power of Attorney shall be deemed to have been cancelled for all practical and legal purposes and all transactions, made during pendency of the suit, are held to be hit by the principle of lis pendens, therefore, are null and void, of no legal effect and the same are further liable to be reversed without any amount of delay and the property shall be restored in the name of the petitioner. No order as to costs.