' NISAR HUSSAIN KHAN, J.--- Petitioners Mst. Himat Jehan and Subhan Nazir, have called in question the judgment and decree of the learned District Judge, Bannu dated 4-6-2011, vide which Civil Appeal No,41/13. Of 2011, against the judgment and decree of Civil Judge-XI, Bannu, dated 15-2-2011, in a pre-emption Suit No,77/1 of 2007, was dismissed while Cross Appeal No,16/13 of 2011, was accepted on the point of market value.
2. The resume of the facth, forming the background of instant revision petition is that, Attaullah Shah respondent, filed a pre-emption suit, on the sale Mutation No,314 dated 30-4-2007, against Subhan Nazir. The defendant filed written statement, wherein he alleged that the suit property has been transferred by him in favour of his wife Mst. Himat Jehan, vide registered deed No,396 dated 26-5-2007, as such, he is no more owner of the same. On disclosure of the subsequent sale, Mst.
Himat Jehan, the subsequent transferee, was impleaded as defendant, on the application of the plaintiff-Pre-emptor. After framing of issues, the parties were invited to produce evidence in support of their respective stance and on conclusion of trial, the learned trial Court/Civil Judge, decreed the suit in favour of the plaintiff-pre-emptor (now respondent).. This judgment was assailed by the petitioners-defendants by filing an appeal, whereas, the plaintiff/pre-emptor also filed cross appeal, on the point of market value of the suit property. The learned Appellate Court, while dismissing the appeal of the petitioners-defendants, maintained the judgment of the trial Court, whereby suit was decreed in favour of the plaintiff/pre-emptor. However, by accepting the cross appeal of the plaintiff/pre-emptor, the market value was reduced to the amount, as mentioned in suit mutation. Hence, the petitioners-defendants have filed the instant revision petition.
3. Learned counsel for the petitioners vehemently argued that plaintiff-pre-emptor filed a suit qua Mutation No,314 dated 30-4-2007 against Subhan Nazir defendant, whereas, he was not owner of the suit property, at the time of filing of suit. Because he had already transferred the suit property in the name of his wife Mst. Himat Jehan, vide Registered Deed No,396 dated 26-5-2007, on which neither Talb-eMuwathibat nor Talb-e-lshhad, has been made. While both the Courts below, have failed to advert to this legal aspect of the case. He further argued that although, the Deed No,396, has been registered on 26-5-2007, but it was executed on 25-5-2007, so it would be operative from the date of its execution. Thus, the principle of lis pendens would not be applicable in the instant case. He further argued that plaintiff-preemptor, has failed to prove Talb-e-Muwathibat as well as Talb-e-Ishhad as he has not brought on record the AD Cards of the registered letter, to establish that any registered letter was served on the defendant, so his suit is liable to be dismissed.
4. Learned counsel for the respondent argued that mutation was attested on 30-4-2007 and the plaintiff/pre-emptor got the knowledge on 20-5-2007, thus, he there and then, performed Talb-e- Muwathibat, by making jumping demand. Whereas, Talb-e-Ishhad was performed on 26-5-2007, by sending registered letter to the petitioner- defendant. So all the legal requirements under section 13 of the N.-W.F.P. Pre-emption Act, were fulfilled and proved on the record. He further argued that marriage of Mst. Himat Jehan and Subhan Nazir, had taken place in the year 1990, so there was no occasion to transfer the suit property in her name in lieu of dower in 2007. He further contends that during the marital life, Subhan Nazir petitioner-defendant, had purchased so many properties, but he has never transferred the same in the name of his wife, in lieu of dower. So this transfer of the suit property is a mala fide transaction. Learned counsel lastly argued that an application under Order VII, rule 11, C.P.C., moved by the petitioners, on the same point, was turned down by the learned trial Court, so this issue has attained finality, which cannot be re-opened at this stage. Hence, this revision petition is liable to be dismissed.
5. Arguments of the learned counsel for the parties heard at length and record perused with their valuable assistance.
6. The objection of the learned counsel for the petitioner with regard to non-production of AD Cards to prove the performance of Talbe-Ishhad is misconceived. Because, defendant Subhan Nazir, has admitted the receipt of notice Talb-e-Ishhad, in Para No,3 of the Preliminary Objections of his written statement. This admission of the defendant is binding on him in terms of Article-113 of the Qunun-eShahadat Order, 1984, which needs no proof, hence, this objection is not tenable.
7. The argument of the learned counsel for the petitioners on the point of lis pendens, needs consideration. It is admitted position of the case that subsequent Transfer Deed No,396, was executed on 25-5-2007, in favour of Mst. Himat Jehan and was .Registered on 26-5-2007. While the pre-emption suit was also filed on 26-5-2007 and notice of Talb-eIshhad, issued by the plaintiff- pre-emptor, was received by the vendee-defendant on 29-5-2007, after 4 days-of execution of the deed and after 3 days of its registration. So these facts clearly imply that notice Talb-eIshhad was received by the original vendee, after the transfer of property in the name of subsequent transferee, Mst. Himat Jehan. While the date of registration of subsequent transfer deed and filing of the pre-emption suit, is the same i,e, 26-5-2007. Now the question is, as to whether principle of lis pendens would apply, in peculiar circumstances of the case or not? To resolve this proposition, section 52 of the Transfer of Property Act, 1882, is re-produced as below:--- "Transfer of property pending suit relatin' 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 niade therein, except under the authority of the. Court and on such terms as it may impose-.
"Explanation.---- For the purpose 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."
8. After going through the section of law, there remains no room of any doubt that any transfer made during the pendency of any suit would come within the pale of principle of lis pendens.
However, to resolve the controversy in the instant case, the phrase "During the pendency" has got significance. As the date of regi'stration of subsequent transfer deed and that of filing of suit is the same, so the controversy boils down to the point; that whether in this factual background, the subsequent transfer can be termed to have been made "during the pendency" of the suit. The meaning of word "During" as mentioned in Black's Law Dictionary 6th Edition is: "Throughout the course of; "Throughout the continuation or; "In the time of"; "after the commencement and before the expiration of. Likewise, in Chambers Concise 20th Century Dictionary, the word "During" is explained as "throughout the time of", "In the course of". The conclusion which may be drawn from the meanings of the Dictionaries, is that the suit must be pending, when the subsequent transaction is made. In view of the facts narrated above, neither it can be said that the suit was pending, when the subsequent transfer deed was registered, nor the principle of lis pendens can be so overstretched, to bring any subsequent transferee under the net of pre-emption, on the basis of any hypothetical assumption; The principle of lis pendens is an equitable doctrine to protect the property under lis for any prospective decree in the suit. Whereas, every individual citizen has got fundamental right to acquire, hold and dispose of, property in accordance with law in terms of Article 23 of the Constitution of Islamic Republic of Pakistan. The petitioners-defendants have got all those rights, enshrined in the Constitution, while all other laws of the land, are subservient thereto. It is settled principle of law that whatever is not prohibited by any law, is deemed to be permitted by all implications. Thus any lawful device, to save oneself, from a prospective pre- emption is valid.
9. Besides that, section 47 of the Registration Act, postulates that a registered document would take effect from the date of its execution and not from the' date of registration. This principle has been enunciated by the Hon'ble Supreme Court in a case titled, "Ghulam Rasool others v. Akbar Ali and others" 2011 SCM R 794. The relevant part of the judgment is re-produced as under:- "A bare perusal of the said provision of law manifests that a registered document shall operate from the time, day, when it was written and signed and it will create right, title and interest in favour of the transferee from the date of execution and not from the date of registration."
10. Admittedly, the subsequent transfer deed was executed on 25-5-2007 and was registered on 26-5-2007. So in view of the ratio of the referred case, the subsequent transfer was made a day prior to filing of pre-emption suit. Thus the principle of lis pendens is not applicable to this case on this ground, as well. It is undisputed fact of the case, that plaintiff/pre-emptor did not perform Talb-e-Muwathibat or Talb-e-Ishhad qua the subsequent sale nor he alleged any such Talbs in his plaint. Likewise, he did not adduce any evidence in this regard which was sine qua non for successful exercise of right of pre-emption. Whereas the subsequent sale was an independent transaction, which was required to be pre-empted, in accordance with the law of Pre-emption.
Both the Courts below, by misreading of evidence and misapplication of law thereto, have wrongly exercised the jurisdiction while decreeing the suit of the plaintiff/pre-emptor.
11. The objection of the learned counsel that application of the petitioners under. Order VII, rule 11, C.P.C., on the same legal point has been dismissed is also misconceived. When appeal is filed before, the Appellate Court, the whole case is re-opened and all the legal and factual questions can be agitated. Apart from that, a legal point can be raised, at any stage of the proceedings, while, the petitioners-defendants have taken the plea of subsequent sale, at the very outset, in his written statement. So this objection is also not tenable.
12. For the reasons discussed above, this revision petition is admitted and allowed. Consequently, the impugned judgments of the two Courts below are set aside and the suit of the plaintiff/preemptor/respondent is hereby dismissed with no order as to costs.