' This judgment shall dispose of the appeal in hand (R. S. A. No, 547/79) as well as Civil Revision No, 757/9 of 1979.
2. The facts giving rise to these two matters are that certain land belonging to appellants. Munir Hussain and 5 others, was sold by the appellant No, 4, Fida Hussain, in favour of Respondent No, 2, Fazalur Rehman, by means of a sale deed whch was registered on 10th January, 1978. On 15th April, 1978, a suit was filed by No. 1. Muhammad Shafi against respondent. No, 2 pre-empting the aforesaid sale. Respondent No, 2 could not be served in the ordinary manner and therefore. Service was affected on him by proclamation in a newspaper despite. That, he did not put in appearance before the Civil Judge who was seized of the suit. Therefore, ex parte proceedings were ordered against him and eventually an ex parte decree was also passed against him on the basis of the evidence produced by the first respondent.
3. The pre-emption suit was still pending when the appellants, other than appellant No 4, instituted a suit for declaration to the effect that the sale of the disputed land made by the appellant No, 4, was void ineffective as he (appellant No, 4) had no authority to sell the land on their behalf. This suit was filed on 9th September, 1976. Against appellant No, 4 and respondent No,
2. On 25th September, 1978, the defendant in that suit appeared before the Civil Judge, who was seized of the suit, and made statements confessing judgment.Suit was therefore, decreed,
4. Feeling aggrieved by the decree passed in the pre-emption suit, the appellants filed an appeal before the District Judge. On the other hand, being dissatisfied with the declaratory decree obtained by the appellants other than respondent No, 4 the first respondent went in appeal before the learned District Judge against that decree. The learned District Judge accepted the appeal filed by respondent No. 1 and dismissed the appeal preferred by the appellants. The appellants have, therefore, come up in second appeal against the judgment and. Decree of the learned District Judge in so far it relates to the first appeal filed by them. They had also filed Civil-Revision No, 757/D of 1979 to challenge the said judgment and decree in so far as it -pertains to the acceptance of the appeal of respondent No, against the declaratory decree passed by the trial Court in favour of the appellants.
5. The main reason given by the learned District Judge for giving verdict against the appellant was that the declaratory decree in the favour was hit by the principle of lis pendens as laid down in section 5 of the Transfer of Property Act, 1882. Relevant portion of section 5 reads thus :- "52. Transfer of property pending suit relating thereto.-Durin the pendency in any Court having authority in Pakistan o established beyond the limits of Pakistan by the Central Government,.. ...... Of any suit of 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."
6. Learned counsel for the appellants contended that since respondent No, 2 (vendee) had not transferred the disputed land to the appellants or anyone else during the pendency of the pre- emption suit against him and had, instead, made statement, in the declaratory suit, to the effect that the sale in his favour was not valid, the decree passed in the declaratory suit was not hit by the principle of lis pendens.
7. 1 am unable to agree with the learned counsel for the appellants. Section 52 of the Transfer of Property Act is not only applicable to a case in which the property involved in dispute is transferred during the pendency of the suit but is also attracted to a case in which the property is otherwise dealt with so as to adversely affect the rights of any party to the suit. By confessing judgment in the declaratory suit brought by some of the appellants, respondent No, 2 (vendee) had agreed to part with the land in dispute which had been purchased by him earlier. In this way, he had defeated the pre-emptive rights sought to be enforced by the first respondent by means of the suit brought by him. All this would clearly show that the respondent No, 2 had dealt with the disputed property as contemplated by section 52 of the Transfer of Property Act in such manner as to adversely affect the rights of the first respondent qua the pre-emption suit brought by latter aeainst the former. The declaratory decree which was the net result of the aforsaid conduct of respondent 1"o. 2 was, therefore, hit by the principle of lis pendens. In taking this view I am fortified by Chandra Kumar Maladas v. Abdul Motaleb and 4 others (1), Gulab Khan v. Muhammad Sawor Khan and another (2) and Harnam Singh v. Jiwan (3). The finding of the learned District Judge is, therefore, unexceptionable.
8. It was also urged by the learned counsel for the appellants that even if the declaratory decree was hit by the principle of lis pendens, it will not invalidate the decree and the only benefit which would accrue to the first respondent would be that the appellants would be impleaded as defendants in his (first respondent's) pre-emption suit and thereafter it would be seen whether he.
Could succeed in that suit as against the appellants also. I am unable to agree with him. According to section 5 of the said Act, respondent No 2 is to be protected against the adverse 2 effect of the developments resulting in the passing of the declaratory decree. If declaratory decree is allowed to stand, it will not be possible {{FOOT NOTE}}
(1) PLD 1967 SC 28 (2) PLD 1974 Azad J & K 85 (3) (1906) 7 P R 17 {{FOOT NOTE}} To protect the pre-emptive rights of the first respondent inasmuch as in he event of the declaratory decree taking effect the very sale pre-empted y him would disappear and thus he would be left with no right to be enforced by means of the pre-emption suit. In the circumstances of the .Resent case, therefore the only way to save the first respondent from the reflects of the declaratory decree is to strike down the said decree as being void and of no legal effect.
9. In view of what has gone above, the judgment and decrees passed by the learned Additional District Judge are unexceptionable. The appeal and the revision are therefore, dismissed with costs.