AMIN-UD-DIN KHAN, J. Through this application under section 12(2) read with section 151 of the C.P.C., Mehmood Hussain s/o Fazal Muhammad prays for setting aside the order dated 23-5-2011 and decree dated 6-6-2011 passed by this Court in Civil Revision No,157 of 2008.
2. The facts of case are that Muhammad Zubair (revision petitioner) filed a suit on 28-7-2004 to pre-empt the sale dated 30-3-2004 in favour of defendants Muhammad Tahir Shafique and Moeen-ud-Din, of property measuring 12-3/4 marlas. The suit was contested by the defendants, which was, after the completion of trial, dismissed by the Civil Judge 1st Class, Bahawalpur vide judgment and decree dated 30-10-2007. The plaintiff preferred an appeal before the District Judge, Bahawalpur, which was finally heard and decided through judgment and decree dated 27-3-2008 by the Addl: District Judge, Bahawalpur and the same was dismissed. The plaintiff then filed Civil Revision No,157 of 2008.
' In this Civil Revision, on 20-5-2011 petitioner/plaintiff (Muhammad Zubair) and respondent No,2/defendant No,2 (Moeen-udDin) jointly filed C.M. No,2272-2011, which came up for hearing before this Court on 23-5-2011 and also filed written compromise marked as mark 'A'. The statement of parties was recorded, wherein respondent No,2 stated that in accordance with compromise mark 'A', he has no objection if revision petition is accepted and decree be passed against him in suit for pre-emption. In Paragraph No,2(iv) of compromise mark 'A' it was also mentioned that if on the basis of any document there will be any litigation with regard to the suit property, the plaintiff (Muhammad Zubair) will be responsible and defendant No,2 (Moeen-udDin) will not be responsible for that. Both the plaintiff and defendant No,2 prayed for acceptance of revision petition and setting aside the judgments and decrees passed by the courts below to the extent of defendant No,2.
' The similar application (CM-2560-2011) along with compromise between plaintiff and defendant No,
1. Marked as mark 'B' was filed on 4-6-2011 by the petitioner/plaintiff (Muhammad Zubair).
According to this compromise mark 'B', respondent No,1/defendant No,1 (Muhammad Tahir Shafique) stated that the property purchased by him consisting of 7 shops out of which he has already sold out 5 shops Nos.12, 11, 10, 8 and 9 (all measuring 907 square feet) before filing of suit and now to the extent- of remaining two shops Nos.5 and 6 (measuring 250 square feet), he has no objection if revision petition is accepted and judgments/decrees passed by the courts below is set aside and suit of petitioner/plaintiff (Muhammad Zubair) is decreed. Learned counsel for both the parties recorded statement on 6-6-2011 when this C.M. Was came up for hearing before this Court. On the basis of compromise mark 'A' and mark 'B' through CM-2272-2011 and CM-2560-2011 and compromise statements of the parties, to the extent of properties mentioned therein, this civil revision was accepted and suit to that extent was decreed by setting aside the judgments/decrees passed by the courts below.
3. Now through C.M. No,3017-2011 the applicant, Mehmood Hussain s/o Fazal Muhammad, has stated that he has purchased through registered sale deed dated 10-7-2004 a shop from Muhammad Tahir Shafique (respondent No, 1/defendant No,1) and also purchased two shops measuring 1-1/4 marla from Moeen-ud-Din (respondent No,2/defendant No, 2) through registered sale deed No,5155 dated 30-8-2010 and also got sanctioned the mutation according to the sale deed. On the basis of this sale deed mutation No,15405 was also attested on 30-11-2010 in favour of applicant with regard to the purchased two shops of land measuring 1-1/4 marla and the possession whereof was also delivered to him. In this way, the applicant has stated that Muhammad Tahir Shafique (respondent No,1) when entering into compromise got transferred only the property which was in his name, the property he has already transferred in favour of other person and a portion of which in shape of one shop transferred in favour of applicant, to that extent he has not compromised and also not transferred that property in favour of plaintiff but Moeen-ud-Din (respondent No,2) by misrepresentation and fraud, again entered into a compromise with the petitioner/plaintiff (Muhammad Zubair) with regard to the property measuring 1-1/4 marla already transferred in favour of applicant through registered sale deed mentioned supra. In this way, CM-2272-2011 and order dated 23-5-2011 was procured from this Court through fraud and misrepresentation. Therefore, subsequent order dated 6-6-2011 and decree passed in the Civil Revision was also result of misrepresentation and fraud played by the parties to civil revision. When notice on this application (CM- 3017-2011) was issued, Muhammad Zubair (revision petitioner) opted not to file reply of this application under section 12(2) of the C.P.C.
But he filed application under Order VII, Rule 11 of the C.P.C. (CM-4000-2011) for rejection of application under section 12(2) of the. C.P.C. And application (CM- 4001-2011) for vacation of stay order was also filed.
' Learned counsel for the respondent (revision petitioner-Muhammad Zubair) of application under section 12(2) of the C.P.C. Has not filed reply to this application but they have stated that the facts of case are admitted and they have legal points to resist this application.
4. Learned counsel for the applicant argued that suit for preemption was dismissed and appeal was also dismissed; that transfer of a part of suit property in favour of applicant was valid and it was in the knowledge of revision petitioner/plaintiff also, despite that respondent No,2/defendant No,2 entered into compromise and by practicing misrepresentation and fraud with the Court, procured the decree in favour of revision petitioner, therefore, that- decree is liable to be set aside.
Reliance has been placed upon "PLD 2010 Supreme Court 803 (Muhammad Hussain v. Muhammad through Legal Heirs and others), PLD 2003 Supreme Court 818 (Fazal Karim through Legal Heirs and others v. Muhammad Afzal through Legal Heirs and others), PLD 2011 Supreme Court 905 (Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others) and 2002 SCMR 2003 (Muhammad Nawaz Khan v. Muhammad Khan and 2 others)". Therefore, argued that principle of lis pendens is not applicable in this case because no doubt the lis in shape of revision petition was pending but stated that as the suit was dismissed and appeal was also dismissed, on the basis that plaintiff/revision petition failed to establish the performance of Talbs in accordance with section 13 of the Punjab Pre-emption Act, 1991, therefore, it was in the applicant's knowledge that this suit cannot be decreed till the day of judgment, as plaintiff has not fulfilled the requirements of Talbs. Therefore, he validly purchased the part of suit property and the seller of part of suit property (respondent No,2) was not entitled to enter into compromise with regard to part of suit property, which was not in his ownership as he had already sold out in favour of applicant, this sale was also in the knowledge of revision petitioner/plaintiff. Further states that in this case when no decree has been passed on merits in favour of revision petitioner/plaintiff, therefore, embargo of the section 52 of Transfer of Property Act (IV of 1882) is not applicable in this case..
' It has been further argued that consent given by respondent No,2 with the connivance of revision petitioner/plaintiff, can easily be termed as collusive between the parties to the suit, therefore, in the light of law cited supra it is prayed that this application be accepted and suit of revision petitioner/plaintiff be dismissed to the extent of sale of land measuring 1-1/4 marla through sale deed No,5155 dated 30-8-2010, which is in favour of applicant, and decree be modified to this extent.
5. On the other hand, learned counsel for the respondent/revision petitioner (Muhammad Zubair) while relying upon "2004 SCMR 578 (Basit Sibtain through Legal Heirs v. Muhammad Sharif through Legal Hiers) 1988 CLC 1018, (Nawab Din and others v. Sardar and others) 2001 MLD 844 (Muhammad Khan and another v. Muhammad Nawaz through Legal Heirs), AIR 1922 Calcutta 358, (Bharat Ramanuj Das Mahanta and another v. Srinath Chandra Sahoo and another), AIR (30) 1943 Calcutta 227 (Hiranya Bhusan Mukherjee and others v. Gouri Dutt Maharaj and others), A.I.R (33)
1946 Lahore 142 (Mt. Sant Kaur v. Teja Singh), 2002 CLC 1160 (Khalid Mahmood v. Najib Khan and 2 others), PLD 2001 Supreme Court 449 (Muhammad Zafar-uz-Zaman and 4 others v. Faqir Muhammad through Legal Heirs), PLD 2011 Peshawar 228 (Muhammad Shabbir v. Sub-Registrar, Peshawar District Court, Peshawar and 3 others), PLD 1995 Lah. 255 (Abdus Saeed Khan and others v. Basharat Ali and others), 2007 CLC 177 (Abdul Majeed and others v. Liqat Haya and 19 others), 1976 SCMR 385 ,(Munawar Hussain and others v. Messrs Nisar & Co. And others), 1980 SCMR 7 (Muhammad Mujtaba v. Ghulam Ali and others), 1998 SCMR 858 (Mian Tahir Shah and another v.
Additional District Judge, Swabi and others), 2000 YLR 2793 (Muhammad Said Khan and 25 others v. Abdul Qayyum Khan), PLD 1987 Azad J&K 139 (Abdul Karim v. Kala Khan and another), 1999 SCMR 2874 (Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others), 2000 MLD 1633 (Muhammad Sharif v. Muhammad Ilyas and 23, others), 2011 CLC 1011 (Attorney and 8 others v. Hammad Asif Dosslani and others), 1997 MLD 3201 (Mian Tahir Shah and another v. Laiq Zaman and others), 1990 CLC 366 (Iqbal Sultan v. Miss Chand Sultan and 2 others), 2004 SCMR 813 (Muhammad Sharif and others v, Mst. Fateh Bano and others) and PLD 1068 Lahore 501 (Hakim Ghulam Rasul v. Sh. Imdad Hussain and another)", state that valid compromise has been effected between the revision petitioner and respondent No,2/defendant No,2 and this Court has validly passed the decree; that facts narrated by the learned counsel for the applicant are not denied, it is also admitted that respondent No,2/defendant No,2 transferred through sale deed mentioned above a portion of suit property measuring 1-1/4 marla in favour of applicant during the pendency of suit and after that he (respondent No,2/defendant No,2) entered into a compromise and got the civil revision accepted to his extent and got the suit decreed against him, despite the fact he had already transferred a portion of suit property in favour of applicant through registered sale deed. Learned counsel states that applicant has no locus standi to file this application under section 12(2) of the C.P.C., as during the pendency of lis he has purchased a portion of suit property.
It has been further stated that as the applicant has purchased a part of suit property during the pendency of revision petition which was in continuation of suit, therefore, his purchase is not saved but hit by section 52 of Transfer of Property. Act (IV of 1882).
6. I have heard the learned counsel for the parties at full length and also gone through the case law referred to by them.
7. The only question determinable by this Court in this application is whether during the pendency of suit of pre-emption, when it was dismissed, the appeal against thereof was also dismissed and revision was pending, when one of the defendants transferred a portion of suit property in favour of applicant and after that one of the original vendee entered into a compromise with the plaintiff of suit/revision petitioner giving consent to this Court that the judgments/decrees passed by the courts below be set aside and suit against him be decreed, was he entitled to make statement in the Court to decree the pre-emption suit in favour of revision petitioner? Whether this decree will hit the transfer in favour of applicant on the basis of section 52 of the Transfer of Property Act (IV of 1882), and, whether the applicant/purchaser of suit property during the pendency, in these circumstances, has a right to file application under section 12(2) of the C.P.C.?
So far as, the case-law cited by the learned counsel for the revision petitioner (Muhammad Zubair), are concerned. These are not applicable to the facts of this case. Most of the case-law referred to by the learned counsel relate to a suit for specific performance. The suit for specific performance and suit for pre-emption are absolutely different in nature because in a suit for specific performance, if under any agreement the rights have been promised in one property to two different persons and there are two persons claimant of one property under their respective agreements, the rights of claimants are determined inter se keeping into consideration the circumstances of the case in which knowledge of transaction, possession etc. Are the points of consideration. Whereas, in a suit for pre-emption the consideration with regard to the sale of A property during the pendency of a lis by the vendee in favour of another, third person judging the validity of this transaction in the light of section 52 of the Transfer of Property Act is absolutely different. In case in hand, it is not denied that this Court has not passed a pre-emption decree in favour of pre-emptor on the basis of merits of the case but it was one of the vendees/defendant No,2. Who made a statement before the Court that the concurrent- dismissal decrees in a pre- emption suit in his favour be set aside and suit of revision petitioner be decreed against him, whereas before making the statement he had already transferred a portion of suit property in favour of applicant of this application filed under section 12(2) of the C.P.C. In these circumstances, I having absolutely no doubt in my mind that the case law referred to by learned counsel for the respondent (revision petitioner) are not applicable, and too, section 52 of the Transfer of Property Act (IV of 1882) is not applicable to the facts of this case. If the civil revision was to be allowed on merits, then certainly transaction during the pendency of this revision was hit by the principle of lis pendens but on merits this civil revision could not have been accepted or a decree could not have been passed, therefore, in these circumstances of this case the transaction is not hit by the principle of lis pendens. In this view of the matter, when transaction of applicant is not hit by the principle of lis pendens, therefore, this decree has been procured through misrepresentation and practicing fraud with this Court because at the time of making statement by respondent No,2/defendant No,2, he has not apprised the facts to this Court that he had already transferred a portion of property in favour of applicant of this application under section 12(2) of the C.P.C., therefore, applicant has a right to file application under section 12(2) of the C.P.C., which has been validly filed.
8. In the light of what has been discussed above, I accept this application under section 12(2) of the C.P.C. (CM-3017-2011) and set aside the order dated 23-5-2011 passed by this Court and decree in favour of revision petitioner/plaintiff to the extent of property measuring 1-1/4 marla already transferred through registered sale deed in favour of applicant Mehmood Hussain, therefore, the decree is modified to this extent and suit of revision petitioner/plaintiff (Muhammad Zubair) will be deemed to have been dismissed to this extent.