' SHAHNAWAZ TARIQ, J.--- Through instant Civil Revision application, applicant Muhammad Essa son of Arab Soomro has agitated the Judgment and Decree dated: 10-11-2011, whereby the learned 1st Additional District Judge, Badin has allowed Civil Appeal No, 143 of 2010 and decreed Civil Suit No,72 of 2002 in favour of the respondent No,5 and against the applicant and respondents Nos.1 to 4, 6 and 7, which was dismissed by the Court of learned Senior Civil Judge, Badin vide Judgment dated 27-10-2010.
2. Relevant facts involved in the instant revision application are that the respondent No, 5 Ali Muhammad filed F.C. Suit No,72 of 2002 for Declaration, Cancellation, Possession and Permanent Injunction against the applicant and others in the Court of learned Senior Civil Judge, Badin on 11- 9-2002, while the present applicant also filed third class suit New No,1 of 2003 (Old No, 47 of 2002) for declaration, cancellation of sale-agreement and permanent injunction against respondent No,5 and others in the Court of Civil Judge Badin on 28-3-2002. Thereafter third class Civil Suit No, 47 of 2002 was transferred to the court of learned Senior Civil Judge, Badin on 18-7-2003 for disposal according to law by the order of learned District Judge, Badin. Since in both suits, the controversy with regard to title and ownership of either party was common, as such, advocate for the respondent No,5 and advocate for applicant made a joint application on 18-8-2003 for amalgamation of both suits, and by consent of the parties said application was allowed and it was ordered that F.C. Suit No,72 of 2002 filed by respondent No,5 would be the leading suit while third class Suit No, 1 of 2003 would be the consolidated suit.
3. The respondent No, 5 in his suit No,72 of 2002, has stated that he purchased land admeasuring 1- 24 acres from Aftab Ahmed and others, the claimants, out of his 50 paisa share in the agricultural land bearing Survey No, 90(3-08) situated in Deh Ojhri, Taluka and District Badin. The remaining land of Survey No, 90 was allotted to one Ahsan Ali son of Abdul Qadir in satisfaction of a valid claim and subsequently Khata was mutated in his favour in the record of rights vide Jaryan No,163 Entry No, 275-276. Said Ahsan Ali also executed an agreement for sale of said land admeasuring 2- 14 acres in favour of the respondent No, 5 through his legal attorney Ghulam Yaseen son of Shamsuddin, the respondent No,7. Subsequently, said Ahsan Ali failed to perform the contract on his part, hence respondent No,5 filed a suit bearing No, 20 of 1997 for specific performance and permanent injunction against Muhammad Ahsan in the court of Civil Judge, Badin which was ultimately decreed in favour of respondent No, 5 on 28-11-1998, and he also filed execution application in the said suit, which is pending for adjudication.
4. It is further stated by the respondent No, 5 in his plaint that there are also survey numbers, wherein the respondent No, 5 and applicant are co-sharers to the extent of 50 paisa each. The suit-land admeasuring 2-14 acres, out of 3-38 acres of survey No, 90, was in the exclusive possession and cultivation of respondent No,5, but on 12-8-2001 all of a sudden, the applicant along with some strangers duly armed with deadly weapons, came on the suit-land and occupied the same illegally forcibly and unlawfully, whereupon respondent No, 5 lodged F.I.R. No,155/2002 at Police Station Badin against the applicant. Thereafter applicant filed a civil Suit No,47 of 2002 against the respondent No, 5 and his family members in the court of Civil Judge, Badin and on service of summons in said suit, the respondent No, 5 came to know that the respondent No, 7 fraudulently managed a bogus allotment of the suit-land in the name of respondent No, 6 and got entered an entry in the record of rights on 13-9-1993 and then he got the suit-land transferred in his own name on the basis of fictitious and false sale-agreement in collusion with the staff of Revenue Department and also got said land mutated in his favour under Jaryan No, 276 and Entry No 275, dated 5-10-1993. Thereafter the respondent No,7 sold out the suit-land to the applicant through a registered sale-deed bearing Jaryan No, 1626 dated 2-10-1999, and on the basis of which the name of applicant was mutated in the record of rights on 23-2-2001. Since no land was available after 1986 on execution of sale-agreement, the transaction of allotment to respondent No, 6 and then in the name of applicant are bogus, collusive, illegal, void and liable to be cancelled.
5. The respondent No,5 in his suit sought following reliefs in his suit:--
(i) To declare that the plaintiff is lawful owner of the suit-land viz S.No, 90 (2-14) acres of Deh Ojhri Taluka and District Badin.
(ii) To declare that the allotment in favour of defendant No, 6 and thereafter transfer of suit-land on basis of statement in favour of defendant No, 7 and the entries in record of rights at Jaryan No, 27 entries No, D.F-VII 102; dated 13-9-1993 and Jaryan No, 276 entry No, 275 dated 5-10-1993 in record of rights are illegal, bogus, managed, mala fide, void and the same are liable to be cancelled.
(iii) To declare that the registered sale-deed and Jaryan No, 1626 dated 2-10-1999, Registration No, M.F No, 89, dated 24-1-2001 and entry in record of rights in favour of defendant No, 5 are illegal, mala fide, bogus and the same are liable to be cancelled.
(iv) To declare that the act and orders of the defendants Nos.3 and 4 for keeping the bogus and illegal entries in record of rights of the suit-land in favour of defendant No,5 through invalid sale- deed are illegal, void, managed are liable to be set aside.
(v) To declare that the possession of the defendant No,5 over the suit-land is illegal, forcible and the same be handed over to the plaintiff.
(vi) To grant permanent injunction restraining the defendant No,5 not to sell, alinate, transfer, mortgage the suit-land viz. S.No,90(2-14) acres of Deh Ojhri, Taluka and District Badin till the disposal of the suit and through his agent , servant, himself except due course of law.
(vii) The costs of the suit be borne by the defendants.
(viii)Any other relief this Honourable Court deems fit and proper for the plaintiff.
6. Applicant Muhammad Essa filed his written statement in leading suit, whereby he denied the averment of the 'plaint and stated that originally the suit-land was property of Hindus and after their migration to India, the suit-land was allotted to respondent No,6 in satisfaction of his claim and such khata was mutated in the Revenue Record in the name of the respondent No, 6, who sold out the suit-land to respondent No, 7 in the sum of Rs,10,000 on 5-10-1993 and khata was transferred in his name. The respondent No, 7 sold out the suit-land to applicant through registered sale-deed bearing No,1626 dated 2-10-1999 in the sum of Rs,80,000 and also handed over the possession and the applicant is in possession of the suit-land. According to the applicant the respondent No, 5 tried to occupy the suit-land forcibly but on the resistance of applicant, he could not succeeded, so respondent No,5 lodged an F.I.R. Against the applicant, hence suit filed by respondent No, 5 is not maintainable and liable to be dismissed.
7. The respondent No, 7 filed his short written statement and denied the averments of plaint as claimed of the respondent No,5, and stated that he sold out the suit-land to the applicant.
8. The applicant filed Suit No,01/2003 (Old No,47 of 2002) against the respondent No,5 and other respondents, and reiterated the same facts as mentioned supra. The applicant sought following reliefs in his suit:--
(i) To declare that the plaintiff is absolute owner of the suit-land and further declaration that the sale agreement dated 22-2-1986 is false fictitious and same is liable to be cancelled.
(ii) To grant permanent injunction against the defendants restraining them from interfering into the peaceful cultivating possession of plaintiff over suit-land directly or indirectly.
(iii) The costs of the suit be borne by the defendants.
(iv) Any other relief this Honourable Court deems fit and proper under the circumstances.
9. From pleadings of the parties following consolidated issues were framed as under:--
(1) Whether plaintiff in F.C. Suit No,72 of 2002 or plaintiff of Third Class Suit No, 1 of 2003 is lawful and absolute owner of suit-land?
(2) Whether the allotment order in respect of suit-land, issued in favour of defendant No, 6 in F.C.
Suit No, 72 of 2002 is illegal?
(3) Whether the transfer of suit-land on the basis of statement made in favour of defendant No, 7 in F.C. Suit No, 72 of 2002 and Entries No, 27, 102, 275 and 276 made in the record of right are illegal and same are liable to be cancelled?
(4) Whether registered sale-deed bearing Registration No 1626 dated 2-10-1999 and entries made in the record of right on the basis of such sale-deed in favour of defendant No, 5 of F.C. Suit No, 72 of 2002 are illegal and same are liable to be cancelled?
(5) Whether the act and order of defendants Nos. 3 and 4 of F.C. Suit No, 72 of 2002, keeping such entries in favour of defendants are illegal and liable to be set aside?
(6) Among which of the party of the suits is in physical and lawful possession of suit-land?
' Whether the suit-land was the property of one Ghulam Yasin Awan and who legally sold out the same to the plaintiff of Third C. Suit No, 1 of 2003?
' Whether the suit-land was allotted to one Ahsan Ali son of Abdul Qadir to a valid claim?
' Whether the suit-land was the originally property of one Hamid Ali and who through its sale statement dated 5-10-1993 sale out the same to defendant No, 7 of F.C. Suit No, 72 of 2002?
(10) Whether the plaintiff of F.C. Suit No,72 of 2002 has no cause of action to file present suit therefore his suit is not maintainable?
(11) Whether the plaintiff of third C. Suit No,1 of 2003 has no cause of action to file the suit as such his suit is not maintainable?
(12) Whether this Court has got no jurisdiction to try third class suit No, 1 of 2003?
(13) Whether the plaintiff of F.C. Suit No,72 of 2002 or plaintiff in Third Class Suit No, 1 of 2003 is entitled to relief claimed for?
(14) What should the decree be in F.C. Suit No, 72 of 2002 and Third Class Suit No, 1 of 2003?
10. The respondent No,5 examined himself as Exh. 53 and produced attested photo copy of Qabooliat regarding private partition of land dated 21-9-1989 as Exh. 54, original sale-deed 22-2- 1986 in respect of suit-land admeasuring 2-14 acres out S.No,90 as Exh.55, certified true copy of decree dated 28-11-1998 passed in Suit No,20 of 1997 as Exh.56 and certified true copy of registered sale-deed No,89 dated 16-1-2001 as Exh.57. P.W. Sulleman examined as Exh.58 and P.W.3 Muhammad Moosa Khatti examined as Exh.62. In rebuttal, the applicant examined himself as Exh.69 and closed side as Exh.70. Learned DDA also closed side of the government respondents as Exh.71. After hearing arguments of the parties, the learned Senior Civil Judge, Badin dismissed both suits vide judgment and decree dated 27-10-2010.
11. I have heard learned counsel for the parties and examined the material available on record and R&Ps of both suits, including statement filed by the learned counsel for the respondent No,5 attached therewith certified copies of Judgment, Decree and other proceedings of Suit No,20 of 1997, Execution Application No, 3 of 2000 with their assistance.
12. Learned counsel for the applicant has contended that the suit-land was owned by one Ghulam Yasin, who sold out the same the applicant through registered sale-deed and such khata was mutated in the Revenue Record vide Entry No, 136, dated 23-2-2001. The respondent No 5 looking the fertility of suit-land managed a false sale-deed in previous date and on the basis of said fictitious agreement with the help of other respondents, is trying to occupy said land. He further submitted that on 18-8-2002 the respondents duly armed with deadly weapons came at suit-land but due to resistance of the applicant and his relatives, they could not succeed in their evil deed.
The respondent No,5 also lodged a false F.I.R. Against the applicant bearing No, 155/2002, under sections 147, 148, 149 506/2 and 337-H (2) P.P.C. At Police Station Badin. The applicant filed IIIrd class Suit (old) No, 47/2002, New No,1/2003 against the respondents. The respondent No, 5 also filed Suit No,72/2002 against the applicant, but both suits were dismissed by the trial court of learned Senior Civil Judge, Badin. Applicant and respondent No,5 filed their separate civil appeals against said impugned judgment, but the learned appellate court without appreciating the relevant facts and documents, has illegally dismissed the civil appeal filed by the .Applicant, while allowed the civil appeal filed by the respondent No,5. He further contended that the respondent No, 5 had filed Suit No, 20 of 1997 against the owner Ahsan and without serving the summons, got ex parte judgment and decree from the court, therefore the registered sale-deed in favour of the applicant could not be defeated mere on the basis of an ex parte decree. He lastly urged to set aside impugned judgments, passed by the learned appellant court and learned trial court against the applicant.
13. Learned counsel for the respondents has contended that the applicant has concealed the relevant facts from the Court. In fact the respondent No,5 had purchased the suit-land in two phases, as firstly, he purchased 1-24 Acres from Aftab and others being claimant of 0.50 paisa share, while land viz 2-14 Acres was purchased from one Ahsan Ali through his legal attorney Ghulam Yaseen, the respondent No,7. Said Ahsan Ali did not perform the contract, therefore, the respondent No, 5 filed Suit. No, 20 of 1997 in the court of Civil Judge, Badin which was decreed on 28-11-1998 and execution application is pending before trial court. He further contended that despite knowledge of pendency of the suit, said Ahsan Ali with mala fide intention has again sold out his land to the applicant and also executed registered sale-deed, while he never appeared before the civil court for setting aside of ex parte judgment, which is still alive and without setting.
Aside said judgment, any other order or judgment would not be legal. He further submitted that applicant along with his companion duly armed with weapons forcibly occupied said land and the respondent No,5 lodged F.I.R. No 155/2002, on 18-8-2002 at Police Station Badin against them. He also contended that the appellate court has rightly decided the Civil Appeal No, 143 of 2010 and decreed Suit No, 72 of 2002 filed by the respondent No,5, therefore, instant revision application is liable to dismissed.
14. Perusal of record and arguments advanced by the learned counsel for the parties, reflects that the respondent No,5 (Exh.53) stated that suit-land admeasuring 2-14 acres out of entire land bearing Survey No,90 was granted to Ahsan Ali against his claim and he sold out said land to respondent No,5 vide sale agreement dated 22-2-1986 executed through his attorney Ghulam Yaseen. It is further asserted that respondent No,5 constantly asked said Ahsan Ali to execute registered sale-deed in his favour as per the terms of sale agreement, but Ahsan Ali kept him on false hopes, and ultimately the respondent No,5 filed a Civil Suit No,20 of 1997 for specific performance of contract and permanent injunction against said Ahsan in the court of Civil. Judge, Badin, which was decreed in his favour on 28-11-1998. He has further deposed that the attorney of claimant Muhammad Ahsan namely Ghulam Yaseen the respondent No,7 in existence of earlier sale agreement executed with the respondent No,5, firstly got allotted fraudulently the suit-land in favour of one Hamid Ali, the respondent No, 6 and then got mutated the suit-land in his own name in collusion with revenue staff. He produced the certified true copy of decree at Exh.
56.
15. The respondent No,5 also examined Mukhtiarkar Revenue Badin namely Jhamandas who produced Entry No,163, dated 12-4-1980 in the name of claimant Muhammad Ahsan at Exh.89, and stated that said entry was kept in abeyance since 14-4-1980. However, he admitted that said entry was maintained in the register within serial numbers. He also admitted that pages of entry in register were also maintained in serial numbers. He further admitted that Muhammad Ahsan was claimant of suit-land, and Entry No,163 was made in his favour on 12-4-1980, but it was kept in abeyance on 14-4-1980, which was a note of Tapedar. He candidly admitted that Tapedar cannot keep any entry in abeyance.
16. Admittedly, the suit-land was entered in the name of Ahsan Ali vide Entry No,163 on 12-4-1980 and then he sold out the suit-land to the respondent No,5, on 22-2-1986 through a sale agreement, and said sale agreement has already been proved by the respondent No,5 in Suit No,20 of 1997 which was filed by him against said Ahsan Ali and such decree dated 28-11-1998 was passed in favour of the respondent No,5 which is still holding field and attained finality as such, said decree has its dynamic binding force and everlasting effect on the suit-land and the parties in suit.
Amazingly, despite of knowledge and having copies of judgment and decree passed in Suit No,20 of 1997, all the concerned parties had failed to challenge such decree by filing application under section 12(2) C.P.C. Before the learned trial court or before any appellate Court, as such, on the basis of said prevailing decree obtained in respect of the suit-land, the respondent No,5 is lawful owner of the suit-land.
17. In continuation of the above admitted scenario, when the suit-land was initially sold out to the respondent No,5, therefore its transfer in favour of respondent No,6 Hamid Ali, and subsequent transfer of the suit-land in the name of Ghulam Yaseen on the" basis of sale-statement in the record of rights is illegal and mala fide. Thus the registered sale-deed Exh. 57 allegedly executed by Ghulam Yaseen in favour of the applicant and then its incorporation in the Revenue Record vide Entry No,136, dated 23-2-2001 is also illegal, mala fide and is liable to be cancelled. It is also important to mention that the applicant has stated that suit-land was allotted to the respondent No,6 against his claim, but as par statement of Mukhtiarkar, Badin, suit-land was allotted to one Ahsan against his claim, and he also produced Entry No, 163 made in Revenue Record before the trial Court, such statement of Mukhtiarkar has defeated the statement of the applicant that suit- land was allotted to the respondent No,6 against his claim. The alleged note of abeyance made by the Tapedar in entry register has no legal value, as the Tepadar has no such legal authority to do so.
18. It is well settled principle of law that if the foundation of any building is wrong then whole the structure built upon it, would collapse, such as if the basic document of any transaction is found illegal then entire series of documents executed subsequently, would also be deemed as illegal and void. This is not a case of claiming the performance of contract on the basis of an un- registered sale agreement by the respondent No,5, but he has already proved his claim through the decree dated 28-11-1998 passed by the court of Civil Judge Badin in Civil Suit No, 20 of 1997, and Execution application No,03 of 2000, which was also allowed and the Reader of the court was directed to execute said decree and got registered lease deed in favour of the respondent No,5, but same is being delayed due to the above referred proceedings, therefore I am of the considered view that without setting aside said decree dated 28-11-199, any order for suspension of operation of earlier decree through any other suit is not permissible under the law.
19. Admittedly, the respondent No,5 had already purchased land admeasuring 1-24 acres from the claimant Aftabab from same Survey No, 90, which is in his name and enjoyment, and thereafter he purchased suit-land situated same survey number from its original owner Ahsan through his attorney Ghulam Yaseen in the year 1986, and subsequently the applicant also purchased suit- land from said Ghulam Yaseen, in present circumstances, it can be easily concluded that the applicant was in prior knowledge of the earlier sale, and he had knowingly and deliberately had purchased suit-land, therefore he cannot take any benefit this content. In case of Ghulam Fareed v.
Muhammad Bakhsh 2008 SCM R 1201, Honourable Supreme Court has held that subsequent purchaser had purchased property from vendor through her husband who was her attorney and had knowledge about earlier agreement. Such plea of bona fide purchaser having no notice of earlier agreement was not tenable in facts and circumstances of the case. Consequently, I am of the considered view that the respondent No,5 is bona fide purchaser of suit-land and all the subsequent transactions made in respect of suit-land are declared illegal and void, hence, stand cancelled.
20. For the foregoing discussion, I find no legal substance in instant civil revision application to interrupt and interject the impugned judgment dated 10-11-2011, passed by the appellate court in Civil Appeal No,143 of 2010 hence same is maintained. Consequently, instant civil revision application stands dismissed with no order as to cost.