' TASSADUQ HUSSAIN JILLANI, J.---Facts giving rise to this appeal by leave of the court briefly stated are that appellants/plaintiffs filed a declaratory suit averring therein that the suit land (7 kanals, 14 marlas) was owned by defendant No, 2 Maqbool Ahmed who sold it to them for a sum of Rs,8,000 vide registered deed dated 17-5-1971; that mutation was entered in the revenue record and after execting the tenants from the said land they took over possession; that notwithstanding the said registered sale deed and appellants' possession over the suit land, predecessor-in-interest of the respondents Khair Din who claimed to be a vendee of the land from the same vendor (Maqbool Ahmed) without impleading the appellants as party filed a declaratory suit on 9-12-1970 wherein he averred that he had purchased land measuring 3 acres from Maqbool Ahmed (which the appellants had already purchased) and that the said suit culminated in a consent decree dated 29-4-1972. It was contended that the consent decree was collusive and fraudulent as Maqbool Ahmed having sold land measuring 7 kanals, 14 marlas bearing Khasra No, 992 could not have sold it to the predecessor-in-interest of the respondents/defendant Khair Din. The suit was contested and in the written statement filed by Khair Din it was pleaded that he was a bona fide purchaser; that the consent decree dated 29-4-1972 was a public document; that the suit in which the consent decree was passed was filed on 9-12-1970 and the court had also passed an injunctive order; that the sale deed in appellants' favour was subject to principle of lis pendens and that the predecessor-in-interest of the respondents/defendant being a bona fide purchaser the suit merited dismissal.
2. In terms of the divergent pleas of the parties, the learned trial Court framed 9 issues out of which issues Nos.7 and 8 were crucial. The trial Court primarily in terms of its findings on these two issues decreed the suit vide the judgment and decree dated 21-12-1974 which was upheld by the learned Additional District Judge vide judgment and decree dated 20-3-1985. However, the learned High Court vide the impugned judgment reversed the concurrent judgments and dismissed the suit.
3. Learned counsel for the appellants submitted that appellants had purchased the suit property for a consideration of Rs,8,000 vide registered sale deed dated 17-5-1971; that the so called consent decree obtained by the predecessor-in-interest of the respondents Khair Din dated 29-4-1972 was collusive; that though the land stood entered in the name of the appellants/plaintiffs in the revenue record yet they were not impleaded as party; that the learned High Court has reversed the concurrent judgments and decrees for reasons not sustainable in law and that the principle of lis pendens would not be applicable if the suit and the decree se obtained are collusive.
4. Learned counsel for the respondents/defendants, on the other hand, defended the impugned judgment by submitting that admittedly when the registered sale deed dated 17-5-1971 was executed predecessorin-interest of the respondents/defendant had already purchased 3 acres which included the suit land; that .The appellants/plaintiffs are not the bona fide purchasers because they had the notice that the predecessor-ininterest of the respondents/defendant had purchased the suit land vide agreement to sell dated 1-12-1969 regarding which he had to file civil suit on 9-12-1970; that the elders effected a compromise between him and the vendor Maqbool Ahmed which is Exh.C.1; that the consent decree dated 29-4-1972 is basically a decree giving effect to the said compromise (dated 3-4-1972).
5. Leave was granted by this Court vide the order dated 2-5-2002 which reads as follows:-- "(3) We have heard learned counsel for the petitioners and examined the impugned judgment which, on the face of the record, suffers from misconception of law as learned Judge in the High Court has erroneously relied on section 52 of the Transfer of Property Act for non-suiting the petitioners. Apparently approach of the learned High Court does not appear to be correct as the doctrine of lis pendens would operate against the vendor and not against bona fide purchaser for valuable consideration without the notice of the prior transaction, or pendency of litigation between his vendor and a third person. In fact the petitioners could not have any notice of the prior agreement dated 1-12-1969 between the parties in the earlier suit and the finding that the said suit was not collusive appears to be erroneous.
(4) Leave to appeal is, therefore, granted, inter alia, to consider whether learned High Court was right in brushing aside concurrent findings of fact by the Courts below and whether the impugned judgment can be sustained in law?
(5) Interim order maintaining status quo shall continue to operate till the decision of the appeal."
6. We have considered the submissions made by learned counsel for the parties and have gone through the evidence led with their assistance.
7. The defendant Maqbool Ahmed, the vendor, was proceeded ex parte by the learned trial Court and the same remained unchallenged. The learned trial Court decreed the suit vide the judgment and decree dated 21-12-1974 in terms of its findings on issues Nos.7 and 8 and held as follows:- "It is quite evident from registered sale deed Exh. P.1 that the disputed property was sold in favour of the plaintiff by defendant No,2. Registered sale deed is a public document and is a notice to the general public and on the other hand when defendant had executed such a sale deed he could not make such a statement which would amount to resale of the same property. He has definitely misrepresented the facts and the plaintiffs have been condemned unheard not having been impleaded in this litigation. Registered sale deed executed earlier has got a priority over the other transaction may be of any mode. The events of the pleadings and evidence shows clearly that the impugned decree was no doubt based and ascertained by misrepresenting the facts to the learned court and is ineffective to the extent of rights of the plaintiffs i,e, up 1/2 of khasra No,992 as detailed in the plaint. I further hold that the plaintiffs were bona fide purchaser of the suit property as the contesting defendant has even failed to show the existence of stay order issued by the competent court to prohibit defendant No, 2 alienate the disputed property. I, therefore, hold that the plaintiffs have got cause of action and locus standi. It is further held the plaintiffs are bona fide purchaser for consideration and the impugned decree is ineffective null and void to the extent of disputed property i,e, 1/2 of khasra No, 992, as detailed in the plaint."
8. The afore-referred finding was affirmed by the learned Appellate Court. However, the learned High Court reversed the concurrent judgments and decrees by holding that the appellants/ plaintiffs had purchased the suit land during the pendency of the civil suit filed by the predecessor- in-interest of the respondents/defendant Khair Din and the said transaction of sale was hit by the principle of lis pendens enshrined in section 52 of the Transfer of Property Act. The Court held:-- "It is also admitted position that on 17-5-1971 the said defendant Maqbool Ahmad got the sale deed registered in favour of Muhammad Iqbal. In this view of the matter, the agreement to sell executed in favour of the petitioners/defendants on 1-12-1969 and the suit being filed on 9-12-1970 and decreed on 29-4-1972 makes it clear that the petitioners-defendants were bona fide purchasers for consideration prior in time and the transaction in favour of the respondents by means of sale deed dated 17-5-1971 was clearly hit by the principle of lis pendens as laid down in section 52 of the Transfer of Property Act which reads as under: - "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:- 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.
"
' Further the judgment and decree dated 29-4-1972 passed in Civil Suit No, 49 of 1972 in favour of the petitioners decided the status entitlement of the disputed property in favour of the petitioners.
In view of Article 56 of the Qanun-e-Shahadat Order, 1984 (P.O. No, 10 of 1984), the judgment in Civil Suit No,419/1970 dated 29-4-1972 is conclusive proof as to what it states between Khair Din and Maqbool Ahmad."
9. The reference by the learned High Court to the suit filed in the earlier round of litigation (suit No,4.19 of 1970) and the consent decree passed therein dated 29-4-1972 was relevant as it adversely reflected on the conduct of the vendor, but the inference drawn and the presumption raised in favour of the respondents/defendant, we may observe with respect, reflects non- consideration and non-reading of material documents on record and the law applicable. The case of the predecessor-in-interest of the respondents/defendant Khair Din in the instant round of litigation has been that he was a bona fide purchaser in terms of the agreement to sell dated 1-12- 1969 which on account of certain differences with the vendor led to filing of declaratory suit by him (Suit No,419 of 1970); that during the pendency of the said suit there was an agreement between the parties (dated 3-4-1972 Exh.C.1) and that on the basis of the said agreement a consent decree was passed on 29-4-1972. Exh.C.1 reads as follows:--{{URDU TEXT}}
10. The consent decree dated 29-4-1972 which followed the afore-referred agreement is an under:- {{URDU TEXT}}
11. Learned counsel for the respondents has also placed on record the decree sheet which indicates that predecessor-in-interest of the respondents had filed a declaratory suit with regard to the following land:--{{URDU TEXT}}
12. It is admitted between the parties that in the current round of litigation the suit land bears Khasra No, 992 and measures 7 kanals, 14 marlas. Admittedly the suit land was sold to the appellants/plaintiffs vide registered sale deed dated 17-5-1971 and there is no denial that the said transaction was duly reflected in the revenue record vide rapat No,313 daily diary of patwari (Roznamcha Waqiati) dated 12-5-1972 and the possession of the suit land was delivered to the appellants on the spot by the revenue officer. In the suit for specific performance filed by the predecessor-in-interest of the respondents/defendant (Suit No, 419 of 1970) the land he claimed to have purchased from Maqbool Ahmed included Khasra No, 992 measuring 7 kanals, 14 marlas which already' stood sold to the appellants vide the registered sale deed referred to above. At the time of the consent decree dated 29-4-1972 Maqbool Ahmed, the vendor, was divested of his ownership qua the suit land (bearing Khasra No, 992 measuring 7 kanals, 14 marlas) as the land stood transferred to appellants/plaintiffs vide registered sale deed dated 17-5-1971. Thus the said Maqbool Ahmed was left with no title on the date (29-4-1972) of the consent decree to have consented to sell the suit land. A consent decree is a kind of agreement/contract between two parties with a superadded command of the court but it would not bind a third party who was not party to the said suit. So far as the application of the principle of lis pendens is concerned, respondents/plaintiffs had failed to prove that appellants/plaintiffs had either the knowledge of the agreement to sell between the predecessor-in-interest of the respondents/defendant and Maqbool Ahmed or that he was a bona fide purchaser. The consent decree was, therefore, collusive and the principle of lis pendens would not be attracted.
13. Section 52 of the Transfer of Property Act enshrines doctrine of lis pendens which means the jurisdiction or control which a court acquires over a property involved in a suit during its pendency.
It is based on the common law maxim which mandates that nothing qua the subject matter of the suit can be changed while it is pending. This provides protection to the rights of a suiter/plaintiff when his suit is pending and he can have a transfer/transaction voided with regard to the suit property if the said transfer was made when the suit was pending. However, there is an exception to this principle which is contained in section 41 of the Transfer of Property Act which stipulates that "where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith".
14. The essential ingredients for invoking section 41 ibid can be described as (1) that the transferor was the ostensible owner, (2) that the transfer was made by consent of the real owner, (3) that such transfer was for a consideration, and (4) that the transferee while acting in good faith had taken reasonable care before entering into the transaction.
15. The learned High Court while reversing the judgment by invoking the principle of lis pendens did not advert to the effect of Section 41 of the Transfer of Property Act ibid and failed to appreciate that the appellants/plaintiffs had no notice either of the pendency of the earlier Suit No,419 of 1970 which culminated in the consent decree dated 29-4-1972) or the agreement to sell between Maqbool Ahmed and predecessor-in-interest of the respondents/defendant. The elements of exception contemplated in section 41 supra in the facts and circumstances of this case were fully attracted; there was documentary evidence to show that the transfer of suit land was for consideration; it was made by the ostensible owner and that the transferee Muhammad Iqbal and others appellants/plaintiffs had no knowledge of any prior agreement qua the suit land. They were not even impleaded as party though in the consent decree the suit land in the instant case included the land which they had already purchased vide registered sale deed.
16. In Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905) this Court had specifically adverted to the situations when the principle of lis pendens would not be applicable and candidly held that section 52 of Transfer of Property Act and the principle of lis pendens enshrined therein is circumscribed by three conditions: "(1) the suit must be relating to a specific immovable property in which any rights of the parties are directly and specifically in question (2) the suit should be pending at the time when the alienation in favour of the third person has been made (3) neither the suit itself nor the outcome thereof must be collusive, fraudulent and/or is meant to entrap, deceive, and defraud an innocent transferee specially a bona fide purchaser". The learned High Court in reversing the concurrent judgments and decrees, we may observe with respect, did not keep the afore-referred legal principles in view.
17. There is yet another aspect of this case; section 53 of the Transfer of Property Act has a bearing in the facts of this case. It reads as follows:-- "53. Fraudulent transfer. (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor or delayed.
' Nothing in this subsection shall impair the rights of a transferee in good faith and for consideration.
' Nothing in this subsection shall affect any law for the time being in force relating to insolvency.
' A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of or for the benefit of all the creditors.
(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.
' For the purposes of this subsection, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made."
18. A bare reading of section 53 of the Transfer of Property Act would indicate that the expression 'creditor' used conveys a broader sense and meaning. It does not merely mean someone to whom a debt is owed. The Black's Law Dictionary defines creditor as "1. One to whom a debt is owed; one who gives credit for money or goods. ---Also termed debtee.
2. A person or entity with a definite claim against another, esp. a claim that is capable of adjustment and liquidation.
3. Bankruptcy. A person or entity having a claim against the debtor predating the order for relief concerning the debtor.
4. Roman law. One to whom any obligation is owed, whether contractual or otherwise." (Emphasis is supplied).
19.
In the afore-quoted definition of 'creditor' various shades of its meanings have been encapsulated.
The 'creditor' thus includes someone who has a right to require someone to fulfill a promise, an obligation or a contract.
20. The provision aims to provide safeguard to the rights of a transferee of an immovable property where the sale is made with intent to defeat the right of the transferor. Such a transaction has been made voidable by operation of law and a person who purchases the property in good faith and for consideration stands protected. Intention and fraud is to be determined from the facts considered in their totality. The conduct of the parties prior, contemporaneous and subsequent would be relevant to decide if a transaction is hit by this provision.
21. As the suit land had already been transferred by Maqbool Ahmed in the appellants' name vide registered sale deed dated 17-5-1971, the consent decree dated 29-4-1972 vide which the said Maqbool Ahmed consented to sell the suit land to predecessor-in-interest of the respondents/defendant Khair Din was on the face of it a fraudulent transfer within the meaning of section 53 of the Transfer of Property Act and was "voidable at the option of the creditor which in the case in hand were the appellants/defendants. In Nisar Ahmed Afzal v. Muhammad Taj and others (2013 SCM R 146), the court had an occasion to dilate upon the ambit of this provision of law.
In the said case the defendants had mutually cancelled the sale agreement qua a property in which the appellants had acquired an interest. The Trial Court had dismissed the suit. The learned Islamabad High Court remanded the matter to the trial Court to decide whether the respondent was responsible for the breach of sale agreement dated 22-3-2003 (in favour of the appellants before this Court) and whether appellant was entitled to damages for the breach of the said contract. This Court allowed the appeal and decreed the suit by holding as follows:-- "21. The cancellation deed (Exh.D.W.1/3) between the respondents Nos.1 and 2 on the face of it was hit by the provisions of section 53 of the Transfer of Property Act, which provides that if a fraudulent transfer is made with intent to defeat the interest accrued to a party which it has acquired through a sale agreement, then such party can enforce the same not only against the vendor but also against the person from whom such a vendor has acquired the interest. The word "Creditor" used in section 53 of the Transfer of Property Act is not to be construed in a narrow sense while interpreting the section. The word "Creditor" would mean and include the one, who has a right to require of another the fulfillment of a contract or obligation and or one to whom another owes the performance of an obligation. In the case in hand, the appellant is covered by the word "Creditor" and his interest is fully protected by section 53 (ibid). The deed of cancellation (Exh.D.W.1/3) signed by respondents Nos.1 and 2 and the subsequent transaction through sale agreement dated 17-7-2004 executed by respondent No,1 with respondents Nos.4 to 7, coupled with the transfer of the subject plot in favour of the respondents Nos.4 to 7 by the respondent No,3, as attorney of respondent No,1, are nullity being fraudulent instruments signed and or executed to transfer the subject plot with the object to defeat the interest acquired by the appellant, by virtue of Exh. P.1. " (Emphasis is supplied).
22. The consent decree in the instant case, like the cancellation deed in Nisar Ahmed supra case, was an attempt to defeat the interest already J acquired by the appellants in the suit land and was squarely hit by the provision of section 53 supra.
23. For what has been discussed above, we are of the view that the impugned judgment besides being reflective of misreading and non-reading of evidence is against the law declared and, therefore, not sustainable. Consequently, this appeal is allowed and the impugned judgment to the extent of the suit land is set aside and the judgment and decree of the learned trial Court to the said extent is resorted with no order as to costs.
24. Before parting, we may make a mention that during the course of hearing, we queried from appellants' learned counsel as to whether he has any claim over the land other than land the suit land measuring 7 kanals, 14 marlas to which in all fairness he submitted that he had none. The learned Executing Court shall proceed accordingly.