CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal by leave of the Court is addressed against the judgment of the High Court dated 26.5.2011 whereby the appeal filed by respondent No. 1 is accepted.
2. The facts necessary for disposal of appeal are that a suit for possession on the basis of right of purchase was brought by respondent-plaintiff in the Court of Civil Judge Sehnsa regarding the land comprising Khata No. 37 Khasra No. 114, measuring 16 kanals, 5 marlas, situated at village Dhaliot, Tehsil Sehnsa. It is alleged in the suit that the plaintiff-respondent is a co-sharer having right of prior purchase whereas the vendors are aliens who are residing in a different village. The amount of consideration has also been challenged in the suit.
3. During pendency of suit, father of appellants No. 2 to 4 alienated the land through a gift-deed to appellants No. 2, 3 and proforma-respondent on 30th August, 1999. The learned Civil Judge decreed the suit regarding khewat No. 1, Khata No. 37, khasra No. 114, measuring 16 kanals, 5 marlas, in favour of plaintiff-respondent subject to payment of Rs. 7,72,457/- as the decretal amount alongwith improvements. The Additional District Judge, Sehnsa, in appeal, concurred with the findings recorded by the Civil Judge whereas the High Court partly accepted the appeal maintaining the original amount of land i.e. 400,000/- while the improvements were excluded from decree through the impugned judgment, hence, this appeal.
4. Mirza Zaidullan Khan, Advocate, the learned counsel for the appellant, after discussion of necessary facts submitted that the appellants only want partial modification in the impugned judgment and restoration of the judgment of first Appellate Court on the ground that the appellants have proved the fact of improvements made in the suit property by them. He further submitted that this fact has also been established by the report of commission, therefore, in presence of such un-rebutted evidence, the High Court's findings are not sustainable. The High Court has wrongly disallowed the costs of improvements. He further submitted that the improvements were made by the appellant even prior to the institution of the suit, therefore, the principle of Iis pendens to the extent of improvements is not applicable to the case in hand.
5. The respondent has already been proceeded ex parte. We have considered the ex parte arguments of learned counsel for the appellant and minutely perused the record. According to record, the plaintiff-respondents filed a suit for possession on the basis of right of prior purchase on 14.12.1996. Whereas the disputed gift-deed in favour of defendants No. 3 to 5 (appellants herein), was registered on 30.8.1999, thus, it is proved from the record that the suit property was transferred in favour of the appellant during pendency of the suit.
6. So far as the submission of learned counsel for the appellant that the improvements made before institution of the suit is concerned, it also appears to be incorrect. In this regard, it will be useful to reproduce here para-4 of the amended written statement which speaks as follows:- {{URDU TEXT}} i.>V1/12._ 5 t3i:fe t'jAL,?/4%,:4,
7. According to celebrated principle of law, admitted facts need not to be proved. The defendants- appellants themselves have pleaded in the written statement that the donees have made improvements which means that the improvements have been made after transaction of the gift- deed. As it is hereinabove observed that the gift-deed was effected after almost three years' period from the date of institution of suit. According to celebrated principle of law, any transaction made in violation of Section 52 of the Transfer of Property Act does not create any right or interest.
The Courts of law can only grant relief on the basis of equity and legal rights. No one can claim relief as bonus of violation of law or illegal acts.
8. This Court in a recent judgment handed down in the case Dilnawaz Begum & others v.
Muhammad Akbar Khan Afridi & others (Civil Appeal No. 181/2010) while dealing with the identical proposition has enunciated the principle of law in para 9 of the judgment which reads as under:- "9. The arguments of learned counsel for respondent No. 1 are weighty according to which in the given circumstances, the provisions of Section 52 of Transfer of Property Act, are fully attracted which speaks as under:- '52. Transfer of property pending suit relating 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 proceedings 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.'
The principle of Iis pendens is one of the principles which are frequently applied by the Courts.
According to the principle enunciated by the Courts, it is now almost settled that during pendency of suit, any transaction of the suit property will not create any right or interest even the party in whose favour such transaction has been made is not necessary to be impleaded as party. In the case reported as Muhammad Sharif v. Muhammad Ilyas and 23 others [2000 MLD 1633], this Court has dealt with this legal proposition in the following manner:- '5. We have given due consideration to the rguments raised at the Bar. The fact that the appellant, herein, got the sale-deed from Muhammad Bashir, pre-emptor, during the pendency of the suit on the basis of a preemption decree which had been cancelled by the Appellate Court is evident from the record. The learned counsel for the appellant has not disputed the aforesaid facts. The unreported cases relied upon by the learned counsel for the appellant relate to the non- impleadment of the necessary parties and do not relate to transfer made during the pendency of a suit. In the instant case, the question arises as to whether a transferee during the pendency of the suit can be regarded as a necessary party within the meaning of the relevant provisions of the Code of Civil Procedure. Obviously, in view of the provisions contained in Section 52 of the Transfer of Property Act, such a transferee cannot be regarded as a necessary party and a decree passed against the transferor can be executed without impleading such a transferee a party to the proceedings as is evident from the authorities relied upon by the learned counsel for the respondents. The contention of the learned counsel for the appellant that even if the appellant was not a necessary party in view of Section 52 of the Transfer of Property Act, he became so after he was impleaded as party on the application of Muhammad Mushtaq and others, proforma respondents,' is riot tenable, because whether the appellant is a necessary party or not was to be seen in the light of the relief sought against him. In the instant case, . When the appellant, herein, purchased the land during the pendency of the suit, he was not a necessary party in the suits or appeals. He cannot take a plea which was not taken by Muhammad Bashir, plaintiff-vendor. In the instant case, the contention of the learned counsel for the appellant that the High Court did not decide the appeal on merits or that the decree in favour of Muhammad Mushtaq and others is not sustainable can only be raised by Muhammad Bashir, Ghulam Rasool and Muhammad Sharif son of Muhammad Alam, who were appellants before the Additional District Judge and not by Muhammad Sharif, appellant herein. It may be pointed out that Muhammad Bashir, Ghulam Rasool or Muhammad Sharif son of Muhammad Alam did not come up in appeal before this Court.
Therefore, in view of the provisions contained in Section 52 of the Transfer of Property Act, the appellant, herein, has no locus standi to challenge the decree passed in favour of Muhammad Mushtaq and others on the basis of right of advance possession, especially so when he himself has no locus standi to file the appeal.'
In another case reported as Dar-ul-Aman Cooperative Housing Society Limited, Karachi v. The Secretary, Government of Pakistan, Ministry of Works and Rehabilitation Division and 3 others [1995 MLD 1553], on doctrine of lis pendens the learned author of the judgment has observed as under:-- - '20............. "Lis pendens" literally means a pending suit or cause and the doctrine of "lis pendens" has been defined as jurisdiction, power or control which a Court acquires over property involved in a suit, pending the continuance of the action and until final judgment therein. It denotes those principles of rules and laws which define and limit the operation of the Common Law Maxim to the effect that nothing relating to the subject-matter of a suit can be changed while it is pending. One who with actual or constructive notice of the pending action, acquires from a party thereto an interest in the property, involved in litigation in a Court and of the person or the one from whom the interest is acquired, takes subject to the rights of the parties to the litigation as finally determined by the judgment, order or decree. It has been observed that the effect of "lis pendens" is in its nature, the same as that of registration since it is only a different example of the operation of the rule of constructive notice. Its net effect would be to maintain status quo. No interest which is created during the pendency of the suit can affect any decree passed in the suit.'
In the case reported as Mukhtar Baig and others v. Sardar Baig and others [2000 SCMR 45], the apex Court of Pakistan, has expressed the same view.
In another case reported as Faqir Muhammad and 8 others v. Abdul Momin and 2 others [PLD 1995 Lahore 405], almost on identical facts of the case where suit for specific performance of the agreement-to-sell was sub judice, the suit property was sold through attorney, the Court observed as under:--- '12. The claim of the appellants that they were bona fide purchasers for value is wholly unfounded.
Admittedly, the sale in favour of the appellants had taken place during the pendency of the suit for specific performance and was as such hit by doctrine of lis pendens. The learned counsel for the appellants, however, attempted to argue that as power of attorney was executed by respondent No. 4 in favour of Muhammad Zamin on 16.11.1981, the sale in favour of the appellants made by Faqir Muhammad should be presumed to have taken place on that date.
The apex Court of Pakistan in a case reported as Khadim Hussain v. Abid Hussain and others [PLD 2009 Supreme Court 419] has also affirmed the same view."
In the light of peculiar facts and circumstances of this case, the provisions of Section 52 of the Transfer of Property Act, are fully applicable and the appellants in the light of their on pleadings are debarred to claim the costs of improvement. Thus, in view of the statutory provision and principle of law enunciated by this Court, the impugned judgment of the High Court does not suffer from any illegality or infirmity which is quite consistent with the principle of statutory law as well as the administration of justice. Therefore, finding no force, this appeal stands dismissed with no order as to costs.