Ali Akbar Qureshi, J:- This civil revision is directed against the judgment and decree dated 01.06.2015 and 30.03.2013, passed by learned Courts below, whereby the suit filed by respondent No.1 titled "Haji Abdul Hameed vs. Abdul Mateen" was decreed and the suit titled "Zulfiqar Ali vs. Abdul Mateen" was dismissed.
2. The necessary facts for the disposal of this civil revision are that, respondent No.1 Haji Abdul Hameed instituted a suit for specific performance on 17.05.2005, contending therein, that an agreement to sell dated 21.01.2003 was executed by one Haji Abdul Mateen (respondent No.2) for a consideration of Rs.9,65,000/-, out of which Rs.8,74,878/- were paid as earnest money in the presence of the witnesses and as regard the remaining amount it was agreed that the same will be paid at the time of the registration of the sale deed. Further contended, that it was agreed, that the sale deed will be executed and registered on 30.06.2003 and during this period, Haji Abdul Mateen (vendor) also received further amount Rs.50,000/- but refused to execute and registered the sale deed on the pretext, that the suit land is mortgaged with the Agricultural Development Bank of Pakistan. Also stated, that the said Abdul Hameed time and again asked Haji Abdul Mateen to get redeem the suit land but Haji Abdul Mateen instead of taking any step to redeem the property, alienated the same through oral sale vide mutation No.12501 on 02.09.2011 in favour of one Rehmat Ali, who further alienated the land in favour of one Saeed Ahmad, the petitioner herein, on the basis of registered sale deed dated 20.10.2011. Lastly prayed, that as the agreement to sell executed in favour of respondent No.1 (Haji Abdul Hameed) was prior in time, therefore, the suit be decreed by declaring all the subsequent transactions null and void.
3. In response of the notice respondent No.2 Haji Abdul Mateen, the vendor and original owner of the suit land, appeared in the Court and submitted written statement wherein he admitted the execution of the agreement to sell dated 21.01.2003 in favour of respondent No.1 but also stated in his written statement, that respondent No.1 could not fulfill the terms and condition therefore, respondent No.2 is ready to pay the double of the earnest money according to the terms and condition of the agreement to sell.
4. On the other hand, the petitioner and respondent No.4, who were defendants No.2 & 3 in the suit, vehemently contested the claim made by respondent No.1, on the ground, that the land has validly been transferred by way of sale in their favour. Zulfiqar Ali (respondent No.4) one of the defendants also claimed that he had an agreement to sell in his favour prior to the execution of the agreement to sell in favour of respondent No.1.
During the pendency of the aforesaid suit, Zulfiqar Ali (respondent No.4) also filed a suit for specific performance on the basis of an agreement to sell dated 02.01.2003. The learned trial court consolidated both the suits and framed consolidated issues out of the divergent pleadings of the parties. The learned trial court after recording the evidence of the respective parties finally decreed the suit filed by respondent No.1 and dismissed the suit filed by the respondent No.4.
Against the consolidated judgment passed by the learned trial court dated 30.03.2013 following three appeals were filed:
1. Zulfiqar Ali Y/S Abdul Mateen etc.
2. Saeed Ahmad Y/S Haji Abdul Hameed etc.
3. Abdul Hameed Y/S Abdul Mateen etc. The learned appellate Court after hearing the arguments of the parties dismissed two appeals titled Saeed Ahmad v. Haji Abdul Hameed etc. And Zulfiqar Ali v. Abdul Mateen etc. Whereas accepted the appeal filed by Abdul Hameed respondent No.1 to the extent of observation passed in Paragraph No.28 of the judgment delivered by the learned trial court.
5. The instant civil revision has been filed only by the present petitioner, who claimed himself the bonafide purchaser of the suit land through a registered sale deed dated 20.10.2011 executed by one Rehmat Ali respondent No.3 herein, in his favour.
6. Learned counsel for the petitioner mainly argued that the petitioner is a bonafide purchaser of the suit land.
Further submitted, that the petitioner purchased the suit land through the registered sale deed but the learned courts below have totally ignored this aspect of the case and non-suited the petitioner.
Lastly contended, that the concurrent findings recorded by the learned courts below are totally against the record and the law applicable on the case.
7. Heard. Record perused.
8. During the course of arguments the relevant record pertaining to the sale of land was examined, therefore, firstly it is to be examined as to whether respondent No.1 in whose favour the decree has been passed, has succeeded to prove his case and as to whether the learned courts below while rendering the concurrent conclusion have rightly appreciated the evidence produced by the parties.
9. As per record, that at the time of filing the written statement in a suit filed by the respondent No.1, respondent No.2/defendant (original owner of the property) categorically admitted the execution of the agreement to sell dated 21.01.2003 in favour of respondent No.1, and in these circumstances although there is no need to further examine or discuss the validity and authenticity of agreement to sell dated 21.01.2003 as the law says, "admitted facts need not to be proved" but anyhow in order to satisfy myself, the evidence produced by the respondent No.1 to prove the agreement to sell was perused.
10. The respondent No.1/plaintiff in order to prove the authenticity and validity of the agreement to sell dated 21.01.2003 produced two marginal witnesses PW1 & PW2, who stated that the agreement to sell was executed in their presence and both the witnesses also identified their signatures. The respondent No.1 (vendee) himself appeared in the witnesses' box and stated that the agreement to sell was executed in his favour by Haji Abdul Mateen respondent No.2 herein against consideration.
The stamp vendor also appeared as PW4 and deposed that Ex.P1 (stamp paper) was issued by him in favour of Haji Abdul Mateen (respondent No.2) for the execution of agreement to sell. The said witness also produced the copy of the register to show the issuance of Ex.P1. The scribe of the agreement to sell also appeared as PW1, who is Advocate by profession and stated, that the agreement to sell was scribed by him and he also identified his signatures at the back of Ex.P1.
Although these witnesses were cross examined by the petitioner but the petitioner could not fetch out anything against the stance of the respondent No.1/plaintiff. The above referred evidence produced by the respondent No.1 is sufficient to hold, that the respondent No.1 had succeeded to prove the execution of the agreement to sell in his favour by the respondent No.2 (Haji Abdul Mateen).
11. On the other hand, the petitioner also produced the evidence in support of his version but unfortunately could not succeed to prove his claim of bona fide purchaser of the suit land. There are serious contradictions in the evidence produced by the petitioner. There are also other important facts to show the fraud played by the petitioner in connivance with respondents No.2 to
4. For instance, as found out from the record, the petitioner filed the suit for specific performance against respondent No.1 on 26.04.2007 on the basis of alleged agreement to sell dated 02.01.2003, wherein respondent No.2 (Abdul Mateen), the original owner of the suit land, did not appear and consequently, ex-parte proceedings were ordered against him vide 10.04.2008, whereupon he filed an application for setting aside the ex-parte proceedings on 26.06.2009, which, as per the record, was never decided by the court. During this period, the respondent No.1 filed an application under Order 1 rule 10 C.P.C. In the suit filed by the respondent No.4 which was accepted and respondent No.1 contested the suit through filing written statement. It is pertinent to mention here, that no written statement was filed by the respondent No.2 in the suit filed by the respondent No.4 but on one day, the respondent No.4, plaintiff of the suit, and respondent No.2 both appeared before the Court, filed an application for recording the statement of Abdul Mateen on the basis of a compromise. The respondent No.2 recorded his statement on 26.01.2011 but thereafter the respondent No.2 did not appear in the Court nor any effective order was passed by the learned trial court in favour of respondent No.4 on the basis of the statement recorded by respondent No.2.
12. The story of connivance and fraud of the respondents No.2 to 4 does not end here. The respondent No.4 Zulfiqar Ali plaintiff of the suit, after remained unsuccessful to get any order or decree in his favour on the basis of the statement recorded by respondent No.2 played another fraud and on 26.01.2011 managed to mutate the suit land by way of oral sale on 02.02.2011 in favour of Rehmat Ali, his real uncle, instead of transferring the land in his own favour. The said Rehmat Ali, who is real uncle of respondent No.4, further transferred the land in favour of the petitioner on 20.10.2011 on the basis of a registered sale deed No.2923. These transactions were managed by the respondents No.2 to 4 by playing fraud and misrepresentation during the pendency of the injunctive order passed by the learned trial court granted in a suit filed by the respondent No.1. It also establishes from the record, that Zulfiqar Ali, respondent No.4, who filed the suit during the pendency of the suit filed by respondent No.1, completely failed to prove his agreement to sell (Ex.D.1). Thus, it has rightly been concluded by the learned courts below, that the Ex.d.1 was antedated and prepared fraudulently with the connivance of respondents No.2 and 3 simply to cheat Haji Abdul Hameed, respondent No.1, who earlier filed the suit.
13. The afore-referred record collected by the learned trial court during the course of recording the evidence is sufficient to establish and hold that a havoc fraud has been played by the petitioner and respondents No.2 to 4 with the respondent No.1. On every occasion, the respondents No.2 to 4 tried to create a hurdle by preparing forged document in the way to execute and register the sale deed in favour of the respondent No.1.
14. I have carefully examined the findings recorded by the learned courts below and reached to the conclusion, that learned courts below correctly evaluated, appreciated and interpreted the record produced by both the parties during the course of evidence and reached to a fair and just conclusion, that the respondent No.1 has succeeded to prove his case whereas the petitioner and respondents No.2 to 4 could not bring anything which is confidence inspiring in support of their claim. As the respondent No.1 has successfully proved the agreement to sell executed in his favour by the respondent No.2 against consideration, therefore, the learned courts below rightly declared the transactions managed with connivance by the petitioner and respondents No.2 to 4 null and void and correctly decreed the suit in favour of the respondent No.1.
The scope of the doctrine of lis pendens as embodied in Section 52 of Transfer of Property Act, 1882, in pith and substance is not only based on equity but also at good conscience and justice. This Rule has been defined and interpreted at different times in many judgments, that "the rule of lis pendens and section 52 of the Transfer of Property Act is founded upon the maxim "pendente lite nihil innovetur" which means that pending litigation, nothing should be changed or introduced as the true object of lis is to protect and safeguard the parties to the suit and their rights and interest | the immovable suit property against any alienation made by either of the parties, of that property, during the pendency of the suit in favour of a third person.
I am fortified by the latest judgment of the Hon'ble Supreme Court of Pakistan, titled "Mst.
Tabassum Shaheen v. Mst. Uzma Rahat and others" (2012 SCM R 983), wherein the Hon'ble Supreme Court of Pakistan has gone to this extent while interpreting the well-known legal maxim "ut lite pendent nihil innovetur" that the safeguard of principle of lis pendens shall remain in the field even within the limitation to file the appeal against the judgment and decree of the learned courts below. The relevant observation of the Hon'ble Supreme Court of Pakistan is reproduced hereunder:- "The afore-referred provision enshrines the age old and well established principle of equity that ut lite pendent nihil innovetur (pending litigation nothing new should be introduced) and stipulates that pendent lite parties to litigation wherein right to immovable property is in question, no party can alienate or otherwise deal with such property to the detriment of his opponent. Any transfer so made would be hit by this Section. The doctrine by now is recognized both in law and equity and underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. The effect of such alienation would be that the plaintiff would be defeated by defendants alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity but also at good conscience and justice. In Lalji Singh v. Remeshuwar Misra ((1983) 9 All LR 269 (271)(All)), the essential ingredients of section 52 ibid or the condition precedent to attract this principle were construed as follow:-
(i) The pendency of any suit or proceeding in a court law:
(ii) The court must have jurisdiction over the person or property;
(iii) The property must have specifically described and should be affected by the termination of the suit or proceedings;
(iv) The right to the said property be directly and specifically be in question in any suit or proceedings;
(v) An alienation of such immovable property without the permission or order of the court; and
(vi) The alienation should be during the pendency of any such suit or proceeding and a suit or proceeding in question is not collusive."
The Hon'ble Supreme Court of Pakistan in another landmark judgment cited as "Farzand Ali and another v. Khuda Bakhsh and others" (PLD 2015 SC 187) has observed as under:- "Considering the plea of lis pendens raised by the appellants' learned counsel, it may be mentioned that the scope, the principle and the application of rule of lis pendens has been elaborately dilated in the judgment reported as "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905). The ratio of the above law is that a subsequent transferee cannot sustain his transfer (e.g. The sale) if he has purchased the property during the pendency of the suit. He is bound by the outcome of the suit, obviously that shall be so if the case is decided against the transferor from whom he is purchasing the property or against the transferee if he is a party to the case, but if the lis is decided in his favour, there shall be no question about the application of the rule of lis pendens."
15. As manifests from the record, that the petitioner and the respondents No.2 to 4 made transaction during the pendency of the suit filed by the respondent No.1, therefore, the principle of lis pendens as defined and interpreted by the Hon'ble Supreme Court of Pakistan, in the afore- referred esteemed judgments is squarely applicable upon the facts of this case and the learned courts below particularly the learned appellate court had not committed any illegality, legal infirmity or jurisdictional defect to dismiss the suit of the petitioner on this ground also.
16. It has also been ruled by the Hon'ble Supreme Court of Pakistan, that the concurrent findings on facts should not be interfered in routine, but in an extra ordinary circumstance, when the learned courts below have committed serious jurisdictional error or legal infirmity.
I find support from the valuable judgments of the Hon'ble Supreme Court of Pakistan, titled "Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCM R 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCM R 1469), Noor Muhammad and others v. Mst. Azmate-Bibi (2012 SCM R 1373), Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCM R 984), Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another (2008 SCM R 428), and "Abdul Ghafoor and others v. Kallu and others"
(2008 SCM R 452), that the High Court, in the case of concurrent findings, normally does not interfere unless the same is result of exercise of jurisdiction not vested in the learned courts below.
The Hon'ble Supreme Court of Pakistan, in its recent judgment (supra) titled "Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others" (2014 SCM R 161) observed as under:- "In other words, the provisions of section 115, C.P.C. Under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities. The revisional jurisdiction of the High Court cannot be invoked against conclusions of law or fact, which do not, in any way, affect the jurisdiction of the Court. In the instant case, the learned High Court, in law, could not have investigated into the facts or exercised its jurisdiction on the basis of facts or grounds, which were already proved by the parties by leading evidence. We are of the considered view that the judgment impugned in these proceedings is unexceptionable. The learned High Court was justified in not interfering in the concurrent findings of fact which were based on the material brought on record and proper appreciation of evidence. "
17. In view of the above, I see no reason to interfere with the concurrent findings rendered by the learned courts below. Resultantly, this revision petition is dismissed with cost.