' IJAZ UL AHSAN, J.---Through this single order, we intend to decide Civil Petitions Nos. 1136-L, 1137-L, 1138-L and 1139-L of 2016, as all these petitions arise out of the same judgment of Lahore 'High Court, Lahore.
2. The petitioners seek leave to appeal against judgment dated 23.02.2016 passed by Lahore High Court, Lahore in Civil Revision Nos. 2644 of 2009, 42, 43 and 630 of 2010 through which the same were dismissed.
3. Brief facts of the case are that Mst. Raj Bibi, wife; Muhammad Abdul Khaliq; and Khalid Masood, sons of Ghulam Muhammad sold land measuring 18 kanals 11 marlas to late Riasat Ali by means of registered sale deed dated 11.04.1975. The said persons made another alienation by way of sale of land measuring 12 kanals, 11 marlas out of the same holding in favour of late Riasat All through registered sale deed dated 19.01.1976.
4. The petitioner namely Aasia Jabeen daughter of Mst. Raj Bibi and sister of Muhammad Abdul Khaliq and Khalid Masood filed two separate suits to pre-empt the aforesaid sale transactions. The suits were contested and issues were framed. However, the plaints were rejected on 21.03.1984 by the Civil Court on the ground of being deficiently stamped. The petitioners preferred appeals against rejection of plaints before the Additional District Judge, Mandi Bahauddin. However, both the appeals were dismissed on 04.06.1987.
5. The petition& Aasia Jabeen assailed the judgment of the Additional District Judge by way of Civil Revisions Nos.1151 and 1152 of 1987 before Lahore High Court, Lahore. The Civil Revisions were decided in terms of a compromise dated 03.12.1988 which was incorporated in the judgment of the High Court. The relevant portion of the judgment containing terms of the compromise is reproduced as below:- 'in view of the above, it is clear that the validity of the compromise is in no way impaired. Hence the compromise is recorded and made rule of the court. 4ccording to the compromise both revision petitions (Civil Revision Petitions Nos.1151 and 1152 of 1987) are partly accepted, the judgments and decrees of the learned trial and the appellate Court below are set aside and the suits are decreed as follows:-
(a) Riasat Ali respondent-defendant shall retain 14 kanals 10 marlas of land comprising of killa No,7 (measuring 8 kanals) and kila No,6 (6 kanals and 10 marlas towards west adjoining killa No,7) of square No,126, village Mandi Bahauddin, District Gujrat.
(b) The remaining 16 kanals 12 marlas of land forming subject matter of the suit sales shall go to Mst. Aasia Jabeen, petitioner-plaintiff.
(c) Mst. Aasia Jabeen shall pay Rs, 66,400/- to Riasat Ali towards sale price of the said area of 16 kanals and 12 marlas. She will also pay Rs, 20,000/- to Riasat Ali towards the expenses on registration of the sale deeds. In this way she will have to pay Rs,86,400/- to Riasat Ali upto 4.6.1988 failing which her two revision petitions shall stand dismissed. "
6. Late Riasat Ali filed Civil Appeals Nos.1400 and 1401 of 1990 against the aforesaid judgment of the High Court. The said appeals were 'allowed on 18.11.1992 and the judgment of the High Court was set aside. The petitioners thereafter filed Civil Review Petitions Nos.67 and 68 of 1993 which were also dismissed by this Court.
7. Late Riasat Ali thereafter filed an application under section 144 read with section 151, C.P.C. For restitution of possession on 27.05.1993. The said application was contested. The learned trial Court framed the following issues:- "I. Whether Riasat Ali petitioner is entitled to restoration of disputed property in light of decision of Hon'ble Supreme Court dated 18.11.1992.
2. Whether Riasat Ali petitioner is estopped to file the instant petition as he has done compromise with the respondents in Hon'ble Lahore High Court, Lahore and drawn decretal amount of Rs,1,50,000/-.
3. Whether the petitioner is also estopped to file the instant petition by way of his words and conduct as he has purchased 16 kanals, 12 marlas land from the respondent from the disputed property after the decision of the Hon'ble Lahore High Court, Lahore dated 03.12.1988.
4. Whether the suit is bad for non-joinder of necessary parties.
5. Whether petition is filed mala fide.
6. Relief
8. During pendency of proceedings other parties claiming to have purchased portions of the land in dispute also joined the fray. The petitioners in Civil Petitions Nos.1137-L, 1138-L and 1139-L of 2016 are some of those parties, Therefore, on 04.06.2002, following .Additional issue was also framed: "5/1. Whether the respondents Nos.2 to 12 are bona fide purchaser for value without notice and are entitled for compensation in case of decree. "
9. After recording evidence and hearing the parties, the Civil Judge, Mandi Bahauddin vide order dated 10.07.2003 accepted the aforesaid application of Riasat Ali. The appeal filed by the petitioners before the Additional District Judge, Mandi Bahauddin was dismissed vide order dated 26.10.2009. The petitioners challenged the orders dated 10.07.2003 and 26.10.2009 passed by the learned trial Court and the first appellate Court, respectively, before the High Court. Vide its judgment dated 23.02.2016, the High Court dismissed the Civil Revisions. Hence, these petitions.
10. Learned counsel for the petitioners submits that the petition under section 144 read with section 151, C.P.C. Was not competent in view of the fact that possession was not taken over by the petitioners in execution of a decree. He maintains that although a mutation was entered in favour of Aasia Jabeen pursuant to the decree passed by the High Court, Riasat Ali had lost possession much before that. The learned counsel neither elaborated how this had happened nor has he referred to .Any document to substantiate his assertion. He further maintains that late Riasat Ali was estopped from filing the petition under section 144 read with section 151, C.P.C. He further argues that the other petitioners are bona fide purchasers without notice and that they had raised construction on the disputed land by spending substantial amounts of money. Therefore, possession of land in any case cannot be given to Riasat Ali or his successors. In support of his contentions, learned counsel has relied on Periyasamy Thevan and others v. Karuthiah Thevan and another (AIR 1918 Madras 1293) and Niadar Mal v. Rattan Lal (AIR 1927 Lahore 625).
11. We have heard the learned counsel for the petitioners at considerable length and gone through the record. There is no denial of the fact that suit for possession through pre-emption filed by the petitioners was decreed in terms of a compromise to the extent of 16 kanals, 13 marlas of land by the High Court. Late Riasat Ali continued to own and hold possession of the land measuring 14 kanals, 10 marlas. However, on appeal the decree passed by the High Court was set aside by this Court in view of the law laid down by it in the cases reported as Government of NWFP v. Said Kamal Shah (PLD 1986 Supreme Court 360); Sardar Ali v. Muhammad Ali (PLD 1988 Supreme Court 287) and Muhammad Aslam v. Ahmed Naeem (PLD 1992 Supreme Court 819). The review petitions filed by the petitioners raising substantially the same questions as have been raised in these petitions were also dismissed by this Court vide judgment dated 19.07.1993. Relevant portion of which for ease of reference is reproduced as under:- 'The decrees obtained by the petitioner were incompetently passed and for that reason these could not be sustained. The petitioners, if so advised, can through restitution proceedings get back the amounts received by the vendees. With these observations these review petitions are dismissed. "
12. The argument of learned counsel for the petitioners that the .Vendees had already withdrawn the pre-emption amount from the High Court and had acquiesced in the decrees and some of the petitioners had paid the price of land purchased by them directly to the vendees has adequately be.En answered by this Court in the afore-noted judgment. We are, therefore, in no manner of doubt that once the judgment and decree of the High Court had been set aside by this Court, the entire superstructure built thereon fell to the ground and the parties were restored to the same position as if no judgment and decree had been C passed by the High Court. We are also not convinced that Aasia Jabeen had taken possession of the land in dispute through any mode other than on the basis of the judgment and decree of the High Court.
13. The learned counsel for the petitioners has not denied the fact that all transactions took place when the matter was pending before this Court. It is evident from the record as held by the trial Court as well as the first appellate Court that Allah Dad purchased land on 25.09.93 whereas Ajmal purchased land on 04.02.93 i.e, they both purchased land after decision by this Court. Moreover, Mian Manzoor Ahmed, Attorney of Aasia in his cross-examination before the trial Court deposed that he never knew that a review petition was pending in this Court when they were selling the land.
He was the attorney of Aasia Jabeen and her application for review was pending before this Court against decision dated 18.11.92 and finally her review application was dismissed on 19.07.93. It is hard to understand how Aasia/Mian Manzoor her attorney could claim that they never knew about pendency of the matter before this Court. It is not out of place to mention that none of the petitioners/purchasers mentioned the date of their purchase in their written reply before the trial Court or when they appeared as witnesses before the said Court. Furthermore, Bashir Ahmed RW.8 deposed before the trial Court that he had purchased land from Aasia Bibi. In his cross- examination Bashir Ahmed admitted that he knew about pendency of the matter before this Court and he also knew that this Court had decided the .Case in favour of Riasat and against Aasia Jabeen. Anwar RW.7 who along with his father had purchased a portion of the disputed land from Aasia Jabeen also admitted in his cross-examination that litigation between the parties had been pending since 08.05.86 and he as process server had been getting service effected on the parties.
In these circumstances, there was neither basis nor justification on the part of the purchasers to claim that they were bona fide purchasers without notice because they knew all along that litigation was pending between Riasat Ali and Aasia Jabeen.
14. The High Court was, therefore, justified in holding that the principle of us pendens was applicable and any person who purchased the land during pendency of the proceedings before this Court or raised construction thereon did so at his own risk and cost. The said view also finds support from the judgment of this Court dated 19.07.1993 passed in the review petitions as noted above. There is also no denial of the fact that when various transactions took place upto 1993 the petitioners were aware that there was litigation between the parties, appeals against the judgment and decree of the High Court had been allowed by this Court and/or the Review Petitions were pending before this Court. Therefore, the petitioners have no body but themselves to blame and could avail their remedies to recover the amounts received by the sellers as observed by this Court in its judgment dated 19.07.1993 dismissing the review .Petitions.
15. The argument of the learned counsel that possession could not be restored to the respondents in terms of the petition under section 144 read with section 151, C.P.C. In view of the fact that the petitioners had not been put in possession on the basis of a decree of the Court has not impressed us. There is nothing on record to substantiate the assertion that Aasia Jabeen had taken possession of the suit property even before the judgment and decree of the High Court on the basis of any lawful transaction. On the contrary, it is an admitted fact that Aasia Jabeen was put into possession through warrant dakhal and mutation No,13626 dated 01.02.1998 was sanctioned on the basis of the judgment and decree of the High Court.
16. It is settled law that restitution is ordered against the holder of a decree who has deprived the other party of some benefit on the basis of such decree and upon variance or reversal of the decree, the Court calls upon him to restitute the said benefit. In this regard, reliance has been placed on Fazal Karim v. Rawal Malik and another (1998 SCM R 1200) and Abdul Bari v. Muhammad Rasheed Khan (1995 SCM R 851). In the case of Fazal Karim, a decree for possession by pre-emption was passed and possession obtained in execution. Upon setting aside of the decree, restitution of possession was ordered and such order was upheld by this Court. We find that Fazal Karim's case is on all fours with the present case. Likewise, in the case of Abdul Bari, a party was dispossessed on the basis of a decree which was subsequently set aside. Possession was restored by the executing Court and such order was upheld by this Court.
17. Even otherwise, we are of the view that the right, title and interest of late Riasat Ali stood accepted and recognized by this Court. He had a right to be placed in the same position as if no decree had been passed by the High Court. To relegate him to a position where he or his successors would have to go through the rigors of .Another round of endless litigation to seek possession of what was lawfully due to them, as canvassed by learned counsel for the petitioners, would mean perpetuation of injustice which cannot be allowed by this Court. In Abdul Ban's case ibid, this Court has observed that:- ' We feel that interference with the order of the restitution of the property is likely to perpetuate an injustice. It is by now well settled that while exercising the constitutional jurisdiction of this Court, the paramount consideration should be whether interference with the order which suffers from some legal infirmity will advance the cause of justice or would it perpetuate an injustice.
Furthermore, in the peculiar circumstances of the case, learned Senior Civil Judge, in exercise of the inherent jurisdiction under section 151, C.P.C. Of the Civil Court, was quite competent to direct the restitution of the property to respondent No, 1."
' This matter has been under litigation for the past 28 years. And it is high time that the same was put to rest.
18. We have scanned through the judgments cited by the learned .Counsel for the petitioners. The same have been rendered in different sets of facts and circumstances and are clearly distinguishable. We do not find the same applicable to the present controversy. There are concurrent findings of fact recorded by three different Courts against the petitioners. The learned counsel for the petitioners has not been able to persuade us to dislodge the said findings through any cogent or legally sustainable argument or to point out any illegality, irregularity, misreading or non-reading of evidence on record that may call for interference by this Court.
19. For the reasons recorded above, we do not find any merit in these petitions. The same are accordingly dismissed and leave to appeal is declined.