ALI AKBAR QURESHI, J.---This Regular Second Appeal is directed against the judgment and decree dated 02.12.2016 and 28.01.2015, passed by the learned Courts below, whereby the suit for specific performance of an agreement to sell, filed by respondents Nos.1 and 2, was decreed.
2. The following controversies, which require adjudication, have arisen out from the instant appeal; i.The interpretation and application of Section 52 of the Transfer of Property Act, 1882. ii.Whether the appellant, who admittedly purchased the suit land during the currency of the civil suit, could prove his stance of bona fide purchaser for consideration without notice. iii.Whether the respondents Nos.1 and 2 could prove the agreement to sell executed by respondent No.3 in their favour, in accordance with law.
3.Precisely the facts of the instant appeal are that, respondent No.3, who was owner of a land measuring 26 Kanal (the suit land), entered into an agreement to sell with the respondents Nos.1 and 2 for a consideration of Rs.1 crore, out of which Rs.14,00,000/- were paid as advance money and Rs.20,00,000/- were paid at the time of executing the agreement to sell; as regard the remaining amount i.e. Rs.66,00,000/-, it was agreed between the parties, that the same shall be paid at the time of execution of the registered sale deed i.e. 22.08.2008. Despite the fact, as contended by respondents No.1 and 2, they remained ready for the execution of the sale deed but the respondent No.3 refused to execute the sale deed, whereupon respondents Nos.1 and 2 filed a suit for specific performance of the agreement to sell. During the pendency of the suit, respondent No.3 further alienated the suit land in favour of the present appellant. On the application of the respondents Nos.1 and 2 under Order I Rule 10, C.P.C., the appellant was impleaded in the list of defendants. The suit was contested by respondent No.3 through written statement, wherein he denied the claim of respondents Nos.1 and 2. The appellant after impleadment also filed his written statement mainly on the ground, that he is bona fide purchaser of the suit land for consideration without notice as it was not informed by the respondent No.3 regarding the agreement to sell or the pendency of the suit. The learned Trial Court, after completing all the codal formalities including framing of issues and hearing of the arguments, decreed the suit; against which an appeal was filed by the appellant which was dismissed. It is pertinent to mention here, that the original vendor i.e. respondent No.3 did not file appeal against the judgment and decree dated 28.01.2015, passed by the learned Trial Court.
4. Learned counsel for the appellant mainly argued, that the appellant although purchased the suit land during the pendency of the suit but he is a bona fide purchaser for consideration without notice as the respondent No.3 did not inform at the time of receiving earnest money regarding the pendency of the suit filed by respondents Nos.1 and 2; that the appellant, after purchasing the land from respondent No.3, has sold out to different persons who are residing at the site and if any adverse order is passed, that will also affect the rights of End purchasers.
5.The appellant, after impleading in the list of the defendants, filed an application before the learned Trial Court to cross-examine the witnesses of the respondents Nos.1 and 2 who had already recorded their examination-in-chief, which was dismissed. The order of dismissal of application was challenged in civil revision, the same was dismissed by this Court. Another application to implead the End purchasers was filed by the appellant, which was disallowed up to this Court through a judgment passed in C.R. No.520/2013.
6.Heard.
7.In order to appreciate the contentions raised by the learned counsel for the appellant, the record as well as the findings of the learned Courts below have been perused with the assistance of learned counsel for the appellant.
8. As regard the claim of bona fide purchaser, it is not denied that the appellant purchased the suit land during the pendency of the civil suit. The civil suit was filed in the year 2007 and during the pendency in the year 2010, the suit land was purchased by the appellant, therefore, the rule of lis pendens embodied in Section 52 of the Transfer of Property Act, 1882, which has been interpreted by the Hon'ble Supreme Court of Pakistan in Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) is squarely applicable in this case. The relevant part of the judgment (supra), wherein section 52 of the Act ibid has been defined, is reproduced as under:-- <i>"The aforesaid section manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendente lite nihil innovetur", which means that pending litigation, nothing should be changed or introduced.
The virtual and true object of lis pendens is to protect and safeguard the parties to the suit and their rights and interest in 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. The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendente lite are permitted to prevail and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de novo proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated.
In support of the above, reliance is placed upon Messrs Aman Enterprises v. Messrs Rahim Industries Ltd. and another (PLD 1993 SC 292), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003). Besides, in West Virginia Pulp and Paper Co. v. Cooper, 106 S.E. 55, 60, 87 W. Va. 781, it has been held "the doctrine of "lis pendens" is that one who purchases from a party pending suit a part or the whole of the subject-matter involved in the litigation takes it. subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title."
9.As regard the claim of the appellant that he is a bona fide purchaser and purchased the land in good faith, it is to be seen as to whether the appellant could prove his stance by bringing or producing unimpeachable evidence. It depicts from the record, that the appellant could not bring any evidence on record the list of precautionary measures were taken by the appellant before purchasing the land. The appellant, while appearing in the witness box, has simply stated, that before purchasing the suit land, he contacted with the Halqa Patwari but unfortunately, no evidence in this regard except the statement of the appellant is available on the record. It is held in chains of judgments, that mere inquiring from the revenue officials is not sufficient to prove the stance of bona fide purchaser for consideration without notice. Reliance is placed on Usman v.
(1) Haji Omer Haji Ayub, and (2) Haji Razzak (PLD 1966 SC 328), Mst. Allah Ditti v. Settlementand Rehabilitation Commissioner, Lahore and 3 others (PLD 1966 (W.P.) Lahore 659), Australasia Bank Ltd. Lahore v. Bashir Barton Stores, Sargodha and 2 others (PLD 1971 Lahore 133), Ali Shan and another v. Sher Zaman and 8 others (PLD 1975 Lahore 388), Shukri and 3 others v. Ch. Muhammad Shafi Zaffar and 2 others (PLD 1975 Lahore 619), Muhammad Jan Ghaznavi v. Captain HO Muhammad Kabir and 3 others (PLD 1977 Quetta 60), Malik Muhammad Iqbal v. Ghulam Muhammad and others (1990 CLC 670), Maulana Riazul Hassan v. Muhammad Ayub Khan and another (1991 SCMR 2513), Industrial Development Bank of Pakistan through-Deputy Chief Manager v. Saadi Asmatullah and others (1999 SCMR 2874), Mukhtar Baig and others v. Sardar Baig and others (2000 SCMR 45), Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others (PLD 2002 SC 303), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003), Muhammad Anwar Khan v. Habib Bank Ltd. and 4 others (2005 CLD 165), Muhammad Afzal v. Matloob Hussain and others (PLD 2006 SC 84), Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) and Hafiz Iftikhar Ahmed and 3 others v. Khushi Muhammad and another (2014 CLC 1689).
10. From the principle laid down in the afore-referred judgments, the appellant, who purchased the suit land during the pendency of the suit, is not entitled to defend the suit independently. In these circumstances, it can conveniently be held, that the appellant has miserably failed to prove his stance of bona fide purchaser and needless to mention, that the transaction to purchase the suit land by the appellant during the pendency of the suit was subject to the final outcome of the suit and as per rule of lis pendens, the appellant has to swim and sink with his predecessor in interest i.e. the original vendor/respondent No.3.
11. The Hon'ble Supreme Court of Pakistan, while interpreting Section 52 of. Act ibid, which relates to the rule of lis pendens, has gone to the extent, that the rule of lis pendens will apply till the final adjudication which is given in an appeal or revision at the final level of the judicial hierocracy. The relevant part of judgment supra (PLD 2011 SC 905) is reproduced as under:-- "8. While dealing with the proposition about the scope and application of section 52 ibid it may be relevant to state here, that as per the clear wording of the explanation to the section, when read as a whole, and especially by construing the expression "the suit or proceeding has been disposed of by a final decree or order" it undoubtedly means, that final verdict, which is given in an appeal or revision at the final level of the judicial hierarchy, which verdict has attained conclusiveness."
The rule of lis pendens has further been interpreted by the Hon'ble Supreme Court of Pakistan in the judgment (supra), in the following words:-- "8Therefore, the rule of lis pendens shall also be duly attracted and applicable during the period of limitation provided for an appeal or revision etc. to challenge a decree/order. If therefore an alienation of a suit property has been made by a party to the lis, who succeeds at one stage (such as trial), but the transfer is during the period of limitation available to the other (unsuccessful) party, to challenge that decision and ultimately the decree/order is over turned in its further challenge, such alienation made shall also be hit and shall be subject to the rule of lis pendens."
12. As regard the third controversy which relates to the execution of the agreement to sell qua the suit land between the respondents Nos.1 and 2 and 3, it is to be seen, as to whether respondents Nos.1 and 2, in whose favour the agreement to sell (Exh.P.1) was executed by the respondents No.3, succeeded to prove the same through unimpeachable and satisfactory evidence. As per the contents of (Exh.P.1), the agreement to sell was executed in the presence of two marginal witnesses namely, Pervaiz and Maqsood Ahmad. Both the marginal witnesses appeared as P.W.1 and P.W.2 in support of the claim of respondents Nos.1 and 2 and successfully proved the agreement to sell (Exh.P.1). The agreement to sell was also admitted by the respondent No.3 in an application (Exh.D.13) given by him to the Sub-Registrar for making his attendance before him. It can conveniently be concluded and held, that the respondents Nos.1 and 2, through convincing and confidence inspiring evidence, proved the agreement to sell and payment of the consideration, therefore, no illegality as appears from the concurrent findings has been committed by the learned Courts below while decreeing the suit. Reliance is placed on Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187).
13.Even otherwise, there is hardly any reason to interfere with the well worded concurrent findings of the learned courts below. I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, in the case of Cantonment Board through Executive Officer Cann. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCM R 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCM R 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCM R 1373).
14. Resultantly,this appeal is dismissed in limine and the judgment and decree passed by the learned Courts below is upheld. No order as to costs.