' CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal by leave of the Court has been filed against the judgment of the High Court dated 5.8.2010, whereby the appeal filed by the appellants has been dismissed with costs.
2. Brief facts forming background of the appeal are that the plaintiff-respondent No.1 filed a suit for declaration/specific performance and possession on the basis of an agreement-to-sell dated 20.7.2006 in respect of the suit land in the Court of District Judge, Bagh on 27.2.2008. It was averred by the plaintiff-respondent that the suit land was partly in the ownership of defendant-respondent No.2 and his brother Kh. Abdul Waheed Ahmed. Defendant-respondent No.2 himself and on behalf of his brother agreed to sell their shares to the plaintiff-respondent vide agreement dated 20.7.2006 for a consideration of Rs.2,50,000/-. The defendant-respondent No.2 received the amount of Rs.35,000/- at the time of agreement and after that received further Rs.10,000/-from the plaintiff-respondent. The remaining amount was to be paid to defendant-respondent No.2 on 1st December, 2006.
3. The plaintiff-respondent, when discussed about the agreement to-sell with the heirs of the brother of respondent-defendant No.2 in Muzaffarabad, they said that they have not authorized him to sell the -land. They also refused to accept the consideration amount determined in the agreement. Ultimately, another separate agreement to the extent of the shares of Abdul Waheed Ahmed, was executed in which the consideration amount was determined as Rs.5,00,000/-. On 20.7.2006, the attorney of the legal heirs of Abdul Waheed, executed the sale-deed in favour of plaintiff-respondent, thus, the previous agreement-to-sell dated 20.7.2006 remain operative only to the extent of shares of defendant-respondent No.2.
4. It is alleged that plaintiff-respondent went to Karachi where he is serving and in his absence, defendant-respondent No.2 alienated the same land to defendant-appellants despite the fact that the suit land was already agreed to be sold to the plaintiff-respondent and this fact was also in the knowledge of defendant-appellant No.2.
5. The suit was resisted by filing written statement from the other side. The learned trial Court framed issues in the, light of the respective pleadings of the parties. They were provided an opportunity to lead evidence in support of their respective claims. After necessary proceedings, the learned District Judge vide judgment dated 23.4.2008 decreed the suit in favour of plaintiff- respondent. Feeling aggrieved from the judgment and decree of District Judge Bagh dated 23.4.2008, the appellants herein filed an appeal in the High Court which met the same fate through the impugned judgment and decree. The appellants have now challenged the legality and correctness of the judgment of High Court Through the instant appeal.
6. Kh. Muhammad Nasim Advocate, the learned counsel for the defendant-appellants argued the case at some length and mainly stressed on the point that both the Courts below have fell in error of law, misreading and non-reading of evidence. The disputed land was in possession of the defendant-appellants and they have made huge improvements over it. The Courts below have wrongly granted the declaratory decrees for possession on the basis of agreement to sell whereas according to law only a decree for specific performance can be granted. It is almost now settled principle of law that agreement-to-sell itself does not create any right or interest, therefore, no suit on the basis of such deed can be decreed. The defendant-appellants have purchased the land through a valid sale-deed, thus, the suit was not maintainable.
7. Conversely, Mr. Muhammad Yaqoob Khan Mughal Advocate, the learned counsel for plaintiff- Respondent, forcefully defended the impugned judgment on the ground that the arguments of learned counsel for the defendant-appellants are misconceived. The trial Court as well as the appellate Courts have passed the decrees after due appreciation of material brought on record.
Thus, the question of misreading and non-reading of evidence does not arise. He further submitted that the so-called sale-deed on the basis of which the defendant-appellant's claim their rights, is patently illegal. The same was executed during pendency of the suit filed by plaintiff-respondent and despite interim injunction of the civil Court. According to statutory provisions of section 52 of the Transfer of Property Act, the alleged deed is illegal and does not create any right thus, the appeal has no merits and the same is liable to be dismissed.
8. We have considered the respective arguments of learned counsel for the parties and also perused the record made available. Undisputedly, the Courts below have recorded the concurrent findings on the question of facts. The trial Court as well as the first appellate Court's judgment and decree are well reasoned and speaking one. The appellants have made vague assertions of misreading and non-reading of evidence, thus, according to celebrated principle of law, the concurrent findings recorded by the Counts below on the question of facts cannot be disturbed in the second appeal. While dealing with the scope of concurrent findings, this Court in a case reported as Ghulam Rasool v. Muhammad Khan and another, 1999 MLD 883 has observed as under:- "11. Even otherwise it has been held by this Court time and again that concurrent findings of fact recorded by the trial Court and the first appellate Court cannot be disturbed unless a case for misreading or non-reading or gross injustice has been made out. Even if on the appraisal of the evidence a different conclusion is arrived at by the High Court or this Court the same cannot be a ground for setting aside the concurrent findings howsoever erroneous the same may be. Reliance in this regard is placed on a reported case of this Court titled 'Shah Alam and another v. Hay.
Muhammad Nawaz Khan and 5 others' [PLD 1981 SC (AJ&K) 124]. The relevant observation is recorded at page 126 in the following manner:- 'It would thus appear that unless some procedural defect such as non-reading of evidence, misreading of evidence or travesty of the finding is not established, a finding of fact cannot be allowed to be discharged by the High Court.'
' This principle is consistently followed and in this regard we are also benefited from the wisdom of judgment of this Court in a case reported as Farooq Ahmad v. Capt. (R) Munshi Khan and 5 others, [2004 SCR 510], in which it has been held that even if a different view might be possible, concurrent findings cannot be disturbed.
' The same view has also been followed in the case reported as Muhammad Riaz v. Muhammad Riyasat and 8 others [2008 SCR 308].
9. The appellants base their claim on the alleged sale-deed executed in their favour on 28.11.2006.
The plaintiff-respondent filed a suit in the Civil Court on 18.10.2006 and also got issued the interim injunction prohibiting the proforma-respondent No.2 (herein) from transferring the land to any other party.
10. 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 lis 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 arguments 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 pre-emption 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, pro forma respondents, is not 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 adverse possession, especially so when he himself has no locus standi to file the appeal."
' In another case reported as Darul 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 subjudice, 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.
11. The trial Court has rightly applied the principle of lis-pendens, which is fully attracted in this case, thus, very foundation on which the defendant-appellants have built their defence is legally not available to them. The respondent-plaintiff has succeeded in establishing that the agreement-to- sell was executed in his favour thus, according to law, enforcement of agreement is binding upon the parties.
12. The next argument of learned counsel for the defendant-appellants is that the decree in declaratory suit has been wrongly granted whereas the only decree for specific performance is permissible under law. We have thoroughly perused the decree and judgment of the trial Court.
The argument of learned counsel for the appellant is result of some misconception. The judgments and decrees of both the Courts below are quite in terms of decree of specific performance.
Moreover, it is not prohibited by law that in the suit where plaintiff has claimed more than one remedies and same are proved and also can be granted under law, the Court cannot grant the same. According to law, in the light of the material legal and factual propositions, a party can claim as much remedies as can be spelled out, if the same are proved, the Court can grant more than one remedies in one suit. In this regard the statutory provisions of Order II, rule 2, Order VII, rule 7 and Order VIII, rule 7 of Civil Procedure Code are very much clear which speaks that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. It is also statutory requirement that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. Even under the statutory provision, same rule applies to written statement but no relief has been claimed by the defendant in his written statement, thus, the argument of learned counsel for the defendant- appellants on this legal proposition is unfounded, hence, the same stands repelled.
' In the peculiar facts of this case, the remedies granted by the Courts below are quite consistent with the statutory provisions and principle of justice, therefore, finding no force, this appeal stands.
Dismissed with costs.