RASAAL HASAN SYED, J.---The petitioner, in this civil revision, has challenged the judgment and decree dated 28.4.2015 of the learned Addl. District Judge, Chiniot, whereby her appeal against judgment and decree dated 21.11.2012 was dismissed, and the decree of the learned trial court was affirmed.
2. The precise facts from which this petition stems are that petitioner Mst. Mamdan Bibi sold the suit land vide mutation No.1888 dated 29.9.2006 to respondent No.2, Nazra. To pre-empt the sale respondent No.1, Arif Hussain Shah, filed a suit for pre-emption claiming that he had a superior right of pre-emption being a co-sharer in khata and owner of contiguous land, and that on acquiring information of sale he had made the requisite talabs.
3. On 13.1.2007 Mian Manzoor Hussain Nasir, Advocate, filed power of attorney on behalf of respondent No.2, Nazra. On 03.2.2007 the said respondent appeared in the suit along with his counsel, recorded statement therein admitting receipt of Rs.100,000/- from the plaintiff and asked for the issuance of decree on payment of zar-e-soem. The statement was also thumb-marked by the respondent, his identity card number was also noted. Thereafter statement of counsel for respondent No.1 (plaintiff) was recorded to the effect that he did not have any objection to the payment of zar-e-soem to respondent No.2 (defendant) and that the suit be decreed. The case was adjourned for filing of produce index units and levy of court fee.
4. Later Mst. Mamdan Bibi filed an application under Order 1, Rule 10, C.P.C., for her impleadment as defendant which was declined by the learned Civil Judge but the appellate court accepted the application and permitted her impleadment. The stance taken in the written statement by her was that she had challenged mutation of sale No.1880 dated 29.9.2006 in a declaratory suit "Mst.
Mamdan Bibi v. Nazra" and that the suit for pre-emption during the pendency of her suit was not maintainable.
5. After framing issues and recording evidence the learned Civil Judge concluded that Mst.
Mamdan Bibi had withdrawn her declaratory suit which she had filed to challenge the mutation of sale and thereafter claimed that the property was repurchased vide mutation No. 2164 dated 30.6.2009. The view taken by the learned Civil Judge was that the subsequent mutation was attested during the pendency of the suit, which was fraudulent and a criminal act as the respondent Nazra had already recorded his statement of having received the sale price from the plaintiff. The subsequent mutation No. 2164 dated 30.6.2009 was declared to be invalid and the suit was decreed against respondent Nazra.
6. Respondent Mst. Mamdan Bibi filed an appeal against the judgment and decree of learned Civil Judge while respondent Nazra did not assail the decree. The learned Addl. District Judge after hearing both sides observed that vendee Nazra had appeared in the suit on 03.7.2006, recorded the statement, admitted the payment of price and conceding the grant of decree. It was noted that Nazra as RW-3 again admitted his statement earlier recorded as also the thumb-impression.
It was also noted that Mst. Mamdan Bibi was added as a party on the plea that she had challenged the mutation of sale which was being pre-empted but later she withdrew her suit for declaration and repurchased the land. It was observed that the mutation of early sale dated 30.6.2009 during the pendency of sale was a result of collusion; and that it was not a case of re-conveyance but a case of new sale, which of course was legally untenable. The learned appellate court therefore dismissed the appeal and affirmed the decree of the trial court.
7. Learned counsel for the petitioner argued that proper issues were not framed and that the impugned judgment was based on conjectures. An attempt was also made to argue that respondent Nazra did not record any statement.
8. To the contrary learned counsel for the respondent argued that the petitioner had no locus standi to file this revision, she was impleaded on the plea that she had challenged the mutation of sale subject-matter of pre-emption by filing a declaratory suit which she later withdrew, and being so she was neither necessary party nor could be aggrieved of the decree. The plea of subsequent oral sale during the pendency of the suit being violative of section 52 of the Transfer of Property Act, she did not acquire any lawful right in the property, and will be bound by the decree.
9. Having given deeper consideration to the submissions made on behalf of the petitioner, it is observed that the same lacked legal substance. The suit for pre-emption was filed to pre-empt the sale of suit land in favour of Nazra respondent who recorded his statement in the presence of his counsel affirming the receipt of Rs:100,000/- and also agreeing to the grant of decree on payment of zar-e-soim, which was accepted by the other side. At no point of time respondent Nazra filed any application for annulment of his statement on the plea of any denial; instead while appearing as RW-3, he admitted his earlier statement, and also the thumb-impression. So much so respondent Nazra did not challenge the decree passed by the learned Civil Judge either in appeal or through revision in this Court. Being so the arguments raised by the learned counsel on behalf of Mst. Mamdan Bibi are untenable.
10. As regards the arguments of non-framing of issues, learned counsel on being asked did not deny that at no stage of the trial any application for the framing of additional issues or recasting the existing issues was filed; so much so that no such plea was raised in appeal as is discernable from the impugned judgment. Being so the petitioner could not be permitted to raise the plea of non-framing of issues at the revisional stage. Reference can be made to the rule laid in "Mehr Din (represented by his Legal heirs) v. Dr. Bashir Ahmad Khan and 2 others" (1985 SCM R 1) where the august Supreme Court observed as under: "Nonetheless, we find that throughout the trial the parties were fully cognizant of this issue which really arose out of the pleadings of the parties and they had also adduced their evidence in respect thereof. So, that in our considered opinion no prejudice was done to any parties in the failure of the Court to frame a proper issue in the suit arising out of the pleadings of the parties."
11.It is also noteworthy that the petitioner sought impleadment in the proceedings of the suit on the plea that she had challenged the very mutation of sale in a declaratory suit and therefore she had an interest in the matter but she later withdrew the suit by relinquishing her stance; she was no longer a necessary or proper party, much less to claim a right to assail the decree in the pre- emption suit. It has been rightly observed by the learned Addl. District Judge that her subsequent plea of oral sale through mutation' No.2164 dated 30.6.2009 was a result of collusion between respondent Nazra and the petitioner and that the mutation was illegal, as it was an attempt to commit fraud by the petitioner and respondent Nazra after the suit had been conceded by him and receipt of payment of sale price had been acknowledged. Even otherwise the alleged subsequent oral mutation of sale was hit by the principle of section 52 of the Transfer of Property Act and resultantly the petitioner could not claim acquisition of any legal title nor could defeat the decree B against respondent Nazra; rather she having stepped into his shoes, would be bound by the decree against respondent Nazra. It is a rule that any alienation of property pendente lite will be barred by the rule of lis pendens and it cannot prejudice the rights of the decree-holder as the transferee will be bound by the decree against the transferor. Reference can be made to the rule given in "Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others" (PLD 2011 SC 905) where the august Supreme Court, while interpreting the effect of the rule of lis pendens, observed that: "...The rule unanimously 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 tranferree of the suit property, even the purchaser for value, without notice of the pendency of suit, who in ordinary judicial parlance is known as a bona fide purchaser 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 he has to swim and sink with his predecessor in interest..."
12. In view of this rule, the subsequent transaction was hit by the rule of lis pendens, the petitioner could not claim any independent right, and would be deemed to have stepped into the shoes of Nazra and thus be bound by the decree against him.
13. The findings thus recorded by the learned appellate court as also the learned trial court do not suffer from any misreading or non-reading of the record or from any error of law; no ground for interference is made out, in result, this civil revision being without merit is accordingly dism issed.
Parties to bear their own cost.