SHAHID MUBEEN, J.---Through this civil revision under Section 115 of Code of Civil Procedure, 1908, the petitioner has called in question the validity and legality of order dated 14.10.2013 passed by learned Additional District Judge, Lahore.
2. Precisely, the facts of the case as narrated in the civil revision are that respondent No,5/Mst.
Sarfraz Begum purchased land measuring 3 kanal 14 marlas comprising Khasra Nos,179/3 and 179/4 Min from Hamid Hussain and Sher Iqbal Haider Zaidi vide registered sale deed No,17807 dated 01.10.1979. She applied for exemption to respondents Nos,2 and 3/LDA and plot No,13-D/1 measuring 1 kanal was allocated and in this respect a letter No, JT/AP-1155/8181 dated 11.07.1988 was issued.
After payment of dues, respondents Nos,2 and 3/LDA exempted the said plot situated at M.A. Johar Town, Lahore vide letter No, JT/AP-1155/9221 dated 03.08.1988 in favour of respondent No, 5 and possession of the said plot was also handed over to her vide letter No, JT/AP-1155/9407 dated 08.08.1988. Respondent No,5 sold the above said plot to Tahir Mahmood Saeed/respondent No,4 and respondents Nos,2 and 3/LDA transferred the plot in his name vide letter No, JT/AP-1155/3952 dated 25.06.1989. The petitioner purchased the said plot from respondent No,4 and the same was also transferred in his name in LDA record vide letter No, JT/AP-1155/87 dated 08.01.1990 and he took over the possession of the plot in question. Later on, LDA/respondents Nos,2 and 3 cancelled the exemption and possession of said plot vide letter No, JT/APPELLANT-1155/1218 dated 28.02.2000 without hearing the petitioner. On coming to know about the cancellation of the plot, the petitioner approached respondents Nos,2 and 3 for restoration of the plot in question. On refusal, he instituted a suit for declaration with permanent injunction against respondents Nos, 2 and 3 and others before the learned Civil Judge, Lahore who vide judgment and decree dated 31.05.2010 decreed the suit. Respondents Nos,2 and 3 preferred an appeal before learned Additional District Judge, Lahore which was dismissed vide judgment and decree dated 20.01.2011. Respondent No,1 filed an application under Section 12(2), C.P.C. before learned Additional District Judge, Lahore who vide impugned order dated 14.10.2013 accepted the same. Hence, this civil revision.
3. Learned counsel for the petitioner contends that the petitioner is bona fide purchaser of plot bearing No,13-D/1, M.A. Johar Town Scheme, Lahore which was transferred in his name on 08.01.1990 and possession was also delivered to him; that after withdrawal of exemption and possession of said plot of the petitioner by LDA, the plot in dispute was transferred to Syed Muhammad Ilyas in exchange of plot No,401-D M.A. Johar Town Scheme, Lahore by LDA on 10.03.2008 who further transferred it to respondent No,1 (Sajid Hussain Bhatti/respondent No,1) vide letter No,JT/AP-1055- 1A44/3711 dated 12.04.2008 issued by LDA and that too during pendency of the suit which was instituted by the petitioner on 13.02.2006 and decreed on 31.05.2010 passed by learned Civil Judge, Lahore, therefore, respondent No,1 has no locus standi to maintain his application under Section 12(2), C.P.0 as principle of lis pendens 'enshrined in Section 52 of the Transfer of Property Act, 1882 is fully attracted.
4. On the other hand, learned counsel for respondent No,1 has supported the impugned order.
5. Arguments heard. Record perused.
6. It is an admitted fact that petitioner instituted a suit against respondents Nos,2 and 3 (LDA) and respondent No,5 (private respondent) on 13.02.2006. The suit was vehemently contested by LDA before learned trial court and by filing appeal, therefore, said department was a party to the litigation and was not in a position to transfer the plot in dispute either to Syed Muhammad Ilyas or Sajid Hussain Bhatti/ respondent No,
1. The suit was decreed on 31.05.2010. The plot in dispute was transferred to Syed Muhammad Ilyas vide letter No, JT/AP/ 1055+1844/2377 dated 10.03.2008 by LDA who subsequently transferred it to respondent No,1 vide letter No, JT/ AP/1055+1844/ 3711 dated 12.04.2008 which letters have been issued in their favour during pendency of the litigation. In taking the above view, reliance is placed on case law reported as "Muhammad Ashraf Butt and others v.
Muhammad Asif Bhatti and others" (PLD 2011 Supreme Court 905), in which learned Apex Court after discussing the principle laid down in Section 52 of the Transfer of Property Act, 1882 held that if the property is purchased during the pendency of litigation then purchaser has no locus standi to challenge the judgment and decree by filing an application under Section 12(2), C.P.C. Relevant portion of the judgment is reproduced herein below:-- "9. Now considering the instant case in the light of the principles mentioned above, it is clearly spelt out from the record that the appellants have purchased the property during the pendency of the suit and Yaqoob son of Ishaq was a party to the suit who was duly implead as a defendant on 14-2-1980 and had sold the property to Yaqoob son of Khuda Bakhsh on 2.4.1980 from whom the appellants via Jamshed acquired their title subsequently on 12-10-1984. In this context, it may be elucidated that Khalid had sold the property to Yaqoob son of Ishaq prior to the institution of the suit, therefore, if the later was not impleaded as a party, and had made any transfer even during the pendency of the suit, such alienation would not have attracted lis pendens as being not a party thereto, but when the afore-named was arrayed as a defendant on 14-2-1980, from that point of time he shall for the purposes of section 52 ibid be the party to the suit, and thus for all considerations thereof was the predecessor in interest of the appellants, notwithstanding the fact that Yaqoob son of Khuda Bakhsh, who himself had purchased the property from him during the pendency of the suit was made a party to the suit or not. It is in this scenario that lis pendens shall be duly attracted and the appellants, shall have no locus standi to file application under section 12(2), C. P.C. challenging the decree on account of any lapse in the impleadment of the defendants, and thus there was no question for the recording of the evidence on this issue. In any case, as mentioned above, the appellants would not acquire any independent right to challenge the said decree even on the score of being the bona fide purchaser, because the provisions of section 52 ibid are not subservient to section 41 of the Transfer of Property Act or section 27(b) of the Specific Relief Act or the general equitable concept of Bona fide purchaser, rather the section and the rule of lis pendens is an exception to the above provisions/concept. And the appellants could only sustain in their claim to challenge the decree on the basis of the three conditions of section 52 mentioned above, but they have failed to make out a case within the purview thereof.
Before parting with the subject, it may be held that plea on which the leave was granted in the case vide order dated 18-5-2007, in view of the proposition resolved through this judgment is considered to be irrelevant."
Further reliance is placed on case law reported as "Muhammad Mubeen v. Messrs Long Life Builders and others" (PLD 2006 Karachi 278). In this case, Abdul Hameed instituted a suit for specific performance against Messrs Long Life Builders and his partners namely Fayyaz Ahmed, Ch. Zulfiqar Ali Syed Ahmad, Muhammad Aleemuz Zaman including that of Mrs. Nayar Sultana Sylani in the year .1993 which was decreed on 02.12.1998 in favour of Abdul Hameed by cancelling lease deed dated 14.10.1992 executed in favour of Mrs. Nayar Sultana Sylani. When Abdul Hameed filed execution petition for the decree, then one Muhammad Mubeen filed an application under Section 12(2), C.P.C. that he has purchased the Bungalow in dispute from Mrs. Nayar Sultana Sylani in 1994.
The learned Judge in the afore-noted facts and circumstances of the case while applying provision enshrined in Section 52 of the Transfer of Property Act, 1882 held as under:-- "Under section 52 of the Transfer of Property Act, no party to the suit can alienate the disputed property so as to affect his opponent. A party who has obtained decree in his favour is entitled to execute the decree not only against the person against whom decree was passed but also against person who derived title to the disputed property during the pendency of the suit. The change of title or transfer of possession during the pendency of the suit from the judgment- debtor to a third party is to be treated only symbolical title and possession, and there is no reason why the Decree Holder be not allowed to proceed also against the third party who is in actual possession of the suit property.
When a party to a suit sells disputed property to third party during pendency of the suit and ultimately he fails in establishing his title to it, the purchaser of such property cannot even seek protection of a bona fide purchaser in order to deprive the decree-holder the fruits of the decree.
The third party in whose favour title is transferred during the pendency of suit by a judgment- debtor is to be regarded only a representative of the judgment-debtor and the act of selling the property cannot be allowed to defeat the claim of the decree-holders merely because the property changed hands during pendency of the suit. This is so because the rule of lis pendens is applicable also to the third party. In such a case, he is not entitled to defend the suit independently from the judgment-debtor through whom he claimed ownership rights during the pendency of the suit. The judgment and decree passed against the judgment-debtor shall also be binding on the purchaser in the same manner and to the same extent as it was binding on the judgment-debtor."
7. In view of what has been discussed above, this civil revision is allowed and the impugned order dated 14.10.2013 passed by learned Additional District Judge, Lahore is set aside with no order as to costs.