SYED ARSHAD ALI, J. By way of this common judgment, I intend to dispose of instant revision petition as well as connected Civil Revision No. 1671-P/2010 as both these petitions are arising out of the same impugned judgments of learned Courts below .
2. Brief but essential facts of the case are that Shams-ul-Mulk (respondent No.1) had instituted a suit against the petitioners and rest of respondents in the Court of learned Senior Civil Judge, Nowshera for the following relief :- Possession through specific performance of agreement to sell dated 7.12.2004 & 11.12.2004 in respect of property measuring 76 kanals, well mentioned in the head note of the plaint, against the sale consideration of Rupees Forty Lacs; Permanent injunction against the defendants to the effect that they be restrained from making any interference or change or further transfer in the suit property; and Declaration to the effect that sale mutation No.5977 dated 15.12.2005 is wrong and illegal which has been collusively attested by defendant No.1 in favour of defendants Nos.15 and 16 during the pendency of the suit and for that reason is liable to cancellation.
2. It is averred in the plaint that the suit, property was initially ownership of defendants Nos.2 to 14, who transferred some area from suit khasra numbers to defendant No.1 through various sale deeds dated 3.7.1996, 4.7.1996, 22.8.1996 and 17.02.2003, while remaining area was transferred to defendant No.1 vide mutation No.5822 dated 30.5.2003. Latter , defendant No.1 executed an agreement to sell dated 7.12.2004 , according to which, he agreed to transfer the suit property in favour of plaintif f in lieu of Rupees forty lac, out of which, Rupees ten lac was paid to defendant No.1, as earnest money vide agreement deed dated 11.12.2004, whereas, the rest of amount was agreed to be paid at the time of attestation of mutation or execution of the registered deed. Plaintif f time and again requested defendant No.1 to receive the remaining sale consideration and execute sale deed or sale mutation in his favour but he refused, hence, plaintif f filed a civil suit against defendants Nos.1 to 14 on 4.1.2005.
Defendants were summoned, but they did not appear to defend their rights in the suit. As a last resort, defendants were summoned through publication but none turned up on their behalf, hence, they were placed ex-parte vide order dated 25.4.2005. Then, plaintif f recorded ex-parte evidence on 5.12.2005 and after hearing the ex-parte arguments the case was fixed for order , however , on 2.1.2006, the defendant No.1 appeared before learned Trial Court and submitted an application for setting aside ex-parte proceedings initiated against him on 25.4.2005. In the meanwhile, Ihsanullah and Abdul Salam (petitioners in connected revision petition ) also appeared before the learned Trial Court and submitted an application for their impleadment in the column of defendants being necessary party . Learned Trial Court accepted both the applications vide its order dated 27.3.2006 and plaintif f was directed to submit amended plaint.
Plaintif f assailed the aforesaid order in appeal and learned Appellate Court while accepting the appeal, set-aside the order of learned Trial Court vide order dated 24.5.2006 and consequently , boll the applications were dismissed.
The then contesting defendants being aggrieved with the aforesaid order of learned Appellate Court challenged the same before this Court in two different writ petitions and this court while accepting the petitions, set-aside the aforesaid order of learned Appellate Court and remanded the case to learned Trial Court.
Then; learned Trial Court in light of order of this court directed the plaintif f to submit amended plaint and accordingly , he filed the same on 30.3.2007.
Defendants Nos.1, 15 and 16 contested the suit by filing their written statements. Learned Trial Court, after recording evidence and hearing learned counsel for the parties, decreed the suit of plaintif f vide judgment and decree dated 8.4.2009.
Defendants Nos.15 and 16 (Ihsanullah and Abdul Salam) assailed the aforesaid judgment and decree through Civil Appeal No.10/13, whereas, defendant No.1 (Addul Aziz Nooristani) filed Civil Appeal No.11/13 before the learned Additional District Judge-IV challenging the validity of the judgment and decree passed by the learned trial court, Nowshera. The learned Appellate Court, after hearing learned counsel for the parties, dismissed both these appeals through a consolidated judgment and decree dated 8.5.2010.
Being aggrieved and dis-satisfied thereof, Defendant No.1 (Abdul Aziz Nooristani ) has filed instant Revision Petition No.1635-P / 2010 while defendants Nos.15 and 16 (Ihsanullah and Abdul Salam ) have filed the connected Civil Revision No.1671-P/2010.
3. I have heard learned counsel for the parties and have also gone through the record with their valuable assistance.
4. The genesis of the claim of the plaintif f / respondent is on agreement to sell dated 7.12.2004 (Ex.PW -1/4) and agreement dated 11.12. 2004 (Ex. PW-1/6) . According to first, agreement Ex. PW-1 /4, defendant/petitioner (Abdul Aziz Nooristani) had agreed to sell land measuring 76 kanals 10 marla to plaintif f / respondent (Shams-ul-Mulk) for a total sale consideration of Rupees Four Million. It was agreed in the said agreement that within one week the buyer (Shams-ul-Mulk) shall pay rupees one million and the remaining amount of rupees three -million would be payable at the time of transfer deed / mutation. This deed was witnessed by Majid Khan son of Sufaid Gul, whereas, it was signed by Attaullah Khan son of Haji Najab Khan, attorney of buyer (Shams-ul-Mulk) also as a witness. Whereas, through the second agreement Ex.PW -1/6, defendant/petitioner (Abdul Aziz Nooristani) has acknowledged receipt of rupees one million through Demand Draft No.010456 dated 9.12.2004 drawn on Meezan Bank Ltd for the sale of land measuring 76 kanal. In the afore said deeds the property has not been identified through khasra numbers, however , it has been described as the property which was, purchased from Haji Faqir Muhammad, Irfan and Jamal etc through different unregistered deeds. The plaintif f/respondent instituted a suit on 4.1.2005, however , during pendency of suit, the defendant/petitioner (Abdul Aziz Nooristani) transferred land measuring 18 kanal to defendants Nos. 15 and 16 through mutation No.5977 dated 15.12.2005, who were latter impleaded as Defendants Nos.15 and 16 to the suit. Defendant/petitioner (Abdul Aziz Nooristani) had flatly refused the execution of both the agreements to sell, whereas, defendants/respondents Nos.15 and 16 had raised the, plea of being bona fide purchasers.
5. At the trial, the plaintif f/respondent produced Naheed Hussain, Mad Moharrir , PS Pabbi as APW -1, who produced the copy of FIR, whereby , the added defendants Nos. 15 and 16, etc were charged for trying to forcefully occupying the suit property . The scribe of the agreements to sell Taza Din was produced as APW -2, who has confirmed the execution of deed. He has also stated that in his presence, both the parties, not only executed the deeds but the plaintif f/respondent had handed over the bank cheque/Demand Draft to defendant/petitioner (Abdul Aziz Nooristani). He has further stated that the seller Abdul Aziz Nooristani was known to him because the earlier unregistered sale deeds on the basis of which Abdul Aziz Nooristani, the seller , occupied/acquired title of the disputed property was also executed by him. In cross-examination, he has confirmed that he personally knew the seller Abdul Aziz Nooristani, therefore, his testimony is not only confined being scribe of the agreements to sell but he is also witness to the deeds Ex.PW -1/4 and Ex.PW -1/6. Regarding the payment of portion of sale consideration i.e. one million rupees to seller (Abdul Aziz Nooristani), the plaintif f produced Syed Tasleem Shah, Officer of Meezan Bank, as APW -3, who produced the application of plaintif f/respondent for preparation of demand draft No.010456, for the total worth of rupees one million in the name of Abdul Aziz Nooristani, copy whereof, was exhibited as Ex_APW -3/4 And Ex.PW -3/5 respectively . He also produced the transaction voucher Ex.APW -3/6.
Gulshan Khan, Officer of HBL appeared as APW -4 and has produced the record relating to the aforesaid Demand Draft and has confirmed that the said demand draft was routed through the State Bank of Pakistan and the amount was credited in the account of payee ( Abdul Aziz Nooristani) on 17.12.2004, which was maintained at the Allied Bank Ltd. The said information was then intimated to the, Meezan Bank, accordingly . Mairaj Gul, Officer of ABL, University Town Branch, Peshawar appeared before the Court as APW -6, who produced the account opening form of Abdul Aziz Nooristani, (the seller), who opened the account in the ABL, University Town Branch, Peshawar on 17.12.2004, copy whereof is Ex.APW -6/1 and in the said account, the amount of rupees one million through the same demand draft No.010456 was credited in the account of seller Abdul Aziz Nooristani. He has admitted the suggestion that the said account was opened for the purpose of crediting the bank draft No.010456. Only one marginal witness of the deed namely Atta Ullah appeared as APW -7, whereas, the other two witnesses Majid Khan and Musharaf Shah have not been produced by the plaintif f/respondent, however , the admitted fact for non- production of the aforesaid two witnesse s is that Musharaf Shah was driver of the seller Abdul Aziz Nooristani, whereas, Majid Khan is the son-in-law of Abdul Aziz Nooristani. This fact has also been admitted by the Abdul Aziz Nooristani in his evidence. The said Abdul Aziz Nooristani was confronted with the agreement to sell, who has stated that his signature on the agreement to sell resemble to his actual signatu res, whereas, he confirmed the signature of Musharaf Shah on Ex.PW -1/4 and Ex. PW -1/6.
6. In view of above testimony of APWs coupled with the available record, the plaintif f/respondent had successfully established the execution of the agreements to sell not only through the evidence of scribe and the marginal witness but the money trail has also been established through confidence inspiring evidence / banking channel as well.
7. I am conscious of the fact that ordinarily the scribe is not considered as witne ss of the deed, however , in the present case, as evident from his testimony , the vendor (seller) was earlier known to him as he had earlier executed agreements in his favour relating to the same property and in unequivocal terms had confirmed the execution of the deed by the vendor and handing over of the demand draft to the seller . Therefore he is also a witness to the impugned transaction. The plaintif f/respondent has established the agreements to sell through two witnesses but has also offered a plausible justification for non-production of the marginal witnesses being the close relatives of the defendant. Therefore, the agreement to sell was established at the trial. In this regard, I am fortified with the judgments of Honourable the Supreme Court of Pakistan, august Lahor e High Court as well as august Sindh High Court, in cases of Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others reported as 1994 SCMR 2189 , Babu v. Ghulam Rasool reported as 2003 CLC 984, Mst. Ghulam Jannat by Legal Heirs and another v . Allah Ditta reported as 2003 YLR 981 and Danishmand v . Rashid Afzal reported as 1986 MLD 141 .
8. Resultantly , the concurrent findings of both the Courts below on this issue don't suffer from any mis-reading or non-reading of evidence and also based on correct legal position.
9. Moving on to - the assertion and claim of the subsequent purchasers, who are petitioners in connected Revision Petition No.1671-P/2010 (Ihsanullah and Abdul Salam). Admittedly , they have purchased the land measuring 18 kanal 10 marla through Mutation No.5977 attested on 15.12.2005, which is obviously during the pendency of the suit filed by the plaintif f/respondent (Shams-ul-Mulk). It is, by now, settled law that a person, who is purchasing the property , which is a subject matter of a lis, he cannot put forward the plea of bona fide purchaser under Section 41 of the Transfer of Property Act, 1882. The august Supreme Court of Pakistan in case titled Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others reported as PLD 2011 Supreme Court 905 has elaborately expounded the said proposition of law. The relevant portion of the ibid judgment is reproduced herein below for convenience:- "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 impleaded 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 elucida ted 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 do 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 applica tion 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. "
10. Learned counsel for respondents has also invited my attention to an application filed by them for sending the signatures of the vendor Abdul Aziz Nooristani on the disputed documents and has argued that despite the pendency of said application, the court has announced the judgment and has rendered no findings on the said application. In this regard, he has placed reliance on case titled Muhammad Ismail and another v. Baha dur and 2 others reported as 1993 CLC 1637 and Pak Carpet Industries Limited v. Government of Sindh and 2 others reported as 1993 CLC 334. The aforesaid argument of learned counsel is not sustainable for two reasons: firstly; that they have failed to place on record the relevant order sheets regarding the said application that as to whether application was actually presented before the Court and secondly , no such ground was raised nor mentioned in the memo of the appeal before the learned Appellate Forum. Even otherwise, in view of available record, the expert opinion is a week kind of evidence, which cannot be considered, even if, he had opined otherwise. Furthermore, the vendor Abdul Aziz Nooristani, while appearing as a witness in his cross-examination did not specifically deny his signature when confronted with deed Ex.PW -1/6, rather has stated that the said Signature resemble with his original signatures.
11. Learned counsel for plaintif f-respondent has also raised an objection on the connected civil revision petition being barred by limitation for 14-days. Although, the defendants/petitioners have filed an application for condonation of delay under section 5 of the Limitation Act, 1908 but this court tends to agree with the learned Counsel for petitioners that the said petition could not be dismissed on the plea of limitation as in the connected petition the same impugned judgment has been challenged by the co-defendant/petitioner which is well within time.
12. Now coming to the contention of Mr. Rehmanullah Advocate, who represents Respondents Nos. 2 to 4. It is on record that they were proceeded exparte, and they have filed an application for setting aside exparte decree, which is pending before the learned trail court. Therefore, this court will render no findings on the said issue lest it prejudice the case of either party as the said application shall be decided by the trial court on its own merits.
13. For the reasons discussed hereinabove, both these petitions being meritless stand dismissed, accordingly .