ATHAR MINALLAH, C.J. The legal heirs of Ghulam Ahmed Chaudhry (hereinafter referred to as "Petitioners" )
(Ghulam Ahmed Chaudhry shall be referred to as the "Predecessor-in-Interest/Defendant" ) have invoked the jurisdiction of the Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution? ) seeking the following prayers.- "It is therefore respectfully prayed that this honourable court may graciously be pleased to call for the record, examine the same, accept this petition, set aside the impugned judgment and decree and restore that of the trial court rejecting the Suit of the Respondents.
Any other relief, which this Honourable Court deems appropriate, may also be awarded to the Petitioner".
2. The facts and circumstances of the case are peculiar . The case highlights the hardship of an Overseas Pakistani, who despite taking utmost care had lost his property through fraud. The Overseas Pakistani, Akbar Hussain (hereinafter referred to as the "Owner/Plaintif f") had pursued his case since 1979 and during the pendency of the litigation he passed away . He was survived by a son Muhammad Lehrasib (hereinafter referred to as the "Surviving Heir" ) and his widow Mst Raheem Jan. The latter also passed away while the protracted litigation remained pending.
3. The Owner/Plaintif f purchased plot no.31, street no.32, sector F-6/1, Islamabad (hereinafter referred to as the "Property" ). The title of the Property was trans ferred in his name by the Capital Development Authority (hereinafter referred to as the "CDA" ) vide letter , dated 22-11-1972. He constructed a house and left for the United Kingdom. It is noted that the Owner/Plaintif f was settled in the United Kingdom and the Property was taken care of by one of his nephews, Muhammad Banaras. The Property was rented by the latter and rent was being received regularly . However , the nephew also went abroad in connection with his employment. On his return in 1977, he discovered that the Property was in possession of the Predecessor-in-Interest/Defendant. The Owner/Plaintif f was informed and pursuant thereto he visited Pakistan and made inquiries from the CDA. The latter informed him that on the basis of an application, the Property was transferred in the name of one Tasaddaq Hussain vide letter , dated 02-04-1977. The said Tasaddaq Hussain was shown as the son of the Owner/Plaintif f. Tasaddaq Hussain had transferred the Property in the name of the Predecessor-in-Interest/Defendant vide letter , dated 13-05-1977 i.e. after about a month of the transfer in his own name. The Owner/Plaintif f had not visited Pakistan during the period when the purported transfer in the name of Tasaddaq Hussain had taken place. The Owner/Plaintif f filed a written complaint at the police station Kohsar and pursuant thereto a criminal case i.e. FIR, dated 29-10-1978, was duly registered. Simultaneously , a suit was also filed on 20-01-1979 by the Owner/Plaintif f. It was explicitly asserted in the plaint that the transfer in the name of Tasaddaq Hussain was based on fraud because he was neither his son nor the application was filed by the Owner/Plaintif f. The suit was conte sted by the Predecessor-in- interest/Defendant by filing written statement. Seven issues were framed by the learned trial court out of the divergent pleadings. After recording of evidence and affording an opportunity of hearing to the parties, the learned trial court vide judgment, dated 28-07-1987, dismissed the suit of the Owner/Plaintif f on the sole ground that the Predecessor-in-interest/Defendant was a bonafide purchaser . Regular First Appeal No.27/1987 was allowed by the learned Lahore High Court, Rawalpindi Bench, vide judgment, dated 07-06-2001, and resultantly the judgment and decree, dated 28-07-1987, was set aside and the matter was remanded to the learned trial court for deciding the suit afresh after impleading Tasaddaq Hussain as one of the defendants. The amended plaint was accordingly filed by the Owner/Plaintif f. The judgment of the learned Lahore High Court, dated 07-06-2001, was assailed before the august Supreme Court through C.P.L.A. No.2391/2001. During pendency of the proceedings, the Owner/Plaintif f passed away and, therefore, his legal heirs were impleaded in the suit. The apex Court vide judgment, dated 18- 04-2002, upheld the judgment of the learned Lahore High Court and disposed-of by directing the learned trial court to decide the suit within a period of four months. The suit of the Owner/Plaintif f was again dismissed by the learned trial court vide judgment, dated 14-12-2002. It is important to note that Tasaddaq Hussain who had fraudulently claimed to be the son of the Owner/Plaintif f was impleaded as one of the defendants. The latter could not be traced nor the Predecessor-in-interest/Defendant or the CDA were able to identify him. It is further disturbing to note that investigations in FIR, dated 29-10-1978, remained inconclusive. The State was not able to trace the identity of the person who had fraudulently posed himself as the son of the Owner/Plaintif f. The identity card produced by the person posing to be Tasaddaq Hussain at the time of transfer of the property was subsequently found to be forged.
It is ironic that the record relating to FIR, dated 29-10-1978, mysteriously went missing. The legal heirs of the Owner/Plaintif f filed R.F.A. No.167/2003. The appeal was, however , dismissed for want of prosecution vide order , dated 08-06-2009. One of the legal heirs, Muhammad Lehrasib, travelled to Islamabad in 2012 and discovered that the appeal was dismissed for non-prosec ution in 2009. Petition under Order XLI, rule 19 of the CPC alongwith an application under section 5 of the Limitation Act, 1908 was filed for restoration of the appeal and condonation of the delay . The said petition was dismissed by the learned Additional District Judge, Islamabad vide order , dated 14-12- 2013. The said order was assailed before this Court through C.R. No.429/2015, which was allowed vide judgment, dated 03-05-2019. The order of this Court was challenged before the august Supreme Court vide Civil Appeal No.750/2020 and it was dismissed vide order , dated 26-05-2021. It is noted that the order , dated 13-05-2019, passed by this Court had consequently attained finality . The learned Additional District Judge vide judgment, dated 29-07-2019, allowed the appeal filed by the legal heirs of the Owner/Plaintif f. Civil Revision No.335/2019 was dismissed by this Court. However , the august Supreme Court vide order , dated 26-05-2021, allowed C.P.
No.749/2020 and consequently remande d the matter to the learned appellate court. Pursuant to the remand, the learned appellate court allowed the appeal vide judgment, dated 22-09-2021.
4. The learned counsel for the petitioner has mainly argued that the latter was a bonafide purchaser and, therefore, his rights were protected. He has further argued that the onus was on the respondents to prove that the Owner/Plaintif f had not visited Pakistan at the time when the title of the Property was transferred in the name of Tasaddaq Hussain.
5. The learned counsel for the respondents, on the other hand, has argued that no right can be claimed on the basis of fraud and, therefore, the principle of bonafide purchaser is not attracted.
6. The learned counsels have been heard and the record perused with their able assistance.
7. Admittedly the Owner/Plaintif f was an Overseas Pakistani, permanently residing in the United Kingdom. After discovering that the Property was in possession of the Predecessor-in-interest/D efendant, he had registered a criminal case i.e. FIR, dated 29-10-1978. It was an obligation of the State to trace the person who had presented himself before the CDA as Tasaddaq Hussain". As already noted, the identity card of the person who had represented himself as Tasaddaq Hussain" was later found to be forged. Mysteriously , the record relating to the criminal case also went missing. The Owner/Plaintif f had filed a suit and had taken the specific plea of fraud. On the criminal side, it was the duty of the State to trace the person who had posed himself as Tasaddaq Hussain on the basis of a forged identity card and pursuant thereto had fraudulently managed to transfer the property in his name. The evidence brought on record unambiguously establishes that the CDA had not exercised due diligence nor had observed the prescribed procedure at the time of transfer of the Property in the name a person who had posed himself as the son of the Owner/P laintif f. The Owner/Plaintif f had taken all reasonable steps that a prudent person would have taken in the circumstances. He was an Overseas Pakistani and was permanently living in the United Kingdom. The learned counsel for the petitioner , despite his able assistance, could not point out any misreading or non-reading of the eviden ce. However , he had mainly argued on the basis of the status of the predecessor-in-interest of the respondent as a bonafide purchaser . There is no force in the argument that the Owner/Plaintif f may have committed fraud. This argument is fallacious because the Owner/Plaintif f could not have gained any benefit whatsoever by fraudulently transferring his own Property in the name of a mysterious person who had posed as Tasaddaq Hussain". No benefit or gain could be derived by the Owner/Plaintif f. The latter 's conduct i.e. registration of a criminal case and filing a suit, was sufficient to establish the bonafide of the Owner/Plaintif f.
8. The august Supreme Court, in the case titled Ghulam Rasool and others v. Noor Muhammad and others"
[2017 SCMR 81], has described the essential ingredients regarding a bonafide purchaser and the same in the language of the august Court are as follows.- "The essential ingredients of this section are, (a) that the transferor was the ostensible owner; (b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and
(d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction.
These four imperative/essential ingredients must co-exist in order for a person to takes the benefit of the equitable principle, however , merely on account of some error committed by the revenue staff in the revenue record unintentional or deliberate or motivated which excludes the name of the lawful owner of the property therefrom and the property , shown to be in the name of some other person who is not the owner of the whole or a part thereof by itself shall not deprive and denude the true and actual owner from the title of the property and this by no means can be construed that the transfer to the perso n claiming protection of the rule of equity ibid by a person who actually is not the owner is being made by consent express or implied of the real owner ."
9. It is settled principle of law that fraud vitiates all proceedings. The august Supreme Court has unequivocally held that there is no cavil to the proposition that all instruments, deeds, judgments or decrees obtained through fraud are a nullity in the eyes of law and can be quashed at any time so much so that such documents can be ignored altogether by any court of law. The factum of fraud vitiates the most solemn proce edings and that no party can be allowed to take advantage on the basis of fraud nor any right or superstructure can be based thereon. Moreover , a right cannot be claimed in case of transfe r of property through deceit or without knowledge of its owner . Reliance is placed on "Muhammad Zafarullah through L.Rs. and others v. Muhammad Arif through L.Rs. and others"
[2007 SCMR 589] and "The Chief Settlement Commissioner , Lahore v. Raja Muhammad Fazil Khan and others" [PLD 1975 SC 331], "Lal Din and another v. Muhammad Ibrahim" [1993 SCMR 710], "Muhammad Younas Khan and 12 others v. Government of N.W.F.P. through Secretary , Forest and Agriculture, Peshawar and others" [1993 SCMR 618], "Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others" [ 1994 SCMR 782 ].
10. In the facts and circumstances of the case in hand, the above highlighted principles regarding equitable principle of bonafide purchaser are not attracted. The person who had posed himself as Tasaddaq Hussain does not exist and such a presumption could not be rebutted by the Petitioners nor the CDA. The State had also failed in its duty to identify the person who had maneuvered the fraudulent transfer of the Property . The transfer of the Property in the name of a person posing himself as Tasaddaq Hussain was based on fraud and thus it was void. It is an embedded principle of law that when the basic order is without lawful authority , then all superstructure built on it would fall on the ground. Reliance is placed on the cases titled "Yousaf Ali v. Muhammad Aslam Zia and 2 others" [PLD 1958 SC 104] and "Rehmatullah and others v. Saleh Khan and others" [2007 SCMR 729]. The Court is, therefore, satisfied that the impugned judgment does not suffer from any legal infirmity nor the Court while exercising jurisdiction under Article 199 of the Constitution can reappraise the evidence brought on record and substitute the opinion of the appellate court. The CDA, as a custodian of the Property , had failed in its duty to exercise due diligence, rather , its complacency in perpetuating the fraud cannot be ruled out. The Court is, therefore, satisfied that the principle of equity i.e. bonafide purchaser , is not attracted in the case in hand.
11. For the above reasons, the petition is without merit and, therefore, accordingly dismissed.