ASIM HAFEEZ, J.---Through this application, filed under section 12(2) of Civil Procedure Code, 1908 (`C.P .C.'), applicants seek setting aside of consolidated judgment and decree dated 28.05.2020, passed by this Court, while deciding Civil Revision No. 1108/2006 and R.S.A No. 173/2005 - judgement was announced in open court on 20.03.2020, however office pointed certain clerical mistakes with reference to proper identity of the parties, which, in exercise of powers under section 152 of the Code of Civil Procedure, 1908 (`C.P .C.'), were rectified on 28.05.20201. Applicant No.1 claims to have purchased property , pendente lite proceedings of Civil Revision and Regular Second Appeal. And Applicants Nos. 2 to 4 claims to be the alleged transferees from applicant No.1 - no details of purchase were elaborated in the application.
Contextual Facts
2. Facts, necessary for deciding instant application, are that one Muhammad Sharif son of Allah Rakha - now deceased and represented through legal heirs, respondents Nos.1 to 6 - was owner of subject matter property , who was, separately , sued by Muhammad Sarwar - now deceased and represented through legal heirs, respondents Nos.7 to 12 - and one Irfan Latif, on the basis of two separate agreements to sell dated 21.07.1998 and 10.11.1998, respectively , by way of suits seeking performance of respective agreements to sell, which suits were consolidated. Suit of one claimant Irfan Latif - based on the agreement to sell dated 10.11.1998 - was decreed through consolidated judgment on 11.12.2000, and suit of Muhammad Sarwar - based on Agreement to sell dated 21.07.1998 - was dismissed. Appeals filed by Muhammad Sharif and Muhammad Sarwar were dismissed through consolidated judgment and decree dated 13.10.2005. Thereafter , Muhammad Sharif filed RSA No.173/2005 and Muhammad Sarwar filed Civil Revision No.1108/2006, which were heard and decided together; RSA No.173/2005 and Civil Revision 1108/2006 were allowed, concurrent judgments and decrees were set-aside, and consequently , suit of Muhammad Sarwar was decreed, and claim of specific performance of Irfan Latif was dismissed. Now, applicants seek setting aside of said judgment and decree of 28.05.2020, alleging fraud, concealment and collusion on the part of Muhammad Sharif and Muhammad Sarwar . Applicant No.1 claims to have allegedly purchased property under reference from late Muham mad Sharif, through a registered sale deed dated 31.03.2008, registered on 02.04.2008. Precise allegation, in the application, is that Muhammad Sharif executed agreement dated 08.04.2008 with applicant No.1, acknowledging payment of consideration regarding purchase- recorded in terms of sale deed dated 02.04.2008 - and delivery of possession, which agreement contained representation that Muhammad Sarwar had forsaken claim on the basis of agreement to sell dated 21.07.1998. it is notable that said agreement of 08.04.2008 was not executed by Muhammad Sarwar , but it is claimed that same had witnessed it Application is decided in the context of aforesaid facts.
Submissions:
3. Learned counsel for the applicants contends that applicant No.1 was a bona-fide purchaser for consideration, whose rights in the property , by virtue of registered sale deed, were protected in terms of section 41 of the Transfer of Property Act, 1882 (Act, 1882). Adds that both Muhammad Sharif and Muhammad Sarwar concealed factum of sale deed and agreement of 08.04.2008 from the court, when the matter was being adjudicated upon and judgment passed. Further submits that Muhammad Sarwar has no right to seek enforcement of decree on the basis of agreement to sell of 21.07.1998, when he witnessed agreement of 08.04.2008, wherein representation was made regarding abandoning of claim under agreement to sell of 21.07.1998. Lastly submits that Muhammad Sharif was related to Muhammad Sarwar , both of whom colluded and played fraud, which fact constitutes an exception to the principle of lis pendens, enshrined in section 52 of Act, 1882. Learned counsel has placed reliance on judgments reported as "Sunni View Cooperative Housing Society v. Irshad Hussain and others" (1993 CLC 2336 ), "Muhammad Nawaz Khan v. Muhammad Khan and 2 others" (2002 SCMR 2003 ), "Muhammad Aslam and others v. Mst. Kundan Mai and others" (2004 SCMR 843), "Haji Khalid Mahmood and 27 others v. Abdul Hamid and 10 others" (2006 YLR 2311), "Messrs Ark Garments Industry (Pvt.) Ltd. through Managing Director and 2 others v. National Bank of Pakistan" (2013 CLD 1002 ), "Muhammad Thbal and others v.
Khair Din through L.Rs and others" ( 2014 SCMR 33 ), Opinion of the Court:
4. There is no dispute that applicant No.1 was a transferee pendente lite proceedings of Civil Revision No.1108/2006 and RSA No.173/2005 - wherein decree passed against Muhammad Sharif and in favour of Irfan Latif, and claim of Muhammad Sarwar , on the basis of agreement to sell dated 21.07.1998, were subject matter of adjudication. It is notable that applicant No.1 - who claimed interest in the property since 2008, on the basis of alleged sale deed and agreement of 08.04.2008, has not filed any application to join the proceedings or reveal the factum of alleged interest - who remained in hibernation for over 12 years. It is evidently clear from the perusal of the contents of the application under section 12(2) of CPC that applicant had not denied his knowledge qua the pending proceedings. It is strange that applicant No.1 has not stepped forward despite the fact that concurrently two courts have decreed the claim in favour of Irfan Latif, and what stopped the applicants to step in the shoes of Muhammad Sharif and Muhammad Sarwar and contest claim of the decree holder [during pendency of RSA No. 173/2005 and Civil Revision No. 1108/2006], Irfan Latif. No explanation was forthco ming in the application. It is not the case of the applicant that property was purchased under the authority of the court, where proceedings were pending. In, view of the facts of the case, principle of lis pendens, in terms of section 52 of the Transfer of Property Act, 1882 is fully attracted. Reference is made to ratio enunciated in the case of 'Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others' (PLD 2011 Supreme Court 905), wherein it was held that transferee pendente lite does not acquire any legal right free from clog of his unsuccessful transferor , in whose shoes he steps in for all intent and purposes and has to sink and swim with his predecessor in interest. Legality of applicant's claim against Muhammad Sarwar is dealt with in the later part of the decision.
In the case of 'Muhammad Ashraf Butt and others' (supra), one of the requisite conditions for the application of doctrine of lis Pendens is that neither the suit itself nor outcome thereof must be collusive, fraudulent or, meant to entrap, deceive, and defraud an innocent transferee especially a bona fide purchaser . Now the question is that whether the applicants fall in one of the exceptions to the principle of lis pendens. Applicant No.1 was aware of the agreement to sell dated 21.07.1998 by Muhammad Sharif in favour of Muhammad Sarwar . Applicant No.1 claimed benefit of Agreement of 08.04.2008 - allegedly executed by Muhammad Sharif and witnessed by Muhammad Sarwar - wherein factum of agreement of 21.07.1998 was acknowledged. It was nowhere alleged in the application that applicant No.1 conducted due diligen ce before purchasing the property . Henc e, claim of bona-fide purchaser falls flat and no benefit under section 41 of Act, 1882 is available or claimable.
5. It was alleged that Muhammad Sharif, in terms of agreement dated 08,04.2008, had assured the applicant No.1 that Muhammad Sarwar would not press his claim under agreement to sell of 21.07.1998. Now the question is that whether decree dated 28.05.2020 is result of interplay of collusion between Muhammad Sharif and Muhammad Sarwar . It is reiterated that besides claim of Muhammad Sarwar , Irfan Latif was also a claimant, whose claim, against Muhammad Sharif, was based on agreement to sell dated 10.11.1998 and concurrently upheld by the courts - which decrees were set-aside vide decree of 28.05.2020. The proceedings were not only between Muhammad Sharif and Muhammad Sarwar but involves another person, therefore allegation of collusion holds no basis. Applicant No.1 claimed purchase of property in April 2008, however Muha mmad Sarwar filed suit against Muhammad Sharif on 14.05.1999 - to which proceedings Irfan Latif was also impleaded as party subsequently - and written statement was filed by Muhammad Sharif on 03.07.1999, where in execution of agreement of 21.07.1998 was admitted, however termination of agreement was claimed on account of failure of Muhammad Sarwar to pay balance consideration within stipulated time. Claim of Muhammad Sarwar was decided on merits, while deciding Civil Revision. No.1108/2006 and RSA No.173/2005, and not on the basis of any alleged compromise or consenting statement. No right was allegedly claimed by the applicant No.1, from 2008 till the decision of RSA No.173/2005 and Civil Revision 1108/2006. No effort was made to enforce alleged representation, allegedly made by Muhammad Sharif that Muhammad Sarwar had abandoned its claim under agreement to sell dated 21.07.1998, especially when Muhammad Sarwar , who was not the executant of the agreement dated 08.04.2008, but allegedly a witness. Henc e, element of collusion is conspicuous by its absence, both at the time of filling of the suit and passing of decree in question.
6. This case has another aspect. Applicant No.1, and applicants No.2 to 4, claiming interior disposition, are seeking setting-aside of the decree dated 28.05.2020 not on the basis of any enforceable and conclusively adjudged right but merely on the premise that Muhammad Sarwar was witness to the agreement between Applicant No.1 and Muhammad Sharif, wherein it was alleg edly represented that Muhammad Sarwar gave up its claim. Whether alleged agreement - veracity and genu ineness is still subject to determinatio n, which determination cannot otherwise be undertaken under incumbent proceedings - extends any right to the applicant No.1 to challenge the decree? Mere execution of a sale deed, pendente lite, or witnessing an agreement, would not amount to termination of agreement to sell, claim for enforcement whereof is sub-judice before the court of law, at relevant time. Even otherwise, agreement of 08.04.2008 is not per se enforceable / executable against Muhammad Sarwar or his legal heirs, merely because it contained alleged representation by Muhammad Sharif qua abandonment of alleged claim of Muhammad Sarwar under Agreement to sell dated 21.07.1998 which was not cancelled through a decree of the court. No suit for cancellation of agreement to sell was filed, against Muhammad Sarwar , on the basis of alleged agreement. of 08.04.2008, which was not executed by Muhammad Sarwar - and notably no claim was raised in his life. Instant application is not for seeking cancelation of the agreement to sell dated 21.07.1998 but alleges fraud, concealment and collusion qua decree dated 28.05.2020. Applicants are not entitled to perfect their title qua property through collateral proceedings, when they have not sought cancellation of the agreement to sell dated 21.07.1998 - who actually acquiesced qua its existence and enforceability till the passing of decree of 28.05.2020. Applicants cannot seek perfection of alleged right through attacking the decree, on the basis of executory or inchoate document, when particularly it is not the case of the applicant that sale deed of 02.04.2008 and agreement dated 08.04.2008 were executed by Muhammad Sarwar . As long as Agreement to sell of 21.07.1998 is not cancelled, upon judici al determination by way of decree of the court, alleged sale deed and agreement of 08.04.2008 extends no legal right of the Applicants against Muhammad Sarwar or its legal heirs. The application is deficient in material particulars. No record of mutations and evidence of physical possession were enclosed.
7. Learned counsel sought framing of issues and recoding of evidence for determination of questions raised. In view of the facts of the case, this court do not find any reason to seek determination of the application upon calling evidence. The judgments relied upon by applicant's counsel are distinguishable and ratio thereof are not attracted to the facts of instant case - when neither alleged collusion - by way of any compromise, concession or secret arrangement - is established, nor claim of bona-fide purchaser is borne out from the facts pleaded. No legal right is established to challenge the decree in question independently . Learned three-member Bench of Hon'ble Supreme Court of Pakistan in the case of 'Muhammad Ashraf Butt and others' (supra), held that, '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 of the general equitable concept of Bona fide purchaser , rather the section and rule of lis pendens is an exception to the above provisions /concept.'
8. The case of the applicant is hit by section 52 of the Act, 1882, to the extent of alleged sale deed and agreement dated 08.04.2008, and currently no enforceable right in the property is available against Muhammad Sarwar - in view of failure of the applicant to seek enforcement of alleged representation against Muhammad Sarwar or cancellation of the agreement to sell dated 21.07.1998. This Court will not determine the legitimacy and effect of agreement dated 08.04.2008, while determining the validity of decree in terms of section 12(2) of C.P.C. In nutshell, agreement of 08.04.2008 cannot be construed as surrender document, qua the rights of Muhammad Sarwar .
Applicants B lack eligibility to challenge decree in terms of section 12(2) of C.P.C. Nonetheless, no fraud, misrepresentation of jurisdictional defect is found to upset decree dated 28.05.2020.
9. In view of the above, application is incompetent and devoid of merits, which is, hereby , dismissed.