' This revision application is directed against the order of Additional District Judge, Dadu, whereby he set aside the judgment and decree passed by the Civil Judge, Dadu in favour of the appellant and dismissed the suit.
2. The appellant claims to have entered into an oral agreement with deceased Punnu Khan for purchase of the land which is subject-matter of this revision for a sum of Rs, 1,300 in the year 1947.
The appellant instituted suit No, 71 of 1961 before the Civil Judge, Mehar, for specific performance of the alleged oral agreement of sale, after the death of Punnu Khan impleading Mst. Jannat (who was alleged to be the surviving sister of deceased Punnu Khan), Muhammad Hassan (the brother of deceased Punnu Khan) and Moulvi Karim Bux and Taj Muhammad (nephews of deceased Punnu Khan). The suit was decreed ex parte in favour of applicant on 22nd November, 1962 and a registered sale-deed was executed by the Nazir of the Civil Court in his favour on 25th November, 1964. The land in suit was thereafter mutated in favour of the applicant on the basis of the above sale-deed on 16th February, 1964. Before the decree in Suit No, 71/1961 was granted in favour of applicant the land in dispute was sold by Muhammad Hassan as heir of the deceased Punnu Khan by means of two registered sale-deeds executed on 19th August, 1960 (registered on 23rd August, 1960) and 17th October, 1960 (registered on 20th October, 1960) in favour of respondent No, 1.
Respondent No, 1 on the basis of above registered sale-deeds instituted suit No, 48/1961 before the Civil Judge, Mehar for possession and declaration against the applicant. The plaint in the above suit is in Sindhi but the learned counsel for the applicant and respondents have translated the same in English which is kept on record. The prayer clause is as follows :- "11. The plaintiff prays for Judgment and decrees as under :-
(a) This Hon'ble Court may be pleased to decree the suit and restore the possession of the land with all the rights to the plaintiff by dispossessing the Defendants from the land holding plaintiff:as owner of the land.
(b) Direct the Defendants to pay to the Plaintiff Zamindari share in respect of the suit land from the filing of this suit till the restoration of possession.
(c) Direct the Defendants to pay costs of the suit.
(d) Any other relief that this Hon'ble Court deems fit in the circumstances of the case."
' The applicant who was defendant No, 1 in Suit No, 48/61 was duly served in the same and he appeared. And filed his written statement. It was however not disclosed in the written statement of applicant in Suit No, 48/61 that he had filed any suit in respect of the land in dispute. The suit filed by respondent No, 1 was later dismissed for non-prosecution and it is admitted that it was not restored. The applicant after dismissal of Suit No, 48/61 and after having obtained sale-deed in his favour pursuant to decree in Suit No, 71 of 1961, filed suit No, 26/68 for declaration and injunction before the Civil Judge, Mehar on 30th July, 1968. The plaint of this suit is also in Sindhi and the learned counsel for the parties have jointly translated it in English which is kept on record. The prayer clause of the plaint is as follows "8. The plaintiff therefore prays for Judgment and decree as under :--
(a) This Hon'ble Court may be pleased to declare that the suit land belongs to the plaintiff.
(b) A permanent direction (Takeed nama) be issued against the defendants restraining them from making the claim in respect of the ownership of the suit land.
(c) The costs of the suit be imposed on the defendants."
' This suit was decreed on contest by the Civil Judge, Mehar on 12th September, 1970. However, on appeal the first appellate Court disagreed with the findings of the trial Court on issues Nos. 1 and 2 and as a consequence thereof dismissed the suit of applicant.
3. Mr. G. H. Abbasi, the learned counsel for the applicant contended before me that the reasoning given by the first appellate Court in reversing the judgment of the trial Court on issues No, 1 & 2 is not sustainable in law. It is contended by the learned counsel that mere fact that some of the defendants impleaded in Suit No, 71 of 1961 were not the heirs of the deceased Punnu Khan, could not render the decree passed in that suit as void as the person who was admittedly the heir of deceased Punnu Khan (Muhammad Hassan) was a defendant in the said suit. It is further contended by the learned counsel that decree passed in Suit No, 71 of 1961 though ex parte was legally binding on Muhammad Hassan, who was a defendant in the above suit, unless it was set aside in accordance with the law. On this premises it is contended by the learned counsel that respondent No, 1 being a purchaser of disputed property from Muhammad Hassan was also bouni by the decree in suit No, 71 of 1961. The learned counsel further. Contended that the first appellate Court having held in its Judgment that the applicant was in possession of the land in dispute for a long time should not have dismissed the suit as a whole, and ought to have granted relief of injunction against dispossession as it was specifically alleged in the suit that respondent No, 1 was threatening to dispossess the applicant from the suit land. In reply to the above contention of the learned counsel for the applicant Mr. Mushtaq Memon, the learned counsel for respondent No, 2 has contended that the decree in suit No, 71 of 1961 passed in favour of the applicant has no binding effect on respondent No, 1 as he was not impleaded as a party in the suit in spite of the fact that the applicant had knowledge that respondent No, 1 had purchased the land in dispute from the heir of deceased Punnu Khan before institution of Suit No, 71 of 1961. It is further contended by the learned counsel that since the applicant was claiming title over the land on the basis of the sale deed in his favour which in turn was based on the ex parte decree in suit No, 71 of 1961, which was found to be not binding on respondent No, 1, the first appellate Court rightly dismissed the suit of applicant. In reply to the contention of learned counsel for the applicant that the first appellate Court should not have dismissed the suit as a whole after having reached the conclusion that the applicant was in possession of the disputed land and should have granted at least the relief of injunction against the respondents from dispossessing the applicant from the disputed land, the learned counsel for the respondents urged that the findings of the two Courts below that the applicant was in possession is erroneous as respondent No, 1 was in possession thereof and in any case relief of injunction could not be granted to applicant as he had not claimed it in the suit.
4. It is an admitted position on record that in Suit No, 48 of 1961 the claim for possession and declaration was made by respondent No, 1 against the applicant on the basis of registered sale deeds executed in his favour by Muhammad Hassan the brother of deceased Punnu Khan in respect of the suit land. The present applicant who was defendant in that suit was not only served with the summons in the suit but he also filed his written statement much before the decree was passed in Suit No, 71 of 1961. In spite of the knowledge that respondent No, 1 claimed to be a subsequent purchaser of the land, he was not made party in Suit No, 71 of 1961 by the applicant which was a suit for specific performance of oral agreement of sale entered into in 1947 between applicant and Punnu Khan, in respect of disputed land. In these. Circumstances the contention of the learned counsel for the respondent that the decree in suit No, 71 of 1961 was not binding on respondent No, 1 as it was passed in the absence of a necessary party to the suit is not without force. It cannot be doubted that a subsequent purchaser of property under a registered sale-deed is a necessary party to a suit for specific performance of an agreement of sale which is prior to the date of registered sale-deed. To that extent the contention of the learned counsel for the respondent is correct that the decree passed in Suit No, 71 of 1961 could not be held to be binding on respondent No, I and no title could be claimed against him on the basis of the decree passed in that suit. The learned counsel for the applicant contends that this point is raised for the first time by the learned counsel for the respondents and therefore it cannot be allowed to be raised at the revisional stage. I am unable to agree with the learned counsel. This point is mentioned in the judgment of both the Courts below. The Civil Judge, Mehar dealt with this contention of respondent No, 1 as follows :-
(6) The learned Advocate for the defendant argued that the decree in Civil Sun. No, 71 of 1961 was not binding against the present defendants as they were not party to that suit. This argument would have some force in case they would have been in possession of the suit land at the time of decree in that said suit. This decree was passed on 22nd November, 1962 and it was executed on 7th December, 1963. It shows the possession with the plaintiff already. It was also declared that the possession was to remain with the plaintiff since the plaintiff was already in possession and his title to the land validly declared by the Court defendant have no right to question his title and possession. They would not have been bound by that decree in case they would have been in possession in lieu of the sale in their favour. They have claimed their possession since August, 1960 while this Court has declared in Civil Suit No, 71 of 1961 on 22nd November, 1962 that the Plaintiff was in possession of the suit land. Even thereafter the defendants have not been in possession of the suit land which will be discussed hereafter. I as such reject the plea of the defendants that they were not bound by that decree. Even in they are not bound by that decree, they have no right to disturb the possession of the Plaintiff unless they get a proper decree from the Court of law contrary to the one already passed in favour of the plaintiff."
' Similarly the first appellate Court held as follows :- "(7) The Judgment Exh. 30 shows that none of the defendants/ appellants was a party to the suit filed by the plaintiff/respondent against the L. Rs, of Punnu Khan. The said case proceeded ex parte as against L. Rs, of Late Punnu Khan. Since none of the present defendants/appellants was party to the said suit hence they are not bound by the said judgment and decree."
' I accordingly hold that the first appellate Court rightly held that no title could be claimed by the applicant as against the respondents on the basis of the sale-deeds executed in his favour in compliance of the ex parte decree in Suit No, 71 of 1961 as the respondents were not party to that suit. However, the matter does not end here as in Suit No, 26 of 1968 besides seeking a declaration to the title the applicant had also claimed relief for injunction. In paragraph 4 of the plaint in Suit No, 26/68 the applicant alleged as follows :- "(4) About a week back the defendants above named disclosed that "the suit land is ours and we will take forcible possession thereof." On coming to know of this, the plaintiff himself in presence of witnesses, inquired from the defendants who also said that "the land is our right and we will take its possession". The Defendants have on many occasions been told and informed that they should refrain from making a claim to the ownership of the land but the defendants have taken no action, .Therefore the need for filing present suit has arisen."
' The applicant had claimed in the above suit permanent injunction besides the relief of declaration. It is an admitted position that respondent No, 1 had filed suit for possession and declaration which was dismissed. In these circumstances the learned counsel for the appellant rightly contended that even if the Court had reached the conclusion that no affective title was acquired by the applicant on the basis of sale-deed executed in his favour pursuant to the ex parte decree in Suit No, 71 of 1961, the Court should not have refused to grant the relief of injunction to protect the possession of applicant which was found to be continuous and peaceful. Mr. Memon, the learned counsel for the respondents contended that no relief of injunction could be granted as the respondent No, 1 was in possession of the land and no relief of injunction against dispossession was sought by the applicant in suit No, 26 of 1968. The contention of Mr. Memon has no force.
5. The fact that the present applicant is in possession of the suit land was found by both the Courts below. It is also established by the fact that in 1961 respondent I instituted suit No, 48/61 claiming possession and declaration of title against the present applicant which was dismissed for non- prosecution. In these circumstances, I am of the view that the applicant had succeeded in making out a case for injunction which should have been granted to him in the circumstances of the case instead of dismissing the suit as a whole. I accordingly set aside the Judgment and the decree passed by the first appellate Court and partly decree the suit of applicant restraining respondents from dispossessing the applicant from the suit land except in due process of law. With these observations the revision is partly allowed but there will be no order as to costs.