SHAHID KHAN, J.- The petitioners have called in question the judgment & decree of the learned Additional District Judge, Dir Lower at Samarbagh, dated 16.01.2014, whereby, their appeal was dismissed, and consequently, the judgment & decree, dated 02.03.2012, of the learned Civil Judge, Dir Lower at Samarbagh, in respect of the subject property, detailed in the head-note of the plaint, was maintained.
2. Shortly, facts are that the petitioners/plaintiffs approached the learned trial Court through a /is for declaration coupled with permanent injunction and cancellation of deed, executed between defendant No. 2 and defendants No. 3 & 4 to the extent of shares of the petitioners/plaintiffs, to the effect that they alongwith defendants No. 3 & 4 are joint owners in possession of the subject property, detailed in the head-note of the plaint, wherein, petitioners/plaintiffs are owners to the extent of 3/5 shares, while the respondents/defendants No. 3 & 4 to the extent of 2/5 shares; that the respondents/defendants No. 2 to 4 have no right to deny the same and if the respondent/ defendants No. 3 & 4 have executed any sale deed with the respondent/defendant No. 2, same would be illegal, unlawful and ineffective upon their rights.
3. The subject claim was contested by the respondent/defendant No. 1 through his written statement. After recording evidence, far & against followed by hearing of learned counsel for the parties, claim of the petitioners/plaintiffs was initially allowed by the learned trial Court vide judgment & decree, dated 29.11.2010, however, the said judgment & decree was set aside by the learned appellate Court by allowing appeal of the respondent/defendant No. 1 vide judgment/order, dated 19.07.2011, and the matter was remanded to the trial Court with the following directions: "For what has been discussed above, the remand of the present case has become inevitable and being so, on acceptance of this appeal, the case is remanded to the trial Court with the directions that after requisitioning the suit No. 100/1 of the year 2000 (bearing new No. 245/1 of the year 2008) from record room, both the suits of the parties be consolidated and after framing of consolidated issues, taking of evidence, the learned trial Court must decide both the suits through single consolidated judgment strictly in accordance with law and merits of the case."
4. After remand, claim of the petitioners/ plaintiffs (Suit No. 52/1 Neem of 2005, declaratory suit) was dismissed, while that of the respondent/ defendant No. 1 (Suit No. 104/1 Neem of 2000, pre- emption suit) was allowed by the learned trial Court vide consolidated judgment & decree, dated 02.03.2012, followed by the judgment & decree of the learned appellate Court, dated 16.01.2014, with the same fate.
5. It obliged the petitioners to approach this Court through the subject Revision Petition.
6. Arguments of learned counsel for the parties have been heard and the record gone through with their valuable assistance.
7. The case of petitioners/plaintiffs is that few days ago of filing the subject suit, they got knowledge that their brothers, defendants No. 3 & 4, have surreptitiously and without their consent, sold out the subject property to defendant No. 2, over which, defendant No. 1, respondent No. 1 herein, filed a pre-emption suit, pending adjudication before the Court of learned Senior Civil Judge, Dir Lower.
Their plea is that they contacted the defendants No. 1 & 2, expressed their contention that they alongwith defendants No. 3 & 4 are joint owners of the subject property, as no partition had taken place and as such, the impugned sale by defendants No. 3 & 4 in favour of defendant No. 2 is illegal & unlawful but despite of it, they have not admitted their claim, as such, they instituted the subject suit.
8. On the other hand, respondent/defendant No. 1 in para-4 of his written statement contended that the subject property was initially the ownership of one Sardar Ali s/o Yar Mula Khan, from whom defendant No. 3 purchased it in the year 1996. On his demand for a throughfare/passage, the defendant No. 3 sold out him a piece of the subject property measuring 07 yards vide sale deed, dated 27.06.1996, and as such, rest of the subject property remained in his possession. He also contended that in May, 2000, he got knowledge that defendant No. 3 had sold out the subject property to one Awal Khan, he, then and there, exercised his right of pre-emption and filed a suit for pre-empting the said property, wherein, defendant No. 3 appeared before the Court on 27.07.2000 and stated that he had not sold out his property to the aforesaid Awal Khan rather sold out to one Sahib Ali, respondent/defendant No. 2. As such, the respondent/defendant No. 1 filed the suit for pre-emption against defendant No. 2 on 29.07.2000, wherein, partial evidence has also been recorded. However, during pendency of the said suit, the petitioners/plaintiffs brought the subject suit, which is nothing but just to defeat his pre-emption right.
9. It is floating fact on surface of the record that on one hand, the petitioners/plaintiffs, in their very amended suit filed on 03.03.2007, stated that they got knowledge few days ago of filing the subject suit, that defendants No. 3 & 4, have surreptitiously and without their consent, sold out the subject property to defendant No. 2, however, possession of the same has not been delivered to him but despite of it, the latter claimed it as his ownership. But on the other hand, they relied upon the deed, dated 14.05.2005 (Ex PW 4/2), through which the subject property was alleged to have been left to them by defendant No. 2 on receipt of sale consideration alongwith certain expenses. The aforesaid deed has been executed on 14.05.2005, i.e., prior to institution of their suit on 08.06.2005 but despite of it, they neither in the aforesaid suit nor in the amended suit filed on 03.03.2007, uttered a single word in respect of the same that the subject property has been left by defendant No. 2 in their favour. They have also stated that though defendants No. 3 & 4 sold out the subject property to defendant No. 2 but possession of the same has not been delivered to him. The fact of possession has though been mentioned in the deed (Ex PW 4/2) but defendant No. 2 while appearing in support of the petitioners/plaintiffs as PW-3, stated in his cross-examination that since purchase of the subject property, i.e., 10.07.1996 till 2005, he was in possession of the same and also utilized it for such a long period of nine years, but in the year 2005, he handed over its possession to the petitioners/plaintiffs. As such, he himself negated the contents of the deed (Ex PW 4/2) as well as contentions of the petitioners/plaintiffs.
10. So far as plea of the petitioners/plaintiffs with respect to joint ownership of the subject property is concerned, though said plea has been supported by their witnesses (PWs-9 to 12) in their examination-in-chief, but PW-9 in his cross-examination stated that the subject property was initially the ownership of one Sardar Ali, who sold it out to defendant No. 3, Roshan Khan, in the year 1996. He again stated that: Similarly, PW-10, in his cross examination, stated that: Similar is the statement of PW-11. Petitioner/plaintiff No. 2 himself appeared as PW-12, who was also attorney for rest of the petitioners/ plaintiffs. In his cross-examination, has also stated that the subject property was purchased by defendant No. 3, Roshan Khan, from its original owner, Sardar Ali. He, then, stated that it has been purchased by all the brothers jointly but in this regard, they have not placed on record any deed, which would show that they all had purchased the subject property from the aforesaid Sardar Ali. However, the witness stated that the deed in this respect is lying in his house. He also made the following admissions: He further stated that just to counter the pre-emption suit filed by the respondent/defendant No. 1, Bahadar Jan, they have filed the subject suit with mutual consent of all the brothers.
11. In view of the above, it is held that the petitioners/plaintiffs failed to prove joint ownership of the subject property as all their important witnesses consistently stated that it had been purchased by the defendant No. 3, Roshan Khan, from its original owner in the year 1996. Though, they stated at certain points that it has jointly been purchased by all the brothers but no such deed/document with respect thereto, has been produced by them. On the record, sale deed, dated 10.07.1996 (executed between the defendant No. 3, Roshan Khan, and defendant No. 2, Sahib Ali, in respect of the subject property) is also available on the record, which speaks loud & clear that defendant No. 3 was the exclusive owner in possession of the subject property and as such, this also negated the contention of the petitioners/plaintiffs with respect to joint ownership of the subject property.
Moreso, their plea that though the subject property has been sold out to defendant No. 2 in the year 1996 but they are still in its possession, is also not supported by their own evidence (defendant No. 2/PW-3). They have also not placed on record any revocation deed, which could suggest that they have cancelled the impugned sale of the year 1996. Moreso, in the deed, dated 14.05.2005, relied upon by the petitioners/plaintiffs, it has been mentioned that on the request of members of the jirga, the first party (Sahib Ali Khan/defendant No. 2) left the subject property to the petitioners/plaintiffs on receipt of sale consideration coupled with certain expenses but neither the said deed has been singed/thumb impressed by the said members of the jirga nor they have been produced before the Court to support their contentions. As such, reliance on the aforesaid deed could be of no help to the petitioners/plaintiffs.
12. Other than it, the petitioners/plaintiffs claimed that they have received back the subject property (pre-empted property) from defendant No. 2, vide deed, dated 14.05.2005, which shows that said transaction had taken place during pendency of the pre-emption suit filed by the respondent/defendant No. 3. It is well-established doctrine of pendente lite that whatever rights are acquired during the course of litigation, same have always been treated subject to the final outcome of such litigation. This doctrine is based on the maxim "pendente lite nihil innovetur", which means that nothing should be changed or introduced during pending litigation. Main purpose of the doctrine of lis pendens is to obviate the chances of any intermeddling with a property under litigation and if any one so intermeddles, he does it at his own risk. The purpose is to provide protection to interest of the parties under litigation and as such, any rights accrued during the course of litigation, have been made subject to the final outcome of such litigation under the doctrine of lis pendens. Reliance is placed on the case of Muhammad Ashraf Butt and others v.
Muhammad Asif Bhatti and others reported as PLD 2011 Supreme Court 905, wherein, the Hon'ble Apex Court held as under: "The aforesaid section manifestly embodies the rule of lis pendens, which is available both in equity and at the common law. The rule and the section is founded upon the maxim "pendente he nihil innovetur", which means that pending litigation, nothing should be changed or introduced. The virtual and true object of lis pendens is to protect and safeguard the parties to the suit and their rights and interest in the immovable suit property against any alienation made by either of the parties, of that property, during the pendency of the suit in favour of a third person. The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value, without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/ doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest. The rule of lis pendens is founded upon the principle that it would be impossible that any action or suit could be brought to a successful termination if the alienations pendented lite are permitted to prevail, and the subsequent transferee is allowed to set out his own independent case, even of being the bona fide transferee against the succeeding party of the matter and ask for the commencement of de novo proceedings so as to defeat the claim which has been settled by a final judicial verdict. The foundation of the doctrine is not rested upon notice, actual or constructive, it only rest on necessity and expediency, that is, the necessity of final adjudication (Emphasis supplied) that neither party to the litigation should alienate the property so as to effect the rights of his opponent. If that was not so, there would be no end to litigation and the justice would be defeated. In support of the above, reliance is placed upon Messrs Aman Enterprises v. Messrs Rahim Industries Ltd. and another (PLD 1993 SC 292), Muhammad Nawaz Khan v. Muhammad Khan and 2 others (2002 SCMR 2003). Besides, in West Virginia Pulp and Paper Co. v. Cooper, 106 S.E. 55, 60, 87 W.Va. 781, it has been held "the doctrine of "lis pendens" is that one who purchases from a party pending suit a part or the whole of the subject-matter involved in the litigation takes it subject to the final disposition of the cause and is bound by the decision that may be entered against the party from whom he derived title."
13. So far as the pre-emption suit is concerned, the respondent/defendant No. 3 filed it in the year 2000, i.e., prior to institution of the subject declaratory suit, which has also been proved by him in all respects, as such, both the Courts below have rightly decreed it in his favour. However, the subject declaratory suit filed by the petitioners/ plaintiffs in the year 2005, i.e., during pendency of the pre- emption suit, is nothing but just to defeat right of the pre-emptor, which fact has also been admitted by PW-12 in his cross-examination, in the following words:
14. To conclude, it is observed that the learned trial Court coupled with the learned appellate Court, in view of proper appraisal of the facts & circumstances and the evidence so recorded, have arrived at the just conclusion of the matter in issue, as such, the impugned concurrent findings of the learned Courts below do not need any interference. Reliance is placed on the case of Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, wherein the Hon'ble Apex Court held that: "Section 115, C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C."
Similarly, in the case of Salamat Ali and others v. Muhammad Din and others reported as PLD 2022 Supreme Court 353, it was observed: "A revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence.
The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below."
In para-6 of the judgment rendered in the case of Muhammad Sarwar and others v. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, it was also held that: "It is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law."
In Khudadad v. Sved Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2002 SCMR 933, the Hon'ble Apex Court has held that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. Relevant findings of the august Court are reproduced as under: "The High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered."
15. For the reasons stated hereinabove, the subject Revision Petition is devoid of any merit, as such, it is hereby dismissed.