Through this civil revision, the petitioner has challenged the validity of the judgment & decree dated 29.11.2017 passed by the learned Civil Judge, Mianwali who decreed the suit for declaration and cancellation of documents alongwith mandatory injunction filed by the respondents and also assailed the consolidated judgment & decree dated 23.02.2022 passed by the learned Additional District Judge, Mianwali who dismissed the appeals of the petitioner and respondent No.10 (i) namely Tariq Iqbal.
2. Brief facts of the case are that the respondents No.1 to 10/plaintif fs filed a suit for declaration, cancellation of registered sale deed No.463/1, dated 02.11.201 1 and sale mutation No.2663 dated 19.10.201 1 alongwith permanent and mandatory injunction against the petitioner and respondent No.10(i) namely Tariq Iqbal, defendants, contending therein that Ghulam Abbas s/o Gull Jan, predecessor of the respondents / plaintif fs a mentally disordered person, was owner of a constructed House No.G-68 measuring 08 Marla Mohalla Alam Khel Town Committee, Mianwali and a piece of land measuring 25 Kanal 06 Marla, fully described in the plaint. The respondents/ plaintif fs further contended that they filed an application under Sectio n 29 & 32 of the Mental Health Ordinance, 2001 before the District & Sessions Judge, Mianwali on 01.10.201 1 for declaring Ghulam Abbas as mentally disordered person who was then in the care & custody of Tariq Iqbal (defendant) and Mehmood Iqbal and the respondents/plaintif fs were not allowed to meet him. The respondents/plaintif fs also applied to the Advocate General Punjab seeking written consent for the protection of the suit property which was granted on 27.10.201 1.
Tariq Iqbal and Mehmood Iqbal were fully aware of the pendency of the said application. During that period, the petitioner in connivance with Tariq Iqbal and Mehmood Iqbal succeeded to get the sale deed and sale mutation registered and entered respectively in his favour . The respondents/plaintif fs prayed for cancellation of the aforesaid documents on the ground that the petitioner/defendant alongwith Tariq Iqbal and Mehmood Iqbal committed fraud.
The petitioner/ defendant filed contesting written statement, pleaded normal health of vendor Ghulam Abbas and genuinity of sale transaction. The learned trial Court framed issues, recorded pro & contra evidence of the parties and finally decreed the suit vide judgment & decree dated 29.11.2017. The petitioner and respondent No.10(i), Tariq Iqbal, filed two separate appeals which were dismissed by the learned appellate Court vide consolidated judgment & decree dated 23.02.2022. Hence, this civil revision.
3. I have heard the arguments of learned counsel for the petitioner and have gone through the record with his able assistance.
4. The Mental Health Ordinance, 2001 (VIII of 2001) was promulgated on 20.02.2001 to amend the law relating to the treatment and care of mentally disordered persons to make better provision for their care, treatment, management of the properties and affairs and to provide for matters connected therewith or incidental thereto and to encourage community care of such mentally disordered persons and further to provide for the promotion of mental health and prevention of mental disorder . Under Section 2 (m) of the Ordinance ibid, "mental disorder" and a "mentally disordered person" have been defined as under: "2 (m) "mental disorder" means mental illness, including mental impairment, severe personality disorder , severe mental impairment and any other disorder or disability of mind and "mentally disordered" shall be construed accordingly and as explained hereunder:
(i) "mental impairment" means a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "mentally impaired" shall be construed accordingly;
(ii) "severe personality disorder" means a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned;
(iii) "severe mental impairment" means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "severely menta lly impaired" shall be construed accordingly; Explanation:- Nothing contained in clause (m), sub-clauses (i), (ii) and (iii) above shall be construed as implying that a person may be dealt with under this Ordinance as suffering from mental disorder or from any other form of such mental disorder defined in this section, by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs; Under Section 29 of the Ordinance ibid, Court of Protection, in whose jurisdiction a mentally disordered person is residing, may entertain application of any of his relative subject to the written consent of the Advocate General, Punjab and can pass orders for inquiry to determine whether such person is mentally disordered or not. For reference, aforesaid provision is reproduced as under: "29. Judicial proceedings.- Whenever any person is possessed of property and is alleged to be mentally disordered, the Court of Protection, within whose jurisdiction such person is residing may, upon application by any of his relatives having obtained consent in writing of the Advocate General Punjab, by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incap able of managing himself, his property and his af fairs."
If the Court of Protection, after inquiry , comes to the conclusion that such person is mentally disordered, it may appoint guardian and manager of properties of a mentally disordered person under Section 32 of the Ordinance ibid. For ready reference, aforesaid provision reads as under: "32. Appointment of guardian.- Where a mentally disordered person is incapable of taking care of himself, the Court may appoint any suitable person to be his guardian, or order him to be looked after in a psychiatric facility and order for his maintenance.
Section 36 of the Ordinance ibid, prescribes the powers of manager of a mentally disordered person and imposes certain restrictions, as under: "36. Powers of manager of property of mentally disordered person.- (1) Every manager appointed under this Ordinance shall, subject to the provisions of this Ordinance, exercise the same power in regard to the management of the property of the mentally disordered person in respect of which he is appoint ed as manager , as the mentally disordered person would have exercised as owner of the property , had he not been mentally disordered and shall realize all claims due to the estate of the mentally disordered person and pay all debts and discharge all liabilities legally due from that estate and in exercise of powers under this section regard shall be had first of all to the requirements of the mentally disordered person and the rights of the creditors, if any:- Provided that no manager so appointed shall without the permission of the Court -
(a) mortgage, create any charge on, or transfer by sale, gift, exchange or otherwise, any movable or immovable property of the mentally disordered person; or
(b) lease out or give on bailment any such property .
(2) The permission under proviso to sub-section (1) may be granted subject to such conditions or restrictions as the Court may think fit to impose.
(3) The Court shall cause notice of every application for permission to be served on any relative or friend of the mentally disordered person and after considering objections, if any, received from the relatives or friends and after making such inquiries as it may deem necessary , grant or refuse permission having regards to the interest of the mentally disordered person.
Section 37 of the Ordinance ibid has made it mandatory the Manager to furnish inventory of the properties of the mentally disordered person to the Court of Protection. The above provision (Section 37) is as under: "37. Furnishing of inventory of immov able property , etc.- (1) Every manager appointed under this Ordinance shall, within a period of three months from the date of his appointment, deliver to the Court an inventory of the immovable property belonging to the mentally disordered person and of all asse ts and other movable property received on behalf of the mentally disordered person, together with a statement of all claims due on and all debts and liabilities due by such a person.
(2) All transactions under this Ordinance shall be made through a bank authorized by the Court.
(3) Every such manager shall also furnish to the Court within a period of three months of the closure of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the mentally disordered person and the balance remaining with him.
(4) If any relative of a mentally disordered person impugns, by a petition to the Court, the accuracy of the inventory or statement referred to in sub-section (1) or, as the case may be, any annual account referred to in sub-section (3), the Court may summon the manager and summarily inquire into the matter and make such order thereon as it thinks fit.
(5) Any relative of a mentally disordered person may, with the leave of the Court, sue for an account from any manager appointed under this Ordinance or from any such person after his removal from office or trust, or from his legal representatives in the case of his death, in respect of any property then or formerly under his management or of any sums of money or other property received by him on account of such property ."
5. Admittedly , on 01.10.201 1 the responde nts No.1 to 10/ plaintif fs filed an application under Section 29 & 32 of the Mental Health Ordinance, 2001 before the District & Sessions Judge, Mianwali for declaring Ghulam Abbas, father of respondents No.1 to 10/plaintif fs and respondents No.11(i) & (ii) as a mentally disordered person. The respondents No.11(i) & (ii) filed contesting reply to the said application. The District & Sessions Judge, Mianwali entrusted the application to the learned Additional District Judge, Mianwali who vide order dated 13.12.2012 by accepting the application, appointed Tariq Iqbal and Mehmood Iqbal [respondents No.11(i) & (ii)] as managers of the person and properties of Ghulam Abbas. The aforesaid application was filed on 01.10.201 1, whereas the sale deed No.463/1 was registered on 02.11.201 1 and mutation No.2263 was sanctioned on 19.11.201 1 i.e. during the pendency of the said application. The matter regarding alienation of suit land by the respondents No.11(i) & (ii)/defendants in favour of the petitioner/ defendant came before the learned Court of Protection, who in this regard observed that the validity of the alienation / transaction would be determined by the Civil Court.
6. Moreover , under Section 36 of the Ordinance ibid it was mandatory for respondents No.11(i) & (ii), being the managers of the mentally disordered person Ghulam Abbas, to file application before the Court of Protection in order to obtain permission for sale / transfer of the suit land of the mentally disordered person but neither any application was filed nor any permission was obtained by the petitioner or Tariq Iqbal etc., respondents No.11(i) &
(ii) / defendants, from the Court of Protection. Thus, the alienation / transfer of the suit land made by the respondents No.11 (i) & (ii) in favour of the petitioner has no sanctity in the eyes of law. The above proven facts suggest that fraud has been committed by the petitioner in connivance with the managers of the person and properties of Ghulam Abbas to usurp the suit properties and also to deprive the respondents / plaintif fs from their due legal share from the suit properties. Reliance is placed on a case cited as Azhar Mukhtar through Next Friend / Guardian ad-Litem Vs. Mst. Tazeen (PLD 2016 Sindh 381). It is settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated unde r any norms of laws. Reliance in this regard is placed on cases cited as Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097 ) and Sindh Irrigation and Drainage Authority Vs. Government of Sindh and others (2022 SCMR 595).
Moreover the petitioner / vendee was under unalienable extraordinary legal obligation to observe all the care and caution and should have made intelligent investigation with regard to the competence of the vendor or his agent or ward of property of a mentally disordered person under the principle of Caveat Emptor and any disclosure of post transaction flaw in the title of owner , the vendee is precluded to take plea of bona fide purchaser . Reliance is placed on the case titled as Muhammad Shamim through Legal Heirs Vs. Mst. Nisar Fatima through Legal Heirs & Others ( 2010 SCMR 18 ) wherein it is held as under:- "9.......It is also well-established that a vendor cannot pass on to vendee anything better than he himself holds.
Therefore, it is vendee who has to apply maximum care before going for a transaction of sale /purchase. His right/title being dependent upon the strength or weakness of the title of seller , he is to sail, swim and sink with seller and to pursue him for any loss suffered if he was ultimately the loser ........."
Reliance is also placed on the case titled as Abdul Rehman & Others Vs Ghulam Muhammad through L.Rs & Others ( 2010 SCMR 978 ).
7. Furthermore, the application under Section 29 & 32 of the Ordinance ibid was filed by the respondents No.1 to 10 against respondents No.11(i) & (ii) on 01.10.201 1 whereas the impugned transactions was made by the respondents No.11 (i) & (ii) in favour of the petitioner on 02.11.201 1 and 19.10.201 1 i.e. during the pendency of the application, as such, principle of lis pendens is fully attracted in this case. The Hon'ble Supreme Court of Pakistan in a case cited as Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 SC 905) has resolved the controversy that if durin g litigation, the suit property is alienated as to affect the rights of the opponent, if that was so there would be no end to litigation and the justice would be defeated.
8. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity , mis-reading and non-reading of evidence in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469 ).
In view of above, the learned trial Court rightly decreed the suit by setting aside the impugned registered sale deed as well as sale mutation which decision was rightly upheld by the learned appellate Court.
9. Resultantly , this civil revision being devoid of any merit is dismissed in limine. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.