This revision impugns the judgment and decree dated 30-1-1980 passed by the learned Additional District Judge, Gujranwala, whereby the petitioners/ plaintiffs' appeal was dismissed, perhaps, in the third cycle of litigation.
2. They sought a declaration that they were occupying as bona fide purchasers for value the land in question measuring 18 Kanals after having purchased it from respondent No.2, Mst. Aisha Bibi, under a registered sale-deed dated 20-2-1964 for a sum of Rs.5,000.
3.They alleged that they came to know in 1967 in a suit brought against them for compulsory registration of a sale of 16 Kanals out of the land in dispute statingly made by the same vendor in favour of the other respondent. Ali Sher, whose application for compulsory registration thereof brought under Section 73 of the Registration Act was dismissed on 19-7-1965. They averred that though the suit was decreed against them on 22-9-1967 and their appeal also failed, yet the learned District Judge allowed them to file a separate suit to challenge the validity of the sale claimed by respondent No.l on the ground of fraud etc., whereupon they brought the present suit contending that the sale registered on 16-10-1967 under the aforementioned decree in favour of respondent No.l was of no effect against their own sale dated 20-2-1964, which was (i) earlier in time; (ii) was without notice of the respondent's interest in the land and (iii) conversely was effected notwithstanding the knowledge on the part of respondent No.l of the sale of the land made in their favour much earlier. -They added that respondent No.l manipulated the said sale fraudulently and also made an interpolation in the relevant deed to increase the area of 16 Kanals to 18 Kanals claimed by them. Last of all they asserted that they had taken possession of the land as bona fide purchasers for value and were as such protected.
4. While the vendor, Mst. Aisha was proceeded against ex parte, the other respondent Ali Sher contested the suit. He urged that it was barred by res judicata inasmuch as already a decision had been made by a Civil Court on the point in issue; that the vendor had executed a sale-deed of this land in his favour on 9-1-19'64 for a sum of Rs.4,000 out of which she received Rs.700 as earnest amount and insisted for the payment of the remaining Rs.3,300 but because somehow the deed could not be registered on the said date, he offered her payment thereof later at the time of registration. He added that owing to his failure to pay her the remaining amount immediately, she felt annoyed, refused to appear before the Sub --Registrar for registering the sale-deed, and instead sold away the land mala fide in favour of the petitioners-plaintiffs. He averred further that on rejection of his application for compulsory registration of the deed, he obtained a decree dated 22-9-1967 from a Civil Court against not only the vendor but also the petitioners /plaintiffs directing compulsory registration of his sale-deed and that even an appeal ,brought by them against the decree failed on 1-3-1968. He maintained that the present suit was barred by virtue of the aforesaid decree and further that his sale dated 9-1-1964 registered compulsorily on 16-10-1967 under the orders of the Court will be preferred to the later sale dated 20-2-1964 set up by the petitioners, all the more because they fully knew of his interest in the land accruing earlier in time. He denied categorically the petitioners' possession over the land and also the alleged manipulation, misstatement, fraud or interpolations so as to increase the area from 16 Kanals to 18 Kanals in the ultimate sale-deed.
5. The petitioners /plaintiffs in their replication repudiated the averments made by the defendant No.l in his written statement. They reiterated what they had earlier urged in their plaint.
6. Appropriate issues on the pleadings were framed by the Trial Court, which once decreed but in the last round, it was dismissed it on 21-10-1978 and the petitioners' appeal was also dismissed by the impugned judgment and decree dated 30-1-1980. Both the, Courts concurrently found that the petitioners, subsequent vendees did not act in good faith, could not establish that they had no notice of the earlier sale or that they had taken reasonable carp to know that the land was subject to no such alienation etc. 7.Mr. Saleem Zeervi Advocate, for the revision petitioners had nothing substantial to urge against the concurrent findings of the Courts below especially relating to questions of fact. The whole stress on the part of the petitioners was that they were bona fide purchasers of the land for value without notice of the sale claimed by respondent No.l. But it was found that they had notice of the prior alienation and did not act in a reasonable way to know the respondent's in the land based upon prior sale. Mr Zeenri submitted that the sale-deed dated 9-1-1964 under which the respondent claimed title as vendee was not registered by the date viz. 20-2-1964 when the same vendor sold the same land in favour of the petitioners and that without registration, the prior sale- deed was quite ineffective. He placed reliance on Tilkdhari Singh v. Gour Narian AIR 1921 Patna 150 in support of the contention that property worth more than Rs.100 could have been sold only by a registered sale-deed and that an unregistered deed would yield before a subsequent registered sale-deed. I am afraid the point canvassed by counsel does not hit the mark. Although the sale- deed dated 9-1-1964 could not be registered by 20-2-1964, yet its subsequent registration under the decree of the Court will make it effective retrospectively from the date of its execution. This is what sections 47 and 77 of the Registration Act provide for. Kalu v. Hafiz Abdul Rashid and 2 others PLD 1985 Lah. 461 helps the respondent in contending that the earlier sale dated 9-1-1964 though registered later under the decree of the Court will be preferred to the sale dated 20-2-1964 made in favour of the petitioners.
8.The evidence did not satisfactorily prove if the petitioners had shown requisite diligence as contemplated by Section 41 of the Transfer of Property Act. The finding of fact recorded by the Courts below cannot be disturbed.
9.The objection against the maintainability of the present suit based upon res judicata was really quite formidable. The petitioners were admittedly a party to the suit brought under Section 77 of the Registration Act by the respondent. Their appeal also failed and it C was not open to them to bring a fresh suit to say that they were not bound by the decree. Probably they took a cue from an unwary observation made by the learned District Judge in his judgment passed in their appeal that they could assail the prior sale on the ground of fraud etc. No doubt, fraud would vitiate the most solemn proceedings and could be availed as a ground of attack but at the same time it could be urged as a ground of defence. Explanation IV to Section 11, C .P. C . Provides for constructive res judicata, meaning thereby that a former decision would bar a subsequent suit if the grounds taken up therein could have been or ought to have been taken in the previous suit. The petitioners could have earlier taken the plea that the former sale was based upon misstatement, misrepresentation or fraud. They did not urge it and were obviously precluded to take it up in any subsequent attempt. It was not open to the learned C District Judge to give them a licence to bring a fresh suit on a ground which indeed could have been or ought to have been raised in the pleadings of the former suit. His remark, if any, was against law and could not estop the respondent to raise it in defence of the present suit. Moreover, the former suit did not fall within the ambit of Order II Rule 2, C.P.C. So as to grant the petitioners permission to relinquish a part of relief in it and seek it in the subsequent suit. Consequently, the present suit was not maintainable.
10. The revision has no substance and the same is dismissed with costs throughout.