' In this Constitutional petition legality of order, dated 3-3-1992 passed by the learned Additional District Judge, Kasur, through which the revision petition filed by respondents Nos.1 to 10 against the order dated 4-6-1991 passed by the learned trial Court dismissing their application for amendment of issue No.4 for placing onus of proof on the petitioners was accepted, has been challenged.
2. The facts forming the background of this case shortly stated are that according to the case of the petitidners Mst. Hamida Begum deceased respondent No.9 executed an agreement of sale on 26-11-1963 in their favour in respect of land in dispute which was registered on 27-11-1963. A suit was filed by the petitioners against said Mst. Hamida Begum for specific performance of the said agreement which was decreed ex parte on 17-12-1975. Mst. Hamida Begum filed an application under Order 9, Rule 13, C.P.C. for setting aside the said ex parte decree and simultaneously she also filed a separate suit seeking cancellation of the said agreement of sale both of which were dismissed by the Civil Court at Kasur in 1981. During the pendency of these proceedingi Mst. Hamida Begum sold the property in favour of respondents Nos.3 to 8 through registered sale-deed in the year 1976.
3. Mst. Harnida Begum filed two appeals before the learned Additional District Judge, Kasur, one against the order passed by the learned Civil Judge for dismissal of her application for setting aside the ex parte decree and the other against the judgment and decree passed by the learned trial Court dismissing her aforementioned suit. Before the learned Additional District Judge, Kasur Mst. Hamida Begum settled the matter through compromise with the petitioners, therefore, the said two appeals were withdrawn, as such, the ex parte decree passed in favour of the petitioners remained intact in execution of which sale-deed was executed in favour of the petitioners by the Executing Court in 1982.
4. Mst. Hamida Begum filed two applications under section 12(2) of the C.P.C. before the learned District Judge, Kasur, in which she challenged the order of the learned Additional District Judge through which her afore mentioned two appeals were disposed of on the basis of a compromise alleging that the same was obtained through fraud and misrepresentation. The learned District Judge after recording evidence dismissed the applications through order, dated 8-4-1987. It may be observed that respondents Nos.3 to 8 also filed similar application before the learned District Judge, Kasur which was also rejected. Three revision petitions were filed before this Court against the order passed by the learned District Judge, Kasur, dismissing the said applications under section 12(2) of the C.P.C. These three revision petitions were dismissed by this Court through judgment dated 19-9-1988. Respondents Nos.3 to 8 took the matter to the Supreme Court through petition for Special Leave to Appeal which was dismissed for want of instructions.
5. The petitioners filed suit praying for cancellation of the sale-deed executed by Mst. Hamida Begum in the year 1976 in favour of respondents Nos.3 to 8 from which this writ petition has arisen.
Respondents Nos.3 to 8 contested the suit as also Mst. Hamida Begum deceased. On the pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the plaintiffs have no cause of action? O.P.D.
(2) Whether the plaintiffs have properly valued the suit and have affixed proper court-fee? If not, what is the proper court-fee? O.P.D.
(3) Whether the plaintiffs have come with unclean hands? O.P.D.
(4) Whether the defendant No.1 did not execute registered agreement to sell, dated 27-11-1963 in favour of the plaintiffs? O.P.D.
(5) Whether the defendant No.1, did not appoint Sher Muhammad as General Attorney through registered General Power of Attorney, dated 27-11-1963? O.P.D.
(6) Whether the General Power of Attorney dated 26-11-1963, is forged and fraudulent? O.P.D.
(7) Whether the defendants 3 to 8 are bona fide purchasers for value without notice? O.P.D.
(8) Whether the registered sale-deed dated 22-6-1976 in favour of defendants Nos.3 to 8, is illegal, inoperative on the rights of the plaintiffs? O.P.P.
(9) Relief.
' Subsequently, however, in view of the amended written statement filed by respondents Nos.3 to 8 following additional issues were also framed:-- (7-A) Whether no rights were created in favour of plaintiff No.1 on the basis of decree dated 17-12- 1975 because Mst. Hamida Begum was not owner of the property and therefore, registered sale- deed dated 24-10-1982 is of no legal consequence? O.P.D. 3 to 8.
(7-B) Whether the registered sale-deed dated 24-10-1982 is of no legal significance as it was executed after the registered sale-deed dated 21-6-1976? O.P.D. 3 to 8.
(7-C) Whether the defendants Nos.3 to 8 are not bound by the decree dated 17-12-1975? O.P.D. 3 to 8.
(7-D) Whether registration of sale-deed dated 24-10-1982 and mutation of sale in favour of plaintiff No.1 is against law and of no legal consequence in presence of Mutation No.249 dated 15-7-1978?
O.P.D. 3 to 8.
(7-E) Whether the registered sale-deed dated 24-10-1982 is of no legal value in view of preliminary objection No.13? O.P.D. 3 to 8.
6. Respondents Nos.3 to 8 made an application before the learned trial Court for amendment of issue No.4 so as to place onus of proof of the same on the present petitioners. This application was rejected through order, dated 4-6-1991 which was assailed in revision petition before the learned District Judge, Kasur. This revision petition has been accepted. The said issue has been amended and the onus of the same has been placed on the petitioners which order has been called in question in this Constitutional petition.
7. I have heard learned counsel for both the parties. Admittedly respondents Nos.3 to 8 purchased the property in the year 1976 during the pendency of application of Mst. Hamida Begum deceased vendor under Order 9; Rule 13, C.P.C. as also her suit seeking cancellation of agreement of sale dated 26-11-1963, as such, the transfer of property in their favour prima facie was within the mischief of section 52 of the Transfer of Property Act, i.e. rule of lis pendens. The said application and the suit were dismissed and the ex parte decree for specific performance which had earlier been passed in favour of the petitioners remained intact. The appeals filed by Mst. Hamida Begum had also been dismissed on the basis of compromise and the applications made under Order 12(2), C.P.C. to challenge the legality of the order for disposal of appeals on the basis of compromise on the grounds of fraud and misrepresentation were also rejected which order was maintained by this Court.
8. Learned counsel for the petitioners maintained that the respondents having admittedly purchased the property from Mst. Hamida Begum during the pendency of the litigation between the petitioners and Mst. Hamida Begum, as such, under the law it is incumbent upon them to show and establish that they were not bound by the judgments and orders passed against Mst. Hamida Begum and that the sale in their favour was not affected by the said judgments and decrees before the petitioners could be required to prove their title by proving execution of agreement of sale dated 27-11-1963 executed by Mst. Hamida Begum in favour of the petitioners. According to them the effect of amendment of issue No.4 and placing of onus of proof on the petitioners has the consequence of requiring the petitioners to prove the said issue prior to the decision of issues Nos.7-A to 7-E by the learned trial Court without the proof of which the learned trial Court has no jurisdiction to reopen the case so far as the said agreement and the rights of the petitioners flowing from the judgments and decrees passed between them and Mst. Hamida Begum are concerned.
9. The argument has force. If the respondents in the first instance succeed in proving issues Nos.7- A to 7-E, it is in that case that the learned trial Court will have the jurisdiction to proceed further. In my view the form of issue as framed by the learned Additional District Judge is not legally objectionable but it is the trial of the same before the decision on issues Nos.7-A to 7-E which cannot take place. The jurisdiction of the learned trial Court to try issue No.4 and other issues is dependent on the decisions on issues Nos.7-A to 7-E.
10. For the foregoing reasons the learned trial Court is directed to try and decide issues Nos.7-A to 7-E as preliminary issues and record evidence of the parties on those issues in the first instance and decide the same before the other issues are tried. The writ petition stands disposed of in these terms. There will be no order as to costs.