This revision petition arises out of a suit for declaration and permanent injunction filed by Arura (father of Faqir Muhammad respondent No. 3) on 2-2-1970 in the Court of a Civil Judge, Sialkot challenging the validity of consent decree dated 2-1-1990 obtained by Hayat Muhammad, respondent No. 1 in a pre-emption suit. The suit was dismissed by the trial Court vide judgment and decree dated 13-3-1975. The petitioner's appeal was also dismissed by the Additional District Judge vide the judgment and decree dated 4-6-1981.
2.The petitioners' learned counsel submits that the dispute pertains to land measuring 17 Kanals, 11 Marlas situated in village Baqirpur, Tehsil Daska, District Sialkot which was owned and possessed by Mst. Hakim Bibi etc. The owners mortgaged the land in favour of Arura son of Bhola on 5-10-1953 for Rs.2,400 through a registered deed and possession was also given to him. Thereafter, on 2-3-1968 the owners sold the land to Faqir Muhammad, respondent No. 3 for a sum of Rs.9,872 through sale- deed Exh. P-1 registered on 6-3-1968. At that time Sardar had passed away and sale was made by his legal representatives including his widow and sons and the other owners. The land was further sold by Faqir Muhammad to Rehmat on 16-2-1969 vide Mutation No. 31, sanctioned on 19-3-1969.
Hayat Muhammad respondent No.l filed a pre-emption suit on 5-3-1969 against Faqir Muhammad and Rehmat. He claimed superior right of pre-emption on the ground of being collateral of the vendor. During the pendency of the suit, Rehmat sold the land to Arura through sale Mutation No. 58 which was attested on 27-11-1969 (Exh. D-5). Arura was not impleaded as defendant in the suit.
Rahmat made a consenting statement in favour of the plaintiff, whereupon a consent decree was passed in favour of Hayat Muhammad, plaintiff/respondent No. 1 on 2nd of January, 1970. The consent decree was assailed by Arura, deceased through the suit in the present case. He died (on 20-2-1971) during the pendency of the suit, whereupon the appellants and Faqir Muhammad, respondent No. 3 were impleaded in his place as his legal representatives vide the order dated 13- 4-1971 passed by the trial Court.
3.The appellants' learned counsel contends as under:-- (i)After the sale of land by Rahmat in favour of Arura through Mutation No. 58, attested on 27-i1- 1969, Rahmat had no interest left in the suit. Arura was necessary party in the suit but was never impleaded as a defendant. Rahmat made a consenting statement whereupon the consent decree was passed. The said decree was not binding on Arura deceased or his legal representatives.
(ii)The Courts below have fallen in error in dismissing the suit on the application of the principle of lis pendens. In this connection he places reliance on the case of Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lahore 171), Umer Din v. Khan and others (1989 SCMR 292), Muhammad Din v: Muhammad Aslam (PLD 1954 Lahore 541).
(iii)The decree obtained by Hayat Muhammad was collusive and did not affect the petitioner's rights. In this connection he places reliance on the cases of Iqbal Begum v. Aisha Bibi and another (1988 SCMR 1860), Sundaram Chetty and Pandrang Rao, JJ. (AIR 1934 Madras 337) and C. Wright Naville v. E.H. Freser (AIR 1944 Nagpur 137).
4.On the other hand, the learned counsel for the respondents submits as under:- (i)The petitioners are not in any manner connected with Arura, deceased and cannot challenge the decree passed by the trial Court on 2-1-1970. Arura had only one son Faqir Muhammad, respondent No. 3, who never challenged the decree.
(ii)If rights and interests of Arura deceased were adversely affected, he could have filed an appeal before the District Judge. The suit filed by him was not competent in the eye of law.
(iii)At any rate sale in favour of Arura was void and there was no necessity to implead him as a defendant in the suit.
Learned counsel for the respondents further submits that transfer made by Rahmat in favour of Arura (through Mutation No. 58 attested on 27-11-1969 Exh. D-5) was hit by the principle of lis pendens as held in the case of Sarwar Muhammad Sharif and 2 others v. Makbool Ahmad and others (1991 SCMR 1419). The learned counsel submits that the sale made in favour of Arura was not in recognition of his superior right of pre-emption qua the respondents. He adds that it was made after the period of limitation for filing the pre-emption suit also long during the pendency of the suit filed by the respondents. In reply the petitioners' learned counsel submits that the original sale was in favour of Faqir (predecessor-in-interest of Ghulam Haider petitioner) and he was a necessary party. His name was wrongly deleted from the array of the defendants and Rahmat collusively made statement in favour of Hayat' Muhammad pre-emptor.
5. The admitted factual background of the case is that the sale, subject --matter of the pre- emption suit was made by Mst. Hakim Bibi etc. through sale deed Exh. D-3 in favour of Faqir son of Arura, which was scribed on 2-3-1968 and registered on 6-3-1968. The suit was instituted on 3-3- 1969. Prior to that, Faqir sold the land to Rahmat respondent No. 2 on 16-2-1969 through sale Mutation No. 31 attested on 19-3-1969 (Exh. D-4). During the pendency of the suit Rahmat again sold the land to Arura father of Faqir Muhammad respondent No. 3 through sale Mutation No. 58 Exh. D-5 attested on 27-11-1969.
6.Under the law only a sale made to a person in recognition of his superior right of pre-emption and that too during the period of limitation, is protected. However, in the instant case -the: land transferred to Arura long after the expiry of period of limitation was base on law and could not stand in the way of the pre-emption suit as held by the Hon'ble Supreme Court in the case of Sarwar Muhammad Sharif and 2 others y. Makbool and others (1991 SCMR 1419). The relevant portion from the said judgment reads as under:-- "The doctrine of lis pendens applies to pre-emption claims except in one situation where the Bald by the vendee is to one who has a superior right of pre-emption: This exception to the rule of lis pendens finds recognition in many cases including Bakhshan and others v.-Haji and others (PLD 1954 Baghdad-ul-Jadid 48) and Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lah. 171). A person can be said to have superior right of pre-emption in recognition of which a sale can be made to him only within the period of limitation when such right can be exercised. If the right is lost by lapse of time, then the sale to such a person could not be in recognition of his superior right of pre-emption but would be as bad as to a stranger. On that principle the resale by the two vendees would not stand in the way of the pre--emptive claim of the respondents."
Therefore, legally the title of the land vested in Rahmat, respondent No. 2 who was competent to contest or concede the claim of the pre-emptor. He willingly conceded the claim of the plaintiff- pre-emptor, whereupon the Civil Court rightly passed decree in favour of Hayat Muhammad respondent No. 1 on 2-1-1970.
7. Arura father of Faqir Muhammad respondent No. 3 was not a necessary or proper party in the pre-emption suit because the subsequent sale made in his favour by Rahmat was bad in law and conferred no title on him. For that reason he or his legal representatives could not successively challenge the validity of the pre-emption decree passed by the Civil Court in favour of Hayat Muhammad respondent No. 1. Therefore, the trial Court was fully justified to dismiss the appellants' suit. The appellate Court has rightly maintained the decree passed by the trial Court.
8. The objection of the learned counsel for respondent No. 1 regarding the locus standi of the appellants carries no weight. The pre-emption decree dated 2-1-1970 obtained by Hayat Muhammad, respondent No. 1 was challenged by Arura deceased father of Faquir Muhammad respondent No. 3. During the pendency of .the suit he passed away on 20-2-1971, whereupon Faqir Muhammad made an application to be impleaded as plaintiff claiming to be the sole legal heir of the deceased. In reply to the said application, submitted by Hayat Muhammad respondent No. 1, it was stated in para. 3 that Faqir Muhammad was not the sole heir of the deceased but the appellants were also his legal heirs, therefore, the trial Court vide its order dated 13-4-1974 allowed Faqir Muhammad as well as the present appellants to be impleaded as legal representatives of Arura, the deceased plaintiff. Now it does not lie in the mouth of respondent No. 1 to object to the locus standi of the petitioners.
9. I do not find any illegality or material irregularity in the judgments and decrees of the Courts below to. justify interference in exercise of revisional jurisdiction. The petition fails and is dismissed leaving the parties to bear their own costs.