' M/s. Ammar Housing Services (Pvt.) Limited had filed Suit No,444/92 against defendants Jalaluddin Ahmad, Qalandar Khan and Raziuddin for specific performance of contract and for declaration of their title. According to the plaintiffs, an agreement of sale of land was executed between the parties on 9th February, 1992 whereby the three defendants had agreed to sale 10 acres of land to the plaintiffs. On the very first date of hearing Mr. Abdul Wajid Wyne, Advocate appeared for the defendants and a compromise application under Order 23, Rule 3, C.P.C. Was filed by the parties and the suit was decreed in terms thereof vide order dated 2-7-1992. A perusal of application under Order 23, Rule 3, C.P.C. Shows that the defendants had not disputed the contents of the plaint and had showed their willingness to abide by the terms of agreement of sale dated 9- 2-1992. The present applicant Abdul Ali, who was not a party to the suit, has come up with his application under section 12(2) of C.P.C. Which was filed on 15th March, 1993. It is contested by the plaintiff as well as defendant No,1 whereas defendants Nos.2 and 3 have not been served. Learned counsel of the parties have been heard.
2. The case of applicant Abdul Ali is that defendant No,1 Jalaluddin Ahmad was the lessee in respect of 50 acres of land which was granted to him by Deputy Commissioner, Karachi, West in 1965 and thereafter he sold 43 acres of land to defendants Nos.2 and 3 and one Hadi Bux Memon in the following ratio: 15 acres to defendant No,2 Raziuddin, 8 acres to defendant No,3 Qalandar Khan and 20 acres to Hadi Bux Memon and retained to himself the remaining 7 acres of land and some time thereafter all of them jointly sold 40 acres of land to one Dr. M. Tabarak Hussain in the following ratio: defendant No,1 his entire 7 acres of land; defendant No,2, his total holding of 15 acres of land; defendant No,3 his entire holding of 8 acres of land and Hadi Bux Memon, 10 acres out of his total of 20 acres of land. The case of the applicant is that he purchased the remanding 10 acres from Hadi Bux Memon vide sale agreement dated 8-11-1991 and obtained its physical possession.
According to the .Applicant, the parties of Suit No,444/92 were in collusion with each other and obtained a collusive decree. According to him, defendants Nos.1, 2 and 3 had no land at all on the date when the suit was decreed as they had already sold their total holdings to Dr. M. Tabarak Hussain and the balance of 10 acres of land was later on sold by Hadi Bux Memon to the applicant vide sale agreement dated 3-12-1990.
3. Learned counsel of the applicant had argued that the above-noted Dr., M. Tabarak Hussain had also filed Suit No,406/92 against the defendants for specific performance of contract of sale and in that suit an injunction was granted against the defendants on 4-6-1992, restraining them from selling the suit land but in violation of the said injunction order the defendants sold the suit land to the plaintiffs (M/s. Ammar Housing Services (Pvt.) Limited) on 9-2-1992. The argument appears to be contradictory because according to the applicant himself injunction was granted, if at all, after the sale of the suit land to the plaintiffs. Besides, I am unable to see as to how any reference to this injunction order is relevant in the present context. Even the copy of the said injunction order has not been placed on record by the applicant.
4. The fact that Suit No,444/92 was filed on 25-6-1992 and was compromised on the very next date which was 2-7-1992 may give rise to a suspicion that the parties were not actually at issue and the suit may have been filed to establish the title of the plaintiffs on the suit land but it is not possible to hold, on the basis of the record before the Court, that any fraud or misrepresentation was committed by the parties to the suit. Copy of Form VII (Annexure C' to the plaint in Suit No,444/92) and copy of "certificate dated 14-5-1992 under MLR 115" which is Annexure 'D' to the plaint in the said suit clearly show that defendant No,1 Jalaluddin was the only recorded owner of 50 acres of land of which the suit land is a part. Defendants Nos.2 and 3 or Hadi Bux Memon had apparently no title whatsoever to this land. An agreement of sale does not confer any title on the vendee. A title passes to the vendee only when a sale-deed is executed in favour of the vendee and the land is mutated in his name in the Record-of-Rights. As such, Hadi Bux Memon has acquired not title whatsoever in respect of this land. His title was defective. If Hadi Bux Memon entered into an agreement of sale with applicant Abdul Ali, he (Hadi Bux Memon) is liable to the applicant in damages but it cannot be stated that decree in the suit was obtained by fraud or misrepresentation or concealment of facts. It may also be noted that defendant No,1, Jalaluddin had not acquired any title to the 50 acres of land on 3-12-1990 on which date he is said to have sold the suit land to defendants Nos.2 and 3 as alleged by the applicant in para.4 of his affidavit.
His title to the land became perfect on 4-12-1991 when lease-deed was executed in his favour by the Member, Land Utilization Board of Revenue, Sindh through Nazir of Civil Courts, Karachi-West on the basis of decree in Suit No,72746 of the Court of III-Senior Civil Judge, Karachi West.
5. It may also be noted that decree in Suit No,444 of 1992 only binds the parties to the suit. In terms of the said decree the plaintiffs (M/s. Ammar A Housing Services (Pvt.) Limited merely stepped into the shoes of the defendants and if the applicant had any cause of action against the defendants, he may seek the relief against the plaintiffs (as successor-in-interest of the defendants). It may be noted that Mr. Abdul Wajid Wyne, learned counsel of defendant No,1, Jalaluddin, denies the authenticity of the counter-affidavit of Jalaluddin in respect of an application under Order 1, Rule 10, C.P.C. In Suit No,406/92 filed by Dr. M. Tabarak Hussain. In para.3 of his counter-affidavit Jalaluddin had admitted having sold the 10 acres of the suit land to the intervenor and having received its consideration. The counter-affidavit does not reveal as to who was the intervenor and it may only be presumed that it was the present applicant. This is no occasion to give any verdict on the authenticity or otherwise of his counter-affidavit but even if it were to be conceded that it was authentic and duly affirmed by defendant No,1 Jalaluddin, it would only show that he was guilty of fraud as against the applicant as well as the plaintiffs M/s. Ammar Housing Services (Pvt.) Limited but even then the provisions of section 12(2) of C:P.C. Would not in my humble view be attracted for the annulment of judgment and decree in Suit No,444/92.
6. For the abovenoted reasons I find no merit in these applications under section 12(2) of C.P.C. J. M.
Nos.17/93 and 18/93 are accordingly dismissed but under the circumstances of the case the parties are left to bear their own costs.