' Civil Miscellaneous No, 752 of 1994 in Regular Second Appeal No,37 of 1985 and Civil Miscellaneous No, 754 of 1985 in Regular Second Appeal No, 36 of 1985, both submitted under section 12(2), C.P.C., are proposed to be disposed of by this order.
2. One Faqirullah Qureshi sold land measuring 11 Kanals and 6 Marlas and I I Kanals 7, Marlas to Muhammad Younas vide registered sale-deeds dated 25-2-1978 for cozied ration of Rs,20,000 for each of the sales. Mahboob Ali Qureishi (hereafter referred to as respondent) instituted two suits for possession of land by pre-emption against Muhammad Younas and Muhammad Yaqub etc. Who were the second vendees. The contest between the parties gave rise to the following issues in both the suits: ( I ) Whether the suit is undervalued, if so, what is the correct valuation? O.P.D.
(2) Whether the suit is time-barred? O.P.D.
(3) Whether the plaintiff is estopped by his words and conduct to file the suit? O.P.D.
(4) Whether the plaintiff has not complied with the provisions of Order 32, Rule 2, C.P.C.? O.P.D.
(5) Whether the plaintiff has got superior right of pre-emption qua the vendee defendant? O.P.P.
(6) Whether the ostensible sale price of Rs,20,000 was fixed in good faith and was actually paid?
O.P.D.
(7) If issue No, 6 is not proved what was the market value of the suit land at the time of sale?- O.P.D.
(8) Relief.
3. After hearing of the suits, the first Court found that value of the suit for purposes of court-fees and jurisdiction was correct; that suit was filed within limitation; that defendants failed to produce any cogent evidence to prove estoppel; that an amended plaint was filed to repel the objection of defendants under issue No, 4; that the plaintiff had superior right of preemption; that sale price of Rs,20,000 was correct and consequentially both the suits were decreed by judgments dated 30-1- 1984.
4. Muhammad Yaqub and Shaukat Mahmood appealed to the District Judge, Rawalpindi. An Additional District Judge before whom findings of the first Court under issue No,4 were subjected to criticism, proceeded to dismiss the appeals by judgments/decrees dated 25-4-1985 whereafter Muhammad Yaqub and another (hereafter appellants) filed regular second appeals in this Court which were admitted to hearing on 10-6-1985 and operation of the impugned decrees was suspended.
5. The appellants and the respondent, thereafter, submitted Civil Miscellaneous No, 207-C of 1994 and 208-C of 1994 in both the appeals on the grounds that compromise had been effected between the parties and that judgments/decrees passed by both the lower Courts be set aside, suits filed by plaintiff/respondent be dismissed and he be permitted to withdraw the pre-emption money. The parties also prayed ,for deletion of name of first vendee from the array of respondents which oral prayer was allowed and thereafter, a joint statement was recorded and the regular second appeals were allowed on the same day and decrees passed in favour of respondent were set aside by judgments dated 12-2-1994.
6. Civil Miscellaneous No, 752-C of 1994 in Regular Second Appeal 37 of 1985 and Civil Miscellaneous No, 754-C of 1994 in Regular Second Appeal No,36 of 1994 were filed by Raja Nisar Ahmad for setting aside the judgments/decrees dated 12-2-1994 by submitting that land in dispute was mutated in favour of Mahboob Ali after passing of the decrees in his favour and the respondent then constituted Raja Gulzar Khan as his General Attorney on 8-11-1992 and the General Attorney of respondent transferred the land in favour of petitioner on 5-4-1993; that respondent had agreed in writing to join hands in litigation but changed sides and filed a suit for declaration that transfer of land made in favour of petitioner was without lawful authority which suit was still pending; that Shaukat Mahmood also filed a suit seeking injunction against the petitioner, the General Attorney Gulzar Khan and Mahboob Ali which suit was also pending; that the appellant and respondent maliciously and by withholding correct fact from the Court obtained judgments/decrees dated 12-2-1994 by fraud and misrepresentation and that the petitioner was deprived of valuable rights in the property and prayer was made for recall/setting aside of the decree.
7. Notices of applications were issued to the appellants as well as respondents who submitted written replies. The appellants stated that sale in favor of petitioner was hit by the doctrine of lis pendency, that the petitioner was fully aware of pendency of the appeals but he did not come forward to be impleaded and even otherwise he had no right to be impleaded being a vendee pendente lite and that no fraud was played on the petitioner. The written reply of Mahboob Ali was in the same terms in both the matters.
8. Following issues were framed on 30-4-1995:--
(I) Whether the petitioner is a bona fide purchaser of suit land without notice and for consideration? O.P.P.
(2) Whether the decree dated 12-2-1994 has been obtained by fraud, misrepresentation and collusion? O.P.P.
(3) Whether the petition is not maintainable? O.P.R.
(4) Relief.
9. The petitioner thereafter, submitted Civil Miscellaneous No,810-C of 1995 and Civil Miscellaneous No, 809-C of 1995 under Order 12, rule 3, C.P.C. For admission of documents (i) Irrevocable registered power of attorney dated 8-11-1992 (Mark A') and (ii) agreement dated 8-11-1992 (Mark B'). Mahboob Ali submitted reply to both the applications and admitted execution of both THE documents.
10. The parties neither prayer for striking any other issue no desired to lead further evidence in the matter and addressed final arguments today on the basis of record of appeals as well as the miscellaneous applications.
11. Learned counsel for the petitioner submitted that suits filed by respondent were decreed by both the lower Courts and the concurrent findings stood recorded in favour of the Mahboob Ali Qureishi and he had, thus, a strong case in his favour particularly when the first vendee had not contested the claim of the respondent/pre-emptor, and then he transferred his right in favour of Raja Gulzar Khan and received a consideration of Rs, 6 lacy and also executed an irrevocable general power of attorney in his favour, execution of which documents had been admitted by Mahboob Ali and thereafter, the rights were acquired by the petitioner and he being a bona fide purchaser for value had every right to defend his interest but the respondent became a turncoat and tiled a civil suit for declaration against his general attorney as well the petitioner and that the appellant also filed a civil suit and thus both the appellants as well as the respondent knew that Mahboob Ali had assigned his rights in suit property and he could not have continued with the appeals but they colluded with one another to deprive the petitioner of his valuable rights and secretly moved an application where after the appeals were allowed by this Court. It was submitted that Iqramama' dated 8-11-1992 specifically provided that both the parties would pursue the cases which were pending in High Court, and respondent was not authorised to continue with the appeals after this date but the respondent colluded with appellants and submitted applications jointly with them to allow the appeals which lie could not have done under the law. It was further submitted that the appellants got set aside decrees passed against them by two Courts below but compromise did not show as to what benefit had been acquired by the respondent. It was contended that the correct factual position was not placed before the Court by the appellants and the respondent, and, had this been done there was absolutely no possibility of allowing of appeals and judgments/decrees dated 12-2-1994 were clearly obtained by fraud misrepresentation and collusion and hence were liable to be set aside.
' Learned counsel for the appellants submitted that no doubt the lower Courts had decreed the suits tiled by Mahboob Ali but the operation of impugned judgments/decrees stood suspended and Mahboob Ali was not possessed of any rights whatsoever and the petitioner being a vendee pendente lite had acquired no rights at all. It was submitted that the petitioner knew about pendency of litigation before this Court but he never attempted to become a party to those proceedings and, therefore, the judgments/decrees passed were binding on the petitioner. It was argued that no fraud was committed in the matter and the applications were liable to dismissal.
Reliance was placed on Mr. Noor Khan v. Zair Hussain and 3 others (1993 SCM R 1646) and Muhammad Sharif v. Dr. Khurshid Anwar Mian (1996 SCM R 781). Learned counsel for respondent also adopted the above line of reasoning and submitted that the petitioner knew about the proceedings and no fraud was committed in the matter.
13. Learned counsel for the parties have been heard and relevant record seen. Since arguments were not advanced in respect of each of the issues separately it is proposed to consider the stands of parties under all the issues jointly.
14. The case of the petitioner is that the land subject-matter of both the appeals was mutated in favour of Mahboob Ali Qureishi after suits filed by him were decreed, and he had purchased the same in accordance with law. Mahboob Ali did not controvert this position but it was submitted on his behalf that he had instituted suit for nullifying the documents on the basis of which land was transferred to petitioner and unless suit was decided either way, the petitioners rights would be deemed to be inchoate. The stand of the appellants is that the petitioner acquired the land while the decrees passed in favour of respondent stood suspended and the respondent was not having any rights in present in the property and as such no right whatsoever was acquired by petitioner.
Muhammad Sharif's case (1996 SCM R 781) was relied upon in this context. It was held in that case that "interest which is contingent on happening of any incident culminates in present right only on happening of that event." Facts of that case were that suit for specific performance of contract filed by assignor was dismissed and during pendency of his appeal before the Supreme Court, he agreed to nominate him in his place after the appeal was allowed and his suit decreed. Obviously, at the time of assignment the assignor himself was not possessed of any rights and none were available to be assigned. In the case in hand, Mahboob Ali was armed with decrees passed by both the lower Courts and after his appeal was admitted to hearing operation of the judgments/decrees was suspended meaning thereby that enforcement of certain rights was injected against and rights as such were not extinguished, as grant of temporary injunction has that legal effect only. It would, thus, be wrong to assume that Mahboob Ali was not having any rights in present to be transferred. The contentions raised on behalf of appellants are repelled as being without any basis.
15. It was then argued by appellants as well as respondent that the petitioner had acquired the interest in the property during pendency of the appeals which fact was in the knowledge of the petitioner, and relying upon M. Noor Alam v. Zair Hussain and 3 others (1993 SCM R 1646) it was contended that since it was made during pendency of litigation, it was subject to the decree passed and the petitioner under the circumstances, had no grievance to urge. No doubt, the petitioner was aware of the pendency of the litigation and he ordinarily, would have been bound by the final adjudication provided that was done in due course. Mahboob Ali at the time of assignment had received a consideration of Rs, six lacs and it was agreed to between the parties that the litigation pending in .The High Court would be pursued by (sic) both the parties. The assignor can continue with any suit or appeal under Order XXII, Rule 10/11, C.P.C. But he has to seek leave of the Court for that purpose and the assignee can also allow him to continue with the litigation provided the interests of the assignee are properly looked after. In this case the assignor and the assignee were to pursue the matter jointly and the assignor was, thus, precluded from continuing with the litigation of his own after 8-11-1992 the date of assignment, and admittedly leave of the Court was also not obtained to continue with appeals.
I5-A. The appeals, in this case, were admitted to regular hearing on 10-6-1985 and operation of the impugned decrees was suspended on the same date. The interim order was confirmed on 4-12- 1985. Later, the respondent moved applications for early hearing of the appeals which were taken up for hearing on 20-2-1991 and it was directed that the matters be included in the list of case for early hearing. Thereafter, the appeals were not listed for hearing till applications for compromise were moved. In the meanwhile, the respondent transferred his rights in favour of Raja Gulzar Khan (vide Mark 'B') and constituted him as his General Attorney and executed Irrevocable Power of Attorney (Mark 'A') on 8-11-1992 in his favour and the General Attorney transferred the land in favour of the petitioner on 5-4-1993. Later Mahboob Ali filed a suit for declaration against petitioner on 17- 11-1993 and still later the appellants also filed a civil suit against the petitioner. The suit filed by Mahboob Ali was dismissed for non-prosecution but the order was appealed against. The appellants and the respondents and, thereafter, submitted Civil Miscellaneous No,207-C of 1994 and Civil Miscellaneous No,208-C of 1994 jointly praying for allowing of appeals on the basis of compromise. When the applications were taken up for hearing on 12-2-1994 both the parties prayed for deletion of name of Muhammad Younas, the first vendee, from the array of respondents which oral prayer was allowed. The respondent in these proceedings was represented by Syed Aftab Ahmad, Advocate who appears to have been engaged for this purpose alone and previous counsel who had been representing the respondent from day one was also not associated with these proceedings. Thus, every effort was made to keep the proceedings clandestine. Then, according to terms of compromise, the respondent had agreed to allowing of appeals against the concession of withdrawal of preemption money only. This concession was given for a property which lie had sold away for Rs, six lacs to petitioner who despite the terms of agreement with the respondent was not given even an inkling of what was happening. The appellants as well as the respondent were unable to show the legitimacy of the conduct of the respondent in the matter. He could not have given any consent for allowing the appeals as he had no concern with the suit property. The appellants and the respondent knew about the assignment, the appellants C did not make any effort to bring the petitioner on record and a conscious effort was made to withhold the correct factual position from the Court. The respondent never sought leave of the Court which ought to have done under provisions of Order XXII, Rule 10/11, C.P.C. Whatever was done by the respondent after assignment was done in violation of law and without authority. The Court as well the petitioner were kept in the dark by both the appellants and the respondents and they had joined hands with another in Commission of the fraud. If this is not fraud then this word would need redefining. The petitioner having acquired interest in the property for consideration had a right to be associated with the adjudication of appeals particularly when the respondent had covenanted to do that. As the appellants and the respondent had colluded with one another to deprive the petitioner of his rights or interest in the disputed property, the petitioner notwithstanding being a vendee pendent lite had a right to get undone the wrong committed on him.
16. For the foregoing reasons it is held that the petitioner having been assigned the rights in the suit property by the respondent after receipt of consideration has a right to defend his interest and thus issues Nos. I and 3 are decided in his favour and against the defendants. The appellants and ,the respondents by active concealment of facts had committed fraud in the matter and respondent though not authorised to continue with the litigation after assignment of his rights to the petitioner colluded with the appellants and gave consent to passing of decrees incompetently, the decrees dated 12-2-1994 passed by this Court were admittedly result of fraud, misrepresentation and collusion. Thus, issue No,2 is decided in favour of the petitioner.
17. Consequent findings on various issues, the applications arc allowed and judgments/decrees dated 12-2-1994 passed in Regular Second Appeals Nos.36 of 1985 and 37 of 1985 are set aside and are hereby recalled, Both the appeals be set down for hearing in due course. Costs of this litigation to be borne by appellants and the respondent.