' This is a revision petition under section 115, C.P.C.. Against the order of the learned Additional District Judge, Sialkot, dated 20-3-1985 whereby he confirmed the judgment and decree, dated 21- 12-1974 passed by the learned Civil Judge, Shakargarh in favour of the plaintiffs.
2. Briefly stated the facts as alleged in the plaint by respondents/plaintiffs were that defendant No,2 Maqbool Ahmad was the owner of the suit property, who on 17-51971, sold the suit land along with another property for a consideration of Rs,8,000 and got the sale-deed registered and thereby the plaintiffs were the bona fide purchasers of the suit land for consideration. After the registration of the sale-deed. Mutation was also attested in favour of the plaintiffs in the revenue papers. The possession of the land was obtained by the plaintiffs by evicting the tenant in accordance with law and in this way they were the owners in possession of the Suit land. It, was also averred in .The plaint that defendant No:1 instituted a suit for possession against defendant No,2 in which the plaintiffs were not made a party at any stage nor they got knowledge of the said Suit. Later on, on, defendants in league with .Each other entered into a compromise and stated in the Court that defendant No,2 was the ,owner of the suit land and got a decree of 1/2 share +of Khasra No,992 on 29-4-1972 although defenders knew it fully well that on 29.4-A922' defendant No,2 was not the' owner of the4yit land and the plaintiffs were bona fide purchasers fox consideration and were in possession and that the decree was obtained by misrepresentation of facts which was void as against the rights of the plaintiffs and also ineffective and non-existent. It was also averred that defendant No,1 openly asserted that they would get the possession of the suit land_ on the basis of the decree, dated 29-4-1972 passed in the case of Khair Din v.Maqbool Ahmad' and will get the plaintiffs evicted forcibly and will' also get produce from them. The plaintiffs sought declaration . To the effect that they were owners in possession of the suit land 'on the basis or registered sale-deed, dated 17-5-1971 and that the judgment and decree, dated 29-4.1972! Passed by the learned Civil Judge, Shalcargarh regarding 1/2. Share of the suit land in favour of defendant No,2 in suit titled Khair Din v. Maqbool Ahmad was collusive between the defendants and obtained by misrepresentation of facts and. Was ineffective on the rights of the plaintiffs and void and non- existent. They' also prayed for, consequential relief by way of permanent injunction restraining the defendants from getting the possession of the suit land or produce.
3. The suit was registered by defendant ,No,1 and in his written statement he took the prelim Mary objection that the suit was not maintainable in its present form as the plaintiffs were not in possession of the suit land and that under the principle 9f caveat. Emptor, the plaintiffs were hot 'entitled to the- relief sought as at the time of alleged .Sale-deed the suits as pending between ,defendants Nos.1 and 2, in respect of the land in 'dispute which was decreed in favour of defendant No,1 Oa-29,4-1972 and that according to the judgment and decrea Iskt.10 4tt become owner of 1/2 share of the- 5UJt, and he has also deposited the decretal amount and the ,plaintiffs should have filed a suit against defendant No,2 for the recovery of the sale price and that the suit was collusive and that the plaintiffs have no locus standi nor cause of action and that they have not come with clean hand and that they are estopped to bring the suit by their words and conduct and that without payment of the sale price the plaintiffs are not entitled to any relief. On merits defendant .No,1 admitted that defendant No,2 was the owner. Fig denied the rests of the averment and stated that defendant No,2 had sold the suit land to defendant No,1 regarding which defendant No,1 filed a suit on 9.12-1970 and also obtained, stay order regarding alienation of *snit land in, any manner of which defendant No,2 has got full knowledge and that-the suit was decreed in favour of defendant No,1 on 29-4-1972 according to which to the extent of 1/2 Share of the' suit land decree was passed and that if during the pendency of the r4i., the plaintiffs have got a sale-deed registered or mutation attested from defendant No,2. They have done so on their own risk and that they were estopped to claim any right to the extent of 1/2 share of the suit land.
4. The learned Civil Judge framed the following issues:
(1) Is . Suit not, maintainable in the present form? OPP.
(2) Is suit collusive? OPD.
(3) Whether plaintiffs have no cause of action or locus standi to bring this suit? OPD, '(4) , Have the 'plaintiffs gait come to the Court with clean hands? OPD.
(5) Are. Plaintiffs estopped by their conduct from bringing this suit? OPD.
(6) What is the effect of preliminary objections of the W/S on this 'suit? .OPD.
(7) Whether the plaintiffs are bona fide purchasers for consideration of die suit land? OPD.
(8) Whether the impugned lucre to the extent of half of Khasra No,992 passed on 29-4.1972 is result of misrepresentation of facts, and as such is illegal 'null and void and not binding on the plaintiffs?
OPD.
(9)
' The parties led their evidence and after hearing the arguments, the learned Civil Judge decreed the suit in favour of the plaintiffs and tit appeal was preferred before the learned Additional District Judge, Sialkot, where arguments were addressed only on issues Nos.7 and 8 and the learned Additional District Judge dismissed the appeal on the ground that it was without force.
5. Now the petitioner has conics in revision. Learned counsel for the petitioner has submitted that the learned lower Court has erred in deciding issue No,7 in favour of respondents as none of the oral or documentary evidence produced by the petitioner/defendants' have been considered and discussed and that the suit was hit by the principle of pendent as 'envisaged by section 52 of the, Transfer of Property Act. It was also urged that the' Courts below have wrongly held that the decree, dated 29-4-1972 was' Finally it was argued that the judgment and decree, dated 29-4-1972 passed in Civil Suit No,419 of 1970 in favour of the petitioner was a judgment in rem and not a judgment in personem.
6; Reliance has been placed on Muhammad Sohail and two others v. Government of N.-W.F.P. And others (.1996 SCM R 218).
7. Admitted position on the record of Civil No,419 of 1970 which was instituted on 9-12-1970 and decreed on 29-4-1972 is that on 1-12-1969 Exh.D1 was produced in that suit according to Maqbool Ahmad agreed to sell his, land measuring about six acres in favour of Khair-ud-Din for a consideration of Rs,20,000 out of which he received Rs,11,000 and the remaining Rs,9,000 were to be paid within one year and the sale-deed was to be ,got registered.. The witnesses were Multinar Ahmad son. Of Faqir Muhammad and Fazal Din,ibn of Muhammad Din. Apart from the above agreement to sell was also sworn on. 1-12-1969 by Maqbool Ahmad before Ch. Stilign Akhtar, Oath Commissioner, Shakargarli in which identification was made by Fazal Din. Son of Muhammad Din.
Both these documents were scribed by Barkat Ali petition-writer and recorded in his register at Serial No,3420- This document was produced as Exh.D2 in the said case. The third document is Exh.D3 which is a copy of order, dated 29-4-1972 passed in Civil, Suit No,419 of 1970 in the following terms:--- "Parties with counsel present. No party has filed any objection regarding affidavit filed. Hence, affidavit is confirmed which is marked as Exh.C-H. According to it the expenses of the suit and the amount paid is Rs,10,000, therefore, according to the written compromise Exh.CI the plaintiff is entitled to only three acres of land. Hence, decree for possession of 1/2 share in the disputed land is passed in favour of the plaintiff against the defendant. The parties are left to bear their own costs.
File to he sent to record room after completion. Order announced.
(Sd.)
Civil Judge 3rd Class, Sharkargarh.
29-4-1972."
' Admittedly, in the said case. The parties were Khair Din (plaintiff) and Maqbool Ahmad (defendant). Muhammad lqbal was not a party in the earlier suit and he should not have been a party in the earlier suit as he was not in the picture till 17-5-1971. It is also on the record that an application was made in the said suit under Order 39, Rule 1, C.P.C.. On 14-4-1971 for grant of status quo and the learned Civil Judge had passed two orders on that application. On demanding the report of the office and the other in the following words:--- "Counsel for the applicant present. Notice be issued to the other side for 26-4-1971 on the deposit of process fee."
' This order was passed alter the office has reported that the case has already been fixed for ex parte proof for 11-6-1971. In the said application para. No,2 Khair Din plaintiff had mentioned that the defendant Maqbool Ahmad had made it publically that he will alienate the land in dispute to some other person. It is also admitted position that on 17-5-1971 the said defendant Maqbool Ahmad got the sale-deed registered in' tavour of Muhammad lqbal. In this view of the matter, the agreement to sell executed in favour of the petitioners-defendants on 1-12-1969 and the suit being filed on 9- 12-1970 and decreed on 29-4-1972 makes it clear that the petitioners-defendants were bona fide purchasers for consideration prior in time and the transaction in favour of the respondents by means of sale-deed, dated 17-5-1971 was clearly hit by the principle of lis pendens as laid down in section 52 of the Transfer of Property Act which reads as under:--- "5/. Transfer of property pending suit relating thereto.--- During the pendency in any Courts having authority in Pakistan or established beyond the limits of Pakistan by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any part to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein. Except under the authority of the Court and on such terms as it may impose.
Explanation.---For the purposes of this section, the pendency of the suit or proceeding shall be deemed to commence from the date of the presentation the plaint or the institution Ok- the proceeding in a Court of competent jurisdiction and,' to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of Limitation prescribed for the execution thereof by any law for the time being in force."
' Further, the judgment and decree, dated 29-4-1972 passed in Civil Suit No,49 of 1972 in favour of the petitioners decided the status entitlement of the disputed property in .Favour of the petitioners.
In view of Article 56 of the Qanoon-e-Shahadat Order, 1984 (P.O. No,10 of 1964), the Judgment in Civil. Suit No,419 of 19 /0, dated 29-4-1972 is conclusive proof as to what it states between Khair Din and Maqool Ahmad. Muhammad lqbal claims under Maqbool Ahmad who was a party to the proceedings in which the said judgment was given. As such if he had taken the risk of getting 'sale- deed executed in his favour during the pendency of the said suit, he has done so at his own peril. Of course he has the right to get his sale consideration back from Muhammad lqbal and the decree, dated 29-4-1972 cannot be made subject to the sale-deed executed in his favour during the pendency of the suit. Rather it is the sale-deed which is subject to all consequences of the decree delivered by a Court of law competent to deliver it. The plaintiff in that case played no fraud on the defendant. It is the defendant Maqbool Ahmad who played -fraud with Muhammad lqbal, knowing fully well that the matter was pending before the competent Court.
' In this view of the matter, the revision petition has full force and both the Courts below have not properly decided issues Nos.7 and 8. As such their findings are reversed and the civil revision is allowed and the suit instituted by the respondents against the petitioners is dismissed with costs throughout.