By this common judgment I propose to dispose of Civil Revisions Nos.243 and 244 of 1998, as both the petitions have been filed against judgment dated 21-7-1998 passed by District Judge, Peshin whereby the appeal filed against judgment dated 29-8-1996 passed by Civil Judge, Pishin was accepted and the application under section 144, C.P.C. Was ordered to be rejected.
2. The facts culminating in filing the instant petitions are that Gul Baran and Baz Muhammad being respondents in Civil Revision No,243 of 1998 alongwith one Haider (deceased) sons of Lal Muhammad filed a suit against predecessor-in-interest of petitioners Nos. 1 to 9 Haji Akbar, for declaration, permanent injunction, correction of mutation entries and possession under Ordinance I of 1968 on 17-6-1975 before A.C., Chaman in respect of following property:-- S.No,Name of MauzaArea of land Rods PolesExtent of share
1. Make Kachch 18 --17 1/2 share
2. Orakzai 6 --57 1/2 share
3. Tabina Salezai247 --23 Full share
3. The suit was referred to the Tribunal who proceeded ex parte against Haji Akbar and gave its award against said Haji Akbar on 31-10-1978. The award was submitted before Assistant Commissioner, Chaman who agreed with the findings of the Tribunal and decreed the suit ex parte on 28-2-1980. On the basis of the said decree mutation entries were corrected and possession of the property was handed over to decree-holders. Respondent Gul Baran transferred the property situated in Mauza Tabina Salezai in his name in the year 1983 and thereafter sold the same to Haji Fateh Khan, Abdur Rehman, Karam Khan and Khudai Dost being respondents in Civil Revision No,244 of 1998.
4. Predecessor-in-interest of petitioners 1 to 9 and petitioners Nos.10 to 26 on coming to know about the ex parte decree dated 28-2-1980 filed an appeal before Commissioner who dismissed the same on the question of limitation. The petitioners filed a Revision before Member, Board of Revenue which was also dismissed vide judgment dated 2-10-1989. Thereafter petitioners filed a Constitutional Petition being Constitutional Petition No,295 of 1989 which was also dismissed on 19- 11-1991. Petitioners filed a petition for leave to appeal before the Hon'ble Supreme Court which was accepted vide Order dated 19-12-1994 and the ex parte decree dated 28-2-1980 was ordered to be set aside, and the case was remanded to Senior Civil Judge, Pishin for decision afresh.
5. After remand Haji Akbar died and petitioners Nos. 1 to 9 being his legal heirs were also impleaded in the suit and an amended plaint was filed wherein the respondents in-Civil Revision No,244 were also impleaded in the suit. Petitioners filed an application for restitution of the property under section 144, C.P.C. The said application was contested by the respondents in both the petitions.
After hearing the parties, the learned Civil Judge, Pishin accepted the application under section 144, C.P.C. And ordered restitution of the property in favour of the petitioners. Being aggrieved from the same, an appeal was filed before the District Judge, Pishin who accepted the same vide order dated 15-2-1997 and remanded the case back to Civil Judge, Pishin. Being aggrieved from the same, two separate Civil Revisions being Civil Revisions Nos. 107 and 108 of 1997 were filed by the petitioners before this Court which were partly accepted vide judgment dated 12-9-1997 and the case was remanded to District Judge for disposal of the application under section 144, C.P.C. On its own merits.
6. After remand by this Court, the learned District Judge accepted the appeal and dismissed the application under section 144, C.P.C. Vide impugned judgment dated 31-7-1998. Being aggrieved from the same, the petitioners have filed the instant petitions.
7. Mr. Muhammad Aslam Chishti, learned counsel for the petitioners in both the petitions contended that since the decree dated 28-2-1980 passed by Assistant Commissioner, Chaman was set aside, thus, under section 144, C.P.C: the petitioners were entitled to restitution of property which has been taken from their possession on the basis of the said decree. The learned counsel further contended that the learned District Judge vide impugned judgment dated 31-7-1998 has accepted the appeal and rejected the application of the petitioner on a wrong 'assumption of law, that restitution cannot be ordered against the respondents in Civil Revision No,244 of 1998 who were not a party in the original suit. The learned counsel contended that since the respondents in Civil Revision No,244 of 1998 had derived their title from the decree-holder respondents in Civil Revision No,243 of 1998 thus the restitution proceedings could be initiated against them.
8. Mr. Tahir Muhammad Khan, learned counsel for the respondents in Civil Revision No,24 of 1998 contended that since the respondents are bona fide purchasers; therefore, restitution cannot be ordered against them. Respondent No,1 Gul Baran in Civil Revision No,243 of 1998 appeared on his behalf and on behalf of his brother contending that he has not sold the property of Haji Fateh Khan and his brothers and requested for restitution of the property' in his favour.
9. I have heard the learned counsel for the parties and have also gone through the available record. It may be observed that the object of section 144, C.P.C. Is to place the parties in the same position as when they were prior to the decree which has been varied/reversed by a Court of competent jurisdiction. Basic principle underlying the right of restitution is that a wrong done to a party by act of a Court should be rectified. The doctrine of restitution has been defined in 23 Madras 306 by Sabrahmania Ayyar, J as his Lordship then was, as follows:-- "The principle of the doctrine of restitution is that on reversal of a judgment law raises an obligation in the party to the record who received the benefit of erroneous judgment to make restitution of the other party for what he had lost... ... ...That obligation it is duty of the Courts to enforce unless it is shown that restitution would be clearly contrary to the real jurisdiction of the case."
10. Admittedly respondents Gul Baran and his brothers came into possession of the property on the basis of decree dated 28-2-1980 passed by Assistant Commissioner, Chaman under provisions of Ordinance I of 1968 and thereafter the property was sold to Haji Fateh Khan and his three brothers being respondents in Civil Revision No,244 of 1998. It has further not been denied that after purchase of the property by Haji Fateh Khan and his brothers petitioners challenged the ex parte decree dated 28-2-1980 before Commissioner and Member, Board of Revenue; ultimately their plea was accepted by the Hon'ble Supreme Court and the ex parte decree dated 28-2-1980 was ordered to be set aside. During all these proceedings Haji Fateh Khan and his brothers were a party in the said proceedings. From the perusal of the record it stands revealed that respondents Haji Fateh Khan and his brothers purchased the property from Gul Baran in 1987 and it has further come on record that the petitioners challenged the decree dated 28-2-1980 before Commissioner in the same year. Haji Fateh Khan and his brothers were party in the proceedings before Commissioner and up to the Hon'ble Supreme Court.
11. Adverting to the arguments of Mr. M.Aslam Chisthi, Advocate it may be observed that after perusal of ex parte decree dated 28-2-1980, the parties that were in possession of the property prior to passing of the said decree, were entitled to its restitution as provided under section 144, C.P.C. Mr. Tahir Muhammad Khan, Advocate contended that possession of the property in dispute was not taken from the petitioners and it was taken from tenants; thus the petitioners are not entitled to the possession of the property in dispute. The contention raised by Mr. Tahir Muhammad Khan, Advocate is devoid of force as the tenants from whose possession the property in dispute was taken on the basis of the decree dated 28-2-1980 are not party to the present suit and have not filed application for restitution. The contention of Mr. Tahir Muhammad Khan, Advocate has no substance as the possession was taken from the persons/tenants who were holding the property .On behalf of the petitioners as is evident from the Revenue Record. Thus it is held that before passing of the decree, the petitioners were in possession of the property in dispute through their tenants.
12. Adverting to the next argument of the learned counsel that since Fateh Khan and his brothers respondents in Civil Revision No,244 of 1998 are not party to the proceedings and bona fide purchasers, thus the proceedings under section 144, C.P.C. Do not apply to them, it may be mentioned here that the word 'party' used in section 144, C.P.C. Is not only confined to the parties in the suit but it also includes assignees/transferees from the decree-holders and clearly applies to persons who have subsequently obtained interest. As in the instant case, after getting possession of the property on the basis of the ex parte decree, respondent Gul Baran sold the property in dispute to Haji Fateh Khan and his brothers respondents in Civil Revision No,244 of 1998. I am fortified with the view taken in Kadirvelu Schettiar v. Kempu Schettiar and others AIR 1941 Madras
315. Thus the contention of Mr. Tahir Muhammad Khan, Advocate has no force that Haji Fateh Muhammad and his brothers respondents in Civil Revision No,244 of 1998 were not party to the suit and the provisions of section 144 C.P.C. Would not apply to them.
13. Reverting to the next contention that since Haji Fateh Khan and his brothers were bona fide purchasers and had no knowledge about the dispute between petitioners and the respondent Gul Baran, it was also stated that after purchase of land by Haji Fateh Khan and his brothers, they have spent a huge amount on the development of the same. As expressed hereinabove, the property in dispute was purchased by Haji Fateh Khan and his brothers from Gul Baran in 1987 and in the same year petitioners challenged the ex parte decree dated 28-2-1980. Thus, it cannot be said that Haji Fateh Khan and his brothers, respondents in Civil Revision No,244 of 1998 had no knowledge about the dispute between the petitioners and Gul Baran, respondents in Civil Revision No,243 of 1998.
They have been party before the Commissioner up to the Hon'ble Supreme Court; thus it was within their knowledge that the decree on the basis of which the property was purchased was challenged by the petitioner. In this regard I am fortified with the view taken in Chota Nagpur Banking Association v. C.T.M. Smith and another AIR 1943 Patna 325 wherein a similar case the following observations were made:-- "It is true that a stranger to the decree is not bound to enquire into the merits of the plaintiff's claim or into the validity of the decree and therefore, ordinarily the presumption is that such a person is unaware of the these matters, but where there is clear and cogent evidence that he was fully aware of the merits of the controversy in regard to the property purchased by him and was also aware that the validity of the decree was under challenge, there is no room for that presumption."
14. Now coming to the last contention that respondents Haji Fateh Khan and his brothers have developed the land by spending a huge amount, it may be observed that as they knew that the decree was being challenged and up to the Supreme Court they were a party to the suit; thus ,the amount of money which has been spent on the development of the property was on their own risk as they should have known that the proceedings wherein ex parte decree dated 28-2-1980 was being challenged could affect them on decision. Thus the above-raised contention is without force.
15. As a result of the above discussion I am inclined to accept this petition. Consequently the impugned judgment dated 31-7-1998 passed by District Judge, Pishin is set aside and the judgment dated 29-8-1996 passed by Civil Judge, Pishin is upheld. Parties are left to bear their own costs.