1. ' This judgment will govern Civil Revision 4o.1294-D of 1996 and C.R. No,132-D of 1997 as the same have been directed against the impugned judgment and decree, dated 1-12-1996 passed by the learned Additional District Judge, Sahiwal.
2. The dispute relates to 1-1/2 Marla of land. Lal Din predecessor-in-interest of respondent No,1 instituted a suit for specific performance on the basis of agreement to sell, dated 15-7-1970 in the Court of Civil Judge, Sahiwal. The agreement to sell was executed by one Abdul Ghafoor. Abdul Ghafoor died and his successor-in-interest respondents Nos.2(i) to (viii) and 3 to 7 refused to honour the agreement to sell, which necessitated filing of the suit by Lal Din. The said suit was decreed by the learned Civil Judge, Sahiwal vide ex parte judgment and decree, dated 14-6-1989.
2. The decree was executed and the sale-deed was registered in favour of Lal Din deceased. After the execution of the registered sale-deed said Lal Din further transferred the property in dispute in favour of the petitioners through two separate registered sale-deeds, dated 16-8-1989 and 17-9- 1989 and according to the petitioner she raised construction on the suit land by making heavy investment. One Khadim Hussain respondent No,8 feeling aggrieved filed an application for setting aside the decree which was dismissed, then he filed an appeal and the ex parte judgment and decree was set aside by the Appellate Court vide its judgment, dated 8-1-1992 and the case was remitted to the Trial Court. In remand proceedings the petitioner submitted an application for her transposition as plaintiff which was dismissed and the suit was also dismissed. The respondents filed an application under section 144, C.P.C., for the possession of the suit property which was allowed on 4-10-1995. Petitioner feeling aggrieved by the judgment passed by the learned Civil Judge preferred an appeal which was also dismissed by the learned Additional District Judge Chichawatni vide judgment and decree, dated 1-12-1996.
3. ' Learned counsel for the petitioner contended that Mst. Hanifan was impleaded as defendant No,9 in the plaint and both the Courts below have misread the law applicable to withdrawal of the suit and transposition of parties. As according to learned counsel the right of withdrawal is always absolute and the transposition is always to be ordered for complete administration of justice and from saving the multiplicity of suits. It is further contended that it is the duty of the Court to see bona fides and mala fides of the parties and the lower Appellate Court by refusing to transpose the petitioner in place of plaintiff is nothing but refusal to exercise jurisdiction vested in it under the law, was according to learned counsel the case of the petitioner and Lal Din deceased was similar and it was not at all different. In support of his arguments learned counsel has referred 1970 SCM R 639, PLD 1980 Kar. 296, 1992 SCM R 485, PLD 1992 SC 590, PLD 1961 Dacca 263, PLD 1968 Kar. 345 and finally argued that the order, dated 4-10-1995 and 15-9-1995 has been obtained by collusion through playing fraud upon the Court and the statement for the withdrawal of the suit upon which the judgment, dated 15-9-1995 is based has adversely affected the right of the petitioner which aspect has not been seen in its true prospective by the Courts below and has rendered the judgment and decree as without jurisdiction.
4. ' Learned counsel appearing on behalf of the respondent No,8 has contended that the petitioner has not come with clean hands before this Court as on one side an application for ejectment was filed by Khadim Hussain against Sardar Ali husband of the petitioner who tried his level best to retain the possession of the property in dispute whereas the petitioner has jumped into and claimed the ownership of the same. Learned counsel further submitted that the suit was instituted by Lal Din on 3-1-1989 on the basis of agreement to sell, dated 5-7-1970 and ex parte decree, dated 14-6-1989 was obtained which was set aside by the judgment and decree, dated 8-1-1992 as a consequence thereof the said Lal Din no longer owner of the property and the petitioner, according to her own averments, has derived title from Lal Din, which came to an end, in these circumstances at the most she can claim her amount from the heirs of Lal Din deceased. It is further contended that the petitioner is not affected by the decree and cannot be transposed in place of plaintiff.
5. Learned counsel has referred PLD 1980 Kar. 296 and PLD 1971 Lah.
6. 359.
7. ' I have heard the learned counsel for the parties at some length and have also minutely perused the record. The record indicates that through an ex parte decree Lal Din deceased got executed the sale-deed in his favour and became owner of the property in dispute. After that he transferred the same to the petitioner. The ex parte decree was set aside by the judgment, dated 8-1-1992 passed by the District Judge, Sahiwal and the case was remitted to the Trial Court. After setting aside the ex parte decree the said Lal Din ceased to be the owner of property and the petitioner cannot claim better title than that of Lal Din as admittedly Lal Din's claim based on an agreement to sell, dated 15-7-1970 and it is well-settled that an agreement to sell does not create any right in favour of the person claiming under the same until and unless it is specifically got enforced through decree of the Court and sale-deed is accordingly executed. In the present position when the real plaintiff in whose favour agreement to sell was executed stands withdrawn from the case, the transposition of petitioner in place of said plaintiff will change the whole complexion of the suit because in the light of the statement, made by the successor-in-interest of said Lal Din, the claim of the petitioner did not remain common and identical and in no way the petitioner can improve her case as stated above in the light of the statement made by Mushtaq Hussain successor-in- interest of Lal Din who has withdrawn from the case. The authorities relied upon by the learned counsel for the petitioner as such are not attracted to the facts of the present case because if the petitioner is allowed to be transposed it will change the character of the suit. In the light of the above discussion, the petitioner has failed to point out infirmity or illegality in the judgment and decree of both the Courts below and the same do not warrant interference by this Court. The revision petition has no merit and the same is dismissed with no order as to costs.