' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 17-6-1998, whereby the appeal filed by Muhammad Ilyas, respondent, was accepted and the judgment and decree passed by the Additional District Judge, Bhimber, were set aside and that of trial Court were restored.
2. The brief facts of the case are that three suits in respect of the land measuring 40 Kanals, 12 Marlas, situate in village Kas Chinatar, Tehsil and District Bhimber, were filed in the Court of Sub- Judge, one by Muhammad Mushtaq and others on the basis of adverse possession seeking declaration and perpetual injunction in terms that their possession over the suit land had ripened into ownership and, thus, the gift-deed and sale-deeds detailed in the plaint are ineffective and inoperative against their interest and the defendants right be restrained to interfere in their possession; the other suit was filed by Muhammad Bashir against one of the sale-deeds claiming the decree on the basis of right of prior purchase; and the third suit was filed by Ghulam Rasool and others for the recovery of possession. All the three suits were consolidated together and were first disposed of vide judgment and decree, dated 5-7-1978. The trial Court dismissed the suit filed by Muhammad Mushtaq and others and by Ghulam Rasool and others but decree the suit of prior purchase filed by Muhammad Bashir. The judgment and decree of the Sub-Judge, dated 5-7-1978 were set aside by the Appellate Court and the cases were remanded after framing issues for retrial of the same. After retrial, the trial Court decreed the suit filed by Muhammad Mushtaq and others while dismissed the suits filed by Ghulam Rasool and others and Muhammad Bashir, respondents.
Consequently, three separate appeals by Muhammad Bashir son of Muhammad Alain, Muhammad Sharif son of Fateh Muhammad and Ghulam Rasool and others were preferred to the Additional District Judge, Bhimber, who again remanded the case with the direction that the trial Court should hear Muhammad Sharif son of Fateh Muhammad, appellant herein, and thereafter decide the cases afresh according to law. This order of the Additional District Judge was challenged before the High Court which resulted in the impugned judgment. The High Court set aside the order of the Additional District Judge holding that Muhammad Sharif son of Fateh Muhammad was a necessary party but he was not impleaded as such in any of all the three appeals before the Additional District Judge and that Ghulam Rasool and others were not impleaded as party in one of the said three appeals. Thus, it was held that the appeals before the Additional District Judge were incompetent. Consequently, the judgment and decree of trial Court were restored. It is against the aforesaid judgment and decree that the present appeal has been preferred.
3. Mr. Riaz Alam, Advocate, the learned counsel for the appellant, has argued that the appellant, herein, was impleaded as defendant in the suit filed by Muhammad Mushtaq and others by an amendment but it appears from the record that no written statement was taken from him. Thus, the appellant could not put forth his stand in the suit filed by Muhammad Mushtaq and others. The learned counsel has submitted that when the appeal was pending before the Additional District Judge, the appellant filed an application for being impleaded as a party in the appeal which was allowed. Thereafter, the Additional District Judge accepted all the three appeals pending before him and remanded the cases to the trial Court to take the written statement from the appellant, herein, and proceed afresh with the trial of the suits. However, on appeal, the High Court set aside the judgment and decree, of the Additional District Judge on the ground that Muhammad Sharif, appellant herein, being a necessary party should have been impleaded by the aforesaid appellants as a respondent before the Additional District Judge but it was not done. Thus, the appeals filed before the Additional District Judge were filed as incompetent. Consequently, the findings of the Additional District Judge were set aside and that of the trial Court were restored. The appellant, herein, had purchased the land in dispute from Muhammad Bashir, one of the appellant before the Additional District Judge, after the pre-emption decree in his favour. The learned counsel has argued that Muhammad Sharif, appellant, who was made party in the suit filed by Muhammad Mushtaq and others was not heard and, thus, the decree for adverse possession in favour of Mushtaq and others was not sustainable. The learned counsel has cited unreported cases entitled Muhammad Yousaf v. Shaukat Ali (Civil Appeal No.45 of 1995, decided on 26-2-1996), Muhammad Sadiq v. Muhammad Afsar (Civil Appeal No.76 of 1996 decided on 19-1-1997) and Chief Administrator, Auqaf v. Syed Khalil Hussain Shah (Civil Appeal No.89 of 1996) in support of his contention that no adjudication is possible in absence of a necessary party. Thus, the learned counsel has argued that order of restoration of the judgment and decree of the trial Court in favour of Muhammad Mushtaq and others is a nullity.
4. In reply, Raja Muhammad Siddique Khan, Advocate, the learned counsel for the respondents, has argued that Muhammad Sharif, appellant herein, who had purchased the land from Muhammad Bashir, pre-emptor, during the pedency of the suit was neither a necessary party nor a proper party. According to the learned counsel in view of the provisions contained in section 52 of the Transfer of Property Act, any transfer, made during the pendency of a suit or an appeal, would not affect the proceedings pending in the Court and such transfer would not entitle the transferee to become a party in a suit or appeal on the basis of such transfer. The learned counsel has argued that in the instant case, Muhammad Bashir, pre-emptor, who had transferred the land on the basis of a pre-emption decree, had no title to the land because when he executed the sale-deed in favour of the appellant, herein, the pre-emption decree passed in his favour had been set at naught by the Appellate Court and, thus, the so-called sale-deed in favour of the appellant, herein, by Muhammad Bashir was a nullity in the eye of law. The learned counsel has argued that even otherwise, the transfer during the pendency of the proceedings does not entitle a transferee to take new pleas on the basis of such transfer. Thus, the learned counsel has argued that the appellant, herein, has no locus standi to challenge the declaratory decree for adverse possession passed in favour of Muhammad Mushtaq and others. The learned counsel has argued that Muhammad Sharif son of Muhammad Alam, Muhammad Bashir or Ghulam Rasool, who had filed appeals before the Additional District Judge, did not choose to prefer any appeal to this Court. The learned counsel has maintained that the legality of the judgment and decree passed in favour of Muhammad Mushtaq and others could only be challenged by the said appellants and not by Muhammad Sharif who had no locus standi to do so. The learned counsel has argued that the fact that the sale-deed by Muhammad Bashir was executed during the pendency of the suit and the fact that the decree on the basis of which the said sale-deed was executed had been cancelled as is evident from the record and is not disputed even by the appellant, herein. He has further contended that the mere fact that the appellant, herein, was impleaded as party as a result of aforesaid sale-deed by Muhammad Mushtaq and others in their suit would not render him a necessary party in the suit, especially so when he did not file an appeal against the judgment and decree passed in favour of Muhammad Mushtaq and others within the period of limitation prescribed in that regard. The learned counsel has submitted Badhu Ram v. Mohan Singh (AIR 1915 Lah. 200) Mst. Sant Kaur v. Teja Singh (AIR 1946 Lah.142) and Permeshari Din v. Ram Charan (AIR 1937 PC 260), in support of his contention that the transfer during the pendency of the suit does not empower a transferee to take up a plea on the basis of such transfer or to resist the execution of decree passed in a suit, in which he was not impleaded as a party.
5. We have given due consideration to the arguments raised at the Bar. The fact that the appellant, herein, got the sale-deed from Muhammad Bashir, pre-emptor, during the pendency of the suit on the basis of a preemption decree which had been cancelled by the Appellate Court is evident from the record. The learned counsel for the appellant has not disputed the aforesaid facts. The unreported cases relied upon by the learned counsel for the appellant relate to the non- impleadment of the necessary parties and do not relate to transfer made during the pendency of a suit. In the instant case, the question arises as to whether a transferee during the pendency of the suit can be regarded as a necessary party within the meaning of the relevant provisions of the Code of Civil Procedure. Obviously, in view of the provisions contained in section 52 of the Transfer of Property Act, such a transferee cannot be regarded as a necessary party and a decree passed against the transferor can be executed without impleading such a transferee a party to the proceedings as is evident from the authorities relied upon by the learned counsel for the respondents. The contention of the learned counsel for the appellant that even if the appellant was not a necessary party in view of section 52 of the Transfer of Property Act, he became so after he was impleaded as party on the application of Muhammad Mushtaq and others, pro forma respondents, is not tenable, because whether the appellant is a necessary party or not was to be seen in the light of the relief sought against him. In the instant case, when the appellant, herein, purchased the land during the pendency of the suit, he was not a necessary party in the suits or appeals. He cannot take a plea which was not taken by Muhammad Bashir, plaintiff-vendor. In the instant case, the contention of the learned counsel for the appellant that the High Court did not decide the appeal on merits or that the decree in favour of Muhammad Mushtaq and others is not sustainable can only be raised by Muhammad Bashir, Ghulam Rasool and Muhammad Sharif son of Muhammad Alam, who were appellants before the Additional District Judge and not by Muhammad Sharif, appellant herein. It may be pointed out that Muhammad Bashir, Ghulam Rasool or Muhammad Sharif son of Muhammad Alam did not come up in appeal before this Court.
Therefore, in view of the provisions contained in section 52 of the Transfer of Property Act, the appellant, herein, has no locus standi to challenge the decree passed in favour of Muhammad Mushtaq and others on the basis of right of adverse possession, especially so when he himself has no locus standi to file the appeal.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.