1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred against the judgment dated 2-10-2000 passed by a Division Bench of Lahore High Court in an application under section 12(2), C.P.C.
2. ' The relevant facts giving rise to this petition in the background are that Muhammad Nawaz son of Allah Dad filed a suit for declaration and cancellation of mutation dated 21-2-1967 relating to the exchange of land against Muhammad Khan and another sons of Sultan Khan. The suit-land measuring 229 Kanals and 15 Marlas was situated in village Dallamirwala, Tehsil Isa Khel, District Mianwali. The transaction of exchange of land was challenged by Muhammad Nawaz Khan predecessor-in-interest of Mst. Hazaran, Mst. Ghulam Fatima and Muhammad Khan in the suit on the ground that he had given only an area of land measuring 84 Kanals and 9 Marlas in exchange whereas, respondents Nos.1 and 2 who were defendants in the suit in collusion with Ghulam Hussain Lumberdar, fraudulently got sanctioned mutation of exchange for an area of 229 Kanals and 15 Marlas in lieu of land measuring 84 Kanals and 9 Marlas given by them to him in exchange.
3. The suit was resisted by respondents Nos.1 and 2 and the learned Civil Judge in the light of pleadings of the parties having framed the issues and recorded the evidence, decreed the suit vide judgment dated 10-4-1968. The judgment and decree was challenged by the respondents Nos.1 and 2 through an appeal and a learned Additional District Judge, Mianwali while upholding the judgment and decree of the trial Court dismissed the appeal vide judgment dated 19-10-1968. The respondents challenged the judgment and decree passed by the First Appellate Court in the Lahore High Court, Lahore, through Regular Second Appeal (R.S.A.) bearing No,442 of 1969, and pending disposal of the R.S.A. The parties entered into a compromise on 1-10-1969 according to which the judgment-debtor i.e, respondents Nos.1 and 2, had to pay a sum of Rs,5,000 to Muhammad Nawaz, the decree-holder who would waive his rights in decree but before disposal of appeal in which a status qub order was also passed, Muhammad Nawaz, decree-holder died and his legal heirs were impleaded as party. The written compromise was filed by the parties in his appeal on the basis of which the Regular Second Appeal was allowed and the suit was dismissed.
4. ' The case of the petitioner was that Muhammad Nawaz decree-holder pending disposal of second appeal in the High Court sold the suit-land to Alam Khan and Ghulam Muhammad in the year 1969 and said Alam Khan further sold an area of 120 Kanals of land to him through a mutation dated 28- 5-1971. The petitioner on coming to know about the disposal of second appeal on the basis of compromise between the parties to the suit filed an application under section 12(2), C.P.C. Before Lahore High Court on 9-1-1993 wherein he contended that legal heirs of the decree-holder were not owners of the property on the date of compromise in question therefore, they entered into a fraudulent transaction of compromise to defeat the right of the petitioner in the property. This application under section 12(2), C.P.C. Was disposed of by a learned Single Judge in the High Court with the following observations:- "(6) This leaves a question as to whether the fact that the R.S.A. Was decided on the basis of a compromise would by itself make the proceedings collusive in the facts and circumstances of the present case. The answer to the said question must be in the negative. Already in the Court of first appeal the matter had been settled on payment of Rs,5,000 by the appellants in the R.S.A. To respondents therein. It was because of some dispute as to the quantum of the said amount that the matter did not proceed further and the learned District Judge decided the appeal on its merits.
5. The present R.S.A. Started from the over to fulfil the terms of the compromise. The matter is spread over a period of more than 20 years. In the circumstances the mere fact that the R.S.A. Was decided on the basis of a compromise, would not make the proceedings collusive between the parties thereto. Reference may be made to a D.B. Judgment of this Court in the case of Hakim Ghulam Rasool v. Sh. Imdad Hussain and another (PLD 1968 Lahore 501).
6. ' Learned counsel for the petitioner has contended that legal heirs of Muhammad Nawaz, decree- holder, through concealment of sale of land to Alam Khan and another from whom the petitioner purchased the land entered into a compromise with respondents Nos.1 and 2, the judgment- debtors' without being owner of property and got second appeal disposed of fraudulently. The learned counsel' argued that undoubtedly the transaction relating to the sale and purchase of land in question had taken place pending disposal of appeal but still no order adverse to the interest of petitioner could be passed without providing him proper opportunity of-hearing. The learned counsel argued that petitioner purchased the land without having the knowledge of the pendency of appeal and that he entered into the transaction of sale in good faith as second vendee and was a bona fide purchaser for value, therefore, notwithstanding the status quo order if any, passed by the High Court in appeal, the transfer of title by the decree-holder as lawful owner of the property would not be effected and the legal heirs of deceased decree-holder being no more owner of the property had no right to enter into the compromise in question adverse to the interest of the real owner. In nutshell learned counsel argued that the compromise being the result of fraud, the same would be of no consequence.
7. ' Learned counsel representing the respondents, on the other hand, has contended that pendency of the appeal and grant of status quo order was in the knowledge of the petitioner but he knowingly entered into the transaction of sale and was not a bona fide purchaser, therefore, compromise between the legal heirs of the decree-holder and respondents Nos.1 and 2 on the basis of which R.S.A. Was disposed of by the High Court would not be' challengeable under section 12(2), C.P.C. As the transaction of sale in favour of petitioner would hit by the principle of lis pendens.
8. We have heard the learned counsel for the parties at length and considered the contentions raised by them in support of their respective stand. Section 52 of the Transfer of Property Act, 1882 protects the rights of the parties in the property subject-matter of litigation and pending such litigation neither party can deal with the property under litigation in a manner to affect the right of his opponent and thus the principle of lis pendens would be applicable to the transfers made pendente lite unless the subsequent purchaser established that he was a transferee for value and had paid price in good faith without notice of the interest of a third party cannot defeat the right of prior purchaser. However, a bona fide purchaser for value is protected by section 41 of the Transfer of Property Act, 1882, which reads as under: "41 Transfer by ostensible owner.--Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
9. The essential ingredients for the application of section 41 ibid would be (a) that the transferor was the ostensible owner; (b) the transfer was made by consent express or implied of the real owner; and (c) the transfer was for consideration, and (d) the transferee while acting in good faith had taken reasonable care before entering into the transaction.
10. ' The property in dispute in the present case was purchased by the petitioner for consideration from its ostensible owner and so far the condition relating to his acting in good faith and taking reasonable care is concerned, the same being a question of fact cannot be properly assessed and determined without recording evidence. We may observe that unless it is found that the transaction was not in good faith; the petitioner was not bona fide purchaser and he did not take reasonable care regarding the power of transferor to transfer the property, he could not be denied the protection provided under section 41 of the ibid Act., The transfer made pendente lite would not ipso facto become void rather such transfer could not affect the right of the other parties in the suit and thus a sale because of lis pendens would not be regarded as nullity, either it is voluntary or involuntary. We may observe that doctrine of lis pendens applies to the transfer inconsistent with the rights declared by the decree in the suit and a right which is not part of decree is not protected merely for the reason that transaction of sale was conducted pending litigation. In the present case, the petitioner purchased the property from the decree-holder and the litigation between the decree-holder and the judgment-debtor finally ended as a result of compromise, therefore, dismissal of application under section 12(2), C.P.C. Summarily in the light of principle of lis pendens would not be proper. In the circumstances of the case, the II contention relating to the grievance of the petitioner that he was not allowed proper opportunity to establish the fact that he being a bona fide purchaser entered into the transaction of sale with the decree-holder in good faith as his title was not suffering from any legal defect, is not without force. The providing of the opportunity of hearing is not confined only to the extent of arguments rather the sufficiency or insufficiency of such right would depend upon facts and circumstances of each case and in its extended meanings if a case involves pure question of law, the oral address or written representation is sufficient but in case in which the matter needs some factual inquiry either through documentary evidence or oral testimony of the witnesses, the parties should be allowed proper opportunity to bring their evidence and also to examine the witnesses. The petitioner has raised an important question relating to the concealment of material fact by the parties in the appeal and it being a mixed question of law and facts would need proper determination through detailed scuritny of facts with or without recordipg of evidence as the case may be.
11. ' For the foregoing reasons, we convert this petition into appeal, allow the same and while setting aside the impugned judgment, remand the case to the High Court for disposal of application under section 12(2), C.P.C. After providing proper opportunity of hearing to the parties including production of evidence, if necessary. This being an old matter will need an early disposal. There will be no order as to costs.