MIAN MUHAMMAD AJMAL, J.--Through Civil Petitions Nos.1542 and 1543 of 1999 the petitioners seek leave to appeal against the common judgment dated 11-6-1999 passed by a learned Judge in Chambers of the Peshawar High Court, Peshawar whereby Civil Revisions Nos.226 and 227 of 1991 of the petitioners herein, were dismissed with costs.
2. Brief facts are that Rahim Bakhsh, plaintiff/respondent No,1 filed a suit against his brother Saifur Rehman and others on 7-1-1967 seeking declaration to the effect that he and Saifur Rehman defendant No,1 were entitled to 2/6th shares each while Mst. Amna Bibi and Mst. Ajaib Sultan, their sisters were entitled to 1/6 shares each in the estate, situated in village Hazar Khani and Nuthia Qadim left by their late father Miran Bakhsh, and also prayed for permanent injunction to restrain defendant No,1 from selling/alienating the suit property and from interfering in the possession of the plaintiff and other co-sharers. Through a separate application he sought temporary injunction restraining defendant No,1 from further alienating the suit land, which was granted on 7-1-1967 and was later confirmed on 21-7-1967. The above restraint order was challenged in appeal by defendant No, 1 which was dismissed on 6-10-1967 by the Additional District Judge, Peshawar. The suit was ultimately decreed on 3-4-1969 on the basis of conceding statement of defendant No,1, admitting the claim of the plaintiff. The operative part of the judgment/decree reads as follows:-- " I, accordingly grant a decree declaring that defendant. No,1 is entitled to 2/6 share of the suit- land. The plaintiff is also entitled to 2/6, and the remaining 2/6 share would go to defendants Nos.2 to 4. Defendants Nos.2 and 3 would get 1/6 and defendant No,4 would get 1/6 share. It is further ordered that defendant No,1 shall not alienate or interfere with the shares of the said heirs in any way. He is permanently enjoined from doing so. The parties shall bear their own costs."
Rahim Bakhsh respondent No,1 decree-holder tiled execution petition against defendant No, 1 and others on 12-4-1971, which was later amended on 18-2-1978. It was dismissed by the learned Senior Civil Judge, Peshawar vide his order dated 22-5-1983. The respondent/decree-holder challenged the said order before the District Judge who vide his order dated 3-12-1983 accepted the appeal and remanded the case for further proceedings in the execution petition. Being. Dissatisfied with the above order, petitioners filed a revision petition before Peshawar High Court, which was disposed of with the consent of the parties vide order dated 29-5-1985 in the following terms:-- "Learned counsel for the parties have given their joint statement to the effect that the judgments of the two Courts below are not sustainable. They seek decision of the case on merits and according to law. I have gone through the judgments of the two Courts below and I find that the same cannot be called judgments in the eye of law. The case is, therefore, remanded to the learned trial Court with direction to dispose it of on merit and according to law."
3. In post-remand proceedings, the learned Senior Civil Judge recapitulated the history of the case, thoroughly examined the record and after elaborate discussion on each issue, framed earlier, gave findings thereon and, in consequence, vide his well-founded judgment dated 20-4-1989 directed the petitioners to remove the superstructure, if any, and hand over vacant possession of land in question to Rahim Bakhsh respondent No,1/decree-holder before the date fixed, otherwise, it was observed, that the same shall be effected through coercive measures under Order 21, rule 32 of the Civil Procedure Code, 1908. The petitioners assailed the above order by filing appeals before the Additional District Judge, Peshawar, who vide his order dated 29-5-1991 dismissed the same. The petitioners then approached the Peshawar High Court, Peshawar through Civil Revisions Nos.226 and 227 of 1991 which also met the same fate vide judgment dated 11-6-1999, impugned herein, the concluding para. Wherefrom reads as follows:-- "In view of the discussion made above, I find no illegality or irregularity in the orders of two Courts below whereby giving effect to a valid final decree of a Court, direction has been made to petitioners trespassers to remove the superstructure from disputed property and hand over the vacant possession to decree-holder, otherwise action would be taken under Order 21, rule 32 of the C.P.C. Both the revision petitioners are dismissed with costs being without any merits."
4. Learned counsel for the petitioners contended that the decree passed in favour of respondent No,1 was declaratory in nature and for permanent injunction and not for possession, therefore, in pursuance of the said decree the petitioners cannot be dispossessed from the suit-land which was bona fide purchased by them from defendant No,1, a co-sharer, he submitted that the prohibitory injunction cannot be executed in terms of Order XXI, rule 32(5) of the Code of Civil Procedure. He urged that Saif-ur-Rehman being a co-sharer in possession had the right to sell the joint property to the extent of his share and violation of the prohibitory order would only entail penal action and would not adversely affect the sales made by him to the petitioners.
5. On the other hand, learned counsel for the caveators submitted that the trial Court issued temporary injunction on 7-1-1967 against defendant No,1 restraining him from selling/transferring/alienating the suit-land which was contested by him, however, the interim order was later on confirmed but he in utter disregard to the Court orders/decree, sold the suit- land to different persons including the present petitioners. He submitted that on the basis of Revenue Record and the evidence on record, all the learned Courts below have concurrently held that defendant No,1 in violation of the Court orders/decree sold the joint property in excess of his share to the petitioners during pendency of the case, thus, they are not bona fide purchasers and the sales so made are hit by the principle of lis pendens. He stated that despite the fact that the mutations in favour of the petitioners have been cancelled long ago, they are illegally and forcibly occupying the suit land as trespassers and the decree-holders have been deprived of their property for more than 30 years.
6. In the suit for declaration and permanent injunction filed by Rahim Bakhsh respondent No,1, temporary injunction restraining Saifur Rehman defendant No,1 from alienating the suit property, was issued on 7-1-1967 which was confirmed after contest of defendant No,1, on 21-7-1967 and it remained operative till the disposal of the suit. The suit was ultimately decreed on 3-4-1969 on the conceding statement of defendant No,1 admitting the claim of the plaintiff. Rahim Bakhsh plaintiff and Saifur Rehman defendant No,1 were held entitled to 2/6 share each whereas their sisters Mst.
Amna Bibi and Mst. Ajaib Sultan were held entitled to 1/6 share each in the legacy of their late father. The said decree was not challenged any further by any of the parties and thus it attained finality. The record shows that defendant No,1, during pendency of the case, in gross violation and breach of the injunction order and the decree permanently restraining him from alienating or interfering with the shares of other co-sharers, went on selling the suit-land. The defendant No,1 had already sold more than his share, therefore, he having no share left in the suit-land, had no right to further sell/alienate any part thereof belonging to other co-sharers, especially, when he had been restrained by the Court from doing so. As such, all the transactions/alienations made by defendant No,1 with regard to the suit-land were bad in law and invalid, firstly as the same were effected by continuously flouting and flagrantly disregarding the Court orders/decree and secondly, the same were hit by the doctrine of lis pendens, therefore, the same cannot be allowed to perpetuate as no legal sanctity can be attached to any action done during the pendency of the lis and against the Court orders. The argument of the learned counsel for the petitioners that the sales made by defendant No,1, a co-sharer in favour of the petitioners in contravention of the injunction order/decree would only entail penal action against the violator of the Court order/decree and the sale so made would not be adversely affected, has no substance, for, any act which entails punishment under the law would be an unlawful act and such act cannot be said to be valid, thus, the act of sales being invalid for all intents and purposes, all sales/alienations which had taken place during the pendency of the lis and in violation of the Court order/decree are invalid and if the same are allowed to exist, it would amount to sanctioning the illegal acts of the violator of Court order/decree. In such circumstances, the Court besides proceeding against the violator of the Court order/decree under section 3 of the Contempt of Court Act, 1976, can initiate action under Order XXI, rule 32 and Order XXXIX, rule 2(3) of the Code of Civil Procedure for disobedience of its order/decree and to prevent the abuse of the process of the Court, it can exercise inherent powers under section 151, C.P.C. For the advancement of ends of justice and corrective measures can be taken against the wrong-doers to uphold and maintain the majesty of law. In case of Bakhtawar v. Amin (1980 SCM R 89), it was held as under:-- "It is well-settled that when by contravening an injunction order the party against whom the order is passed has done something for its own advantage to disadvantage of the other party, it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, as if the order had not been contravened. The exercise of this inherent power is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court."
7. The contention of the learned counsel for the petitioners that decree granted to the respondent was declaratory and for permanent injunction and not for possession, thus, it was not executable and petitioners cannot be dispossessed from the suit-land which they have bona fide purchased from one of the co-sharers. We do not find any merit in this contention. Admittedly, decree for declaration and perpetual injunction was granted to the respondent (decree-holder) declaring the plaintiff and defendant No,1 to be entitled to 2/6 shares each and defendants Nos. 2 and 3 to be entitled to 1/6 shares and defendant No,4 to be entitled to 1/6 share. Permanent injunction was also issued against defendant No,1 restraining him from alienating or interfering with the shares of other co-sharers in any way. But defendant No,1 flagrantly flouted the temporary as well as perpetual injunction by alienating the suit-land and interfering with the shares of the co-sharers. The decree against defendant No,1 was not merely declaratory but was also for permanent injunction, therefore, it could be executed in terms of clauses (1) to (3) of rule 32 of Order XXI of the Code of Civil Procedure.
8. After the cancellation of mutations attested in favour of the petitioners, their possession is illegal and their status is that of the trespassers and they have no right to retain the possession of the suit-land. According to evidence on record the petitioners purchased the suit-land after satisfying themselves from the Patwari Halqa that defendant No,1 was owner of the suit-land but as per Patwari's statement, defendant No,1 had sold more than his due share in both the villages. The evidence of the petitioners indicates that they were aware of the dispute between Rahim Bakhsh and Saifur Rehman over the disputed land, yet they opted to purchase the same, therefore, they cannot claim to be bona fide purchasers and thus, cannot claim any legal protection under the invalid transactions.
9. The plea that the petitioners have raised construction over the land, thus they are entitled to compensation, is also without any foundation. The alleged construction on the disputed land having been raised during the subsistence of the injunction order/decree, at their own risk and cost, therefore, they are not entitled to any compensation. Moreover, when the very sale of land has been held to be invalid, all superstructure made thereon would also be without any foundation and the same has to fall to the ground.
10. The concurrent findings of all the learned Courts are proper and well-reasoned to which no exception can be taken. For the foregoing reasons, both the petitions being devoid of any merit are dismissed with costs throughout and leave to appeal is refused.