' The Supreme Court accepting the Civil Appeal No,221 of 1997 set aside the judgment of this Court dated 6-6-1997 in Civil Revision No,131-D of 1995 and remanded the case to this Court for deciding the civil revision afresh considering the points raised by the parties before the apex Court. The contentions of the parties are incorporated in paras. 7 and 8 of the judgment which are reproduced as under:- "7. We have heard learned counsel for the parties at some length. It was strenuously urged on behalf of the appellants that learned High Court acted illegally by allowing the revision application on the grounds which were not taken before the Courts below. Furthermore, in view of the judgment of the High Court in the earlier round of litigation arising out of dismissal of applications under section 12(2) of Civil Procedure Code filed by Mst. Hamida Begum and the respondent and the ,writ petition relating to framing of issues, learned single Judge could not have non-suited the appellants. It was also pointed out that the High Court did not advert to the proviso to paragraph 14 of M.L.R. 89 in the impugned judgment while relying upon the aforesaid provision of law.
8. Conversely, learned counsel for the contesting respondents with reference to the findings of the trial Court on Issue No,7 viz whether respondents were bona fide purchasers for value without notice, and finding, of the appellate Court on the issues relating to the respondents being bona fide purchasers for valuable consideration without notice of earlier agreement to sell and the transfer of lands by Mst. Hamida Begum during the pendency of the litigation contended that High Court did not decide these points. Besides the circumstance that Mst. Hamida Begum did not acquire perfect right and marketable title to the lands, for transfer to appellants was not properly adverted to by the learned single Judge while deciding the Civil Revision. "
2. Facts as divulged from the record are that Mst. Hamida Begum respondent No,3 was a displaced person from non-agreed area in India. She was allotted evacuee land in village Girba Singh Wala, District Kasur. Out of the allotted evacuee land an area measuring 1175 Kanals, 8 Marlas was surrendered by her under M.L.R. 89 of 1961. On the enforcement of the scheme for grant of right of purchase of surrendered land to such allottee Mst. Hamida Begum applied to purchase the land in question on 29-12-1961.
3. It appears from the record that Mst. Hamida. Begum entered into an agreement of sale for the entire surrendered land with the plaintiffs-respondents. It was registered on 27-11-1963.
4. Respondents Nos.1 and 2 filed a suit for specific performance of the agreement dated 27-11-1963.
In the said suit ex parte decree was awarded in their favour on 17-12-1975. At this juncture it will be relevant to mention that at the time of passing of decree proprietary rights in the suit land were not granted to Mst. Hameeda Begum. The proprietary rights in the suit-land were transferred in favour of Mst. Hameeda Begum on 17-3-1976 through a sale-deed Exh. D-1 and on the basis of sale-deed mutation was sanctioned in her favour on 13-3-1976, vide Exh. D-6.
5. After obtaining the proprietary rights on 17-3-1976, Mst. Hameeda Begum instead of transferring the land to respondents Nos.1 and 2 sold the land through a registered sale-deed dated 22-6-1976 in favour of respondents Nos.3 to 8 (Exh. D.W.-4/1). Mutation in the Revenue Record was also sanctioned in favour of these respondents after the sale which is Exh. D.W.4/2. In the backdrop of the circumstances described hereinbefore two-fold litigations ensued. One limb of litigation was between respondents Nos.1 and 2 Mst. Hameeda Begum and the second trail of litigation was started by respondents Nos.3 and 8 by filing a suit for declaration on the basis of the title deed. For proper appreciation of factual and legal questions it would be advantages to recapitulate each trail of litigation between the parties, therefore, in the succeeding paragraphs brief history of litigation in both sets is given.
6. Suit for specific performance by respondents Nos.1 and 2 was filed on the basis of an agreement to sell, dated 27-11-1963. The suit was decreed ex parte on 17-12-1975. Mst. Hameeda Begum moved an _application under Order 9, rule 13, Civil Procedure Code for setting aside ex parte decree on 19- 12-1975. This application was dismissed in default on 5-11-1981. An application for restoration of the application for setting aside the ex parte decree was moved which was dismissed on merit on 21- 3-1982. An appeal was filed by Mst. Hameeda Begum against the order, dated 21-3-1982.
7. Besides challenging the ex parte decree Mst. Hameeda Begum also filed a suit for cancellation of agreement to sell, dated 27-11-1963. This suit was also dismissed for non-prosecution on 5-11-1981.
Application for restoration of the suit filed by Mst. Hameeda Begum was dismissed on merits by the trial Court vide its order dated 21-3-1982. This order was also challenged through an appeal by Mst.
Hameeda Begum. Both these appeals were pending before the Appellate Court when an application for recording a compromise was filed and on the basis of statement of the counsel of Mst. Hameeda Begum both these appeals were dismissed as withdrawn, vide order dated 13-10- 1982.
8. On 21-12-1982 Mst. Hameeda Begum filed two separate applications under section 12(2) of Civil Procedure Code for setting aside the order dated 13-10-1982 mainly on the ground that she had never entered in any compromise with respondents Nos. 1 and 2 that the application for withdrawal of appeal on the basis of alleged compromise was a fraudulent transaction. Similar application under section 12(2) of Civil Procedure Code was also filed by respondents Nos. 3 to 8 alleging that there was no compromise and the withdrawal of the appeal was a fraud played by respondents Nos. 1 and 2 and they being the transferees for value were adversely effected by the fraud committed by respondents Nos. 1 and 2. These applications under _section 12(2) of Civil Procedure Code filed by Mst. Hameeda Begum and subsequent transferees were put to trial. Issues were framed, evidence was recorded and Additional District Judge, Kasur vide his order dated 8-4-1987 dismissed all the three applications.
'9. The order of the Additional District Judge, Kasur was challenged by the parties and in that three ,civil revisions bearing No,960 of 1987, No,959 of 1987 filed by Mst. Hameeda Begum and Civil Revision No,1150 of 1987 ' filed by subsequent transferees were filed in the Lahore High Court. The High Court vide its judgment dated 19-9-1988 dismissed both the revision petitions filed by Mst.
Hameeda Begum on merits. Third revision petition filed by the subsequent transferees was dismissed with the observation that their remedy lies-where. It appears that after the dismissals of three civil revisions, the controversy was not taken any further before the apex Court. The consequences, therefore, were that the ex parte decree, dated 17-12-1975 awarded in favour of respondents Nos.1 and 2 remained intact.
10. Other set of litigation was started through a suit which was filed on 3-11-1976. It was a suit filed by respondents Nos.1 and 2 against Mst. Hameeda Begum and subsequent transferees seeking a declaration that the sale-deed dated 22-6-1976 be declared as void and of no legal effect. The suit was resisted by the defendants and from the pleadings of the parties following issues were settled- --
(1) Whether the plaintiffs have no cause of action?
(2) Whether the plaintiffs have not properly valued the suit and have affixed proper court-fee? If so, what is the proper court-fee? OPD
(3) Whether the plaintiffs have come with unclean hands? OPD
(4) Whether the defendant No,1 executed registered agreement to sell dated 27-11-1963 (amended) in favour of the plaintiffs? OPP
(5) Whether the defendant No,1 did not appoint Sher Muhammad as General Attorney through registered General Power of Attorney dated 27-11- 1963? OPD
(6) Whether the General Power of Attorney dated 26-11-1963 is forged and fraudulent? OPD
(7) Whether the defendants Nos.3 to 8 are bona fide purchasers for value without notice? OPD.
(8) Whether the registered sale-deed dated 22-6-1976 in favour of defendants Nos.3 to 8 is illegal, inoperative on the rights of the plaintiffs? OPP
(9) Relief.
' During the trial on the application of the parties, additional issues were also framed which are reproduced as under--- (7-A) Whether no rights were created in favour of plaintiff No,2 on the basis of decree dated 17-12- 1975 because Mst. Hamida Begum was not owner of the property and therefore, Registered sale- deed dated 24-10-1982 is of no legal consequence? OPD 3 to 8.
(7-B) Whether the registered sale-deed, dated 24-10-1982 is of no legal significance as it was executed after the registered sale-deed, dated 21-6-1976? OPD (7-C) Whether the defendants Nos.3 to 8 are not bound by the decree, dated 17-12-1975? OPD 3 to 8.
(7-D) Whether registration of sale-deed dated 24-10-1982 and mutation of sale in favour of plaintiff No,1 is against law and of no legal consequence in presence of Mutation No,249 dated 15-7-1978?
OPD 3 to 8.
(7-E) Whether the registered sale-deed dated 24-10-1982 is of no legal value in view of preliminary objection No,13? OPD 3 to 8
11. Parties produced their respective evidence. The trial Court treated Issues Nos.7-A to 7-E except 7- D as preliminary issues and decided those issues vide its order dated 31-7-1993. These issues were decided against defendants-respondents and the case was adjourned for further proceedings.
12. Thereafter, the case was transferred to some other trial Court where after hearing, the Civil Judge rendered its findings on Issues Nos.1 to 8 and consequently vide its judgment and decree dated 9-12-1993 dismissed the suit. Respondents Nos.1 and 2 tiled an appeal from the judgment and decree of the trial Court. The learned Additional District Judge, Kasur accepted the appeal of respondents Nos.1 and 2 vide its judgment and decree dated 12-10-1994 reversed the decision of the trial Court and decreed the suit.
13. The present petitioners who are subsequent transferees filed the present revision petition which was accepted by the order of this Court dated 6-6-1997. On appeal filed by the other party before the Supreme Court of Pakistan, the judgment of this Court was set aside and the case was remanded for deciding the civil revision afresh. The observation of the Hon'ble Supreme Court of Pakistan has been reproduced in the opening paras. Of this judgment.
14. The learned counsel appearing for the petitioners in support of his arguments raised the following legal contentions--- A. That in the present case the dispute relates to the surrendered land in which proprietary rights had been acquired much after the agreement in favour of the plaintiffs and the sale-deed was also executed after the sale-deed made in favour of defendants No,3-8, therefore; the agreement dated 26-11-1963 being void ab initio, the ex parte decree was also a nullity in the eye of law being based on such an agreement. B. That all the proceedings based on a void agreement are to be treated as nullity and could not be looked into in the present case. C. That the principle of doctrine of lis pendent do not apply in judgments which are void nor the agreement which is void can be permitted to be given preference to the sale made in favour of defendants Nos. 3 to 8 after acquiring the proprietary rights. D. That in the alternative it is respectfully submitted that section 52 of Transfer of Property Act, was not applicable on account of proceedings being collusive and, the mala tide of the defendant No,1 and plaintiff No,1 for which facts have already been taken note of by the learned trial Court while deciding Issue No,7-D and Issue No,8.
E. That ex parte decree passed in favour of the plaintiff in the suit for specific performance earlier by itself would not create right when admittedly the sale-deed was executed after the sale-deed made in favour of defendants Nos.3-8 and mutation sanctioned in favour of defendants Nos.3--8 which was already brought on record. This mutation was never brought to the notice of civil Court and subsequently mutation was got sanctioned after making unauthorised entries in the Revenue Record in the name of Mst. Hameeda Begum and getting the same in favour of plaintiffs. F. That all the contentions of the learned trial Court that it was for defendants Nos.3 to 8 to have filed objections before the executing Court immediately, the defendants Nos.3 to 8 were never impleaded as party in any proceedings in spite of knowledge of right created in favour of defendants Nos.3 to 8 by virtue of sale-deed, dated 21-6-1976 challenged separately. G. That Mr. Justice Munir A. Sheikh in his judgment dated 19-9-1988 has clearly observed that defendants Nos.3 to 8 had a separate remedy meaning thereby that all the questions on the side of defendants Nos.3 to 8 were required to be determined irrespective of the fact concerning the plaintiffs and .Defendants. H. That Issue No,7 as to bona fide purchasers was decided in favour of the defendants/petitioners and finding was not set aside by the Additional District Judge.
I. That the original agreement dated 27-11-1963 was not brought on record as observed by the High Court and ex parte decree Was passed without impleading Provincial Government in the ownership rights having been transferred. Later on. J. Validity of agreement/decree can be challenged in subsequent proceedings with special reference to Issue No,7 to be decided after decision on Issues Nos.7-A to 7-F.
K. That in a suit for specific performance no right is created unless sale-deed executed---Order 21 rule 39, Civil Procedure Code.
L That in the present case the principle of section 43 of Transfer of Property Act is not attracted to the facts of the present case.
' Cases titled Gul Muhammad v. DS/CSC (1986 CLC 2853), Government of Sindh v. Khalil Ahmed and others (1994 SCMR 782), M.K. Mohammad and others v. Mohammad Aboobaker (1991 MLD 801), Inayat Ali Shah v. Anwar Hussain (1995 CLC 1906), Riaz Ahmed v. Dr. Amtul Hameed Koser etc. (1996 CLC 678), Mir Hasmat Ali v. Birendra Kumar Ghosh and others (PLD 1965 Dacca 56), Allah Yar Khan v. Mst. Sardar Bibi and others (1986 SCMR 1957), Wajid Ali and others v. Board of Revenue, Punjab etc. (PLD 1982 Lah. 716), District Gurdaspur Mahajreen Cooperative House Building Society v. Atta Muhammad etc. (1989 MLD 938), Inraloke Studio Ltd. v. Srimati Santi Devi and others (AIR 1960 Cal..
609 (V 47 C 167), Haji Abdul Rehman and others v. Noor Ahmad ,etc. (PLD 1974 Baghdad-ul-Jadid 25), The Chief Land Commissioner, Punjab, Lahore and others v. Ch. Atta Muhammad Bajwa etc. (1991 SCMR 736) and ,ZvIst. Fareeda Khanum v. Raza Muhammad (1989 CLC 1745) were cited by the learned counsel for the petitioners to seek support for the legal contentions raised by him.
15. On the other hand learned counsel for the respondents controverted the arguments of the petitioners and maintained that the decree, dated 17-12-1975 has attained finality. Further this decree was executed and the sale-deed, dated 24-10-1982 was executed in favour of respondents Nos. 1 and 2, through the process of Court. Adding to his argument the learned counsel submitted that the decree may it be ex parte had become final and it could not be nullified in collateral proceedings. Next it was argued that by virtue of the decree, dated 17-12-1975 the respondents No, 1 and 2 had become owners and Mst. Hameeda Begum was divested of rights as such, she could not execute sale-deed, dated 22-6-1976 in favour of the petitioners. Next it was contended by the learned counsel for the respondents that the petitioners were not bona fide purchasers for value and by virtue of principle of lis pendens any alleged alienation by Mst. Hameeda Begum in their favour was of no legal effect. The learned counsel in support of his arguments referred to cases titled Haji Abdullah Khan and others v. Nasir Muhammad Khan etc. (PLD 1965 SC 690), Ibrahim v.
Mst. Raji and others (PLD 1956 Lah. 609), M. Abdul Majeed v. The East Pakistan Province etc. (PLD 1956 Lah. 615), Ilam Din v. Muhammad Din (PLD 1964 SC 842), Manzoor Hussain and others v.
Zulfiqar Ali and others (1983 SCMR 137), Hakim Ali and others v. Atta Muhammad and others (1981 SCMR 993), Mst. Khanzadi v. Government of Sindh and others (2000 SCMR 1252), Ltd. Col. Shah Dad v. Border Area Allotment Committee (1986 SCMR 88), Messrs Aman Enterprises Kotli Loharan Sialkot v. Messrs Raheem Industries Pak Ltd. And others (PLD 1988 Lahore 717), Abdul Saeed Khan and others v. Basharat Ali and others (PLD 1995 Lah. 255), Faqir Muhammad and others v. Abdul Manan and others (PLD 1995 Lah. 405), Industrial Development Bank of Pakistan through Deputy Manager Chaudhry Manzoor v. Saadi Asmat Ullah and others and case titled Mukhtar Baig and others v.
Sardar Baig and others reported as 2000 SCMR 45.
16. I have considered the arguments advanced by the learned counsel for the parties and perused the record. One of the crucial questions in the present case relate to the worth and legal effect of ex parte decree, dated 17-12-1975. This decree although ex parte but was maintained up to the Supreme Court. It was based on agreement to sell, dated 27-11-1963. The first impression which appears is that in the face of the decree although it was ex parte, but Mst. Hameeda Begurn was divested of her rights and that respondents Nos.1 and 2 acquired the title in the property but when the facts deeply analysed it transpired that on 17-12-1975 a decree was procured by respondents Nos.1 and 2 in respect of the land which was not the property of Mst. Hameeda Begum. Admittedly the land vested in the Provincial Government and it was only on 3-11-1976 when it was transfer in favour of Mst. Hameeda Begum. If a decree is procured by a person against another person in respect of property which did not vest in that person, it would merely be a decree without corpus. A decree without corpus does not confer any right. Therefore, the arguments that the decree has attained finality qua Mst. Hameeda Begum although appears to be attractive but it . Is fallacious because when the decree was passed Mst. Hameeda Begum was not having any title in the property. Accordingly, I hold that the decree procured by respondents Nos. 1 and 2 did not confer any right in their favour in the suit property as it was non est. I, therefore, find that the decree although enjoyed the validity as it was upheld up to the Supreme Court but the same was not enforceable decree because the corpus for which the decree was passed was not in existence at the time of passing the decree.
17. There is sufficient weight, in the argument of learned counsel for the petitioners that the agreement to sell, dated 27-11-1963 was void. Therefore, no decree could be procured by the respondents Nos.1 and 2 on the basis of said agreement to sell.
18. M. L. R. 89 was notified on 23-8-1961. It was enacted to re-constitute M.L.R. 84 of 1960. This Regulation was called the Scrutiny of Claim (Evacuee Property) Regulations. Through this Regulation all certificates in Forms. QPR-V and UR-V and certificates showing title to land issued under the original Regulation and any allotment of land made on the basis of any such certificates stood cancelled and were deemed never to have been issued or made. It further provided that fresh order for the allotment of land shall be made on the basis of entitlement certificate after necessary scrutiny. Para. 8 of the Regulation provided that every claimant holding land at any time allotted to him in settlement of his claim and being in excess of his entitlement as shown in the entitlement- certificate shall be surrendered. Mst. Hameeda Begum was holding land in excess to her entitlement as such, she surrendered land measuring 1175 Kanals. On 29-9-1961 M.L.R. 89 was amended through M.L.R.
91. By this amendment as scheme for the disposal of land surrendered under para. 8 of M.L.R. 89 was spelled out. It was provided in the scheme that the surrendered land shall be disposed of and first option for the purchase of excess land shall be given to the person who has surrendered the land and this option to purchase were to be exercised by conveying in writing to the Deputy Commissioner of the District concerned within one month from the date of which the scheme was promulgated. Further it was laid down that if such a person exercise option to purchase the land within the period mentioned above, the land may be sold to him at the rate prescribed in the scheme and in that he was required to deposit immediately 25 per cent of the price of land and remaining 75 per cent was to be paid by him within a period of six years in twelve equal six monthly instalments.
19. Para. 10 of the M.L.R. 91 provided that purchaser shall not, without sanction in writing of the Collector, alienate any portion of the land sold, before he had paid the entire purchase price and executed deed of conveyance prescribed for similar alienation in the Region concerned. Mst.
Hameeda Begum after surrendering the land sought repurchase of the same. She did not make payment of 75 per cent. Of remaining amount till 1976. The price was paid by her in 1976 and the conveyance deed was executed in her favour on 17-3-1976. It is, therefore, clear that in view of para. 10 of M.L.R. 91 there was a restriction on the alienation by Mst. Hameeda Begum. Neither she obtained any permission in writing from the Collector to alienate any portion of the land nor there was any conveyance deed existing in her favour, as such, she could not enter into an agreement to sell dated 27-11-1963. Mst. Hameeda Begum was merely a prospective purchaser and she was not permitted to transfer even the right which she possessed in relation to the property in the year 1963.
In case titled Chief Land Commissioner, Punjab v. Atta Muhammad Bajwa reported as 1991 SCMR 736, the apex Court dealing with analogous situation observed and rendered an illuminating principle which is self-explanatory from the passage of the judgment quoted hereunder:--- "Section 3 deserves special attention. In this context Condition No,13 of the grant already reproduced in para. 2 of the judgment acquires an overriding compulsive effect and what such a law prohibited could not be held to have validly happened. The prohibition prevails and any sale, even if the contract of sale be held to be a sale, in present, must in view of such repugnance be held to be void and having legal existence. The second and an equally important feature of the transaction pleaded as a transfer itself shows that it was indeed not a transfer but it was a contract of sale to take effect after the proprietary rights had been acquired. Till happened, the future purchaser enjoyed interest in the land only as an attorney of the grantee. There was also a provision made in the agreement with regard to frustration and compensation therefor. The various terms of the contract of sale or the agreement to sell reproduced in the judgment in para. 3 indicate that this agreement was subordinate to the terms of the grant, that it was in recognition of it and that no interest in the land as such was claimed except certain rights relating to land which were to become enforceable after the proprietary rights had been conferred on the graptee. The grantee himself being not the proprietary but only a purchaser under an Agreement to sell visualized in the form of grant could not confer more rights in the property on the contracting party, the respondents Nos.1 to 11 than he himself possessed. He was not permitted to transfer even the rights which he was possessed of in the property.
' Thirdly, even if the Government Grant Act was not there, the transferee under a contract of sale from one who himself derives interest from a contract of sale, creates no right in the land at all.
There is no equitable aspect coming into existence."
20. Analysis of M.L.R. 89 as amended by M.L.R. 91 lead me to conclude that Mst. Hameeda Begum was not entitled to enter into agreement to sell with respondents Nos.1 and 2 and the agreement dated 27-11-1963 was in violation of para. '10 of M.L.R. 91 as such, it was void ab initio. On various other reasons already given, have already held that ex parte decree dated 17-12-1975 procured by respondents Nos.1 and 2 on the basis of agreement to sell which I have observed to be void ab initio would, therefore, be of no avail to respondents Nos.1 and 2 to use as a plank of defence against the rights of subsequent transferees who had purchased the land from Mst. Hameeda Begum through a valid sale-deed dated 22-6-1976, as Mst. Hameeda Begum had acquired the proprietary rights through a conveyance deed from Government of the Punjab on 17-3-1976.
21. I now deal with the next argument advanced by the parties. Relying on the provision of section 52 of the Transfer of Property Act, it was argued by the learned counsel for respondents Nos.1 and 2 that their rights were protected under the principle of lis pendens. The reasons advanced were that they had filed a suit for specific performance of the contract on 15-4-1974, which continued up to 1975 when ex parte decree, dated 17-12-1975 was passed. Thereafter, on 19-12-1975 an application for setting aside the ex parte decree was filed by Mst. Hameeda Begum which continued up to 21- 3-1982, therefore, sale-deed, dated 22-6-1976 was hit by the principle of lis pendens. On- the other hand relying on the provision of section 41 of the Transfer of Property Act, the learned counsel for the petitioners submitted that they are bona tide purchaser for the value and as such, their rights were protected.
22. The doctrine of lis pendens as enacted in section 52 of the Transfer of Property Act protects the rights of the suitor in respect of immovable property during the pendency of any suit or proceedings. On the other hand section 41 embodies equitable doctrine of bona fide purchaser. In a case where the provisions of section 52 are attracted to and its bona fide are established it enures to the benefit of party to suit or proceedings and in that doctrine of bona fide purchaser for value stands excluded.
23. The arguments advanced by both the parties relating to section 52 as well as section 41 may not be of much relevance in the circumstances of the present case for the reasons that I have already held that an agreement to sell dated 27-11-1963 was a contract which was void ab initio and any superstructure of rights raised on the basis of such agreement was of no avail to respondents Nos.1 and 2. Even otherwise the transaction between respondents Nos.1 and 2 as well between Mst. Hameeda Begum reflect collusive arrangement. Agreement between respondents Nos.1 and 2 and Mst. Hameeda Begum was for a consideration of Rs,80,000 and it was executed on 27-11-1963. The suit was filed by respondents Nos.1 and 2 on 15-4-1974. Ex parte decree was passed in favour of. Respondents Nos. 1 and 2. On 17-12-1975 an application for setting aside the ex parte decree filed by Mst. Hameeda Begum was dismissed in default. Mst. Hameeda Begum had also filed a suit for cancellation of agreement dated 27-11-1963 which was also dismissed in default.
Against rejection of application for restoration and also the civil suit she filed two separate appeals which were withdrawn by her on the basis of compromise. These facts do not inspire confidence and suggest a collusive arrangement between Mst. Hameeda Begum and respondents Nos.1 and 2.
As the transaction between respondents Nos.1 and 2 and Mst. Hameeda Begum spells out collusive arrangement, therefore, the benefit of section 52 of the Transfer of Property Act is not available to respondents Nos.1 and 2.
In view of my findings herein before, I find that that judgment and decree, dated 12-10-1994 passed by the Additional District Judge, Kasur suffers with material irregularity and misreading of evidence, as such it is not sustainable. Accordingly, I set aside the judgment and decree of the First Appellate Court, dated 12-10-1994 and the judgment/decree, dated 9-12-1993 passed by the trial Court is restored.
Revision allowed.
2000 YLR 1542 [Lahore] Before Abdul Shakoo Paracha, J ABDUL QADDOOS---Petitioner versus MEMBER (REV.), BOARD OF REVENUE, PUNJAB, LAHORE and 10 others---Respondents Writ Petition No,3227 of 1993, heard on 21st. March, 2002.
(a) Transfer of Property Act (IV of 1882)--- ----S .60---Redemption of mortgage--- Purchase of a share in equity of redemption by mortgagee either in Court sale or by a private treaty---Effect---Such purchase could not have the effect of fully discharging the mortgage debt, but would discharge only that portion of mortgage debt, which was chargeable on the share purchased---Where part of mortgaged property was purchased by sole mortgagee or by all mortgagees, then integrity of the mortgage was broken and the owner of remaining property was entitled to redeem his own share upon payment of proportionate part of amount due on mortgage---Mortgage by reason of such purchase would not be extinguished.
1544] A, B & C Nand Kishore v. Raja Hari Raj Singh and others ILR 20 All. 23; Bisheshur Dial and another v. Ram Sarup ILR 22 All. 284 and State Bank of Pakistan v. Khaledar M.A. And others PLD 1963 Dacca 844 rel.
(b) Transfer of Property Act (IV of 1882)--- ----S.60---Redemption of mortgage--- Purchase of share in ,equity of redemption by mortgagee---Such purchase, whether in Court sale or by a private transaction, cannot have the effect of fully discharging the mortgage debt, but will discharge only that portion of mortgage debt which was -chargeable on share purchased. 1544] C State Bank of Pakistan v. Khaledar M.A. And others PLD 1963 Dacca 844 ref. Ch. Muhammad Ashraf Wahla for Petitioner.
Shaukai Ali Mehr for Respondents Nos.3 to 8.
Ms. Roshan Ara, Asstt. A.-G. Date of hearing: 21st March, 2002.
' Mortgaged land measuring 16 Kanals comprising Khasra Nos.3579 and 3638, Khewat No,543/538/401, situated in Mauza Khudian, Tehsil and D'strict Kasur in favour of the petitioner in 1960 for .a sum of Rs,700 was redeemed on payment of Rs,700 in favour of respondents on their.
Application under section 10 of the Redemption and Restitution of Mortgaged Land Act, 1964, by the Collector vide his order, dated 29-1-1991. The appeal and revision of the petitioner have been dismissed by the Commissioner, Lahore Division, and Member (Rev.) Board. Of Revenue, Punjab on 17-7-1991 and 14-3-1993, respectively.
2. The learned counsel for the petitioner contends that the petitioner was one of the mortgagees and therefore, he purchased the disputed land for a sum of Rs,1 lac from one of the co-sharers, namely, Muhammad Saeed son of Azizur-Rehman vide Mutation No,6766 dated 2-11-1988 and in these circumstances the Member, Board of Revenue was not legally justified in passing the order dated 14-3-1993 to maintain the order of the Additional Commissioner (Revenue), Lahore Division, directing that the respondents should be, put in possession.
3. Fateh Muhammad son of Shahab Din mortgaged the land vide Mutation No,2388 dated 14-11- 1960. Thereafter, said Fateh Muhammad sold the land to Aziz-ur-Rehman. After the death of Aziz- ur-Rehman, his four sons, namely, Khalid Muhammad Latif, Muhammad Salim, Muhammad Sharif, and daughters and widow including his fourth son Muhammad Saeed became co-sharers in the land. Muhammad Saeed being co-sharer transferred his share vide Mutation No,6766, dated 2-11- 1988 in favour of Abdul Qaddus, petitioner. In this view of the matter, only fractional share was sold to Abdul Qaddus by Muhammad Saeed, one of the co-sharers. Therefore, the status of the petitioner shall not be changed by mere purchase of fractional share of Muhammad Saeed in the mortgaged land. Purchase of a part of the mortgaged property by a mortgagee, subject to his ' mortgage has not necessarily the effect of fully discharge the mortgage in accordance with last para. Of section 60 of the Transfer of Property Act, 1882, which reads ..As follows:-- "60 ................................
' Redemption of portion of mortgaged property. Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage. Except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor."
This view finds support in Full Bench decision in case referred as Nand Kishore v. Raja Hari Raj sajid others (ILR 20 All.23) wherein it, him the held that the purchase of a porn on of the mortgaged property by a mortgagee, subject to his mortgage, has not necessarily the effect of fully discharging the mortgage. In the case of Bisheshur Dial and another v. Ram Sarup ILR 22 All. 284, which is also a Full Bench decision, it has been held that where a mortgagee buys at auction the equity of redemption in a part of the mortgaged property, such purchase has, in the absence of fraud, the effect of discharging and extinguishing that portion of the mortgage debt which was chargeable on the property purchased by him. In case reported as State Bank of Pakistan v.
Khaledar M.A. And others PLD 1963 Dacca 844 it has been ruled:-- "14. The purchase of a share in the equity of redemption by the mortgagee, whether in Court sale or by a private treaty, cannot have the effect of fully discharging the mortgage debt. It will discharge only that portion of the mortgage debt which was chargeable over the share purchased. If a part of the mortgaged property be purchased by a sole mortgagee, or by all the mortgagees, when there are more than one, the integrity of the mortgage is thereby broken up and the owner of the remainder of the property is entitled to redeem his own share upon payment of a proportionate part of the amount due on the mortgage. But the mortgage does not, by reason of such purchase, become extinguished. This is clear from the provisions of last paragraph of section 60 of the Transfer of Property Act."
' The Additional Commissioner (Revenue) as well as the Member, Board of Revenue was right in saying that "a mortgage is a conveyance of land an assignment of chattles as a security for payment of debt or the discharge of some other obligation for which it is given". In this case, mortgage has been fully discharged on payment of Rs,700, the mortgage, money, therefore, no exception can be taken to the orders of the Additional Commissioner and of the Members Board of Revenue. Resultantly, this petition fails and the same is dismissed in limine.