ORDER JAVED IQBAL, J.-- This petition for leave to appeal is directed against the judgment dated 28.6.1999 passed by learned Lahore High Court, Lahore, whereby the Regular First Appeal preferred on behalf of petitioners has been dismissed and judgment/decree dated 26.9.1992 passed by learned Civil Judge, has been kept intact.
2. Precisely stated the facts as enumerated in the judgment impugned are to the effect that "Basit Sabtain (deceased), predecessor of appellants (Sohail Sabtain and others), filed a suit for possession of:land measuring 22 kanals, 10 marlas, claiming that the land was initially sold by the predecessor of appellants, alongwith his brothers, sisters and mother, to one Ilam Din, vide sale- deed, dated 5.8.1968. A suit for pre-emption was filed by Muhammad Sharif (respondent No. 1).
During the pendency of the suit, sale-deed dated 17.10.1969 was executed in favour of the predecessor of appellants, with a view to allegedly defeat right of pre-emption. Later on, the statement of Ham Din and Muhammad Sharif, the suit for pre-emption was decreed on 11.3J974.
Respondent No. 1 was already in possession of land measuring I6 kanals, l2 marlas who took possession of the remaining land from appellant, in execution of decree, dated 11.3.1974. Appellant filed a suit for declaration to challenge the decree for pre-emption, on the ground of fraud and misrepresentation which suit was dismissed for non- prosecution on 21.9.1974. An application seeking restoration of the suit was filed which too was dismissed. On 17.3.1983 appellant filed another suit for possession on the basis of title, which was dismissed through impugned judgment and decree dated 26.9.1992." Being aggrieved an appeal was preferred which has been dismissed vide judgment impugned, hence this petition.
3. Dr. A. Basit, learned ASC appeared on behalf of. Petitioners and contended strenuously that the evidence which has come on record has not been appreciated in its true perspective by the learned Appellate Court which resulted into serious miscarriage justice, It is also contended that the registered sale-deed dated 17.10.1969 has not been examined in its true perspective which caused serious prejudice against petitioners, It fs next contended that Muhammad Sharif (deceased) had no locus standi whatsoever to institute a suit for pre-emption and therefore, no preemption decree could have been passed in his favour, In order to elaborate the said contention it is pointed out that 16 kanals, l2 marlas of land out of the total land which was subject-matter of registered sale-deed dated 16.8.1967 had remained in the physical possession of Muhammad Sharif (deceased) since 17.7.1957 in the capacity of mortgage who had refused to restore the possession to Hani Din and accordingly suit of pre-emption could not have been filed by Muhammad Sharif (deceased) against Ham Din. It is urged with vehemence that registered sale- deed dated 17.10.1969 is in fact a cancellation' of earlier sale transaction in favour of Hani Din and further the period of limitation for cancellation of earlier sale-deed is three years as envisaged under Article 91 of the Limitation Act, 1908. It is argued at length that the suit instituted on 1.7.1974 having declaratory in nature was dismissed for non-prosecution and therefore, it does not operate as res judicata for subsequent suit filed for possession on 17.3.1983. It is lastly contended that the impugned judgment may be set aside as ab initio void having been vitiated by fraud which is floating on record.
4. We have examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. The judgment dated 26.9.1992 passed by learned Civil Judge and judgment impugned have been examined carefully. We have, scanned the entire evidence with the eminent assistance of learned ASC. After having gone through the entire record it appears that lie petitioner claim revolves around the fact that lie is the exclusive owner of the land in dispute and the compromise deed (Ex.C-1) dated 10.3.1974 and the judgment and decree dated 1 1.3.1974 passed by learned Civil Judge in Suit No. 314/1 (Muhammad Sharif vs Hani Din) are not binding upon the Petitioner/plaintiff as the said compromise was not only illegal but collusive, mala fide and out come of fraud because Ham Din had neither any locus standi nor legal right or entitlement to sell the land which has been sold in his favour vide registered sale-deed dated 17.10.1969 and the decree was procured by Muhammad Sharif (deceased) by fraud and misrepresentation. At die out set when the learned ASC was asked as to why the decree which was passed on fraud and collusion was not challenged, no satisfactory, answer could be given and rightly so because it was never challenged, It would be appropriate to mention here at this juncture that the learned Trial Court after having gone through the entire evidence has rightly observed as follows:- "6. The plaintiff's assertions in the plaint are that some portion of disputed land was mortgaged with the defendant No. 1 whereas Hani Din purchased the total disputed land whereupon a suit for preemption was filed by the defendant No.' f and to defeat that suit the plaintiff again purchased the disputed land but with collusion and fraud the preemption suit was got decreed in favour of the defendant No. I. As he was purchaser prior to the decree in favour of the defendant No. 1, so entitles to get possession.
7. A plain reading of this story reveals that it was fabled: the story has many lacunas, there are many gaps which belie the plaintiff's contention. Let us discuss the plaintiff's oral evidence first: Shahnawaz Bhatti PW. I deposed that the plaintiff came to know about the decree in 1983 whereas according to averments in the plaint, the plaintiff had challenged that decree in 1974. PW.1 also deposed that a "Punchait" was held in the village where it was., decided that the defendant No. 1 would not challenge the sale-deed in favour of tire plaintiff and would hand, over the disputed land after 10 years; he stated that the said "Punchait" held in Afsar Ali Bhatti's house. Malik Sarfraz Hussain PW.2 also deposed these facts in his examination-in-chief. But . This story is unbelievable as it was not narrated in the plaint; it was very material fact and should have necessarily been averred in the paras of the plaint. Afsar Ali Bhatti appeared as DW. 1 and he denied holding of any such Punchait in his house. The plaintiff as PW.3 stated . That compromise was conducted in Afzal Bhatti's house. He stated in examination-in-chief that lie got knowledge of decree in 1983. He has contradicted his own plaint. He continued telling lies by deposing that he could not remember if he had filed a suit in 1974 which was dismissed. The defendant No. 1 has produced the first suit filed by the plaintiff as Ex. D4. The statements of PW.1, PW.2 and PW.3 are bundle of lies. The story they have tried to establish is unbelievable".
5. We have no reason to disagree with the said conclusion duly concurred by the learned High Court being well-based and unexceptionable. Dr. A. Basit, learned ASC for petitioners urged firmly that during the proceedings of preemption suit an application for impleadment as a party was made which, however, could not be brought to its logical end and after its rejection no steps were taken for the redressal of grievances by assailing its rejection before appropriate forum, therefore, it would have no bearing on merits of the case. Besides that when the petitioner namely Basit Sibtain entered appearance before the Trial Court as P.W.3 he kept mum on the issue and even single word was not uttered regarding the moving and rejection of application for impleadment as a party in the pre-emption suit.
6. We have also adverted to the sale-deed (Ex.C-1) on the basis whereof possession has been claimed. The petitioner could not substantiate the execution of sale-deed (Ex.C-1) by leading worthy of credence evidence. No entry whatsoever was got made in the revenue record on the basis of said sale-deed. Had the sale-deed been executed In view of the chequered history of the case the entries in the relevant revenue record would have been incorporated. The factum of ownership of the land in question could not be proved which otherwise could not have been proved without redemption of mortgage made in favour of Muhammad Sharif (deceased). Why it could not be done, no plausible justification has put forth. It is amazing that petitioner himself had averred in the plaint that defendant No. 1 and his brothers remained in possession of the suit fand i.e. I6 kanals, l2 marlas since 17.5.1957 but suit for the possession was filed on 17.3.1983 without its redemption. There is no denying the fact that major chunk of disputed land was in possession of Muhammad Sharif (deceased) since 17.5.1957 but the suit for possession was filed on 17.3.1983 without making any effort worth the name to get it redeemed, It would also be interested to not that allegedly the land in question was repurchased by means of sale-deed dated 17.10.1969 and possession whereof was sought on 17.3.1983. There is no explanation on record for such a mysterious silence for an indefinite period. It is an admitted feature of the case that the land i.e question was sold to Ham Din on 5.1.1968 and the petitioner was one of the vendors. It is also an admitted feature of the case that the said land was pre-empted by Muhammad Sharif (deceased) who succeeded in getting a decree dated 11.3.1974 in his favour which was never challenged and thus it attained finality as suit for declaration filed by the petitioner was dismissed in default on 21.9.1974 and application to get it restored was also dismissed. This chapter was finally closed by the petitioner. Now it cannot be argued by Dr. A. Basit, learned ASC for the petitioners that decree was procured as a result of fraud or collusion. It is too late in the day to challenge the validity of pre-emption decree dated 11 >3.1974 which otherwise would not be affected due to any sale made during litigation and would be binding on the purchaser. In. This regard we are fortified by the dictum laid down in case titled Muhammad Mujtaba v. Ghulam Ali (1980 SCM R 7). All the contentions reiterated before us have been dilated upon and decided in a comprehensive manner vide judgment impugned. Relevant portion whereof is reproduced herein below for ready reference:- "8. The true factual position, as emerges front the record is that the sale of land in issue made through sale-deed dated 5i8.1968, in which the predecessor of appellants was one of the vendor, was preempted by respondent No. 1 which suit was decreed on 11.3.1974. Appellants claim reconveyance of the property, in favour of their predecessor, vide sale-deed dated 17.10.1969 and on this basis, the decree for pre-emption has been questioned, In law, any sale made during the pendency of the suit could not frustrate the ultimate decree and the decree would operate against the purchaser pendente lite. The decree in pre-emption suit passed in favour of respondent No. 1 , for all intents and purposes will be binding upon the appellant wh o could not claim any right over and above the judgment-debtor. Appellant having failed to file appeal against the decree was non-existence or in-operative in law. In this view of the legal position, suit of appellants was not maintainable.
9. The suit was also not maintainable on account of bar under Order IX, Rule 9 of CPC. Appellant filed a declaratory suit, after the decree for pre-emption to challenge validity thereof which was dismissed for non-prosecution under Order IX, Rule 8 of CPC. Application seeking restoration of the suit was also dismissed. Dismissal of earlier suit for non- prosecution would, therefore, bar the maintainability of second suit on the same cause of action. The cause of action in the earlier suit was also the plea of title based on sale-deed dated 17.10.1969 which suit having been dismissed subsequent suit for possession could not be maintained.
10. The appellants even otherwise had to right to enforce. Sale-deed dated 17.10.1969 was claimed to have been executed long after the expiry of one year from sale-deed, dated 5.8.1968 which had been pre-empted. In law resale could have taken place during the period of limitation i.e. One year.
Any sale after the expiry of limitation period of filing suit for pre-emption, could not defeat the preemptor. Reference can be made to Mst Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lah.
171) and Muhammad Mujtaba v. Ghulam Ali and others (1980SCMR7)."
The conclusion as drawn by learned Trial Court duly affirmed by the learned High Court being well- based and unexceptionable hardly warrants any interference. The petition being devoid of merit is dismissed and leave refused.