The present revision petition as also C.R. No,1877 of 2001, C.R. No,1878 of 2001, C.R. No,1879 of 2001, C.R. No,1880 of 2001, are being disposed of together, as all these involve common questions of law and facts.
2. Briefly stated the facts of the case are, that the petitioners in C.R.No,429 of 2001 (who are the legal heirs of one Fazal Ahmed) and the petitioner in C.R. No,1870 of 2001, through two separate suits, sought the declaration of being the owners of the suit-land (described in the plaints).Conversely, the legal heirs of Farzand Ali who are the respondents in C.R.No,1880 of 2001, Ashiq Ali and Mashooq Ali, the respondents in C.R. No,1878 of 2001, and C.R. No,1877 of 2001, respectively, also brought suits for possession of the said land, against the petitioners on the basis of their ownership. Learned trial Court after framing of issues and recording of the evidence, allowed the suits of the petitioners while dismissed those of the respondents. The respondents preferred appeals against the said judgment and decrees, which were accepted by the learned Appellate Court, resultantly, the suits of the respondents in three civil revisions, have been allowed, whereas petitioner's suits were dismissed. Hence these revision petitions.
3. The above cases have chequered history, which needs some elaboration. The facts in this regard, are that the land measuring 1131 KanalS, 18 Marlas including the disputed land, was owned by Farzand Ali to the extent of 449 Kanals, Ashiq Ali 324 Kanals and 3 Marlas and Mashooq Ali 309 Kanals, 18 Marlas. On 22-8-1973, one Chiragh got attested the mutations of sales of the aforesaid land in his favour. These mutations were challenged by legal heirs of Farzand, Ashiq Ali and Mashooq Ali, before the Revenue forum being the result of fraud and misrepresentation, which cause was allowed and accordingly the mutations were cancelled vide order dated 16-3-1979.
Aggrieved of the above, Chiragh on 5-3-1984, brought three suits for declaration, claiming to be the owner of the aforesaid land on the basis of alleged sales in his favour and further challenged the orders cancelling the mutations. These suits were ex parte decreed on' 3-6-1984. Ashiq Ali and Mashooq Ali and the legal heirs of Farzand moved applications on 15-12-1984, for the setting aside of the ex parte decrees, which remained pending, when on 22-12-1990, Chiragh made a statement before the Court that subject to the payment of costs he has no objection, if the applications are allowed, resultantly, the Court set aside the ex parte decrees the same day and proceeded with the matters. Chiragh, thereafter did not pursue the suits, which were dismissed for non-prosecution on 13-5-1992.
4. It may be pertinent to state here, that while the applications of the respondents for setting aside the ex parte decree was pending, on the basis of the ex parte decrees dated 3-6-1984, Chiragh sold the land measuring 924 Kanals and 4 Marlas in favour of one Fazal Ahmad, vide registered sale-deed dated 19-2-1989, however, this fact was neither brought on record of the Court by Chiragh nor Fazal Ahmad applied to be arrayed as a party to the matters. Anyhow, Fazal Ahmad died, whereafter his legal heirs out of the above 924 Kanals and 4 Marlas, sold 701 Kanals and 10 Marlas to Muhammad Akram, the petitioner in C.R. No,429 of 2001, while retaining the remaining land purchased by their predecessor. Thus, when the ex parte decree dated 3-6-1984, in favour of Chiragh was set asid1/4. And his suit was dismissed for non-prosecution. Muhammad Akram and the legal heirs of Fazal Ahmad, brought two separate suits, seeking declaration of their title on the basis of the sales made in their favour as described above; whereas the respondents also brought suits for possession against the petitioners and also Chiragh; the result of this litigation at both the stages has already been stated above. It may, however, be expedient to mention here, that the learned Appellate Court, has allowed the appeals of the respondents, mainly on the grounds that the alienations in favour of the petitioners were hit by the principle of lispendens; Farzand had died on 21-1-1969, therefore, the alleged sale by him in favour of Chiragh in the year 1973, is void; the suits of the present petitioners were not competent in view of the bar contained in section 12(2), C.P.C.
4-A. Learned counsel for the petitioners by relying upon Muhammad Yaqub and another v.
Mahboob Ali 1989 PLC (C.S.) 11, states that in the facts and circumstances of the case, principle of lispendens was not applicable; there is no evidence on record from respondents' side if Farzand Ali had died on 29-1-1969, the respondents though have examined three witnesses, but none of them has uttered a single word about the exact date of Farzand's death; the petitioners were claiming the ownership of the land on the basis of being bona fide purchasers for valuable consideration and without notice of any defect in the title of Chiragh, resultantly, their suits for, declaration were quite competent, and section 12(2), C.P.C. Was no bar in their way; in any case, the Court could have treated the suits as application under section 12(2), C.P.C. And decided those according to the law. In support of his contention, learned counsel has relied upon Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCM R 652 and Noorul Amin and another v..Muhammad Hashim and 27 others 1992 SCM R 1744.
5. I have heard the learned counsel for the parties. It is an admitted position on the record, that the sale mutations earlier sanctioned in favour of Chiragh were cancelled by the Revenue Authorities, it is in such circumstances that he filed the suits for the declaration of his title on the basis of alleged sale, which suits were ex parte decreed on 3-6-1984. However, nothing has been brought on record of this Court by the petitioners, that the ex parte decrees were given effect in the Revenue Record and Chiragh was incorporated as owner of the suit-land on the basis of the decrees. But it is an undeniable fact, that the respondents moved the applications on 15-12-1984, for the setting aside of the decrees which remained pending till 22-12-1990, when those were allowed in the manner stated above. Anyhow, Fazal Ahmad is said to have purchased the suit-land from Chiragh through sale-deed on 19-2-1989, and this transaction is admittedly during the period when the ex parte decree was under attack by the respondents. Same is the position with respect to further alienation made by the legal heirs of Fazal Ahmad in favour of Muhammad Akram. Now when the applications for the setting aside were allowed by the Court, may be on the statement of Chiragh or his counsel, the legal position with the consequences, which emerges is that the ex parte decree on the basis ofwhich Chiragh had acquired the title to the suit-land vanished, and only the suits of Chiragh remained pending, relating back to their date of institution; thus, the two alienations of the suit-land made respectively in favour of Fazal Ahmad and Muhammad Akram were not only without a valid and lawful title of Chiragh but would also be hit by the principles of lispendens. In the circumstances, the rule of bona fide purchaser would not override the doctrine of lispendens and its effects, particularly in the situation when thesuits of Chiragh were dismissed, may be for whatever reasons.
6. Even otherwise, the plea of the petitioners that they are the bonafide purchasers of the property has serious reflection on account of the fact that the decrees in favour of Chiragh were ex parte in nature, and were the only source of title of Chiragh, thus, while purchasing the property, the petitioners should have examined the record of the Court pertaining to the decrees and once it was so done, it would have become clear to the purchasers that the ex parte decrees in favour of Chiragh were under challenge by the respondents.
7 There is another aspect of the matter, that in the case of FarzandAli, Chiragh claims to have purchased the property from him in the year 1973 whereas Farzand had died in 1969. Thus, a sale allegedly from a dead person and likewise the decree against him was/is nullity in the eyes of law.
Therefore, on the basis of a void decree no valid title could be acquired by Chiragh, which could further be transferred to the subsequent vendees. The argument of the learned counsel for the petitioners, that none of the respondents' witnesses has stated that Farzand Ali had died in 1969, suffice it to say, that the death certificate of Farzand Ali is Exh.D2, and the mutation of his inheritance attested on 24-4-1969 is Exh.D3, both these documents were received in evidence without any objection from the petitioners, therefore, such documentary evidence was enough to discharge the burden of the respondents qua this fact. The petitioners thereafter had adequate opportunity to prove, that Farzand was alive in 1973, but they miserably failed to adduce any verbal or documentary proof on the subject.
8. In the above backdrop, further examining the validity of the ex parte decree dated 3-6-1984 against Farzand, suffice it to say, that he is shown to have refused to accept service vide report of the Process Server dated 8-3-1984. Neither the Process Server nor the witnesses of such refusal have been examined by the petition&s. Whereas, it has been conclusively proved on the basis of Exh.D2 and Exh.D3, that he was not alive on that date, thus, obviously the said report is false, fabricated and fraudulent. In this behalf, there is another important fact, which can be inferred i,e, the mutations of sale in favour of Chiragh allegedly got sanctioned by Farzand, were challenged before the Revenue Authorities by his legal heirs, and these mutations even according to the case of Chiragh were cancelled by the Revenue forum. This admittedly was before the institution of the suit byChiragh, thus, he fully knew that Farzand is dead, but still the suit was filed against a dead person. It is settled rule, that a suit against a dead person is nullity in the eyes of law and likewise a decree obtained against such person suffers from the same vice. Therefore, irrespective whether Chiragh collusively made conceding statement for the setting aside of the ex parte decree passed against Farzand, and therefore, the decree was set aside, would not make much difference.
8-A. As far as the ex parte decree dated 3-6-1984 against Ashiq and Mashooq is concerned, in the plaint of the suit filed by Chiragh and summons issued to them they have been shown to be the residents of Chaindptir, whereas admittedly they are the residents of Tehsil Sohawa, District Jhelum, because, in the suits of the petitioners, the above address has been given. There is another important aspect of the matter that in the proceedings for setting aside ex parte decree against them, the respondents had concluded their evidence and number of opportunities were given to Chiragh to adduce his evidence, which included the last opportunity, but he failed. It seems that he had no case to defend, and therefore, conceded the case of the petitioners in the proceedings for setting _aside the decrees and thereafter got the suits dismissed for non-prosecution.
9. In the circumstances of the case, if at all any fraud has been practiced upon the petitioners it is not the respondents, in collusion with Chiragh. But it is Chiragh who firstly attempted to defraud the respondent and thereafter deceived the petitioners. Anyhow, the moment the ex parte decree in favour of Chiragh was set aside and ultimately the suit was dismissed he was stripped off, of his title to the property and further alienation made in the manner stated above also lost their legal value. Therefore, having bought the property from a person having no title at all, the petitioners cannot seek the protection of the rule of bona fide purchasers, to deprive the respondents, who are the lawful owners of the suit property.
10. The judgments cited by the counsel for the petitioners are distinguishable on their own facts, in the case reported as 1989 PLC (C.S.) 11, the collusion between the parties was surfacing on the face of the record, and therefore, in appropriate proceedings the judgment and decree was set aside, as the result of fraud and misrepresentation and further the rule of lispendens was held as inapplicable. But in the present case the facts are not alike, moreover the petitioners have failed to establish any collusion between the respondents and Chiragh, rather from the written statement filed by Chiragh in these cases, it is manifest that he is supporting the version of the petitioners, rather the respondents.
11. As far the judgments quoted by the petitioners counsel, that the suits of the petitioners could have been treated as applications under section 12(2), C.P.C., suffice it to say, that even if it was done the petitioners have failed on the basis of the evidence led by them in their cases that the respondents were in league with Chiragh, and therefore, fraudulently managed to get the ex parte decrees set aside and the dismissal of the suits for non-prosecution. This conspicuous omission on their behalf has serious reflection upon the plea now raised. The learned counsel wants this Court to draw inference of collusion between Chiragh and the respondents on account of former, making the statement conceding the setting aside of the decrees and subsequent non-prosecution of the case. I am afraid, while considering the evidence in its totality and positive proof on the record, that in fact Chiragh attempted to grab the valuable property of the respondent, but having failed in this behalf as a defenseless person he ran away from the lis. Thus, how the advantage of his unbecoming conduct be given to the petitioners, who have stepped into his shoes.
12. In the light of what has been stated above, these revision petitions have no merits and are hereby dismissed.