Mst.Naziran Bibi vs Muhammad Rafi etc.

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

R.S.A NO.245 OF 2010

Mst. NAZIRAN BIBI.

Versus.

MUHAMMAD RAFI, ETC.

JUDGMENT.

Date of hearing: 26.05.2022 Appellant by: Mr. Rustam Khan Padhiar, Advocate.

Respondents No.1 Mr. Abdul Qudoos Rawal, Advocate.

and 2 by:

Respondents No.3 to 5 are ex-parte.

Mirza Viqas Rauf, J. This appeal under Section 100 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “CPC”) stems out from the judgment and decree dated 1st October, 2010 passed by the learned Additional District Judge, Nankana Sahib, whereby he proceeded to dismiss the regular first appeal preferred by the appellant questioning the vires of judgment and decree dated 26th June, 2006 passed by the learned Civil Judge, Nankana Sahib resulting into decreeing the suit for specific performance in favour of respondents No.1 and 2 (hereinafter referred to as “respondents”).

2.The facts in brief necessary for adjudication of this appeal are that “respondents” instituted a suit for specific performance averring therein that respondents No.3 to 5 being the owners of the suit land entered into an agreement to sell dated 30th October, 2001, agreeing to sell the same to the “respondents” with sale consideration of Rs.6,94,000/-. Out of

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total sale consideration, the “respondents” paid Rs.4,00,000/- as earnest money. It is asserted in the plaint that though the “respondents” were willing to perform their part of agreement but respondents No.3 to 5 alienated the suit land in favour of the appellant through an exchange mutation No.697 dated 14th January, 2002, which is the result of fraud and collusiveness. Suit was resisted by the appellant as well as respondents No.3 to 5 through a joint written statement wherein facts asserted in the plaint were controverted. The execution of the agreement to sell was denied and it was pleaded that respondents No.3 to 5 exchanged the suit land with the appellant bonafidely.

3.It would not be out of place to mention here that during the proceedings before the learned Civil Judge, respondents No.3 and 4 got recorded their statements that they have entered into compromise with the “respondents” and to that effect they also produced agreement Exh.C1, however, afterwards an application was moved by them asserting therein that their statements were procured on the basis of fraud. In this background, learned Trial Court framed multiple issues arising from the divergent pleadings of the parties. After framing of issues, evidence of both the sides was recorded and suit was finally decreed vide judgment dated 26th June, 2006. The appellant feeling aggrieved though preferred an appeal before the learned Additional District Judge, Nankana Sahib but her appeal was dismissed through impugned judgment and decree.

4.Learned counsel for the appellant contended that exchange mutation was sanctioned much prior to the filing of suit. He added that the

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appellant was having no knowledge of any agreement to sell interse respondents herein and as such her rights are protected under Section 41 of the Transfer of Property Act, 1882. Learned counsel submitted that compromise Exh.C1 was the product of fraud, for the setting aside of which, an application was also moved. Learned counsel further submitted that even otherwise after entering into the exchange transaction, respondents No.3 to 5 were left with no lawful authority to record any statement qua the suit land. It is argued with vehemence that no cogent evidence was brought on record by the “respondents” to prove the agreement to sell. Learned counsel maintained that there are material discrepancies in the statements of the witnesses produced by the “respondents” and the suit has been wrongly concurrently decreed. Learned counsel emphasized that concurrent findings are the outcome of gross misreading and non-reading of evidence. In order to supplement his contentions, learned counsel has placed reliance on AMJAD IKRAM v. Mst.

ASIYA KAUSAR and 2 others (2015 SCMR 1), Sheikh AKHTAR AZIZ v.

Mst. SHABNAM BEGUM and others (2019 SCMR 524) and

MUHAMMAD ASHIQ and 6 others v. MUHAMMAD IQBAL and 7 others

(2007 MLD 204).

5.Conversely, learned counsel for the “respondents” defended the impugned judgments while submitting that both the Courts below have properly appraised the evidence by forming their concurrent view. It is submitted that overwhelming evidence was produced by the “respondents” to prove their claim, which was rightly appreciated not only by the Trial Court but the first appellate Court. Learned counsel contended that Section

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41 of the Transfer of Property Act, 1882 cannot be pressed into service in case of exchange and it is only restricted to sale transaction. It is argued with vehemence that the appellant did not plead necessary facts that she has taken due care and caution before entering into exchange mutation.

Learned counsel emphasized that presumption of truth is attached to the statements of respondents No.3 and 4 recorded before the Court. He added that even otherwise, respondents No.3 to 5 never challenged the findings of the Courts below to this effect.

6.After having heard learned counsel for the parties at considerable length, I have perused the record.

7.Suit was instituted on the basis of agreement to sell dated 30 th October, 2001 (Exh.P1) purportedly entered into between respondents No.3 to 5 and “respondents”. The appellant was arrayed as defendant No.4 in the suit with the assertions that respondents No.3 to 5, in order to avoid the implication of agreement to sell, effected the exchange mutation No.697 dated 14th January, 2002 in her favour, which is the product of fraud and ineffective upon their rights. Suit was resisted by the appellant alongwith respondents No.3 to 5 through a joint written statement. It is pleaded therein that no agreement to sell was ever executed with “respondents” and appellant was thus having no knowledge at all and she entered into exchange mutation with her bonafide. During the proceedings before the learned Civil Judge Class-I, Nanakana Sahib, respondents No.3 and 4 got recorded their statements on 5th March, 2003 stating therein that they had effected compromise with “respondents” to which effect they have

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executed compromise deed Exh.C1 and they have no objection of decision of the suit in the light thereof. Respondents No.3 and 4, however, later on filed an application questioning the proceedings of compromise on the ground that they have been defrauded, which was disposed of vide order dated 6th December, 2005 with the following observations: - “So far on the statement of defendants No.1 & 2 no order has been passed by the court. The petition in hand at this stage appears to be totally unjustified and baseless. However, point of view of the petitioners shall be considered and adjudged while disposing of main suit on the basis of evidence to be produced by them. Defendants No.1 & 2 would be entitled to cross-examine the witnesses and to produce the evidence available at their disposal. Presently, the suit property has been transferred in the name of defendant No.4, who has actual interest in the suit property now. In this view of the matter, the petition in hand is hereby disposed of. Moreover, contents contained in this petition shall be thrashed while delivering final judgment.

To the above effect, issue No.2 was then framed.

8.Though from the divergent pleadings of the parties, multiple issues were framed by the learned trial Court but keeping in view the matter in controversy, issues No.1, 2 and 9 become of significant importance, which are reproduced below for ready reference and convenience: -

1.Whether the defendants executed the alleged agreement to sell dated 30.10.2001 with their free consent regarding the suit property for a consideration of Rs.6,94,000/- and received Rs.4,00,00/- as earnest money, if so the plaintiffs are entitled to have decree for specific performance of contract and permanent injunction as prayed for on the reasons mentioned in their plaint? OPP

2.Whether the defendant No.1 & 2 have entered into a compromise with plaintiffs, delivered their statements

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on 05.03.2003 and produced agreement Ex.C-1, if so to what effect on the merits of the case? OPP

9.Whether the defendant No.4 with bona fide obtained the suit property through oral exchange and mutation No.697 dated 14.01.2002 was duly sanctioned in good faith, if so to what effect? OPD

9.Since suit was instituted by the “respondents” claiming right qua the suit property on the basis of agreement to sell dated 30 th October, 2001 (Exh.P1), so primarily they were obliged to prove issue No.1. From the perusal of Exh.P1, it reveals that by virtue of the same, respondents No.3 to 5 have agreed to sell their land measuring 20-Kanal 11-Marla situated at square No.16, khewat No.34, 35, 36 situated in Chak No.1, GB Tehsil Nankana Sahib, District Sheikhupura with sale consideration of Rs.6,94,000/- to the “respondents” and received Rs.4,00,000/- as earnest money whereas rest of Rs.2,94,000/- was to be paid at the time of registration of sale deed. The agreement to sell was witnessed by Ghulam Muhammad and Muhammad Ibrahim. In order to prove the agreement to sell, one of the respondents/vendees namely Muhammad Rafi appeared as PW-1 whereas the attesting witnesses namely Muhammad Ibrahim and Ghulam Muhammad appeared as PW-2 and PW-3 respectively. In his statement, Muhammad Rafi/PW-1 did not mention the date, time and place where the sale transaction was effected. He also conceded that possession of the suit property lies with the appellant. Muhammad Ibrahim/PW-2 in his examination-in-chief deposed that deal was made on 30th October, 2001 qua which agreement to sell Exh.P1 was reduced into writing and sale consideration of Rs.4,00,000/- was paid in his presence whereas in his cross-examination, he deposed as under: -

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Contrary to this, Ghulam Muhammad/PW-3 deposed as under: - From the analysis of the above referred statements, it can safely be inferred that there are notable discrepancies with regard to the place where the sale was effected and the payment of sale consideration, which is a necessary corollary for a valid sale in terms of section 54 of the Transfer of Property Act, 1882.

10.Needless to mention here that the “respondents” being the beneficiaries of the agreement to sell Exh.P1 were obliged to lead cogent and convincing evidence to prove the execution of not only agreement to sell but the original transaction of sale. Mere tendering of agreement to sell in evidence would have no evidentiary value and it would not prove its execution. The contradictions in the statements of material witnesses of the purported deed are neither trivial nor inconsequential.

11.Adverting to the issue No.2, it is observed that out of three vendors, only respondents No.3 and 4 have recorded their statements on 5 th

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March, 2003 before the learned Trial Court qua which they later on moved an application stating therein that they being illiterate villagers have been defrauded by the “respondents” and succeeded in obtaining their statements while concealing the actual facts. It is quite strange that the order sheet for the relevant date of the learned Trial Court does not find mention any such proceedings. The respondents No.3 and 4 moved the application challenging the validity of the said proceedings, which was disposed of by way of order dated 6th December, 2005. To the above effect, Muhammad Rafi, Muhammad Shafi and Muhammad Boota were produced as PW-4 to PW-6 by the “respondents” in rebuttal. Leaving aside the worth of their statements, it is an admitted fact that the above statements relate to only two vendors whereas respondent No.5 did not record his statement. Even otherwise, prior to the filing of the suit, respondents No.3 to 5 have alienated the suit property to the appellant through exchange mutation No.697 dated 14th January, 2002 and if once it is proved that the exchange mutation is valid one then respondents No.3 to 5 were left with no right to suit property on the day when the statements were recorded.

12.Next and the last limb of controversy relates to the validity of exchange mutation upon which the appellant has rested her claim. It is the claim of the appellant that she got effected the mutation in question after exercising all necessary due care and caution and while being satisfied that there is no lien upon the suit land she entered into the transaction, which is protected under Section 41 of the Transfer of Property Act, 1882 (hereinafter referred to as “Act, 1882”). To this effect, the appellant herself appeared as DW-1 wherein she reiterated her stance as asserted in the

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written statement with the plea that while entering into exchange transaction, she was not aware of any agreement to sell in favour of “respondents”. She also got examined Muhammad Younis, one of the vendors as DW-3, who supported the cause of the appellant. Though the “respondents” produced their evidence in rebuttal but the claim of the appellant was not refuted specifically to this effect.

13.So far contention of learned counsel representing the “respondents” that scope of section 41 of the “Act, 1882” cannot be extended to exchange as it is restricted only to sale transaction, suffice to observe that from the bare reading of the said provision of law, this argument seems to be ill-founded and misdirected. For ready reference and convenience, Section 41 of the “Act, 1882” is reproduced below: -

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 authorized 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.

From the bare perusal of above referred provision of law, it is manifestly clear that if a person being ostensible owner of any immovable property transfers the same for some consideration with the consent, express or implied of the persons interested in such property, such transfer shall not be voidable on the ground that the transferor was not authorized to make it provided the transferee after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

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14.The word “transfer” used in Section 41 of the “Act, 1882” is clearly neither restricted nor confined to the sale transaction. It is an oft repeated principle of law that while interpreting a provision of law or a word used in the statute, it shall be given plenary meaning and nothing should be imported which is not specifically provided therein. In order to understand the proposition in better terms, the definitions of terms “sale” and “exchange” are to be looked into. Sale is defined in Section 54 of the “Act, 1882” as under: -

54.“Sale defined.” “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid part- promised.

Whereas Section 118 of the Act ibid provides the definition of term “exchange” which reads as follows: -

118.“Exchange” defined. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”.

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

From the combined definitions of both the terms (“sale” and “exchange”), it becomes evident that both the provisions deal with the transfer of ownership either through exchange for a price or mutual transfer of ownership of one thing for the ownership of another. The common between the both is the transfer of immovable property for a consideration. To this effect case of MUHAMMAD ASHIQ and 6 others v. MUHAMMAD IQBAL and 7 others (2007 MLD 204) is quite relevant. An extract from the same is reproduced below: -

“.....Although as above stated no issue with regard to exchange of the

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property of Mst. Shah Khanum in favour of defendant No.2 and then sale by him in favour of defendant No.3 was framed, yet it is established that as both the parties had led their evidence on this aspect of the case and both the Courts below had disposed of the matter in this regard also, therefore, it is dealt with further. Exchange is defined under section 118 of the Transfer of Property Act. Section 119 deals with a clause with regard to protection or non-protection of the exchange. Both the relevant sections of the Transfer of Property Act are reproduced below:--

"(118) When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

(119)If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration."

This clearly reveals that the transaction is called an exchange when two persons mutually transfer the ownership of one thing for the ownership of another and if a party who gets anything in exchange at any stage comes to know or is deprived of that thing on account of a defect in the title of the party then the other party is held liable for the loss caused thereby or for return of the property so transferred, exchange as such is one of the modes of transfer of property. The property which is subject-matter of the agreement was covered within exchange deed. As above said exchange is a valid mode of transfer of the property and this property which was subject-matter of agreement to sell was covered by the exchange deed and the provision of section 53-A of the Transfer of Property Act which reads as follows:-- "Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof".

As above said the right of a transferee for consideration, who has no notice of the contract or of the part performance thereof is protected. The word transferee does cover the word of exchange as the person in whose favour an exchange takes place becomes the transferee of that property. The word transferee does not confine itself to the word purchase only as defined in Black's Law Dictionary Fifth Edition the word transferee means he to whom transfer is made and the word transfer means an act of the parties or of the law by which the title to property is conveyed from one person to another, the sale and every other method, direct or indirect of disposing of or parting with property

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or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein absolutely or conditionally, voluntarily or involuntarily by or without judicial proceedings as a conveyance, sale payment, pledge, mortgage, lien, encumbrance, gift, security or otherwise. The word is one of general meaning and may include the act of giving property by will. Transfer is the all encompassing term used by Uniform Commercial Code to describe the act which passes an interest in an instrument to another. Transfer means every mode direct or indirect absolute or conditional, voluntary or involuntary of disposing of or parting with property or with an interest in property including retention of title as a security interest. The transfer as above said implied that the properties which are exchanged are covered within the word transfer. Exchange has been defined `in corpus juris secundum' as an exchange of property is a mutual transfer of property for property other than money. The word exchange is defined in law, terms and pharases as it is a mutual transfer of ownership neither thing being money only, it is effected like a sale rights and liabilities of the parties being the same as such the exchange is protected if established that such a transaction was without notice of any existence of any former document etc. In the present case the properties were exchanged in between Mst. Shah Khanum and Muhammad Ashiq on 26-1-1988. Muhammad Ashiq etc. contacted the plaintiffs who intimated them that they were in possession of the property as tenants. No intimation was provided by the plaintiffs to them that they were in possession of the property under some agreement to sell. There is nothing on record that Mst. Shah Khanum or Muhammad Akhtar Usmani ever brought the fact of existence of any contract in between them and the plaintiffs to the knowledge of Muhammad Ashiq at the time of exchange. No evidence is available that any record was available with the Revenue Authorities giving a clear notice to Muhammad Ashiq that the property was subject-matter of some other document. After the statement of Muhammad Ashiq the onus had shifted upon the plaintiffs to prove otherwise but no such evidence has been made available on record. There was nothing in the record of the Revenue Authorities or otherwise existing or brought to the notice of the defendant No.2 forcing him to have a deeper enquiry with regard to the transaction. No evidence is otherwise available that some collusion did exist in between the defendant No.2 and Mst. Shah Khanum at the time of entry of exchange deed. What has been said above is also of relevance for the purpose of that no such evidence is available to rebut the contention that the defendant No.3 at the time of purchase, of the property was having any notice of the earlier agreement to sell. The defendants prior to this transaction gave a publication in the press in this regard, even then none of the plaintiffs contacted them. There is another aspect to this question that it were the defendants Nos.2 and 3 who of their own accord submitted an application to be impleaded as a party when they came to know of' pendency of the civil suit, had the defendants any notice of the earlier agreement to sell prior to the submission of their application to be impleaded as a party or had they not been bona fide in their purchase of property and the agreement to sell would have been in their knowledge then the plaintiffs would have impleaded them as a party. Hence it is held that the exchange in favour of the defendant No.2 and then the sale in favour of defendant No.3 is protected. All the above discussion clearly reveals that both the Courts below had misread and non read the evidence on record, as such the judgments and decrees of

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both the Courts below are liable to be set aside and are set aside. Resultantly the present appeal is allowed and the impugned judgments and decrees of both the Courts below are set aside and the suit of the respondents/plaintiffs brought for specific performance before the trial Court is hereby dismissed with no order as to costs.”

Reference to the above effect can also be made to MUHAMMAD ASLAM and another v. NAZAR MUHAMMAD and others (2006 CLC 1804).

15.The above made discussion leads me to an irresistible conclusion that the exchange mutation was duly protected under Section 41 of the “Act, 1882”. In furtherance thereof, it can safely be held that in short, at the time of recording of statements before the Court, respondents No.3 and 4 were clearly divested of their right qua property and as such they were not competent to record any statement affecting the rights of the appellant. It is also an undeniable fact that suit was instituted after the sanctioning of exchange mutation. Guidance in this respect can be sought from MUHAMMAD IQBAL and others v. KHAIR DIN through L.Rs. and others (2014 SCMR 33) wherein the Hon’ble Supreme Court of Pakistan while dealing with a similar proposition held as under: -

12.It is admitted between the parties that in the current round of litigation the suit land bears Khasra No. 992 and measures 7 kanals, 14 marlas. Admittedly the suit land was sold to the appellants/plaintiffs vide registered sale deed dated 17-5-1971 and there is no denial that the said transaction was duly reflected in the revenue record vide rapat No.313 daily diary of patwari (Roznamcha Waqiati) dated 12-5-1972 and the possession of the suit land was delivered to the appellants on the spot by the revenue officer. In the suit for specific performance filed by the predecessor-in-interest of the respondents/defendant (Suit No.419 of 1970) the land he claimed to have purchased from Maqbool Ahmed included Khasra No.992 measuring 7 kanals, 14 marlas which already stood sold to the appellants vide the registered sale deed referred to above. At the time of the consent decree dated 29-4-1972 Maqbool Ahmed, the vendor, was divested of his ownership qua the suit land (bearing Khasra No. 992 measuring 7 kanals, 14 marlas) as the land stood transferred to appellants/plaintiffs vide registered sale deed dated 17-5-1971. Thus the said Maqbool Ahmed was left with no title on the

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date (29-4-1972) of the consent decree to have consented to sell the suit land. A consent decree is a kind of agreement/contract between two parties with a superadded command of the court but it would not bind a third party who was not party to the said suit. So far as the application of the principle of lis pendens is concerned, respondents/plaintiffs had failed to prove that appellants/plaintiffs had either the knowledge of the agreement to sell between the predecessor-in-interest of the respondents/defendant and Maqbool Ahmed or that he was a bona fide purchaser. The consent decree was, therefore, collusive and the principle of lis pendens would not be attracted.

13.Section 52 of the Transfer of Property Act enshrines doctrine of lis pendens which means the jurisdiction or control which a court acquires over a property involved in a suit during its pendency. It is based on the common law maxim which mandates that nothing qua the subject matter of the suit can be changed while it is pending. This provides protection to the rights of a suiter/plaintiff when his suit is pending and he can have a transfer/transaction voided with regard to the suit property if the said transfer was made when the suit was pending. However, there is an exception to this principle which is contained in section 41 of the Transfer of Property Act which stipulates that "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".

14.The essential ingredients for invoking section 41 ibid can be described as (1) that the transferor was the ostensible owner, (2) that the transfer was made by consent of the real owner, (3) that such transfer was for a consideration, and (4) that the transferee while acting in good faith had taken reasonable care before entering into the transaction.

15.The learned High Court while reversing the judgment by invoking the principle of lis pendens did not advert to the effect of Section 41 of the Transfer of Property Act ibid and failed to appreciate that the appellants/plaintiffs had no notice either of the pendency of the earlier Suit No.419 of 1970 which culminated in the consent decree dated 29-4-1972) or the agreement to sell between Maqbool Ahmed and predecessor-in-interest of the respondents/defendant. The elements of exception contemplated in section 41 supra in the facts and circumstances of this case were fully attracted; there was documentary evidence to show that the transfer of suit land was for consideration; it was made by the ostensible owner and that the transferee Muhammad Iqbal and others appellants/plaintiffs had no knowledge of any prior agreement qua the suit land. They were not even impleaded as party though in the consent decree the suit land in the instant case included the land which they had already purchased vide registered sale deed.

16.In Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905) this Court had specifically adverted to the situations when the principle of lis pendens would not be applicable and candidly held that section 52 of Transfer of Property Act and the principle of lis pendens enshrined therein is circumscribed by three conditions: "(1) the

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suit must be relating to a specific immovable property in which any rights of the parties are directly and specifically in question (2) the suit should be pending at the time when the alienation in favour of the third person has been made (3) neither the suit itself nor the outcome thereof must be collusive, fraudulent and/or is meant to entrap, deceive, and defraud an innocent transferee specially a bona fide purchaser". The learned High Court in reversing the concurrent judgments and decrees, we may observe with respect, did not keep the afore-referred legal principles in view.

17.There is yet another aspect of this case; section 53 of the Transfer of Property Act has a bearing in the facts of this case. It reads as follows:--

"53. Fraudulent transfer. (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor or delayed.

Nothing in this subsection shall impair the rights of a transferee in good faith and for consideration.

Nothing in this subsection shall affect any law for the time being in force relating to insolvency.

A suit instituted by a creditor (which term includes a decree- holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of or for the benefit of all the creditors.

(2)Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this subsection, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made."

18.A bare reading of section 53 of the Transfer of Property Act would indicate that the expression 'creditor' used conveys a broader sense and meaning. It does not merely mean someone to whom a debt is owed. The Black's Law Dictionary defines creditor as "1. One to whom a debt is owed; one who gives credit for money or goods.---Also termed debtee. 2. A person or entity with a definite claim against another, esp. a claim that is capable of adjustment and liquidation. 3. Bankruptcy. A person or entity having a claim against the debtor predating the order for relief concerning the debtor. 4. Roman law. One to whom any obligation is owed, whether contractual or otherwise." (Emphasis is supplied).

19.In the afore-quoted definition of 'creditor' various shades of its meanings have been encapsulated. The 'creditor' thus includes someone who has a right to require someone to fulfill a promise, an obligation or a contract.

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20.The provision aims to provide safeguard to the rights of a transferee of an immovable property where the sale is made with intent to defeat the right of the transferor. Such a transaction has been made voidable by operation of law and a person who purchases the property in good faith and for consideration stands protected. Intention and fraud is to be determined from the facts considered in their totality. The conduct of the parties prior, contemporaneous and subsequent would be relevant to decide if a transaction is hit by this provision.

21.As the suit land had already been transferred by Maqbool Ahmed in the appellants' name vide registered sale deed dated 17-5-1971, the consent decree dated 29-4-1972 vide which the said Maqbool Ahmed consented to sell the suit land to predecessor-in-interest of the respondents/defendant Khair Din was on the face of it a fraudulent transfer within the meaning of section 53 of the Transfer of Property Act and was "voidable at the option of" the creditor which in the case in hand were the appellants/defendants. In Nisar Ahmed Afzal v. Muhammad Taj and others (2013 SCMR 146), the court had an occasion to dilate upon the ambit of this provision of law. In the said case the defendants had mutually cancelled the sale agreement qua a property in which the appellants had acquired an interest. The Trial Court had dismissed the suit. The learned Islamabad High Court remanded the matter to the trial Court to decide whether the respondent was responsible for the breach of sale agreement dated 22-3-2003 (in favour of the appellants before this Court) and whether appellant was entitled to damages for the breach of the said contract. This Court allowed the appeal and decreed the suit by holding as follows:-- "21. The cancellation deed (Exh.D.W.1/3) between the respondents Nos.1 and 2 on the face of it was hit by the provisions of section 53 of the Transfer of Property Act, which provides that if a fraudulent transfer is made with intent to defeat the interest accrued to a party which it has acquired through a sale agreement, then such party can enforce the same not only against the vendor but also against the person from whom such a vendor has acquired the interest. The word "Creditor" used in section 53 of the Transfer of Property Act is not to be construed in a narrow sense while interpreting the section. The word "Creditor" would mean and include the one, who has a right to require of another the fulfillment of a contract or obligation and or one to whom another owes the performance of an obligation. In the case in hand, the appellant is covered by the word "Creditor" and his interest is fully protected by section 53 (ibid). The deed of cancellation (Exh.D.W.1/3) signed by respondents Nos.1 and 2 and the subsequent transaction through sale agreement dated 17-7-2004 executed by respondent No.1 with respondents Nos.4 to 7, coupled with the transfer of the subject plot in favour of the respondents Nos.4 to 7 by the respondent No.3, as attorney of respondent No.1, are nullity being fraudulent instruments signed and or executed to transfer the subject plot with the object to defeat the interest acquired by the appellant, by virtue of Exh.P.1." (Emphasis is supplied).

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22.The consent decree in the instant case, like the cancellation deed in Nisar Ahmed supra case, was an attempt to defeat the interest already acquired by the appellants in the suit land and was squarely hit by the provision of section 53 supra.

23.For what has been discussed above, we are of the view that the impugned judgment besides being reflective of misreading and non- reading of evidence is against the law declared and, therefore, not sustainable. Consequently, this appeal is allowed and the impugned judgment to the extent of the suit land is set aside and the judgment and decree of the learned trial Court to the said extent is resorted with no order as to costs.

24.Before parting, we may make a mention that during the course of hearing, we queried from appellants' learned counsel as to whether he has any claim over the land other than land the suit land measuring 7 kanals, 14 marlas to which in all fairness he submitted that he had none. The learned Executing Court shall proceed accordingly.

Reliance in this regard can also be placed on BAHAR SHAH and others v.

MANZOOR AHMAD (2022 SCMR 284) and Hafiz TASSADUQ HUSSAIN v. LAL KHATOON and others (PLD 2011 Supreme Court 296).

16.There are though concurrent findings of facts recorded by the two Courts below and scope of second appeal is limited and circumscribed to the eventualities hedged in Section 100 of “CPC” but it does not preclude the second appellate Court to peep into findings of the Courts below to unearth the illegalities or material irregularities committed while arriving at such concurrent conclusion. It is trite law that where findings of fact arrived by the Courts below are found to be based upon misreading, non-reading or misinterpretation of evidence on the record, the High Court could in second appeal reappraise the evidence and disturb the findings if based on an incorrect interpretation of the relevant law. The power under Section 100 of “CPC” cannot be abridged merely on the ground that the two Courts below have arrived at a concurrent conclusion. If such conclusion is the outcome of gross misreading of evidence or amounts to

R.S.A No.245 of 2010

an illegal and unlawful conclusion, the Court cannot sit as silent spectator while exercising powers under Section 100 of “CPC”. Guidance in this respect can be sought from Sheikh AKHTAR AZIZ v. Mst. SHABNAM BEGUM and others (2019 SCMR 524) and BASHIR AHMED v. Mst.

TAJA BEGUM and others (PLD 2010 Supreme Court 906).

17.The nutshell of above discussion is that the learned trial Court as well as learned first appellate Court have grossly misread the evidence and failed to adhere the law on the subject while decreeing the suit of the “respondents”. Resultantly this appeal is allowed. As a sequel whereof, judgment and decree dated 26th June, 2006 passed by the learned Civil Judge Class-I, Nankana Sahib as well as judgment and decree dated 1st October, 2010 passed by the learned Additional District Judge, Nankana Sahib are set aside. Consequently, suit instituted by the “respondents” shall stand dismissed with no order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

Announced in open Court on 10.06.2022.

JUDGE

Approved for reporting

JUDGE

Zeeshan