Muhammad VS Sheikh Taj Muhammad etc

PESHAWAR HIGH COURT, D.I.KHAN BENCH

FORM OF ORDER SHEET

Date of Order or other proceedings with signature of Judge(s). Order or proceedings

26.7.2017. C.M.No.66-D/2017 (U/S 12(2) C.P.C with C.M.No.67-D/2017.

Present: Mr. Zia ur Rehman Qazi, Advocate for the petitioner.

IJAZ ANWAR, J.- Through the instant petition moved under section 12(2) C.P.C, the petitioner Muhammad seeks setting aside of judgment and decree of this Court dated 20.3.2015 rendered in C.R.No.266 of 2011 titled Samiullah Khan and others. Vs. Sheikh Taj Muhammad through L.Rs etc.

2.The brief facts giving rise to the instant petition are that respondents filed a suit against Central Government and others for declaration to the effect that they are owners in possession of the property situated in Mauza Miran, Tehsil and District D.I.Khan having been acquired by them vide mutations No.109 and 110 attested on 26.6.1975 on Imran/*

payment of sale consideration to original allottee namely Ismail; that on 30.10.1995, the Deputy Commissioner/Chief Settlement Commissioner cancelled the allotment in favour of original owner, therefore, it was re-transferred to Central Government vide mutations No.1283 and 1284 attested on 30.12.1996 and vide mutation No.1285 of even date and mutation No.1326 dated 24.3.1987, the property was transferred in favour of predecessor of defendants which is wrong and illegal. The suit was decreed in favour of respondents vide judgment and decree dated 21.5.2010 by learned Civil Judge-VIII, D.I.Khan which was maintained in appeal by learned District Judge, D.I.Khan vide judgment and decree dated 07.3.2011.

3.The judgment and decree dated

07.3.2011 was challenged before this Court in C.R.No.266 of 2011 which was dismissed vide judgment and decree dated 20.3.2015, hence the Imran/*

instant petition under section 12(2) C.P.C by petitioner Muhammad s/o Sultan.

4.Learned counsel for the petitioner argued that the suit property was purchased by the petitioner from Habibullah Khan through mutation No.3880 dated 06.6.1999 and that the said Habibullah was the owner of the suit property through a consent decree dated 03.9.1999. He argued that the impugned judgments and decrees upheld upto this Court not find mentioned about the consent decree dated 03.9.1999 and it was never set aside at any stage thus there is anomalous situation as both the decrees are in the field. Similarly, the petitioner being bonafide purchaser his right should have been protected and he thus prayed that the judgments and decrees of the lower forums including of this Court were the result of mis-representation and are liable to be set aside.

5.Arguments heard and record perused.

6.Perusal of the record reveals that the Imran/*

respondents are owners in possession of the suit property situated in Mauza Miran, Tehsil and District D.I.Khan acquired vide mutation Nos.109 and 110 attested on 26.6.1975 on payment of sale consideration to allottee. The Deputy Commissioner/ Chief Settlement Commissioner cancelled the allotment made in favour of original allottee vide Robakar No.221/PB dated 27.11.1995 and thereafter the property was further transferred vide mutation Nos.1283 and 1284 attested on 30.12.1996 and vide mutation Nos.1285 to 1288 and 1326 dated 24.3.1997 in favour of Sheikh Taj Muhamad (late) etc.

7.The Robakar dated 30.10.1995 was

challenged in Civil Court which was subsequently set aside by the Civil Courts and maintained upto this Court vide judgment dated 20.3.2015 in C.R.No.266/2011, now impugned in the instant petition filed under Section 12(2) CPC. During the pendency of civil suit malafidely the suit property Imran/*

was transferred through different mutations and one of the mutation of the same period on which the petitioner is claiming ownership to the suit property.

Since the very title of the suit property was questioned in Civil Courts, therefore, legally no person was allowed to have deal with the property except with the prior permission of the Court, because any such transaction was at the risk and cost of the purchaser and seller. The very cancellation order of the Deputy Commissioner/Chief Settlement Commissioner dated 30.10.1995 cancelling the allotment of the original owner was set aside by the learned Civil Judge, appeal dismissed by the District Court and maintained by this Court in the impugned judgment, therefore, such transaction that took place during pendency of civil suit would be having no protection as it was hit by the doctrine of lis pendence in terms of Section 52 of Transfer of Property Act, 1882 reliance placed on PLD 2007 SC 905, 2013 Imran/*

SCMR 551.

8.Habibullah Khan from whom the

petitioner purchased the suit property through mutation No.3880, was in fact party to the proceedings and he also agitated the same plea of being bonafide purchaser, however, it was discarded by this Court with explicit reasons.

9.As observed above, due to the

pendency of the suit about the property in question, any such transaction that was made could not be protracted on the principle of lis pendence and no plea of bonafide purchaser can be entertained. The august Supreme Court of Pakistan in its recent judgment reported in 2017 SCMR 172 while making reference to 1976 SCMR 489, 1984 SCMR 1027, 1985 SCMR 491 and 1987 SCMR 192, held that where the original allotment in favour of the vendors cannot hold the field, the claim of a party on account of being bonafide purchaser from such vendor is Imran/*

devoid of any force.

10.The argument of learned counsel for the petitioner that the petitioner should be allowed to adduce evidence to substantiate his claim under Section 12(2) CPC is misplaced, because in the presence of Court decrees and admitted record there is no need of recording any evidence rather the instant petition is not maintainable.

11.For the afore-stated reasons, this petition, being without any merit, is dismissed in limine alongwith C.M.No.67-D/2017.

Announced.

Dt:26.7.2017.

JUDGE

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