Stereo.

HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT

Writ Petition No.1869 of 2018

Mst. Naseem Sajjad

Vs.
Additional District Judge etc.

JUDGMENT
Date of hearing 01.12.2020

Petitioner by Mr. Khalid Masood Ghani, Advocate.

Syed Muhammad Najamul Saqib Mumtaz,

Respondent No. 3 by:
Advocate.

Tariq Saleem Sheikh, J.- This petition under Article 199 of

the Constitution of Islamic Republic of Pakistan, 1973, assails the vires of
judgment dated 1.2.2018 passed by the learned Additional District Judge,
Mian Channu, whereby he upheld the order of the Civil Judge/Executing
Court dated 30.1.2018 and dismissed the Petitioner’s revision petition.

Brief facts

2. Brief facts of the case are that on 12.9.2006 Respondent No.3

instituted a suit against Respondent No.4 in the Civil Court at Mian
Channu seeking specific performance of an oral agreement dated
20.12.2005 through which, he alleged, the latter had agreed to sell him his
land measuring 09 kanals 15 marlas comprised in Khewat No.26,
Khatooni No.91; and 06 marlas 03 sarsahis in Khewat No.24, Khatooni
Nos. 88 & 89 situated in Chak No. 130/15-L, Mian Channu
(the “Property”). Respondent No.4 contested the said suit denying having
entered into any such agreement. On 2.7.2009 the trial court framed
Issues and directed Respondent No.3 to produce evidence to prove his
W.P.No.1869 of 2018 2

claim which he did. On his turn Respondent No.4 sought nine

adjournments but did not examine any witness. On 3.4.2010 he offered to
resolve the matter through a referee. Respondent No.3 agreed whereupon
the trial court made reference to Haji Abdul Sattar son of Umar Din. On
10.4.2010 the said referee submitted his report that Respondent No.3 was
on the right and had a valid claim. Consequent thereupon the court
decreed the suit in his favour the same day. On 8.6.2010 Respondent No.3
filed a petition for execution of decree dated 10.4.2010 but before any
material steps could be taken, on 10.6.2010, the Petitioner challenged it
under section 12(2) CPC on the ground that it was fraudulent and
collusive. She claimed that her father, Muhammad Fazil (Respondent
No.5), purchased the Property from Respondent No.4 in consideration of
Rs. 2,000,000/- vide Sale Deed No. 1078 dated 24.7.2009 and then
transferred it to her through Tamleek Nama No.1739 dated 24.12.2009
which was given effect in the revenue record vide Mutation No.5387
dated 30.1.2010. She contended that on 3.4.2010 Respondent No.4 was
not the owner of the Property so he could not ask the court for referring
the dispute to a referee. Respondent No.3 contested the said application
contending that those transactions were collusive and even otherwise did
not affect his rights under the doctrine of lis pendens. The court framed
Issues, recorded evidence and dismissed the application vide Order dated
23.12.2013 which was upheld by the Additional District Judge while
exercising revisional jurisdiction and by this Court in Writ Petition
No.9785/2015 decided on 24.4.2017. The Petitioner is stated to have filed
CPSLA before the Hon’ble Supreme Court of Pakistan but, according to
the learned counsel, it has not been taken up so far.

3. The execution proceedings resumed after the dismissal of the

Petitioner’s revision petition by the Additional District Judge. The
Executing Court invoked Order XXI Rule 34 CPC and registered Sale
Deed No.1439 dated 23.6.2015 in favour of Respondent No.3 and on
2.7.2015 issued warrant of possession. However, further proceedings were
stayed by this Court in Writ Petition No.9785/2015. After its decision, on
3.6.2017, the Executing Court again issued warrant of possession on
which the Tehsildar submitted a report that it could not be executed
W.P.No.1869 of 2018 3

because Respondent No.4 had alienated the Property in favour of

Respondent No.5 who further transferred it to the Petitioner. Thereupon
Respondent No.3 (the decree-holder) filed an application for cancellation
of Sale Deed No.1078 dated 24.7.2010 and Tamleek Nama No.1739 dated
24.12.2009. Contemporaneously the Petitioner moved an objection
petition and prayed for withdrawal/annulment of the warrant of
possession. The Executing Court accepted the application of Respondent
No.3 and dismissed that of the Petitioner vide consolidated order dated
30.1.2018. The Petitioner preferred revision petition thereagainst which
failed. Hence, this constitutional petition.

Submissions of the learned counsel

4. Learned counsel for the Petitioner contended that the learned

courts below had failed to appreciate the facts of the case properly and
apply the correct law which had caused serious miscarriage of justice. He
argued that, firstly, Respondent No.3 had procured decree dated 10.4.2010
through fraud and collusion. On 3.4.2010 Respondent No.4 was not
competent to ask the court to make reference to a referee as he had
alienated his rights in the Property before that date and was no longer its
owner. Even if it was assumed that he had such authority, judgment and
decree dated 10.4.2010 was not sustainable as the trial court did not afford
an opportunity to Respondent No.4 to file objections to the referee’s
report. Secondly, decree dated 10.4.2010 was not binding on the
Petitioner as she was not a party to the suit. Thirdly, Respondent No.3
had the knowledge of Sale Deed No.1078 and Tamleek Nama No.1739
and the mutations attested on the basis thereof but had not filed a suit for
their cancellation. Inasmuch as they were still in the field, the Executing
Court could neither cancel nor disregard them. In the circumstances,
issuance of warrant of possession against the Petitioner was illegal.
Lastly, decree dated 10.4.2010 was inexecutable because Respondent
No.3 had not prayed for possession of the Property in his plaint. The
Executing Court could not go behind the decree.

5. Learned counsel for Respondent No.3 controverted the

aforementioned contentions and supported the impugned order. He
W.P.No.1869 of 2018 4

contended that Respondents No.3, 4 & 5 were real brothers while the
Petitioner was the daughter of Respondent No.5. The other two plotted
against Respondent No.3 to deprive him of the Property. However, he was
protected under section 52 of the Transfer of Property Act, 1882 (“TPA”).
The learned counsel further contended that the Petitioner earlier filed an
application under section 12(2) CPC for setting aside judgment and decree
dated 10.4.2010 which was dismissed upto the High Court. She could not
be permitted to assail it again on the same grounds in the second round.

6. Respondents No.4 & 5 are proforma Respondents. They

have not opposed this petition.

Opinion of the Court

7. I first take up the Petitioner’s objection relating to the vires

of judgment and decree dated 10.4.2010. Admittedly, previously she
challenged it through an application under section 12(2) CPC but failed
and the Civil Court’s order dated 23.12.2013 has been maintained upto
this Court. The policy of law is that there should be end to litigation when
the matter has been conclusively decided. It is also reflected in two
maxims res judicata pro veritate accipitur (“a thing adjudicated must be
taken for truth” or, in other words, “a decision which is once rendered by
a competent court on a matter in issue between the parties after a full
enquiry should not be permitted to be agitated over again”) and
interest reipublicae ut sit finis litium1 (“in the interest of society as a
whole litigation must come to an end”). Section 11 CPC is dictated by
that wisdom.

8. Hukam Chand writes:2

“The doctrine of res judicata is of universal application and in fact

a fundamental concept in the organization of every jural society.
Justice requires that every cause should be once fairly tried and
public tranquility demands that having been tried once all litigation
about that cause should be concluded between those parties
forever. The maintenance of public order, the repose of society and
the quiet of families requires that what has been definitely
determined by competent tribunals shall be accepted as irrefragable
legal truth. If it were not for the conclusive effect of all such

1. An alternative phrase for “expedit rei publicae ut sit finis litium”.

2. Hukam Chand, Law of Res judicata (1894), cited by Aamir Raza in his treatise “Code of Civil
Procedure”, Ninth Edition (2005).
W.P.No.1869 of 2018 5

determinations there will be no end of litigation and no security for

any person; the rights of parties would be involved in endless
confusion and great injustice often done under cover of law, while
the courts if stripped of their most efficient powers would become
little more than advisory bodies; and thus the most important
function of Government – that of ascertaining and enforcing their
rights – would go unfulfilled.”

9. The principle of res judicata is now reckoned as an integral

part of the rule of law. In M. Nagabhushana v. State of Karnataka &
others (AIR 2011 SC 1113) the Supreme Court of India held:

“The principle of finality of litigation is based on high principle of

public policy. In the absence of such a principle great oppression
might result under the colour and pretence of law inasmuch as
there will be no end of litigation and a rich and malicious litigant
will succeed in infinitely vexing his opponent by repetitive suits
and actions. This may compel the weaker party to relinquish his
right. The doctrine of res judicata has been evolved to prevent
such an anarchy. That is why it is perceived that the plea of res
judicata is not a technical doctrine but a fundamental principle
which sustains the Rule of Law in ensuring finality in litigation.
This principle seeks to promote honest and a fair administration of
justice and to prevent abuse in the matter of accessing court for
agitating on issues which have become final between the parties.”

The Islamabad High Court made similar observations in

Shafqat Hussain v. President of the Islamic Republic of Pakistan and 8
others (PLD 2016 Islamabad 1).

10. In view of the foregoing, our courts have held that unless it is
specifically excluded by law the principle of res judicata is also
applicable to proceedings other than suits,3 to execution proceedings4 and
even to miscellaneous applications.5 In the present proceedings the
Petitioner has attempted to challenge judgment and decree dated

3
Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore and 21 others (PLD 1971 SC
779); Muhammad Tufail v. Atta Shabir and 5 others (PLD 1977 SC 220); The Commissioner of Income
Tax, Lahore v. Messrs Lucky Stores & Zubair Medical Stores, Lahore Cantt. (1981 SCMR 656);
Muhammad Sharif and others v. Settlement Commissioner, Bahawalpur and others (1981 SCMR
1048); Divisional Evacuee Trust Committee v. Muhammad Idris Qureshi and another (1984 SCMR
851); Atiq-ur-Rehman and others v. Muhammad Ibrahim and another (1984 SCMR 1469); Syed Mir
Ahmad Shah v. Pakistan and others (1986 SCMR 1200); Mst. Naseeban Bibi v. Muhammad Yahya
Khan and another (1986 SCMR 1964); Mazhar Saeed Qureshi v. Government of the Punjab through
Secretary, Irrigation and Power Department, Lahore and 49 others (1986 SCMR 12).
4
Ejaz Hussain v Bashir Ahmad and others (2000 SCMR 1190); Dauran Khan and another v. Mst.
Shamim Akhtar (1990 CLC 1208); Sher Jan v. Karim Dad Khan through Legal Heirs (1990 CLC
1845); Faqir Muhammad v. Saifullah and others (1994 MLD 1820); and Shaikh Abdul Aziz v. Mirza
and 3 others (PLD 1989 SC AJK 78).
5
Hanifa Begum and others v. Muhammad Qamaruzzaman through legal heirs (1992 CLC 1699);
Messrs New Rahat Engineering Works through proprietor and 4 others v. National Bank of Pakistan
and another (2003 CLD 382); Messrs Masoom Industries v. Habib Bank Limited and another
(2003 CLD 386); and National Bank of Pakistan through Vice President/General Attorney v. Messrs
Murtaza Haseeb Textile Mills Ltd. through Chief Executive and 13 others (2016 CLD 784).
W.P.No.1869 of 2018 6

10.4.2010 on the same grounds on which she filed an application under

section 12(2) CPC earlier that was dismissed upto this Court. I agree with
the learned counsel for Respondent No.3 that she cannot be permitted to
do so. The principle of res judicata applies.

11. Section 52 of the TPA provides for the situation where the
property is transferred while civil litigation in respect thereof is pending
in the court. It stipulates:

52. Transfer of property pending suit relating thereto. – During

the pendency in any court having authority in Pakistan, or
established beyond the limits of Pakistan by the Federal
Government, of any suit or proceeding which is not collusive and
in which any right to immovable property is directly and
specifically in question, the property cannot be transferred or
otherwise dealt with by any party to the suit or proceeding so as to
affect the rights of any other party thereto under any decree or
order which may be made therein, except under the authority of the
court and on such terms as it may impose.

Explanation. – For the purposes of this section, the pendency of a

suit or proceedings shall be deemed to commence from the date of
the presentation of the plaint or the institution of the proceeding in
a court of competent jurisdiction, and to continue until the suit or
proceeding has been disposed of by a final decree or order and
complete satisfaction or discharge of such decree or order has been
obtained, or has become unobtainable by reason of the expiration
of any period of limitation prescribed for the execution thereof by
any law for the time being in force.

12. Section 52 is founded on the maxim pendente lite nihil

innovetur which means that “pending litigation nothing new should be
introduced.” The said maxim has its roots in the Roman Law which
ordained that “a thing concerning which there is a controversy is
prohibited during the suit from being alienated.” The rule of lis pendens
and the principle of res judicata have affinity as both aim at bringing end
to litigation and giving finality to court orders once the matter has been
conclusively determined. Tuner L.J. explained the rationale behind this
doctrine in Beliamy v. Shabine (1857) 1 De. G. & J 566 as follows:

“It is as I think, a doctrine common to the Courts both of Law and

Equity, and rests, as I apprehend upon this foundation that it would
plainly be impossible that any action or suit could be brought to a
successful termination, if alienations pendent lite were permitted to
prevail. The plaintiff would be liable in every case to be defeated
by the defendant’s alienating before the judgment or decree, and
would be driven to commence his proceedings de novo, subject
again to be defeated by the same course of proceedings.”
W.P.No.1869 of 2018 7

13. Discussing the principles of lis pendens, in Gouri Dutt

Maharaj v. Sk. Sukur Mohammed (AIR 1948 PC 147), the Privy Council
observed:

“The broad purpose of section 52 is to maintain the status quo

unaffected by the act of any party to the litigation pending its
determination. The applicability of the section cannot depend on
matters of proof or the strength or weakness of the case on one side or
the other in bona fide proceedings. To apply any such test is to
misconceive the object of the enactment, and in the view of the Board,
the learned subordinate judge was in error in this respect in laying
stress, as he did, on the fact that the agreement of 8.6.1932, had not
been registered.”

14. In Rajendar Singh and others v. Santa Singh and others

(AIR 1973 SC 2537) the Supreme Court of India observed:

“The doctrine of lis pendens is intended to strike at attempts

by parties to a litigation to circumvent the jurisdiction of a
court, in which a dispute on rights or interests in immovable
property is pending, by private dealings which may remove
the subject-matter of litigation from the ambit of the court’s
power to decide a pending dispute or frustrate its decree.”

15. Section 52 of TPA has also come up for consideration before

the Hon’ble Supreme Court of Pakistan in a lot many cases. In
Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and
others (PLD 2011 SC 905) it elucidated its meaning and import as
follows:

“[Section 52] manifestly embodies the rule of lis pendens, which is

available both in equity and at the common law. The rule and
section is founded upon the maxim „pendente lite nihil innovetur‟
which means that pending litigation, nothing should be changed or
introduced. The virtual and true object of lis pendens is to protect
and safeguard the parties to the suit and their rights and interest in
the immovable suit property against any alienation made by either
of the parties, of that property, during the pendency of the suit in
favour of a third person. The rule unambiguously prescribes that
the rights of the party to the suit, who ultimately succeed in the
matter are not affected in any manner whatsoever on account of the
alienation, and the transferee of the property shall acquire the title
to the property subject to the final outcome of the lis. Thus, the
transferee of the suit property, even the purchaser for value,
without notice of the pendency of suit, who in the ordinary judicial
parlance is known as a bona fide purchasers in view of the rule/
doctrine of lis pendens shall be bound by the result of the suit
stricto sensu in all respects, as his transferor would be bound. The
transferee therefore does not acquire any legal title free from the
clog of his unsuccessful transferor, in whose shoes he steps in for
all intents and purposes and has to swim and sink with his
predecessor in interest. The rule of lis pendens is founded upon
the principle that it would be impossible that any action or suit
could be brought to a successful termination if the alienations
W.P.No.1869 of 2018 8

pendent lite are permitted to prevail and the subsequent transferee

is allowed to set out his own independent case, even of being the
bona fide transferee against the succeeding party of the matter and
ask for the commencement of de novo proceedings so as to defeat
the claim which has been settled by a final judicial verdict. The
foundation of the doctrine is not rested upon notice, actual or
constructive, it only rest on necessity and expediency, that is, the
necessity of final adjudication (emphasis supplied) that neither
party to the litigation should alienate the property so as to effect
the rights of his opponent. If that was not so, there would be no
end to litigation and the justice would be defeated.”

16. In Ashraf Butt‟s case, supra, the apex Court laid down the
following principles for application of section 52 of TPA:6

i) At least three conditions must be fulfilled before section 52

is invoked: (a) the suit should be in respect of a specific
immovable property in which any rights of the parties
are directly in issue; (b) the suit should be pending at
the time when that property is alienated in favour of a
third person; and (c) neither the suit nor its outcome
should be collusive or fraudulent and should not be a
subterfuge to entrap, deceive an innocent transferee,
especially a bonafide purchaser.
ii) In view of the clear language of the Explanation to
section 52 TPA, the rule of lis pendens is fully attracted
to an alienation made during the period of limitation
provided for an appeal or revision etc. to challenge a
decree/order.
iii) If K had sold the property to Y prior to the institution of
the suit, and the latter was not impleaded as a party, even
if he makes any transfer during the pendency of the suit,
such alienation would not attract the doctrine of lis
pendens. However, if he is subsequently arrayed as a
defendant, from that point of time he shall for the
purposes of section 52, ibid, be the party to the suit and
the rule would apply.
iv) The provisions of section 52 of TPA are not subservient
to section 41 of the said Act or section 27(b) of the
Specific Relief Act or the general equitable concept of
bonafide purchaser. Rather, the said section and the rule
of lis pendens is an exception to them.
v) The principle of lis pendens does not have the effect to
annul the conveyance but renders it subservient to the
rights of the parties in the litigation. So far as the said
parties are concerned, the conveyance is treated as it
never had any existence.

Ashraf Butt‟s case was cited with approval in Mst. Tabassum

Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983), and
Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC
187).

6
reproduced as nearly as possible in the language of the Court.
W.P.No.1869 of 2018 9

17. The Petitioner’s contention that section 52 of the TPA is not

attracted to the facts of the instant case as Respondent No.3 obtained
judgment and decree dated 10.04.2010 in collusion with Respondent No.4
was considered and repelled by this Court in Writ Petition No.9785/2015
which she filed in the previous round of litigation. Relevant excerpt is
reproduced hereunder:

“Admittedly, the parties are closely related and there is no denial

of the relationship between the parties. Muhammad Khalid is elder
brother of the Petitioner [Naseem Sajjad], Athar Pervaiz is cousin
of the petitioner (son of her aunt/Phuphi) while Shakeel Ahmad
son of Abdul Rehman is her uncle (Mamoon). [Respondents]
Muhammad Nawaz, Muhammad Adil and Muhammad Faazil
(father of the petitioner) are real brothers. Agreement Exh.R-13
was executed between [Muhammad Nawaz] and Athar Pervaiz son
of Siraj Din for the purchase of suit property for a consideration of
Rs.10,00,000/-. The agreement was executed on 11.03.2008,
during pendency of the suit filed by [Muhammad Adil]. It is
specifically mentioned in the agreement to sell Exh.R13 that sale
deed could not be executed due to status quo order passed by civil
court and that the property would be transferred after the vacation
of injunctive order. On the back of this agreement Exh.R13, Athar
Pervaiz, cousin of the petitioner further negotiated the matter and
made a statement in favour of [Muhammad Faazil], who is father
of the present petitioner, to the effect that the property is
transferred in the name of Muhammad Faazil and this was
followed by execution of registered sale deed No.1778/1 through
which [Muhammad Nawaz] transferred the property to
[Muhammad Faazil], the property was further alienated in the
name of the petitioner through Tamleek No.1739 dated
24.12.2009. It is established from the record that the petitioner and
[Muhammad Faazil] were fully aware of the pendency of the suit
filed by [Muhammad Adil] against [Muhammad Nawaz]. On the
basis of this transfer in favour of [Muhammad Faazil], they never
made any effort to become party in the suit. The property was
transferred without knowledge of [Muhammad Adil] in order to
frustrate the decree that could have been passed in his favour.
Similarly, Shakeel Ahmad uncle of the petitioner and Khalid her
elder brother were instrumental in getting the property transferred
in the name of the petitioner as admitted by her in her cross-
examination, she admitted that she used to consult them on
important matters. All these persons were fully aware of the
pendency of the suit, their names are duly reflected as witnesses in
agreement Exh.R13. [Muhammad Faazil] filed conceding written
reply to the application under section 12(2) CPC he was aware of
all the transactions and pendency of the suit that is why he did not
appear as a witness. The alienations were made during pendency of
the suit, it was rightly held that transactions were hit by section 52
of the Transfer of Property Act, 1882. In these circumstances both
the learned lower courts rightly concluded that there is no element
of fraud on the part of [Muhammad Adil] in whose favour decree
was passed.”
(emphasis added)
W.P.No.1869 of 2018 10

18. The above findings still hold the field. As already discussed,
section 11 CPC bars the Petitioner from re-agitating her aforementioned
contention in these proceedings.

19. The learned counsel for the Petitioner has relied upon Rashid
Ahmad v. Mst. Jiwan and 5 others (1997 SCMR 171), Muhammad Iqbal
and others v. Khair Din through L.Rs. and others (2014 SCMR 33) and
Allah Bakhsh v. Allah Yar and 4 others (2017 CLC Note 9) to argue that
the Petitioner is not bound by judgment and decree dated 10.04.2010 as
she was not impleaded as a party to the suit. I am afraid, all these cases
are distinguishable. In Rashid Ahmad the Hon’ble Supreme Court was
called upon to consider whether the rule of lis pendens could be set up as
a bar to an application by a transferor pendent lite from being impleaded
as a party to the pending proceedings. The apex Court held that section
52 of the TPA did not envisage any such prohibition. In Muhammad
Iqbal‟s case the respondent claimed to have purchased suit land from the
vendor under a written agreement and filed a suit for its specific
performance which was decreed in his favour through a consent decree.
The appellants filed a declaratory suit7 contending that in fact they had
purchased the land from the vendor by means of a registered sale deed
and the consent decree obtained by the respondent was collusive and
fraudulent and that he had not impleaded them in the suit. A learned two-
member Bench of the Hon’ble Supreme Court held that “consent decree
was a kind of agreement/contract between two parties with a super-added
command of the court. It would not bind a third party who was not party
to the suit.” In the instant case, the fraud was perpetrated by the Petitioner
and Respondents No.4 and 5 against Respondent No.3. Further, the
consent of Respondent No.4 was only in respect of making reference to a
referee (against whom there is no allegation of misconduct) and judgment
and decree dated 10.4.2010 is not a consent decree. The third case, Allah
Bakhsh v. Allah Yar and 4 others, was under the Punjab Urban Rent
Restriction Ordinance, 1959. It involved execution of decree for
ejectment against those who were neither party to the ejectment petition

7
This litigation pertained to the era before the introduction of section 12(2) CPC. Consent decree was
dated 29.4.1972 while the law was amended vide Ordinance X of 1980.
W.P.No.1869 of 2018 11

nor the execution petition. It is not relevant for the controversy before
me.

20. In contrast, Rajendar Singh and others v. Santa Singh and

others (AIR 1973 SC 2537) clinches the issue. It is a direct authority on
the point that transferor pendente lite is not a necessary party to the suit
and if it is decided without impleading him he would be bound by the
decree. Relevant excerpt is reproduced hereunder:

“Alienees acquiring any immovable property during a litigation

over it are held to be bound, by an application of the doctrine, by
the decree passed in the suit even though they may not have been
impleaded in it. The whole object of the doctrine of lis pendens is
to subject parties to the litigation as well as other, who seek to
acquire rights in immovable property which are the subject-matter
of a litigation, to the power and jurisdiction of the court so as to
prevent the object of a pending action from being defeated.”

Further reference may be made to Pervaiz Ahmad and

others v. Sultan Tipu Sarwar and others (2020 YLR 461).

21. The following observations of the Hon’ble Supreme Court of

Pakistan in Mukhtar Baig and others v. Sardar Baig and others
(2000 SCMR 45) are also instructive:

“We are afraid, the contention in the facts and circumstances of

this case is not tenable for he [Massetay Khan] purchased the
house during the pendency of the suit and the rule of lis pendens is
applicable to him. In such a case, he was not entitled to defend the
suit independently from Sardar Baig through whom he claimed
ownership rights during the pendency of the suit and the findings
recorded against Sardar Baig and the judgment delivered against
him would be binding on [Massetay Khan] in the same manner and
to the same extent as it was binding on Sardar Baig. Sardar Baig
contested the suit and it was held by all the courts that agreement
Exh.P1 was proved to have been executed by him which is a
concurrent finding of fact, therefore, binding on [Massetay Khan]
also.

22. The mere fact that Respondent No.3 has not instituted any
legal proceedings for cancellation of Sale Deed No.1078 and Tamleek
Nama No.1739 would not hinder execution of decree dated 10.04.2010.
In Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and
others (PLD 2011 SC 905) the Hon’ble Supreme Court approved the
following principle from Story’s Equity Jurisprudence:
W.P.No.1869 of 2018 12

“Ordinarily, it is true, that the decree of a court binds only the

parties and their prives in representation of estate. But he who
purchases during the pendency of a suit, is held bound by the
decree that may be made against the person from whom he derives
title where there is a real and fair purchase, without any notice, the
rule may operate very hardly. But it is a rule founded upon a great
public policy; for otherwise alienations made during a suit might
defeat its whole purpose, and there would be no end to litigation.
And hence arises the maxim, pendents lite, nihil innovetur; the
subservient to the rights of the parties in the litigation. As to the
rights of these parties, the conveyance is treated as it never had any
existence; and it does not vary them.”

23. Earlier, in Muhammad Mubeen v. Messrs Long Life

Builders and others (PLD 2006 Karachi 278) the Sindh High Court held:

“The effect of rule lis pendens laid down in section 52 to a

controversy like the present one is very clear. It provides that
where the title of a litigant is already in dispute in a suit, then any
alienation of the disputed property by such litigant to a third party
is subject to the final outcome of the suit. Upon failure of a party
to a suit that alienated the disputed property, the transferee is
stripped of his title to the suit property on the basis of rule of lis
pendens. No legal proceedings are required to get the status of the
transferee determined who claims title from an unsuccessful
transferor. He is no more regarded as lawful transferee so as to
seek protection of his title. He is to be regarded merely a
representative of the unsuccessful transferee. The decree against a
transferor pendente lite is as much executable as it is against the
party who alienated the disputed property during the pendency of
the suit”.

24. Reference may also be made to Muhammad Younas and

another v. Ghazanfar Abbas and 12 others (2017 YLR 2229) in which
this Court held:

“There is no cavil with the proposition that a document prepared

during the pendency of the lis is squarely hit by the rule of lis
pendens and on such score same can neither be relied upon nor
considered. The doctrine of lis pendens in pith and substance was
not only based on equity, but also on good conscience and justice
which is based on the maxim „pendente lite nihil innoveture‟ and
the theme of the said maxim is that during litigation nothing should
be changed”.

25. Now I turn to the last contention of the learned counsel for
the Petitioner that decree dated 10.04.2010 is inexecutable because
Respondent No.3 did not pray for possession of the Property in the plaint.
His argument appears to be very attractive at first blush but is contrary to
the settled law. In a suit for specific performance of contract, relief of
delivery of possession is incidental to the main relief and the Executing
Court may grant it even if the plaintiff/decree holder has prayed therefor
W.P.No.1869 of 2018 13

in the plaint and there is no mention about it in the decree. In

Atal Behary Acharya v. Barada Prasad Banerji (AIR 1931 Patna 179),
the Patna High Court held:

“Incidental to the relief to which a plaintiff is entitled in a decree

for specific performance arising on a contract for sale, the court
has a right to grant possession of the property. A contract for sale
included not only the execution of the necessary document but also
putting the vendee in possession of the property. Therefore, if there
is an omission in the plaint or in the decree about possession the
executing court is not debarred from granting the plaintiff the
possession of the property.”

26. Similarly, in Kartik Chandra Pal v. Dibakar Bhattacharjee

(AIR 1952 Cal. 362), the Calcutta High Court held:

“The most important part of the decree is that portion where the court
directs the contract to be specifically performed. The details which
follow do not in any way limit the jurisdiction of the executing court to
the particular steps which are mentioned in the decree but all such other
steps which ought to be taken for giving full effect to the decree for
specific performance are not only within the competence of the court
but the court is bound to assist the party to that extent.”

Albeit there were some cases in which the courts in India

held differently, the Supreme Court of India approved the above-
mentioned view in Babu Lal v. M/s Hazari Lal Kishori Lal and others
(AIR 1982 SC 818).

27. The courts in Pakistan have the same approach. Jahiruddin

Ahmed v. Joynal Abedin Khan and others (PLD 1963 Dacca 849) and
Birgis Jahan Bajiga Malik v. Muhammad Hasan and others (PLD 1964
Dacca 202) are some of the early examples. The Hon’ble Supreme Court
of Pakistan approved the said view in Mumtazul Karim and others v.
Abu Hussain and another (1970 SCMR 816) where it held:

“Mr. Bhattacharjee lastly contends that plaintiff’s suit being only

for specific performance of a contract of sale, the High Court erred
in granting a decree for khas possession in favour of the plaintiff. It
appears that the High Court also decreed that the plaintiff shall get
khas possession of the property on execution and registration of the
conveyance. This decree for khas possession in a suit for specific
performance of contract of sale is redundant. However, the
petitioners cannot be said to have been prejudiced by this decree
for khas possession inasmuch as in execution of the decree for
specific performance of the contract, the plaintiff can also get
recovery of possession.”
 W.P.No.1869 of 2018 14

Further reference may be made to Abdul Hameed v. Messrs

Panhwar Construction Co. and others (2001 YLR 1843), Wali
Muhammad and others v. Mst. Zaib-un-Nisa (2001 MLD 1705),
Khadim Hussain and 2 others v. Waris Ali and another (2005 CLC
1144), Mst. Yasmeen Riaz through Special Attorney v. Riaz Ahmad and
7 others (2016 YLR 321) and Muhammadin v. Muhammad Bachal and
another (2017 CLC Note 70).

28. Birgis Jahan‟s case, supra, is more significant because it also

considered the question whether the court could make an order for
delivery of possession against a person who was not a party to the
contract whose specific performance had been directed. A learned
Division Bench of the Dacca High Court held:

“The question that next arises is; can such an order for delivery of
possession be made against a person who is not a party to the
contract of which specific performance has been awarded? It is
clear from section 27 clause (b) of the Specific Relief Act that the
right of specific performance may be enforced against either a
party to the contract or any other person claiming under such a
party by a title arising subsequently to the contract except a
transferee for value without notice of the original contract. In the
present case admittedly the appellants before us claim title through
the vendors, the principal defendants 1 to 3, in the suit for specific
performance.”

29. For all the above reasons this petition is dismissed with
costs.

(Tariq Saleem Sheikh)

Judge

Announced in open Court on _____________.

JUDGE
Approved for reporting

Judge

Naeem