KHAN Versus TUFAIL MUHAMMAD
This Regular Second Appeal calls in question the validity of the judgment/decree dated 13‑4‑1974 of the learned District Judge, Lyallpur, whereby the appellants' first appeal was dismissed.
2. The land in dispute belonged to respondent‑Wali Muhammad who allegedly made its oral gift in favour of his two sons namely respondents‑plaintiffs some 22 years before the institution of the suit. They claimed that in pursuance of the gift even possession was delivered to them and that lately the donor was at the instance of their enemies trying to go back upon the gift and hence the suit.
3. The respondent‑donor denied the gift in the written statement adding that he had already sold away the land in favour of the present appellants for a valuable consideration. The latter after having been impleaded contended that the suit between the father and the sons was collusive; and there was no gift at all made between them; that possession of the land had not been delivered thereunder and that they were bona fide purchasers of the land without notice.
4. Appropriate issues were framed by the trial Court and the suit was decreed. The first appeal as already indicated also failed. Both the Courts found that the sale made during pendency of the suit was hit by Us pendens.
5. Mr. Najam‑ul‑Hassan Kazmi for the appellants claimed that the sale in their favour had in fact been made earlier than filing of the suit; that it being between father and sons was on the face of it collusive and that their purchase having been made under the orders of the Court squarely fell under the exceptional clause of section 52 of the Transfer of Property Act making the doctrine of lis pendens inapplicable to it. Adverting attention to the plaint as also the sale‑deed Exh. D.1, he claimed that both were filed or, as the case may be, executed simultaneously the same day viz. on 1‑11‑1971 and that there was no warrant to assert that the suit was instituted prior to execution of the deed so as to hit the latter by the former's pendency. The suit after being instituted on 1‑11‑1971 was next adjourned to 3‑11‑1971, and from this longish adjournment he sought support for the view that it must have been actually presented towards the fag end of the day leaving little time behind to take it up again after verification/ Kafiyat by the office. This circumstance, on his interpretation, suggested impecably that the deed was executed before filing of the suit, or the advent of its "pendency" envisaged by section 52 ibid. He pleaded reliance on Mathan Philip v. Ithak A I R 1960 Kerala 98 urging that it was for the respondents‑plaintiffs to have shown that they had presented their plaint to the Court earlier in time than execution of the sale‑deed and that since there was no evidence to that effect, any presumption in favour of the plaintiffs in this behalf was really uncalled for. As to the suit being collusive between sons and father, drawing attention to para 5 of the preliminary objections in the written statement, he added that in spite of this clear averment made in the pleadings, no issue was framed, nor any finding recorded and that this omission amply justified remand of the case for determination of the point. Lastly, to claim protection of the Court for the sale he placed reliance upon the order dated 9‑11‑1971 written by the learned Civil Judge in the margin of the relevant application to the effect that the donor shall have power to sell the land. Although this order was passed more than a week after the execution of the sale‑deed, indeed on the date of its registration, yet in his own way, counsel extended its effect in a retrospective manner from a back date.
6. Mr. Jari Ullah for the respondents opposing all these points one by one argued that the question whether the sale in favour of the appellants was made during pendency of the suit was almost an accepted fact as they did not claim before the lower Courts that the sale‑deed made in their favour was scribed or executed earlier in time than the institution of the suit. He referred to para 1‑A of the amended plaint and the reply thereto filed on behalf ,of the appellants wherein the assertion that the sale was made in their favour during pendency of the suit, was not transversed and, according to him it was completely otiose at this late stage for them to take a contrary stand. I think this reply clinched the matter once for all. Para 1‑A of the plaint categorically asserted that the impugned sale‑deed was made during pendency of the suit and the same was unmincingly conceded in the written statement. This was the reason probably that no issue in regard to this question of fact was made. Even the posture adopted by both the parties before the lower Courts was that the sale had in fact been made after institution of the suit, The appellants cannot be allowed a carte blanche so late and that too against their pleadings. The next contention namely the suit was collusive, equally seeps to have failed miserably inasmuch as the father in his separate written statement not only categorically denied the gift but also pleaded transfer of the property in favour of the appellants. He contested the suit. Where would lie collusion if the donor traverses the factum of gift? It may be version of the appellants in their own written statement, but collusion being essentially a state of mind of the donor and the donee, was not borne out by their contentious, or so to say tendentious attitude towards each other. The very pleadings of the parties set at rest doubt, if any, about the alleged collusion. The third contention of Mr. Kazmi seems as well to have broken no ice. He canvassed that the alienation in their favour was protected by the order of the Court. As already remarked,) the order was passed a week or so later than the sale and it could not be made effective retrospectively. This is how the sale did not fall under any of the three exceptions contained in section 52 of the Transfer of Property Act 1882, and as a corollary the governing rule namely of lis pendens fully applied to it. It cannot be upheld.
7. Counsel strenuously claimed that the oral gift made twenty‑two years ago without any supporting entry into the revenue record, was by no means, adequately proved. He relied upon Mst. Ghulam Sughran and others v . Sahibzada Ijaz Hussain and others P L D 1986 Lah. 194 and Nadeemuzzafar v. Mst. Salima Begum 1984 C L C 2272 in support of his objection. These precedents no doubt enunciated that if an oral gift does not find corresponding entries in the revenue record over a long period, a presumption may well be that it had not been made. The revenue record namely Khasra Girdawari Exh. D.4 and the Jamabandi for the year 1969‑70 annexed with the plaint were said to have either not been considered, or not borne the respondents' possession as donees. The contention was that per these documents possession was either with a tenant, or with the donor conjointly with the respondents‑donees as his sons making the gift invalid for want of its delivery. It was assailed from another angle too. RL.II Exh. D.3 showed that the land was transferred to the donor on 25‑7‑1951 and confirmed in his name on 27‑4‑1954. These two dates, on the appellants' interpretation, did not render it possible for the donor to have made the gift somewhere in 1948. He had no title in those early days and, therefore, the entire version of the respondents was untrue.
8. The argument was repelled on the plane that whether or not the gift was made, was essentially a question of fact having been concurrently determined against the appellants and, therefore, they could not take it up in the second appeal. Further counsel submitted that the appellants had to stand on their own legs namely by establishing that they had purchased the land in circumstances other than those envisaged by section 52 of the Transfer of Property Act. He added that pendency of the suit, irrespective of the genuineness or otherwise of the respondents' claim made in the plaint, would hit the alienation made in favour of the appellants. I guess the argument was indefeasible. The gift was upheld concurrently by the two Courts and cannot be assailed. The judgment shows that Exh. D.4 and the Jamabandi were considered in an abstract manner in the context of revenue record, and to say that those were omitted from consideration was indeed not correct. It was explained by the learned District Judge that the transaction being between the members of the same family, they were not expected to be much meticulous about showing their new status in the record.
9. Last but not the least, it was claimed on behalf of the appellants that under the provisions of section 144 and Order XXII, Rule 10, C.P.C. they were entitled to the same status as the alienor. I do not see if these provisions had any relation to the facts of the case in hand. Section 52 of the Transfer of Property Act bars the alienation) during pendency of a suit and this restraint shall prevail.
As a result of the above discussion, the appeal is dismissed leaving the parties to bear their own costs.
M.Y.H./K‑62/L Appeal dismissed.