P L D 2002 Supreme Court 303 (a) Transfer of Property Act (IV of 1882)---
----S. 41---Bona fide purchaser---Legal protection of a bona fide purchaser could not be
claimed under an invalid transaction. (b) Specific Relief Act (I of 1877)---
----S. 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2--- Temporary and
permanent injunction---Claim for compensation---Petitioners (purchasers), having raised
construction on suit land during continuance of injunction order and decree, would not be
entitled to any compensation thereof---Such sales were invalid, thus, all superstructure
made thereon would- also be without any foundation, which had to fall to the ground. (c) Specific Relief Act (1 of 1877)---
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXI, R.32(1)(2)(3) &
O.XXXIX, Rr.l, 2---Decree for declaration and perpetual injunction--Sales made by
defendant in excess of his share in violation of prohibitory order passed during pendency
of suit and then after passing of decree permanently restraining him from alienating or
interfering with shares of other co-sharers-----Petitioners (purchasers) contended that
such decree being unexecutable, they could not be dispossessed---Validity---Defendant
had flagrantly flouted the temporary as well as perpetual injunction by alienating suit
land and interfering with shares of other co-sharers---Decree was not merely declaratory,
but was also for permanent injunction, which could be executed in terms of cls. (1) to (3)
of R.32 of O.XXI, C.P.C.(d) Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.151, O.XXI, R.32 & O.XXXIX,
Rr. 1, 2---Contempt of Court Act (LXIV of 1976), S.3--Transfer of Property Act (IV of
1882), S.52---Suit for declaration and permanent injunction---Sales, made by defendant
in violation of prohibitory order passed during pendency of suit and then after passing of
decree permanently restraining him from alienating shares of other co-sharers---
Contention of defendant was that violation of injunction order/decree would entail only
penal action, but would not adversely affect such sales--Validity---No legal sanctity could
be attached to any action done during pendency of lis and against the Court orders---An
act entailing punishment under law would be an unlawful act and the same could not said
to be valid---All sales made during pendency of its and in violation of Court order/decree
were invalid for all intents and purposes, and if the same were allowed to exist, it would
amount to sanctioning the illegal acts of violator of Court Order, hence besides initiating
proceedings under S.3 of Contempt of Court Act, 1976, Court could take action against
such violator under O.XXI, R.32 & O.XXXIX, R.2(3), C.P.C. for disobedience of its
order/decree--Court could exercise its powers under S.151 to prevent abuse of its process and corrective measures could be taken against wrong-doers to uphold and maintain the
majesty of law. Bakhtawar v. Amin 1980 SCMR 89 rel(e) Specific Relief Act (I of 1877)-----
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2--Transfer of
Property Act (IV of 1882), S.52---Suit for declaration and permanent injunction---Sales
made by defendant in excess of his share in violation of prohibitory order passed during
pendency of suit and then after passing of decree permanently restraining him from
alienating or interfering with shares of other co-sharers---Validity---No legal sanctity
could be attached to any action done during pendency of lis and against the Court orders-
--Defendant had already sold more than his share, thus, he having no share left in suitland, had no right to further sell any part thereof belonging to other co-sharers, especially
when he had been restrained by Court from doing so-----Alienations so made were bad in
law and invalid, firstly as the same had been effected during continuously flouting and
.flagrantly disregarding the Court order/decree, and secondly, the same were hit by
doctrine of lis pendens---Allowing such sales to exist would amount to sanctioning illegal
acts of violator of Court order/decree. (f) Co-sharer---
----Right to alienate joint land---Extent---Sale made by co-sharer beyond his share in the
land would be bad in law and invalid.
M. Sardar Khan, Senior Advocate Supreme Court for Petitioners (in both Petitions)
Sh. Wazir Muhammad, Advocate Supreme Court for Respondents (in both Petitions).
Date of hearing: 13th July, 2001.
P L D 2002 Supreme Court 303 Present: Mian Muhammad Ajmal and Abdul Hameed Dogar, JJ
MUHAMMAD SABIR KHAN
and 13 others---Petitioners
Versus
RAHIM BAKHSH and 16 others---Respondents
Civil Petitions for Leave to Appeal Nos. 1542 and 1543 of 1999, decided on 13th July,
2001. (On appeal from the judgment of the Peshawar High Court, Peshawar dated 11-6-1999
passed in Civil Revisions Nos.226 and 227 of 1991).
JUDGMENT
MIAN MUHAMMAD AJMAL, J.----Through Civil Petitions Nos. 1542 and 1543 of
1999 the petitioners seek leave to appeal against the common judgment dated 11-6-1999
passed by a learned Judge in Chambers of the Peshawar High Court, Peshawar whereby
Civil Revisions Nos.226 and 227 of 1991 of the petitioners herein, were dismissed with
costs.
2. Brief facts are that Rahim Bakhsh, plaintiff/respondent No.1 filed a suit against his
brother Saifur Rehman and others on 7-1-1967 seeking declaration to the effect that he
and Saifur Rehman defendant No. 1 were entitled to 2/6th shares each while Mst. Amna
Bibi and Mst. Ajaib Sultan, their sisters were entitled to 1/6 shares each in the estate,
situated in village Hazar Khani and Nuthia Qadim left by their late father Miran Bakhsh,
and also prayed for permanent injunction to restrain defendant No.1 from
selling/alienating the suit property and from interfering in the possession of the plaintiff
and other co-sharers. Through a separate application he sought suit land, which was and
was later confirmed 21-7-1967. The above challenged in appeal defendant No.1
dismissed on 6-10-1967 by the Additional District Judge, Peshawar suit was ultimately
decreed on 3-4-1969 on the basis of conceding statement of defendant No.l, admitting the
claim of the plaintiff. The operative part of the judgment/decree reads as follows:--
“I, accordingly grant a decree declaring that defendant No. l is entitled to 2/6
share of the suit-land. The plaintiff is also entitled to 2/6, and the remaining 2/6
share would go to defendants Nos.2 to 4. defendants Nos.2 and 3 would get 1/6
and defendant No.4 would get 1/6 share. It is further ordered that defendant No. l shall not alienate or interfere with the shares of the said heirs in any way. He is
permanently enjoined from doing so. The parties shall bear their own costs.”
Rahim Bakhsh respondent No.1 decree-holder filed execution petition against defendant
No. 1 and others on 12-4-1971, which was later amended on 18-2-1978. It was dismissed
by the learned Senior Civil Judge, Peshawar vide his order dated 22-5-1983. The
respondent/decree-holder challenged the said order before the District Judge who vide his
order dated 3-12-1983 accepted the appeal and remanded the case for further proceedings
in the execution petition. Being dissatisfied with the above order, petitioners filed a
revision petition before Peshawar High Court, which was disposed of with the consent of
the parties vide order dated 29-5-1985 in the following terms:--
“Learned counsel for the parties have given their joint statement to the effect that
the judgments of the two Courts below are not sustainable. They seek decision of
the a on merits and according to law.
I have gone through the judgments of the two Courts below and I find that the
same cannot be called judgments in the eye of law. The case is, therefore,
remanded to the learned trial Court with direction to dispose it of on merit and
according to law."
3. In post-remand proceedings, the learned Senior Civil Judge recapitulated the history of
the case, thoroughly examined the record and after elaborate discussion on each issue,
framed earlier, gave findings thereon and, in consequence, vide his well-founded
judgment dated 20-4-1989 directed the petitioners to remove the superstructure, if any,
and hand over vacant possession of land in question to Rahim Bakhsh respondent
No.l/decree-holder before the date fixed, otherwise, it was observed, that the same shall
be effected through coercive measures under Order 21, rule 32 of the Civil Procedure
Code, 1908. The petitioners assailed the above order by filing appeals before the
Additional District Judge, Peshawar, who vide his order dated 29-5-1991 dismissed the
same. The petitioners then approached the Peshawar High Court, Peshawar through Civil
Revisions Nos.226 and 227 of 1991 which also met the same fate vide judgment dated
11-6-1999, impugned herein, the concluding para. wherefrom reads as follows:--
“In view of the discussion made above, I find no illegality irregularity in the
orders of two Courts below whereby giving effect to a valid final decree of a
Court, direction has been made to petitioners trespassers to remove the
superstructure from disputed property and hand over the vacant possession to
decree-holder, otherwise action would be taken under Order 21, rule 32 of the
C.P.C. Both the revision petitioners are dismissed with costs being without any
merits.”
4. Learned counsel for the petitioners contended that the decree passed in favour of
respondent No.l was declaratory in nature and for permanent injunction and not for
possession, therefore, in pursuance of the said decree the petitioners cannot be
dispossessed from the suit-land which .was bona fide purchased by their from defendant
No.1, a co-sharer, he submitted that the prohibitory injunction cannot be executed in
terms of Order XXI, rule 32(5) of the Code of Civil Procedure. He urged that Saif-urRehman being a cosharer in possession had the right to sell the joint property to the
extent of his share and violation of the prohibitory order would only entail penal action
and would not adversely affect the sales made by him to the petitioners.
5. On the other hand, learned counsel for the caveators submitted that the trial Court
issued temporary injunction on 7-1-1967 against defendant No. l restraining him from
selling/transferring/alienating the suit-land which was contested by him, however, the
interim order was later on confirmed but he in utter disregard to the Court orders/decree,
sold the suit-land to different persons including the present petitioners. He submitted that
on the basis of Revenue Record and the evidence on record, all the learned Courts below
have concurrently held that defendant No.l in violation of the orders/decree sold the joint
property in excess of his share to the petitioners during pendency of the case, thus, they
are not bona fide purchasers and the sales so made are hit by the principle of lis pendens.
He stated that despite the fact that the mutations in favour of the petitioners have been
cancelled long ago, are illegally and forcibly occupying the suit land as trespassers and
the decree-holders have been deprived of their property for more than 30 years.
6. In the suit for declaration and permanent injunction filed by Rahim Bakhsh respondent
No. l, temporary injunction restraining Saifur Rehman defendant No.l from alienating the
suit property, was issued on 7-1-1967 which was confirmed after contest of defendant
No.l, on 21-7-1967 and it remained operative till the disposal of the suit. The suit was
ultimately decreed on 3-4-1969 on the conceding statement of defendant No.l admitting
the claim of the plaintiff. Rahim Bakhsh plaintiff and Saifur Rehman defendant No.l were
held entitled to 2/6 share each whereas their sisters Mst. Amna Bibi and Mst. Ajaib
Sultan were held entitled to 1/6 share each in the legacy of their late father. The said
decree was not challenged any further by any of the parties and thus it attained finality.
The record shows that defendant No. 1, during pendency of the case, in gross violation
and breach of the injunction order and the decree permanently restraining him from
alienating or interfering with the shares of other co-sharers, went on selling the suit-land.
The defendant No.1 had already sold more his share, therefore, he having no share left in
the suit-land, had no right to further sell/alienate any part thereof belonging to other cosharers, especially, when he had been restrained by the Court from doing so. As such, all
the transactions/alienations made by defendant No. l with regard to the suit-land were bad
in law and invalid, firstly as the same were effected by continuously flouting and
flagrantly disregarding the Court orders/decree and secondly, the same were hit by the
doctrine of lis pendens, therefore, the same cannot be allowed to perpetuate as no legal
sanctity can be attached to any action done during the pendency of the lis and against the
Court orders. The argument of the learned counsel for the petitioners that the sales made
by defendant No. 1, a, co-sharer in favour of the petitioners in contravention of the
injunction order/decree would only entail penal action against the violator of the Court
order/decree and the sale so made would not be adversely affected, has no substance, for,
any act which entails punishment under the law would be an unlawful act and such act
cannot be said to be valid, thus, the act of sales being invalid for all intents, and purposes,
all sales/alienations which had taken place during the pendency of the lis and in violation
of the Court order/decree are invalid and if the same are allowed to exist, it would
amount to sanctioning the illegal acts of the violator of Court order/decree. In such
circumstances, the Court besides proceeding against the violator of the Court
order/decree under section 3 of the Contempt of Court Act, 1976, can initiate action
under Order XXI, rule 32 and Order XXXIX, rule 2(3) of the Code of Civil Procedure for
disobedience of its order/decree and to prevent the abuse of the process of the Court, it
can exercise inherent powers under section 151, C.P.C. for the advancement of ends of justice and corrective measures can be taken against the wrong-doers to uphold and
maintain the majesty of law. In case of Bakhtawar v. Amin (1980 SCMR 89), it was held
as under:
“it is well-settled that when by contravening an injunction order the party against
whom the order is passed has done something for its own advantage to
disadvantage of the other party, it is open to the Court under its inherent
jurisdiction to bring back the party to a position where it originally stood, as if the
order had not been contravened. The exercise of this inherent power is based on
the principle that no party can be allowed to take advantage of his own wrong in
spite of the order to the contrary passed by the Court.”
7. The contention of the learned counsel for the petitioners that decree granted to the
respondent was declaratory and for permanent injunction and not for possession, thus, it
was not executable and petitioners cannot be dispossessed from the suit-land which they
have bona fide purchased from one of the co-sharers. We do not find any merit in this
contention. Admittedly, decree for declaration and perpetual injunction was granted to
the respondent (decree-holder) declaring the plaintiff and defendant No. l to be entitled to
2/6 shares each and defendants Nos. 2 and 3 to be entitled to E 1/6 shares and defendant
No.4 to be entitled to 1/6 share. Permanent injunction was also issued against defendant
No. l restraining him from alienating or interfering with the shares of other co-sharers in
any way. But defendant No.1 flagrantly flouted the temporary as well as perpetual
injunction by alienating the suit-land and interfering with the shares of the co-sharers.
The decree against defendant No. I was not merely declaratory but was also for
permanent injunction, therefore, it could be executed in terms of clauses (1) to (3) of rule
32 of Order XXI of the Code of Civil Procedure.
8. After the cancellation of mutations attested in favour of the petitioners, their
possession is illegal and their status is that of the trespassers and they have no right to
retain the possession of the suit-land. According to evidence on record the petitioners
purchased the suit-land after satisfying themselves from the Patwari Halqa that defendant
No.1 was owner of the suit-land but as per Patwari's statement, defendant No. 1 had sold
more than his due share in both the villages. The evidence of the petitioners indicates that
they were aware of the dispute between Rahim Bakhsh and Saifur Rehman over the
disputed land, yet they opted to purchase the same, therefore, they cannot claim to be
bona fide purchasers and thus, cannot claim any legal protection under the invalid
transactions.
9. The plea that the petitioners have raised construction over the land, thus they are
entitled to compensation, is also without any foundation. The alleged construction on the
disputed land having been raised during the subsistence of the injunction order/decree, at
their own risk and cost, therefore, they are not entitled to any compensation. Moreover,
when the very sale of land has been held to be invalid, all superstructure made thereon
would also be without any foundation and the same has to fall to the ground.
10. The concurrent findings of all the learned Courts are proper and well-reasoned to
which no exception can be taken. For the foregoing reasons, both the petitions being
devoid of any merit are dismissed with costs throughout and leave to appeal is refused.
S.A.K./M-324/S Leave refused.
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