MUHAMMAD QASEEM vs Mst — 2022 CLC 1670 ISLAMABAD

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MUHAMMAD QASEEM VS Mst. FARIDA KHAN Ss. 12, 42 & 54---Transfer of Property Act (IV of 1882), Ss. 41 & 52---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell, declaration and injunction---Lis pendens, rule of---Knowledge of litigation---Proof---Petitioner purchased suit plot during pendency of litigation between respondent / plaintiff and previous owner---Both the Courts below concurrently decreed the suit and appeal in favour of respondent / plaintiff---Plea raised by petitioner was that he was bona fide purchaser for valuable consideration without knowledge from attorney of owner--- Validity--- Rule of lis pendens has been codified and embodied in S.52 of the Transfer of Property Act, 1882--- Such rule restrains a party to litigation from transferring or alienating a property which is subject matter of a suit, as such transfer adversely affects rights of opposing party--- Anybody dealing with property with respect to which suit is pending is deemed to have notice of pendency of the suit--- If any transaction takes place with respect to suit property during pendency of suit, then it would be subject to final judgment and decree which may be passed by the Court---Provision of S.41 of Transfer of Property Act, 1882, which protects a bona fide purchaser of a property for value without notice of any prior transaction or dispute with respect to such property cannot override imperative provision of S. 52 of Transfer of Property Act, 1882---Provision of S. 41 of Transfer of Property Act, 1882, has no application where transaction by a person claiming to be bona fide purchaser of property takes place during pendency of suit with respect to such property---Petitioner claimed to have purchased suit plot during pendency of suit for specific performance filed by respondent / plaintiff and such transaction was hit by rule of lis pendens---Lack of knowledge of petitioner as to the pendency of suit was immaterial---No implied authorization exists in a general power of attorney to sell or alienate property of the principal---In order to achieve such object, a general power of attorney was to contain a separate clause dedicated to such an object---If there was any ambiguity in a general power of attorney, principal was to be contacted for obtaining specific instructions---High Court could only exercise revisional jurisdiction if subordinate Court had committed illegality or material irregularity---High Court declined to interfere, as there was no jurisdictional infirmity with concurrent findings of two Courts below---Revision was dismissed accordingly.

MUHAMMAD QASEEM vs Mst — 2022 CLC 1670 ISLAMABAD

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