Citation Name: 2024 YLR 482 LAHORE-HIGH-COURT-LAHOREBookmark this Case BAKHSHA (deceased) vs Sh

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Citation Name: 2024 YLR 482 LAHORE-HIGH-COURT-LAHOREBookmark this Case BAKHSHA (deceased) VS Sh. QADIR BAKSH (deceased) S. 47---Executing Court, powers of---Mortgaged property--- Pre-emption decree--- Inexecutability, issue of---Objection petition was filed before the Executing Court by the original-owners/mortgagors to the extent of certain part of suit-property being mortgaged property ('mortgaged property')---Executing Court accepted the objection and held that pre-emption decree was not executable to the extent of mortgaged property on the ground that said land did not lawfully belong to the vendor---Appellate Court maintained the order passed by the Executing Court---Before independence, admittedly, mortgaged property owned by non-evacuee local Muslim owners was mortgaged to non-Muslim evacuees, which was wrongly treated as evacuee property and was allotted thereafter; and further sold by the allottee (predecessor of the objection-petitioners) to the vendor (pre-emptors/decree-holder) who, in turn, sold it to vendees that triggered the pre-emption proceedings---Contention of the petitioners (pre-emptors/decree-holders) was that the impugned judgments passed by the courts below in accepting the objections of the respondents)original-owners/mortgagors) amounted to navigating beyond the decree as the Executing Court could not go behind the decree---Validity---Although the Executing Court could not go beyond the decree and it was obligated to adhere to the decree as it came before it for execution but said rule was not an absolute and invariable of law rather the same was subject to certain exceptions---Issue of the inexecutability could have been validly raised in the execution proceedings as the pre-emption decree to the extent of land falling in the ownership of predecessor-in-interest of the respondents (objection petitioners) could not have been passed and was null and void to that extent as the same never fell in the ownership of the vendees---Concomitantly, the execution of the decree passed in a pre-emption suit had been rightly refused to the extent of the land redeemed by the respondents (objection petitioners) and not in the ownership of the vendees to which right of pre-emption could have been exercised---No illegality or infirmity had been noticed in the impugned judgments and orders passed by the Courts below allowing objection petition filed by the original-owners/mortgagors to the extent of mortgaged property---Revision filed by the decree-holders was dismissed, in circumstances. Citation Name: 2024 YLR 482 LAHORE-HIGH-COURT-LAHOREBookmark this Case BAKHSHA (deceased) VS Sh. QADIR BAKSH (deceased) Ss. 3 & 5---Mortgaged property, redemption of---Pre-emption decree, execution of---Objection petition was filed before the Executing Court by the original-owners/mortgagors to the extent of certain part of suit-property being mortgaged property---Executing Court accepted the objection and held that pre-emption decree was not executable to the extent of mortgaged property on the ground that said land did not lawfully belong to the vendor---Appellate Court maintained the order passed by the Executing Court---Validity--- Before independence, admittedly, mortgaged property owned by non-evacuee local Muslim owners was mortgaged to non-Muslim evacuees, which was wrongly treated as evacuee property and was allotted thereafter, and further sold by the allottee (predecessor of the objection-petitioners) to the vendor(pre-emptors/decree-holder) who, in turn, sold it to vendees that triggered the pre-emption proceedings---Only the interest to the extent of evacuees could have vested in the Custodian Authorities and the right of the predecessor-in-interest of the contesting respondents to redeem the mortgaged property always remained in field and could not have been taken away or extinguished---Where a preemptor brings a suit for pre-emption, he must ex-necessitate accept the title of the vendor as it is and it is actually on that basis that he claims his superior right of purchase---Such a pre-emptor can neither object to the defect in title of the said vendor nor claim a better title than that of his vendor---In the instant case, the title of vendor was defective inasmuch as he purchased the suit property from one to whom the mortgaged property was allotted by the Central Government on wrong premise that the mortgaged property was evacuee property , which in fact was not and later on proved to be so when the redemption was allowed---'Once a mortgage is always a mortgage and nothing but a mortgage' and, in the present case, the Muslim owners sought redemption of their property from the concerned court of Collector, in accordance with provisions of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, which was allowed and the mortgaged property forming part of the suit property was redeemed and reverted to the original owners/mortgagers which decision was maintained upto the Board of Revenue and in said manner pursuant to the redemption orders qua the mortgaged property, mutation in the name of the original owners/mortgagers was effected vide a mutation in the year 1985 when the pre-emption decree was not passed yet---If initial action was not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order---In such a situation, the legal maxim "sublato fundamento cadit opus", meaning that foundation being removed, structure/ work falls, comes into play and applies to the present case on all scores---Mortgaged property having been rightly redeemed was taken out of the sale in favour of vendees before the pre-emption suit was even decreed in favour of petitioners---Since the right of pre-emption was a mere right of substitution for one of the parties to the transaction, the defect in the title of the vendor or the vendee would be transferred to the pre-emptor along with the subject of sale, the necessary consequence of which would be that the pre-emptor's right could be defeated in the same manner in which vendee's right could be defeated by a person having locus standi to challenge the same---Even otherwise, admittedly, one of the petitioners/decree holders had purchased a part of the mortgaged property, during pendency of the objection petition, from two respondents and related mutation had been brought on record by duly exhibited document; meaning thereby that the petitioner side had admitted the respondents (objection petitioners) as the rightful owners and also exclusion of the mortgaged property from the suit property---Hence, by way of independent purchase from few of the respondents, the petitioners were estopped later to lay any claim on the same---No illegality or infirmity had been noticed in the impugned judgments and orders passed by the Courts below allowing Objection petition filed by the original-owners/mortgagors to the extent of mortgaged property---Revision filed by the decree-holders was dismissed, in circumstances.

Citation Name: 2024 YLR 482 LAHORE-HIGH-COURT-LAHOREBookmark this Case BAKHSHA (deceased) vs Sh — 2024 YLR 482 LAHORE-HIGH-COURT-LAHORE

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