The Claim which is tainted by Fraud and Collusion, nullified the Principles of Lis Pendens u/s 52 of the Transfer of Property Act, 1882 --- Lahore High Court, Lahore
Islamabad 18-12-2024: The Lahore High Court, in the case Sardar Muhammad Boota Vs. Jaffar Ali (deceased) through LRs and Others, has dismissed a second appeal under Section 100 of the Code of Civil Procedure, 1908, affirming the decisions of the lower Courts. Mr. Justice Sultan Tanvir Ahmad ruled that the claim for specific performance of an agreement to sell land was tainted by fraud and collusion between the plaintiff and the original defendant.
The dispute involved a land agreement dated 17.02.2000 where Jaffar Ali, the original owner, agreed to sell 172-kanals 15-marlas of land to the Appellant, Sardar Muhammad Boota, and one Muhammad Akram. While Akram successfully obtained his share through earlier litigation, Boota claimed that Jaffar refused to transfer his portion despite partial payment.
The suit was initially withdrawn on 11.11.2002 after both parties stated they would resolve the matter through arbitration. However, the suit was restored ex parte on 27.01.2004 after Boota filed an application. During this time, Jaffar sold the disputed land to Shoukat Ali (Respondent No. 2) and others.
The Court examined the applicability of Section 52 of the Transfer of Property Act, 1882, which protects property rights during pending litigation. Mr. Justice Sultan Tanvir Ahmad ruled that the principle of lis pendens does not apply when the litigation itself is fraudulent or collusive.
- “Boota and Jaffar opted to restore the suit apparently to manipulate the doctrine of lis pendens and cheat subsequent purchasers.”
The Court criticized the restoration of a suit dismissed without conditional permission, as required under Order XXIII of the CPC. The failure to contest restoration indicated collusion between Boota and Jaffar.
- “Restoration of the withdrawn suit was without legal basis and reflected an abuse of process.”
Shoukat Ali, the subsequent purchaser, was declared a bona fide buyer who exercised due diligence. Witnesses testified that no pending suit was discovered at the time of purchase.
- “The evidence of the defendant-side remained coherent and credible, proving bona fide purchase with due diligence.”
The Court highlighted serious contradictions in the plaintiff’s evidence, including unreliable witness testimony.
- “Boota’s case fell apart due to weak and contradictory evidence, while the defense remained strong.”
The Lahore High Court dismissed the appeal, upholding the decisions of the trial and appellate Courts. The Court found the suit to be an attempt to manipulate the legal process and harm the rights of bona fide purchasers.
“This regular second appeal having no merits is dismissed. No order as to costs.”
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