PLJ 2010 SC 1059
Transfer of Property Act, 1882 (IV of 1882)--
----S. 54--
Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Transfer of ostensible owner--Bona fide purchaser was required to prove on record that he entered into transaction of sale in good faith having believed that the transferor was the ostensible owner of the property. [P. 1063] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Where two Courts below while giving their findings on a question of law had committed material irregularity or acted to read evidence on point which resulted in miscarriage of justice then High Court could re-examine the question and give its findings in exercise of revisional jurisdiction--Appeal dismissed. [P. 1063] C
Khadim Nadeem Malik, ASC for Appellant.
Mian Saeed-ur-Rehman Farrukh, ASC for Appellant.
Date of hearing: 2.10.2009.
PLJ 2010 SC 1059
[Appellate Jurisdiction]
Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ.
ABDUL RASHID--Appellant
versus
MUHAMMAD YASEEN and another--Respondents
Civil Appeal No 1826 of 2005, decided on 2.10.2009.
(On appeal from the judgment dated 5-10-2005 passed by the Lahore High Court, Multan Bench Multan in C.R No. 424-D of 1994).
Judgment
Ch. Ijaz Ahmed, J.--Appellant filed appeal against the judgment of the Lahore High Court, Multan Bench, Multan, dated 5.10.2005 wherein the learned High Court held set aside the judgments of the Courts below while exercising power under Section 115 CPC. Hence this is a direct appeal before this Court.
2. Detailed facts have already been mentioned in the impugned judgment. However, necessary facts out of which the appeal arises are that respondents filed suit for possession against the appellant before the Civil Judge First Class, Multan on the ground that the land in question was purchased by them on 6-2-1967 from the original owner Khalilur Rehman whereas the said land allegedly purchased by appellant from original owner Khalilur Rehman on 22-3-1975. Appellant filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:--
"1. Whether the suit is bad for mis-joinder of parties and cause of action? OPD.
2. Whether the plaintiffs have no locus standi to file the suit? OPD
3. Whether the plaintiffs are estopped by their words and conduct to file the suit, OPD.
4. Whether the plaintiffs are the owners of the land in question and the defendant has encroached on it, OPD.
5. Whether the defendant is a bonafide purchaser for value and without notice of the plaintiffs ownership? OPD.
6. Whether the defendant is entitled to any compensation for the constructions made by him on the land in question, if so, to what amount? OPD,
7. Whether the suit is barred by time, OPD.
8. Relief.
3. The learned trial Court after completing legal formalities such as recording the evidence of the parties dismissed the suit vide judgment and decree dated 27.2.1991. Respondents being aggrieved filed an appeal in the Court of Additional District Judge,
4. Learned counsel for the appellant submits that learned High Court erred in law to disturb the concurrent findings of the Courts below, therefore, the impugned judgment is not sustainable in the eyes of law. He relied upon Abdul Qahir's case (PLD 2002 SC 321). He further submits that the appellant is a bona fide purchaser of land in question without notice and this fact was not considered by the learned High Court in the impugned judgment in its true perspective. He also relied upon Muhammad Bashir's case (2003 SCMR 774). He further urges that the appellant is in possession of the land in question since 1951 and this fact was not considered by the High Court in the impugned judgment. He further urges that impugned judgment is not sustainable in the eyes of law on any canon of justice as the learned High Court had reversed the concurrent findings of the Courts below without adverting to the reasoning of the Courts below and without observing that any material illegality or irregularity was committed by the Courts below.
5. Learned counsel for the respondents submits that the land in question was purchased by respondents from original owner vide sale-deed dated 6-2-1967 where the appellant purchase the same land from the original owner Khalilur Rehman on 22-3-1975 whereas appellant filed Constitutional Petition against Khalilur Rehman challenging his ownership over the land in question which was dismissed on 27-7-1973 and subsequently purchased the said land from him on 22-3-1975. He further urges that learned High Court was justified to give due weight to the sale-deeds which were registered prior in time as compared to the sale-deed registered after the prior sale-deeds. He further urges that registered sale-deed is itself notice to public at large including the appellant. Therefore, ingredients of Section 41 of Transfer of Property Act is not attracted.
6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties which is to the following effect:--
"6. Now, Exh.P2 is the sale-deed in favour of Muhammad Yasin petitioner and it narrates that the land located in Khasra No. 2544 with boundaries mentioned herein is being sold to him. Similarly, Exh. P3 narrated that the land located in Khasra Nos, 2544 & 2545 with boundaries mentioned therein is being sold to Muhammad Ibrahim petitioner. It is but established on record and admitted on all hands that Khalil-ur-Rehman was the exclusive owner of the property having purchased it from Yaqoob Khan. A bare comparison of the boundaries stated in the sale-deed and those stated in the plaint and of course in the sale-deed Ex.DWl/B being relied upon by the respondent do who show that these pertain to the same land. Needless to state that the petitioners purchased the land in the year 1967 whereas Khalil-ur-Rehman sold the same to respondent in the year 1975.
7. I have already noted above that there is no denial that the respondent is in possession of the said land. Now, the learned Courts below have not cared to read the said documents or the pleadings of the parties while proceeding to record their findings on the relevant issues after a rigmarole discussion. Perhaps this is why they have paid special attention to the issue pertaining to the bona fide purchaser and have taken care to answer the same in favour of the respondent. Now, I may note here that only piece of evidence in support of the said issue is the statement, of Abdul Rasheed respondent as DW2. In his cross-examination after admitting that the property was evacuee he expressed his ignorance that it was transferred to Muhammad Yaqoob Khan and it was then sold to Khalil-ur-Rehman. He, however, admitted that he had field a writ petition against the allotment and it was dismissed. There is not even a word in his entire statement that he conducted any inquiry within the meaning of Section 41 of the Transfer of Property Act, 1882 before proceeding to purchase the land from Khalil-ur-Rehman."
7. Mere reading of the aforesaid operative part of the impugned judgment clearly envisages that the learned High Court had decided the Revision Petition after application of mind considering the pleadings of the parties as is evident from paragraphs 2 to 5 apart from the paragraphs reproduced hereinabove. The learned High Court after re-appraisal of the evidence/re-examination of the record had come to the conclusion that both the Courts below were erred in law to decide the case against the respondents while dismissing their suits without adverting to the real controversy between the parties as the sale-deeds were executed in favour of the respondents on 6-2-1967 whereas sale-deed qua the said land by the said owner in favour of the appellant on 22.3.1975. It is settled proposition of law that registered sale-deed prior in time must be given due weight over the latter sale-deed. It is pertinent to mention here that the sale-deeds relied upon by the respondents are prior in point of time while the sale-deed allegedly executed from the same owner Muhammad Yaqoob in favour of the appellant was executed after about 8 (eight) years from the sale-deeds executed in favour of the respondents. Logically, subsequent sale carries no weight or value in the eyes of law because a piece of land cannot be sold twice by the same vendor coupled with the fact that appellant filed constitutional petition against the owner Muhammad Yaqoob challenging his title over the land in question which was dismissed on 27.7.1973 and allegedly subsequently purchased the said land from him on 22.3.75 as mentioned above. The respondents had taken a specific plea in the contents of plaint that respondents had purchased the land in question on 6.2.1967 whereas the appellant/defendant had simply denied the factum of execution of sale-deed on the basis of which appellant/defendant claimed benefit of bonafide purchaser in terms of Section 41 of the Transfer of Property Act which is reproduced here under:--
"41. Transfer of ostensible owner:--
Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it:
Provided that the transferee, after taking reasonable care to ascertain the transferor had power to make the transfer, has acted in good faith."
8. Mere reading the aforesaid provision of law clearly envisages that as per mandate of provisions of law if the transferee after taking reasonable care to ascertain that the transferor has acted in good faith, then his rights are protected. As mentioned above appellant/defendant did not mention a single word qua making any enquiry with regard to the status of the land in question before purchasing the land from Muhammad Yaqoob owner from whom respondent had purchased the land in question in 1967. It is a settled principle of law that a bona fide transferee while seeking protection of Section 41 of the Act is required to prove on record that he entered into transaction of sale in good faith having believed that the transferor is the ostensible owner of the property in question. In other words Section 41 of the Transfer of Property Act protects a transferee provided he acted in good faith and took reasonable care to ascertain that the transferor had power to make the transfer. In this exercise inquiry into valid title is involved. In the case before us appellant was not vigilant to make any inquiry regarding status of the land in question. The rights of the respondents were, therefore, rightly held to have been protected under the aforesaid provision of law. See:
(i) Maulana Riazul Hassan's case (1991 SCMR 2513).
(ii) Mst. Noor-un-Nisa's case (NLR 1995 SCJ 117)
(iii) Muhammad Bashir's case (2003 SCMR 774)
9. It is settled proposition of law that if it is found that the two Courts below while giving their findings on a question of law have committed material irregularity or acted to read evidence on point which is resulted in miscarriage of justice then the High Court will have the occasion to re-examine the question and give its finding on that question in the exercise of revisional jurisdiction as law laid down by this Court in Shaukat Nawaz's case (1988 SCMR 851). The learned High Court had taken a lot of pain to re-examine the evidence on record as both the Courts below had decided the case against the respondent without application of mind and without perusing the record, as mentioned above, appellant/defendant did not even allege in the written statement that respondent had made any inquiry qua the status of the land in question, therefore, learned High Court was justified to enter in the concurrent conclusions arrived at by the Courts below while exercising power under Section 115 CPC. In such situation it is the duty and obligation of the High Court to interfere in the findings recorded by the Courts below while exercising power under Section 115 CPC which is in consonance with the law laid down by this Court in G.M. Sikdar's case (PLD 1970 SC 158) and Mollah Ejahar Ali's case (PLD 1970 SC 173).
10. In view of what has been dismissed above we do not find any infirmity or illegality in the impugned judgment. Therefore, the appeal has no merit and the same is dismissed with no order as to costs.
(A.A.) Appeal dismissed.
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