' SYED HAMID ALI SHAH, J.---Property (10) ten Marlas situtated at Chak No,120, JB Tehsil and District Faisalabad, comprising of Khasras Nos.18/13/1, 18/13/2 and 18/13/3 was owned by Munir Ahmad Gill and Muhammad Aslam Gill i.e, Respondents Nos.1 and 2, who purchased the property through registered sale-deed dated 26-3-1991. Respondents Nos.1 and 2 availed a finance facility from appellant Bank and secured the loan by mortgaging the property, by executing the memorandum of deposit of title deed dated 28-3-1995. Respondents Nos.1 and 2 delivered the documents of title deeds to the appellant. Appellant-Bank instituted a suit for recovery of Rs,5,16,226,85 in Banking Court-II, Faisalabad against respondents Nos.1 and 2. The suit was decreed on 13-11-2000.
Mortgagors subsequently sold the mortgaged property through agreement (Ikrarnama) dated 7- 12-1998. Tariq Mehmood sold the property to objector/respondent No,3 Objector/ respondent No,3 got the sale-deed registered on 28-7-1999. Objector filed suit for permanent injunction titled as "Abdul Hameed Ansari versus Munir Ahmad Gill etc." wherein learned Court decreed the suit on the basis of undertaking of respondents Nos.1 and 2 that they will get the sale-deed registered under agreement dated 7-12-1998. Respondent No,3 filed objection petition before the Judge Banking Court No,II Faisalabad. Learned executing Court vide order dated 11-9-2002 accepted the objection petition and directed the redemption of property. Hence this appeal.
2. Learned counsel for the appellant has contended that property was mortgaged with the appellant by way of deposit of title deeds, on 23-3-1995, the original title deeds are with the appellant and purchase of mortgage property on 28-7-1999 i.e,, subsequent to mortgage, is not a bona fide purchase. The sale/transfer of mortgaged land to objector, is not bona fide and as such not protected under section 41 of the Transfer of Property Act, 1882. Learned counsel in support of his contention has placed reliance on the case of "Mst. Tehmina Bashir v. Abdul Rauf and another"
(1995 CLC 973) and "Major Muhammad Tari v. Citibank Housing Finance Company" (2002 CLD 1090).
3. Learned counsel for the respondent, on the other hand, has fully supported the impugned order and has submitted that there was no entry in the Revenue Record regarding mortgage in favour of the appellant. The respondent No,3 is a bona fide purchaser against consideration and his rights are protected under section 41 of the Transfer of Property Act (IV of 1882). Learned counsel in support of his contention has referred to the case of "Khalid Adeed Khanum v. Prudential Investment Bank Ltd. And others" 2002 CLD 451.
4. Respondents Nos.1 and 2 (vendors) despite service, had not entered appearance and were proceeded ex parte.
5. Heard learned counsel for the appellant and examined the record.
6. Respondent No,3 through filing the objection petition claimed protection under section 41 of the Transfer of Property Act. It is an admitted fact that when the respondent/objector purchased the property, it was already mortgaged in favour of the appellant-Bank. Original documents/title deeds were lying with mortgagor/vendor. There is no cavil with the proposition that a bona fide purchaser, in order to claim protection under section 41 of Transfer of Property Act has to meet the following requirements:--
(i) Sale by ostensible owner.
(ii) Transfer of property for consideration.
(iii) Reasonable care by transferee to ascertain that transferor has the power to make the transfer.
(iv) The parties have acted in good faith.
7. Respondent No,3 at the time of purchase of the mortgaged property was under legal obligation to claim from the vendor, original title documents of the property. Honourable Supreme Court of Pakistan in the case of "Nisiban Bibi v. The Australia Bank, Lahore and 2 others" (1970 SCM R 657) has held that inquiry regarding urban immovable property cannot be confined to examination of revenue papers but must extend to demand for title deed. A purchaser who purchases property without demanding title deed is not entitled to claim protection. It was held by the Honourable Supreme Court in the case of "Maulana Riaz-ul-Hassan v. Muhammad Ayub Khan and another"
(1991 SCM R 2513) that bona fide purchaser had a duty to look for the registered deed and inquiry through Revenue Record was not sufficient. Interest in a property can neither be bona fide nor protected, where enquiry as to the effect of section 14 of Punjab Alienation of Land Act, 1990, was lacking.
8. The impugned order was passed in complete obliviation of law laid down by Honourable Supreme Court and as such is not sustainable. Protection under section 41 of the Transfer of Property Act, cannot be extended to a vendee who purchases mortgaged property, the title deeds whereof, are deposited with the bank. Inquiry through Revenue Record was held not sufficient.
Proper verification of original title deed and inquiry into a valid and clear title of the seller, was essential requirement. Liberal construction of section 41 of the Transfer of Property Act, will render the decree in favour of mortgagor, inexecutable. Additionally the sale in question is by the real owner and not through ostensible owner. A purchase from original owner and not from ostensible owner, takes the sale transaction, out of purview of section 41. The appellant has purchased the property under encumbrance. It is settled law that no one can deliver a better title than the one he has himself.
9. For the foregoing, we allow this appeal and set aside the ex parte order with the result that the objection petition filed by respondent No,3 stands dismissed, with no order as to costs.