' JAWWAD S. KHAWAJA, J.---Through this judgment, I propose to decide C.R. Nos.2318 and 2319 of 2000. This unfortunate litigation has a long drawn out history spanning nearly four decades. The dispute between the parties relates to land measuring 76 Kanals, 16 Marlas situated in Chak No.371/JB, Tehsil Toba Tek Singh, as fully described in the pleadings of the parties .
2. The two revision petitions arise out - of two separate suits. One was filed by Zahoor-ul-Haq and three others who are the L.Rs. Of Niamat Khan. Respondents Nos.1 and 2 are the sons of Niamat Khan, while Mst. Nawab Bibi (Respondent No.3) is the widow and Surayya Bibi (Respondent No.41 is the daughter of Niamat Khan. For ease of reference, Zahoor-ul-Haq others shall be referred to as the plaintiffs/respondents. The other suit was filed by Fateh Muhammad (now represented by his L.Rs.) Sultan Muhammad and Muhammad Shafi sons of Ali Buksh. These three will hereinafter be referred to as the defendants/petitioners.
3. Both revision petitions have been filed by the defendants to impugn the consolidated appellate judgment and decree dated 30-9-2000, whereby the learned appellate Court had accepted two appeals filed by the plaintiffs. As a result, the two decrees passed by the learned trial Court dated 19-6-1986 decreeing the suit of the defendants/petitioners and dismissing the suit of the plaintiffs/respondents, were set aside.
4. In order to understand the genesis of the dispute between the parties, a brief narration of the relevant facts is necessary. One Talemand died during the disturbances of 1947. He had a sister, namely, Mst. Umri. They were related to Niamat Khan predecessor-in-interest of the respondents/ plaintiffs and also to Faqir Muhammad, who was the principal cause of the dispute which has arisen between the parties. A pedigree table, setting out the relationship between Talemand and other members of his family is as under:-- {{TABLE}} Ghana Khan Mambo Llia I.
I I I Samand Khan Imam Din Nathu Khan 1 I Mst.I Umri Talemand I I Faqir Muhammad Boots Surayya Bibi (daugh er) Ehsan-ul-Haq (son) Zahoor-ul-Haq (son)
(Respondent No.4) (Respondent No.2) (Respondent No.1) {{TABLE}}
5. There is no dispute as to the correctness of the pedigree table.
6. Talemand, having died in 1947, was a deceased claimant. It appears that Faqir Muhammad filed a claim on behalf of Talemand in which he showed himself as his sole surviving legal heir. It is not in dispute that the suit-land was allotted to Talemand. Subsequently, vide Mutation No.49 the land was devolved on Faqir Muhammad alone to the exclusion of Mst. Umri and the other legal heirs of Talemand. Niamat Khan and his two brothers Abad Khan and Ali Muhammad who were alive at the time filed an appeal before the Collector to challenge the aforesaid mutation. It is important to note that they did not implead Mst. Umri in the appeal and nor did they disclose that Talemand had any legal heir apart from themselves and Faqir Muhammad, who had been arrayed as a respondent in the appeal. Being in cahoots, they, along with Faqir Muhammad collusively excluded Mst. Umri and obtained a consent order from the Collector dated 13-11-1963. Niamat Khan made a statement before the Collector conceding the exclusive claim of Faqir Muhammad to the land in Chak No.371/JB, which is subject-matter of the present litigation. As quid pro quo, Faqir Muhammad agreed not to assert a claim on any other land which may be allotted against the balance unadjusted units of Talemand's claim. On the basis of this statement, the Collector decided the appeal wherein Mutation No.49 was upheld. At this point, it is important to record that some months later, vide Mutation No.364 dated 16-9-1964, the petitioners/defendants purchased the suit land from Faqir Muhammad.
7. Subsequently, through an appeal filed on 1-11-1996, Mst. Umri challenged -Mutation No.6 in Chak No.158/JB. In the said appeal, Niamat Khan and Abad Khan were impleaded as respondents. This appeal was based on the status of Mst. Umri-as the widow of Ali Muhammad, who was the brother of Niamat Khan and Abad Khan. The case of Mst. Umri was that she, being widow of Ali Muhammad, was entitled to inheritance in his estate but had been wrongly excluded through Mutation No.6.
8. It is relevant to note, firstly, that Mst. Umri had only challenged Mutation No.6 in Chak No.158/JB.
Secondly, she was asserting her right not as the sister of Talemand but as the widow of Ali Muhammad. Thirdly, Mutation No.49 was not a subject-matter in the appeal and, in fact, as noted above, on 16-9-1964, Faqir Muhammad had already sold the land in Chak No.371/JB in favour of the petitioners/defendants. Fourthly, the petitioners/defendants were not even arrayed as respondents in Mst. Umri's appeal before the Collector. Notwithstanding this position, while reviewing Mutation No.6 in Chak No.158/JB, the Collector also ordered the review of Mutation No.49 of Chak No.371/JB and directed that the same be decided afresh in the presence of the parties. It is in these circumstances that the petitioners/defendants filed an earlier suit, inter alias to impugn the order of the Collector dated 15-11-1967. This suit was decreed in favour of the petitioners/ defendants on 11-2-1970 with the consent of Mst. Umri. The said decree, however, was set aside on 17-7-1975 in a suit filed by Niamat Khan and others on the ground that they had not been impleaded as defendants. An appeal filed by the petitioners/ defendants was decided by the learned Additional District Judge vide his judgment dated 22-1-1981 in which it was observed that as a result of setting aside of the decree dated 11-2-1970, the suit filed by the petitioners/defendants stood revived.
9. Subsequent to the above, the dispute between the parties was vigorously agitated before the revenue forums because two Mutations bearing Nos.1296 and 1301 had been sanctioned on 7-2- 1981 in favour of Niamat Khan and others adversely affecting the petitioners' title in the disputed land. It is not necessary to set out in detail the decisions taken by the revenue forums. It will suffice, for the present, to note that the litigation before the revenue forums culminated in the order dated 5-9-1983 passed by the Member (Revenue), Board of Revenue in R.O.R. No.1242 of 1982. The Member duly noted the observation of the learned A.D.J. In his judgment dated 22-1-1981 and also took note of the fact that the disputed property had changed hands prior to the Collector's order dated 15-11- 1967 and as a result, the petitioners/defendants had acquired an interest therein. In view of its relevance, the concluding paragraph of the order of the Member (Revenue), Board of Revenue dated 5-9-1983 is reproduced as under:-- "2. It is evident from the facts of the case that the decision of the A.D.C.(G)/Collector, dated 15-11- 1967 is still under litigation, which would reach its logical conclusion only after the matter has been finally adjudicated upon by the civil Court. In any case, Mutation No. 49, decided on 13-11-1959, cannot be allowed to be reopened unless on the basis of a civil decree. I would, therefore, reject the findings of the learned Additional Commissioner and restore the order of the Collector, dated 27-1- 1982."
10. It is in the backdrop of the above circumstances that the dispute between the parties needs to be examined and their respective suits filed subsequent to the order of the Board of Revenue, have to be adjudicated. However, before proceeding with this exercise, ,it is important to bear in mind that the brothers of Niamat Khan have died issueless. Mst. Umri, as noted above, was married to one of these brothers Ali Muhammad and although she survived Ali Muhammad, she also died issueless. As a consequence, Niamat Khan remained as the only legal heir entitled to the estate of Talemand.
11. The case of the petitioners/ defendants is that they are bona fide purchasers of the suit-land having purchased the same for valuable consideration from the ostensible owner, namely, Faqir Muhammad whose name duly appeared in the revenue record and who was otherwise also exercising proprietary rights over the said land. Fateh Muhammad petitioner/defendant appeared as P.W.3 and proved that the land was purchased upon payment of Rs.34,000 and that at the time of purchase in 1964, Faqir Muhammad was the owner, on record, of the disputed property. This evidence is sufficient for the purpose of establishing that the petitioners/defendants were bona fide purchasers of the suit property for valuable consideration without notice of any defect in Faqir Muhammad's title. Niamat Khan and his L.Rs. Have not been able to produce any evidence on record to rebut the testimony of P.W.3 or to show that the petitioners/defendants were not bona tide purchasers.
12. Learned counsel for the respondents/plaintiffs did attempt to argue that the petitioners/defendants had not proved payment of consideration other than through the uncorroborated statement of Fateh Muhammad (petitioner/defendant) as P.W.3. On the basis, it was argued that payment of consideration had not been proved. This contention is misconceived, firstly, because there is no evidence in rebuttal. Secondly, it is relevant that the petitioners are in cultivating possession of the suit-land since 1964 on the basis of the purchase made by them from Faqir Muhammad. Payment of consideration can be inferred from this circumstance also.
13. It is quite clear from the record and the circumstances, noted above, that the petitioners/defendants are entitled to claim ownership of the suit-land on the basis of principles set out in section 41 of the Transfer of Property Act. The same provides as under:-- "Transfer by 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 that the transferor had power to make the transfer, has acted in good faith."
14. The evidence, including the revenue record and, in particular, Mutation No.49 read with the order of the Collector dated 13-11-1963, confirm the fact that Faqir Muhammad was the ostensible owner of the property. This is also established from the fact that Faqir Muhammad was openly exercising proprietary and possessory rights in respect of the suit property with the knowledge and consent of Niamat Khan as is evidenced by the statement recorded by Niamat Khan before the Collector on 13-11-1963. Furthermore, possession of the suit property was duly delivered by Faqir Muhammad to the petitioners/defendants and they started cultivating the same without any interference either from Niamat Khan or his brothers or even from Mst. Umri.
15. Faced with the above situation, learned counsel for the respondents/ plaintiffs argued that Niamat Khan was not only a legal heir of Talemand in his own right, but was also a legal heir of Mst.
Umri, both in her capacity as the surviving sister of Talemand and also as the surviving widow of Niamat Khan's brother Ali Muhammad. It was contended that in his capacity as the legal heir of Mst. Umri Niamat Khan could not be bound by the statement recorded by him before the Collector on 13-11-1963. This submission is without merit for two reasons. First of all, in the context of section 41 of the Transfer of Property Act, it will be noted that Mst. Umri, by her own conduct, had impliedly consented to the ostensible ,ownership of Faqir Muhammad. This is evident from the fact that she did not file or assert any claim on behalf of Talemand. Furthermore, even when the property was allotted to Faqir Muhammad through Mutation No.49 as early as 13-11-1959, she did not challenge the said mutation nor did she initiate any proceedings against Faqir Muhammad to claim her right as legal heir of Talemand. As a consequence, she allowed Faqir Muhammad to deal with the property and to sell the same to the petitioners/defendants. Most importantly, it is relevant that Mst. Umri, by her conduct, herself accepted that she had no right, title or interest in the suit property. This circumstance is clearly evident from the fact that when she preferred her appeal before the Collector on 1-11-1966, her object was solely to challenge Mutation No.6 of Chak No.158/JB and to stake her claim to the land comprised therein on the basis that she was the widow of Ali Muhammad. It was only incidentally that the Collector ordered the review of Mutation No.49 in Chak No.371/JB even though the same was not subject-matter of the appeal before him and even though the petitioners, who had purchased the property, had not been impleaded or heard in the appeal.
16. Payment of consideration and exercise of due diligence through examination of the revenue record has been proved by Fateh Muhammad, petitioner as P.W.3. His testimony on this score remained unrebutted. In the circumstances, it is clear from the record that. The petitioners/defendants have been able to prove the four essential ingredients set out in section 41 of the Transfer of Property Act. Their purchase of the suit property cannot, therefore, be defeated.
17. The second reason, which supports the petitioners/defendants, is that even if Mst. Umri could have succeeded in establishing her right against the petitioners/defendants in the suit property, her title would not be claimed by Niamat Khan. This is so because Mst. Umri And her other interested collaterals having died issueless, Niamat Khan remained as the only legal heir of Mst.
Umri. In view of the express statement made by him before the Collector on 13-11-1963 that he would not claim any right in respect of the property mutated in the name of Faqir Muhammad in Chak No.371/JB, it is not open to Niamat Khan or his L.Rs. To base a claim in respect thereof on the ground that they are the L.Rs. Of Mst. Umri. This is particularly so because in their appeal before the Collector to impugn Mutation No.49, they had deliberately excluded Mst. Umri from the array of parties. Had they acted in good faith and if they had impleaded Mst. Umri in their appeal, they could have had a case for asserting an interest in the suit property in their capacity as L.Rs. Of Mst.
Umri. Having acted in a fraudulent manner with the object of excluding Mst. Umri from any claim in the suit property, they allowed Faqir Muhammad to sell it to the petitioners/defendants. They cannot now turn around and base a proprietary interest on Mst. Umri's right therein. Having accepted Faqir Muhammad as the exclusive and absolute owner of the suit property, Niamat Khan and his L.Rs. Are estopped from adopting a contrary stance by denying the title of the petitioners who, it may be noted, are merely successors-in-interes of Faqir Muhammad.
18. Learned counsel for the respondents/plaintiffs next argued that Faqir Muhammad had clearly committed a fraud by obtaining Mutation No.49 exclusively in his own name. On this basis, it was contended that the petitioners/ defendants, being successors-in-interest of Faqir Muhammad, could be burdened with the consequences of the fraud committed by Faqir Muhammad. This submission is wholly devoid of merit. Firstly, the fraud committed by Faqir Muhammad cannot be imputed to the petitioners because the petitioners took no part in it. Secondly, the respondents/plaintiffs themselves became party to the fraud by conceding Faqir Muhammad's exclusive title in the suit-land and also by concealing Mst. Umri's interest therein when they preferred an appeal before the Collector to assail Mutation No.49.
19. .Learned counsel for the respondents/plaintiffs also argued that Mutation No.49 had not been duly sanctioned by any revenue officer. This submission, however, is misconceived. The revenue forums have noted that the said mutation was duly sanctioned. Even the appeal, which had been filed by Niamat Khan and his brothers before the Collector, assails the order of the Assistant Collector Grade-II dated 13-11-1959 which clearly is the order of a Revenue Officer sanctioning the mutation. Confronted with this, learned counsel for the respondents argued that a mutation alone does not create or confer title. According to him, a mutation merely constitutes a record of title created otherwise. There can be no dispute with this legal proposition. However, for the reasons, which have been noted above, this has no relevance in the present case because the competing claims of the parties hereto in respect of the disputed land have been fully thrashed out in the present litigation.
20. Finally, it was argued on behalf of the respondents that Faqir Muhammad had backed out of the agreement which had resulted in the consent order dated 13-11-1963 passed by the Collector.
Learned counsel submitted that Faqir Muhammad had not only retained the suit-land but had also claimed land in Jhang on the basis of the unsatisfied units of Talemand's claim. On this basis, it was argued that the consent order was not binding on Niamat Khan. This submission has no bearing on the present case. If, indeed, Faqir Muhammad has backed out of a commitment made in favour of Niamat Khan, the latter can seek redress against Faqir Muhammad. The consent order, which had been duly acted upon and which enabled Faqir Muhammad to sell the suit property to the petitioners/defendants, cannot be vitiated because of Faqir Muhammad's failure to abide by his commitment.
21. I now take up for consideration the impugned appellate judgment and decree. The learned appellate Court has proceeded to hold that the petitioners/defendants were not bona fide purchasers because they acquired title in the suit property during the pendency of litigation before the civil Court and the revenue forums. It has been observed in the appellate judgment that if the petitioners had approached the revenue forums and the civil Court, they would have come to know of the pending litigation between the legal heirs of Talemand.
22. This conclusion of the learned appellate Court is a result of a misreading of the record. The petitioners/defendants had purchased the suit land vide Mutation No.364 dated 16-9-1964. This fact has been noted in the appellate judgment itself. In 1964, there was no pending litigation amongst the legal heirs bf Talemand whether before the revenue forums or before the civil Court. It is noteworthy that the litigation, which had been initiated by Niamat Khan and his brothers before the Collector through an appeal to assail Mutation No. 49, stood settled on 13-11-1963 through the consent order of the said dated, referred to above. The litigation in the civil Court did not start until much after the order dated 15-11-1967 whereby the Collector ordered review of Mutation No.49. It is, thus, clear that the very basis of the learned appellate Court's finding that the petitioners were not bona fide purchasers, is not borne out from the .,record.
23. The other reasoning, which has prevailed with the learned appellate Court for deciding against the petitioners and in favour of the respondents, is that the legal heirs of Talemand were entitled to inheritance and they could not be deprived of the same by Faqir Muhammad, who was only one of the legal heirs. This finding has been rendered by ignoring the provisions of section 41 of the Transfer of Property Act and its implications, fully discussed above, in the facts and circumstances of the present case.
24. In view of the foregoing discussion, I find that the learned appellate Court has exercised its jurisdiction illegally and with material irregularity. The judgments and decrees of the learned appellate Court in the two cases are, therefore, set aside. As a result, the decrees of the learned trial Court in both cases stand restored.