' MIAN SHAKIRULLAH JAN, J.---This petition is directed against the judgment of the Lahore High Court, Rawalpindi Bench whereby while accepting the Civil Revision filed by the respondents, the judgments of the two Courts below were set aside and the suit filed by the petitioner was decreed.
2. A resume of the case is that the disputed property along with other property was originally owned by one Fazal, predecessor in interest of the parties. This landed property was situated in two villages (i) Village Khokhara Girjan and (ii) Lehrri, Tehsil Jhelum. In his life time, he divided his property between his two sons, namely, Hayat Bakhsh and Roshan in a manner that the property in village Lehrri was given to Hayat Bakhsh while the one in Khokhara Gijran Village was given to Roshan. The respondents/plaintiffs (hereinafter referred to as the plaintiffs) are the successors-in- interest of Roshan while Muhammad Khan respondent No,5/defendant (hereinafter referred to as the defendant), was the son of Hayat Bakhsh. Defendant sold some property measuring 5 Kanals and 11 Marlas to petitioner Muhammad Afzal (hereinafter referred to as petitioner). This caused the plaintiffs to file a suit for declaration alleging to be owner of the property situated in Khokhara Gijran Village and that the defendant had got no right whatsoever in the property and the transfer of property by him is ineffective on their rights. The petitioner filed a written statement claiming to be a "bona fide purchaser for consideration". However, on merits he expressed ignorance while answering the contents of several paras. Of the plaint containing the averments as noted above.
As a contest, several issues were framed and the plaintiffs in support of their plea produced a judgment of the Civil Court of the year 1916 (Exh.P.10) and have stated that the issue of partition, as referred to above, had already been settled through the aforesaid judgment. In this respect, a reference was made to an issue framed in the said suit which reads as under:-- "1. Whether the plaintiff's father divided his estate amongst his sons in his life time and was that partition acted upon?" ' with the following finding of the Court:-- "The above documents will show that the plaintiff has been making a number of alienations since as early as 1898, treating the property as his own. The document Exh.P.2 in very unequivocal terms corroborates the theory now propounded by the plaintiff that private partition had been made during their father's life time and that the land in this village had fallen to his share though it was entered in the joint names of the parties. This distribution of the land in the two villages was therefore, not a mere family arrangement, but was really a matter of partition. My finding on the issue is therefore in plaintiff favour."
3. The two Courts below i,e, the Trial Court and the Appellate Court, have non-suited the plaintiffs on the ground that there are long standing entries in the Revenue Record showing the property in the co ownership of both the parties and the judgment referred to above was stated to be about the Tenancy rights under section 6 of the Tenancy Act, 1887 and not qua the ownership of the plaintiffs. The High Court while reversing the findings of the Courts below, was of the view that the judgment was wrongly interpreted and is the result of misreading and while relying on the above referred judgment of the year 1916, the disputed property was held to be that of the plaintiffs and the defendant had no right in the property to sell it to the petitioner. The petitioner felt aggrieved and filed the instant petition for leave to appeal.
4. The learned counsel for the petitioner has vehemently argued that there are long standing entries in the Revenue. Record showing property in the co-ownership of the parties and not in the exclusive ownership of the plaintiffs and that no effect to the judgment of the year 1916 has been given in the Revenue Record. In this respect, he has referred to the relevant portion of the judgment of the Trial Court, whereby reference had been given to various Jama-Bandies of different years. At the end, he has argued that the petitioner is a bona fide purchaser and is protected under section 41 of the Transfer of Property Act, 1882. In this respect he has placed reliance on the judgments Ilahi Bakhsh and others v. Hassan Khan and others PLD 1966 (W.P.) Lahore 654 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53.
5. Regarding his first submission i,e, the long standing entries in the Revenue Record about the ownership of the parties, there are two types of documents, one consists of Jama-Bandies which favour the petitioner by describing the defendant as co-sharer with the plaintiffs while on the other hand, there is a judgment of the Court which favours the plaintiffs. According to section 52 of the Land Revenue Act, 1967 presumption of correctness is attached to the entries in the Record of Rights or periodical record as the same shall be presumed to be true, until contrary is proved. The presumption of truth or correctness is rebuttable. The entries are not the foundation of title but are mere items of evidence to be adduced by the vendee to prove the sale as held in Wali Muhammad and others v. Muhammad Bakhsh and others AIR 1930 Privy Council 91,which view was reiterated in Muhammad Bakhsh v. Zia Ullah and others 1983 SCM R 988,by holding the entries in the Revenue Record as not the foundation of title but some items of evidence to prove B title. By no stretch of imagination "Jamabandi" can be considered as exclusive proof of ownership or allotment as ruled in judgment of Fazal Hussain v. Additional. Settlement Commissioner (Lands) and 5 others PLD 2001 SC 401. The entries in the Revenue Record are maintained mainly for fiscal purposes and they neither create nor extinguish the title to the property and are not conclusive proof of ownership as held in Muhammad Ali and 25 others v. Muhammad and 6 others PLD 1994 SC245 and Muhammad Hussain v. Wahid Bakhsh 2004 SCM R 1137. Since the plaintiffs are having a more reliable and authentic document in the form of decree of the Court stand on a strong footing and presumption of correctness has been successfully rebutted. Even it can definitely be said that on account of the partition, the respondents/plaintiffs were the exclusive owners of the property.
6. Regarding his second submission, about the plea of protection under section 41 of the Transfer of Property Act, 1882,taken by the petitioner's counsel, it would be appropriate to reproduce section 41 as under:-- "41. 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."
7. The general principle of law of Transfer of Property is enunciated by the maxim that no man can transfer to another or can confer a right or title greater or higher than what he himself possesses and he gives not who hath not as held in Kanwal Nain's case (supra). In other words, generally a purchaser cannot take more than what the vendor has to sell. Section 41 (ibid) provides an exception to this general rule. This section underlying the principle that whenever one of the two innocent persons has to suffer by the act of third person, he who has enabled that person to occasion the loss, must sustain it or where one of the two innocent persons suffer from the fraud of third party, the loss should fall on him who has created or could have prevented the opportunity for fraud. As described in Mulla's Transfer of Property Act (10th Edition 1987) author has pointed out the foundation of this section by referring to a passage from the Judgment of the Judicial Committee in Ramcoomar v. Macqueen:-- "It is a principle of natural equity which has universally applicable that where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real -owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would hay led to a discovery of it."
8. This exception which is the form of equitable doctrine of estoppel as embodied in Article 114 of the Qanun-e-Shahadat, 1984 with a distinction as intentional inducement and unintentional inducement as in Article 114 ibid that a person pleading estoppel should act on the representation of the other while under section 41 ibid that if a person allows the other to hold himself out as the owner of the property and the third person purchases it for value from the ostensible owner in the belief that he is the real owner then the latter shall not be permitted to recover upon his secret title.
In this he shows that the purchaser had direct or constructive notice of his ownership.
9. In order that this section may apply, it must be shown that (a) the Transferor is the ostensible owner. (b) He is so by consent, express or implied, of the real owner. (c) The transfer is for consideration. (d) The Transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. If any one of the stated ingredients is wanting, then the Transferor will not be eligible to seek protection of equitable doctrine envisaged under section 41 ibid. It is not attracted unless a party claiming benefit thereof has fulfilled the aforesaid four conditions.
10. The petitioner has taken the plea in para. 2 of the preliminary objections of the written statement "Bona fide Purchaser for consideration" but in the evidence, his attorney, appeared in the Court. He has not stated anything about either the plea taken under section 41 ibid or about being a bona fide purchaser for consideration thus this plea was not substantiated at all. Even otherwise one of the foremost conditions for the plea under section 41 of the Act, that the Transferor must be shown as ostensible owner but here the transferor was neither in actual and physical possession nor he had been shown in the Revenue Record as in possession of his share but rather plaintiffs or their predecessor had been shown to be in physical possession of the property in dispute. The possession of immovable property, with a title if, any, by itself has been considered as a notice of title to the person interested in acquiring any right in the property as evident from the explanation
(II) of section 3 of the Transfer of Property Act, 1882 which reads: "Explanation II.--Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof."
11. The Act further places heavy responsibility on the purchaser thathe should not be guilty of gross negligence or of willful abstention from an inquiry or search otherwise he will be deemed to have notice of the fact which if he would not suffer aforesaid disqualification which principle has been enunciated in a para of section 3 of the Act which is reproduced as under:- "a person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it."
12. The judgments referred to by the learned counsel for the petitioner .In "Ilahi Bakhsh's" case does not support the case of the petitioner rather that explains and support the case of the plaintiffs, the relevant extracts thereof is reproduced as under:-- "14.---It has already been stated that the true owners were all along in possession and, therefore, this was a circumstance which called for further inquiry beyond merely looking into the entries appearing in the Revenue Records. There is no evidence on the part of the vendees to show that the true owners were not in possession throughout the period which we are considering here. The finding of the learned trial Judge on this point was not challenged by the vendees who had gone up in appeal, with the result that the learned District Judge had proceeded on the basis that the true owners were in possession. The learned Judge, however, did not examine the question whether this circumstance had any bearing on the scope of the inquiry which was incumbent upon the vendees in this case. Even in the authority relied upon by the learned counsel for the vendees it is clearly stated that:- `The purchaser need not go behind the Revenue entries if there are no other circumstances creating a doubt with regard to the genuineness of these entries.'
' The fact that the true owner had all along been in possession of the land was, in my view, a sufficiently strong circumstance for the vendees to be put on their guard and to require them to make further inquiries beyond the entries made in the Revenue Records. This they failed to do with the result that this requirement of section 41 was also not fulfilled by them.
15. For the foregoing reasons, I have come to the conclusion that the vendees--defendants Hassan and Piran Ditta were not entitled to the protection given by section 41 of the Transfer of.
' Property Act; on the contrary the plaintiff-appellants were entitled to have their suit decreed in its entirety.---"
13. The facts of "Kanwal Nain's case (supra) are quite distinguishable and that case is of no help to the petitioner. In that case, the father and his two sons, had jointly purchased a piece of land through a registered sale-deed in equal shares. The two sons sold their share and the father filed a declaratory suit on the ground that he was the real owner and his two sons were benamidar as it was he who had paid the sale consideration. At the trial, several issues were framed and two relevant issues were issues Nos.3 and 4, the former relating to the benami transaction and the latter relating to the plea the defendant being bona fide purchaser. The trial Court, gave finding about the benami transaction in favour of the father holding him the real owner of the property but the transferee was held to be bona fide purchaser for value without notice of the title of their father.
However, on appeal, the finding of the Trial Court on the issue of bona fide purchase was affirmed while the appeal of plaintiff was dismissed. The High Court, on revision set aside the findings of the two Courts below and held that the transferee had not acted with reasonable care in acquiring property from the transferor. The Supreme Court was of the view that the findings given by the High Court were not supportable from the evidence and the transferor was the ostensible owner who had purchased the property through a registered sale-deed and one of them was shown to have paid the sale consideration.
14. While in the present case, not to speak of any authentic document in favour of the transferor, rather the one which is available on record goes against them and favours the plaintiffs i,e, the decree of the Court coupled' with possession both at the spot as well as in the Revenue Record and more so when, as already stated the petitioner has miserably failed to substantiate the plea under section 41 of the Transfer of Property Act by not proving any of the four ingredients mentioned in the section. He cannot be considered as a bona fide purchaser for consideration, the plea taken by him in written statement, as he had the notice of the title of the plaintiffs in terms of explanation-II to section 3 and also the other relevant para. Of section 3 referred to above.
15. Resultantly, in view of the aforesaid discussion, we see no force in this petition and the same is dismissed. Leave declined.