' JAWWAD S. KHAWAJA, J.---The petitioner-defendant, namely, Mst. Asia Latif impugns the concurrent decrees of the learned trial Court dated 5-12-2000 and of the learned appellate Court dated 24-6-2003 whereby a suit filed by respondents Nos.1 to 4 seeking possession of the suit property and cancellation of a number of sale deeds, has been decreed.
2. The facts of this case are straightforward. The respondents-plaintiffs are the L.Rs. Of Afzaal Muhammad Khan. The suit prqperty, which measures 1 Kanal, 4 Marlas, in all, was originally allotted in the name of Afzaal Muhammad Khan in 1962 vide Form RL-II. Thereafter the land was transferred to Nazir Ahmad (respondent No.5) through sale deed dated 28-6-1971. Nazir Ahmad in turn, transferred the property to two vendees vide two separate sale deeds dated 11-10- 1971. These vendees transferred the property to T.H. Siyal (respondent No.8) and his son Afzaal Hussain Siyal (respondent No.9). These two respondents Nos.8 and 9 then transferred the suit property to the present petitioner vide two separate sale deeds dated 2-6-1979. Here it .May be added that each of the aforesaid conveyances was reflected in the revenue record through mutations. Possession of the suit property was also delivered by the above named vendors to their respective vendees and is presently with the petitioner.
3. The case. Set up by the respondents-plaintiffs was that their father Afzaal Muhammad Khan had died on 15-8-1960 and therefore, any subsequent transfers of the suit land and, in particular, the original transfer in favour of Nazir Ahmad, vide sale deed dated 28-6-1971, was wholly illegal. On this basis, it was alleged that all the subsequent conveyances including the last two conveyances dated 2-6-1979, executed by respondents Nos.8 and 9 in favour of the petitioner, were also without any lawful bases.
4. Both Courts below have concurrently held that Afzaal Muhammad Khan had died in 1960 and, therefore, the purported conveyance made by hint in favour of Nazir Ahmad and the subsequent conveyances were void and inoperative against the respondents-plaintiffs.
5. Learned counsel for the petitioner stated, firstly, that the factual determination that Afzaal Muhammad Khan had died on 15-8-1960, is not proved on record. Secondly, reliance was placed on section 41 of.The Transfer of Property Act to contend that the rpetitioner having purchased the property bona fide from the ostensible owners whose names duly appeared in the revenue record, and who were also in possession of the suit property, was by itself sufficient for the purpose of protecting the title which has come to vest in the petitioner.
6. Learned counsel appearing for the respondents-plaintiffs firstly argued that there was ample evidence on record to show that Afzaal Muhammad Khan had died in 1960. According to him, it is only the confirmation of allotment which was made in 1962 while the allotment had taken place earlier. On this basis it was contended that the sale-deed dated 28-6-1971 in favour of Nazir Ahmad was void and, as a consequence, all subsequent transfers were also void. The submission of learned counsel is not legally tenable. Even if it is accepted that the sale deed in favour of Nazir Ahmad had been procured by him fraudulently, the petitioner would still be entitled to the protection of section 41, of the Transfer of Property Act.
7. Learned counsel for the respondents-plaintiffs argued that the petitioner had not pleaded that she was a bona fide purchaser for valuable consideration. This contention, however, is contrary -to the record because in paragraph-11 of her written statement the petitioner specifically took the plea that she was a bona fide purchaser of the suit property for valuable consideration.
8. Learned counsel for tile respondents then contended that no evidence was led by the petitioner to show that she had made any enquiries as to the title of her vendors. This submission is also incorrect. Sardar Khan (D.W.1) deposed that he was a property dealer and he had brokered the transaction between the vendors and Mst. Asia after due diligence. In his cross-examination, although he admitted that he had not seen the original RL-II Form, he deposed that he had examined the registered sale deed of the vendors and had also checked the Jamabandi which reflected the names of the vendors T.H. Siyal and Afzaal Hussain Siyal as the owners of the property.
This was sufficient evidence to show due diligence on the part of the petitioner and it satisfied the requirement of section 41 of the Transfer of Property Act.
9. It is at this stage relevant to note that the plaintiffs did not take any steps to assert their proprietary and possessory rights in the suit property for more than twenty years from 1962 until the date they filed their suit on 10-5-1982. They as such, enabled Nazir Ahmad and all subsequent vendors to deal with the suit property as owners and thereby, to make a representation that they were vested with title in the suit property which they were entitled to convey. The respondents- plaintiffs cannot now be allowed to defeat the title of the petitioner which they themselves have helped create.
10. (sic) At this stage it may be added that a specific issue as to the petitioner being bona fide purchaser was framed by the learned trial Court in the following terms:- 3B. "Whether the defendants Nos.4, 5 and 6 [petitioners] are bona fide purchasers for consideration without notice? If so, with what effect? OPD"
11.The learned appellate Court, while dealing with the said issue has misread the evidence of Sardar Khan (D.W.1). The law has also been misapplied, inasmuch as, emphasis has been placed on the record of the Settlement Department. It is to be noted that after the issuance of the RL-II Form, the ownership of Afzaal Muhammad Khan stood reflected in the revenue record.
' Thereafter the record of the Settlement Department became irrelevant. As to the revenue record, Sardar Khan clearly deposed that he had examined the registered sale deed and the Jamabandi, which showed D the vendors T.H. Siyal (respondent No.8) and his son Afzaal Hussain Siyal (respondent No.9) to be vested with title in the suit land. This was sufficient for the purpose of satisfying the requirement of section 41 of the Transfer of Property Act. This is particularly so because the respondents-plaintiffs did not deny the intervening sale deeds between the first sale deed in favour of Nazir Ahmad in 1971 and the last two sale-deeds dated 2-6-1979 in favour of the petitioner Mst. Asia Begum. The entire purpose of due diligence and a title search under section 41, (supra), is to disclose defects, if any, in the title of the vendor. In the present case, even if the petitioner had examined the entire record from 1962 onwards, it would have shown the title initially vesting in Afzaal Muhammad Khan and thereafter in favour of each of the succeeding vendees.
12. There is yet another, aspect of this case which has been overlooked by the learned Courts below. If indeed Afzaal Muhammad Khan had died in 1960, it was the duty of the respondents- plaintiffs to have obtained a mutation of inheritance in their names so that the revenue record could have shown the respondents-plaintiffs as owners of the suit property. Had this been done, the petitioner could have been saddled with the consequences of an incomplete title search. The respondents-plaintiffs themselves chose not to get their names brought on the revenue record thereby innocent parties such as the petitioner to be induced to purchase the suit property. In the circumstances, even if Nazir Ahmad had committed a fraud and had procured a sale deed in his favour through an impersonator, the respondents-plaintiffs would have had the right against Nazir Ahmad only and not against the subsequent vendees against whom there is no evidence that they had acted fraudulently or that they had knowledge that the original sale deed in favour of Nazir Ahmad was void. The respondents-plaintiffs are the authors of their own predicament and must, therefore, fail.
13. In the above circumstances, I find the impugned decrees are not sustainable. The same are, therefore, set aside with the result that the suit filed by the respondents plaintiffs is dismissed.