' JAWWAD S. KHAWAJA, J.--- The petitioners-defendants impugn the appellate judgment and decree, dated 28-2-2006 whereby the decree of the learned trial Court, dated 29-9-2001 was set aside and a declaratory suit filed by Muhammad All (now represented by his L.Rs,) (respondents herein) has been decreed.
2. The facts of the case are straightforward. The aforesaid Muhammad Ali claimed that he had not made gny gift in favour of his three sons,' namely, Muhammad Idrees (predecessor-in-interest of respondents Nos.2 to 13) Muhammad Siddique (respondent No,14) and Muhammad Ramzan (respondent No,15). According to him these three sons had fraudulently obtained a gift Mutation No,1682 (Exh.D.5), dated 7-3-1981 purporting to record a gift of 195 Kanals, 8 Marlas to the sons. The three sons, who were arrayed as defendants, filed a conceding written statement.
3. The suit was resisted by the present petitioner, who asserted that they were bona fide purchasers of the suit-land vide Mutation No,2197 (Exh.D.3) sanction on 23-5-1988. The most relevant aspect of this case is that the petitioners are in cultivating possession of the suit-land since the date of this mutation.
4. Based on the pleadings the learned trial Court framed as many as eight issues on which the parties led evidence. The learned trial Court, after considering the same, proceeded to dismiss the suit. On appeal, however, the learned Appellate Court, as noted above, has reversed the learned trial Court.
5. Learned counsel for the petitioner contends that the petitioners duly examined the Revenue Record, which showed the three sons of Muhammad Ali to be the owners of the property.
Furthermore, the said three sons were also in cultivating possession of the same which they delivered to the petitioners as far back as 1988 which the mutation (Exh.D.3) was sanctioned.
Muhammad Ali during all this period did not take any steps to assert his right but then on 26-7- 1994 filed his declaratory suit out of which this petition arises.
6. Learned counsel for the petitioners contends that in view of the above circumstances the vested title of the petitioners acquired by them as bona fide purchasers for valuable consideration without notice of any defect in the title of the three sons could to be defeated. This contention is 'well- founded. It is also apparent that even if the three sons had committed any fraud on Muhammad Ali as alleged in the plaint 'relief by way of declaration, which is discretionary, could not have been granted. Muhammad Ali may have had a remedy by way of damages against his sons but the title acquired by the petitioners is protected under the provisions of section 41 of the Transfer of Property Act.
7. In addition, learned counsel for the petitioner has argued that the original owner (Muhammad Ali) was owner of 195 Kanals and 8 Marlas, which he had gifted to three sons, named above.
Muhammad Ali has died during the pendency of this litigation and, as a consequence, his four sons (including the three donees) and two daughters are now impleaded as his L.Rs, in the suit, as a consequence, even if there was any defect in the gift made by Muhammad Ali in favour of his three sons, the said sons have acquired undisputed title to 117 Kanals. The sale made by the three sons in favour of the petitioners is in respect of 64 Kanals, which is well within the area of their entitlement as legal heirs of Muhammad Ali. Learned counsel for the petitioner has relied on section 18 of the Specific Relief Act to contend that the sale in favour of the petitioner can be upheld even on this basis.
8. The contentions of learned counsel for the petitioners are well-founded and could not be controverted by learned counsel appearing for the respondents. Learned counsel appearing for respondents Nos.14 and 15-doness, namely, Muhammad Siddique and Muhammad Ramzan, attempted to argue that the petitioners were lessees of the disputed land. He, however, was unable to show anything from the record to substantiate these submissions.
9. In the above circumstances, this petition is allowed and the appellate judgment and decree, dated 28-2-2006 is set aside. As a result, the decree, dated 29-9-2001 stands restored. The petitioners shall also be entitled to their costs throughout.