' JAWWAD S. KHAWAJA, J.---The appellants/plaintiffs are three ladies, namely, Muradan alias Daran Bibi, Mst. Ujan Bibi and Mst. Shamshad Bibi. They, along with Siraj, who was a close relative(chacha/devar), filed a suit seeking possession of the suit-land measuring 326-kanals, 13- marlas as described in the plaint. The appellants impugn the concurrent decrees of the learned trial Court, dated 26-11-1998 and of the learned appellate Court, dated 21-12-2001, whereby their suit has been dismissed.
2. The case of the appellants was that they migrated to the area now forming part of Pakistan at the time of Partition in 1947. They filed a claim in respect of the land abandoned by them in Faridkot (India) and against their claim (which was verified) they were allotted 4681 P.I. Units of these, 1993 units were adjusted against land allotted to the appellants in Okara. The balance 2688 P.I. Units Were transferred to Gujranwala. The RL-II Form (Exh.P.8) shows that 2612 units were confirmed in the name of the appellants vide order, dated 30-4-1966 passed by the ADC, Gujranwala. On 6-6-1966 one Javed Iqbal (respondent No.5) appeared before the ADC purporting to be the general attorney) of the appellants and vide order of the said date, land measuring 417-kanals, 12-Marlas was confirmed in favour of the appellants. Specific khasra numbers were allotted to the appellants, which include the suit-land.
3. From the record it appears that Javed Iqbal, respondent No.5, claimed to be the general attorney of the appellants/plaintiffs vide power of attorney (Exh.P.2) registered on 20-5-1966 with the Sub- Registrar, Lahore. In purported exercise of powers under the said power of attorney, Javed Iqbal sold 235 kanals, 3 marlas out of the suit-land to one Muhammad Sadiq (respondent No.6) vide oral sale recorded in Mutation No.2376 (Exh.P.3), dated 25-6-1966. Another 105 kanals was sold by him to Sardar Zaman Ullah Khan (respondent No.7) vide oral sale recorded in Mutation No.2377 (Exh.
P.4) also, dated 25-6-1966. The respondents Nos. 1 to 4, namely, Kazim Ali and his three brothers are the main contestants in this case. They purchased a total area of 826 kanals, 10 marlas from Muhammad Sadiq (respondent No.6), which included the 235 kanals, 3 marlas acquired by him through Mutation No.2376 (Exh.P.3). This purchase was recorded in Mutation No.2572 (Exh. P.5) sanctioned on 10-5-1967.
4. The said respondents Nos. 1 to 4 also purchased an area of 416 kanals, 3 marlas from Sardar Zaman Ullah Khan (respondent No.7) which included the 105 kanals covered by Mutation No.2377 (Exh.P.4). This purchase was recorded in Mutation No.3205 (Exh.P.6) sanctioned on 30-4-1970.
5. To complete the picture as to the parties arrayed before me, it may be noted that respondents Nos. 8 to 14 are parties and/or legal heirs of parties, who purchased the suit-land during the pendency of the lis ofthese, respondent No.8, namely, Muhammad Saleem, is represented. He purchased 208 kanals from respondents Nos. 1 to 4 admittedly during the pendency of the suit and can, therefore, claim no better right than respondents Nos. 1 to 4. In the circumstances, the contest is between the appellants/plaintiffs on the one hand and respondents Nos.1 to 4 on the other.
6. The defence set up by the respondents Nos. 1 to 4 was based on a number of pleas. It was, inter alia, asserted by them that the suit was time barred and that the appellants/plaintiffs could not assert locus standi because of their own words and conduct. The main thrust of the defence, however, which is apparent from the written statement filed by the said respondents, is that the suit-land had, in fact, been sold through two mutations (Exh. P-3 and Exh.P-4) to respondents Nos.
6 and 7 respectively, on 25-6-1966 and thereafter the respondents Nos. 1 to 4 had purchased the suit property from the said respondents Nos. 6 and 7 through two mutations Exh.P-5 sanctioned on 10-5-1967 and Exh.P-6 sanctioned on 30-4-1970. In paragraph 3 of their written statement, respondents Nos, 1 to 4 relied on the fact that Javed Iqbal (respondent No.5) was a duly constituted attorney of the appellants vide power of attorney (Exh.P-2), and, therefore, the appellants could not deny the two transactions of sale made through Javed Iqbal as recorded in the mutations (Exh.P-3 and Exh.P-4). The defence raised by respondents Nos. 1 to 4 has been narrated in some detail because of certain submissions (discussed below) made by learned counsel for the appellants.
7. Based on the pleadings of the parties, the learned trial Court framed as many as 12 issues in the following terms:--
(1) Whether the plaintiffs have no locus standi and cause of action to file the suit? OPD.
(2) Whether the plaintiffs are estopped by their conduct to file the suit? OPD
(3) Whether the suit is time barred? OPD.
(4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction, yes, then what is the correct valuation for both the purposes? O.P. Parties.
(5) Whether the suit property has not been properly detailed? If yes, then what is the correct description of the property? OPD.
(6) Whether the suit is bad for failing to implead necessary parties? OPD.
(7) Whether the suit cannot proceed further in its present form? OPD.
(8) Whether the defendant No.8 is bona fide purchaser with consideration and without notice of land measuring 200 kanals, 12 marlas against Rs,500,000 vide registered sale-deed, dated 28-12- 1983? OPD.
(9) Whether general power of attorney, dated 19/20 May, 1966 is a forged document and is ineffective against the rights of the plaintiffs? OPP
(10) Whether Mutations Nos.2376, 2377, 2572, 2305 are illegal, against facts, based upon fraud, liable to be set aside and ineffective qua the rights of the plaintiffs? OPP.
(11) Whether the plaintiffs are entitled for possession of the suit property as prayed for? OPP.
(12) Relief.
8. According to the appellants, they did not know Javed Iqbal and had never appointed him as their general attorney. The appellants expressly denied ever having appeared before the Sub- Registrar, Lahore, for registration of the power of attorney (Exh.P.2). All three appellants/ plaintiffs entered the witness box, respectively as P.W.1, P.W.2 and P.W.3 to testify to this effect. Additionally, Rehmat Ali, who purportedly was one of the marginal witnesses to the power of attorney (Exh.P.2), was produced as P.W.4. He deposed that he had not attested the power of attorney (Exh.P.2) and had not appeared before the Sub-Registrar.
9. Syed Ishfaq Ali, respondent No.2, appeared as D.W.1, while Muhammad Saleem, respondent No.8, appeared as D.W.2 on behalf of the contesting respondents. D.W.1 deposed that he had made requisite inquiry as to title in the suit-land before purchasing the same vide mutations (Exh.P.5) and mutation (Exh.P.6.).
10. The learned trial Court, vide judgment and decree, dated 26-11-1998, dismissed the suit. It decided issues Nos.4, 5 and 8 in favour of the appellants while the remaining issues were decided against them. The appellants preferred an appeal. The learned appellate Court has only decided issue No.9 upholding the finding of the learned trial Court on the same. The remaining issues have not been decided by the learned appellate Court.
11. Both Courts below have relied heavily on form RL-II (Exh.P.8). It has been held by them that the appellants cannot deny that Javed Iqbal(respondent No.5) was their general attorney. This conclusion has been reached on the basis that it was Javed Iqbal, who appeared as their attorney before the Revenue/Settlement functionaries and had obtained allotment of the suit-land in favour of the appellants. The learned appellate Court observed that in view of this fact the appellants could not C be allowed to approbate and reprobate at the same time by accepting the allotment procured on their behalf by Javed Iqbal and in the very same breath, denying his authority in respect of the two sales made by him in favour of Muhammad Sadiq (respondent No.6) and Sardar Zaman Ullah Khan (respondent No.7).
12. To support the aforesaid finding, the learned appellate Court referred to the case titled Muhammad Sharif and 13 others v. Inayatullah and 24 others (1996 SCM R 145). Learned counsel for the appellants, however, pointed out that the reliance on the said case was misplaced as the learned appellate Court appears to have read only the head note of the case as reported rather than examining the precedent itself. There appears to be some substance in this submission. In the relevant part of the cited precedent, while considering the judgment of a single Bench of the High Court, impugned before it, the Honourable Supreme Court observed as under:-- "The learned Judge was also right in repelling the objection that the plaintiffs though relied upon the allotment of the land procured by. Muhammad Sharif defendant as their attorney but (sic) did not own the transfers made by him and correctly observed that as the suit-land was admittedly allotted against the verified claim of the plaintiffs, they could legitimately lay claim there to regardless of who had got it allotted and in what manner."
13. The above observation, however, has to be read in the context of the facts of the cited case. The plaint filed therein had been rejected. Under Order VII Rule 11, C.P.C. The High Court had set aside the rejection of the plaint, inter alia, on the ground that a plea bf estoppel would be available to the defence, but such plea would need to be proved through evidence. The cited precedent, therefore, does not advance the case of the appellants beyond enunciating this general principle. This principle is useful in the determination of the present case. When applied to its facts the principle implies that merely because form RL-II (Exh.P-8) and the allotment mentioned therein had been obtained by Javed Iqbal, did not automatically -result in validating, through estoppel, the two sales made by him on behalf of the appellants. The case of Muhammad Sharif v. Inayat Ullah, supra, in my humble opinion, does not stipulate that in the present case the title of the responde;ts Nos. 1 to 4 cannot be sustained on the ground of estoppel or on the ground of apurchase having been made from the ostensible owners appearing in the record of rights as envisaged under section 41 of the Transfer of Property Act. The precedent merely holds that these are questions of fact, which have to be decided through evidence.
14. On the basis of the available evidence in the present case, learned counsel for the appellants was able to establish that the power of attorney (Exh.P-2) had not been proved to have been executed by the appellants. As noted above, the three appellants appeared in the witness box and denied executing the power of attorney (Exh.P-2). Rahmat Ali, who purportedly was one of the marginal witnesses to Exh.P-2, appeared in Court and denied attesting the same as a witness. On the other hand, there was no evidence led by respondents to prove execution of the said power of attorney (Exh.P-2) by the appellants. The power of attorney, as such, could not have been relied upon by the learned Courts below for the purpose of upholding the title asserted in defence by respondents Nos. 1 to 4. The findings of the learned Courts below on issue No.9, therefore, cannot be sustained.
15. This, however, is not the end of the matter. The respondents, as noted above, have based their title clearly and unambiguously on the revenue record which showed their vendors, namely, Muhammad Sadiq (respondent No.6) and Sardar Zaman Ullah Khan (respondent No.7) as owners of the suit property. Mutations (Exh. P-3 and Exh.P-4) showing transfer of title to the said respondents, were duly incorporated in the revenue record. Furthermore, the aforesaid vendors were also in possession of the suit-land. These facts are un-controverted and provided the clearest proof of title which ostensibly was vesting in respondents Nos. 6 and 7. In the circumstances, there was no reasons, at all, for the respondents Nos. 1 to 4 to doubt the authentipity of the title of their vendors. Here I may reiterate that Syed Ashfaq Ali (respondent No.2) appeared as D.W.1 and testified that he had examined the revenue record and had satisfied himself as to the title of his vendors before purchasing the suit property.
16. At this point, learned counsel for the appellants argued that the respondents had not expressly setup the plea that they were bona fide purchasers of the suit-land without notice of any defect in the title of their vendors. It is true that the words "bona fide purchasers" have not been used in the written statement, which has been drawn in Urdu. However, the contents of the written statement, which have been noted above in some detail, are based materially and substantially on this principle. The implication inherent in the averments made in the written statement is that the purchase of the suit property was male by the respondents in good faith. Even the averment of the respondents in respect of the authenticity of the power of attorney (Exh.P.2) clearlycontains within it the assertion of good faith. It is a different matter that the respondents have not been able to prove the power of attorney (Exh.P.2). This alone, however, does not mean that the respondents cannot defend their title on the basis of estoppel or on the basis of being bona fide purchasers of the suit property.
17. It may well be that if the respondents had purchased the property through the alleged attorney, Javed Iqbal, they might have been required under law, to make a diligent inquiry as to the validity of the said power of attorney. Such diligent inquiry would, possibility, have entailed confirmation from the appellants/vendors as to the subsistence of the agency created through Exh.P.2. The case of the respondents, however, is on a different footing. They have, as noted above, purchased the property from Muhammad Sadiq (respondent No.6) and Sardar Zamanullah Khan (respondent No.7) and not through Javed Iqbal on the basis of the power of attorney (Exh.P.2). The ostensible title of respondents Nos. 6 and 7 in the suit property is undeniable and is further strengthened by the fact that they were in cultivating possession of the same when they sold the property to the respondents. In these circumstances, due diligence on the part of the respondents was sufficiently undertaken by them through scrutiny of the Revenue Record.
18. Another important factor in this case needs to be noted. The first purchase, which relates to one part of the suit property, was made by the respondents through mutation (Exh.P.5) which was sanctioned on 10-5-1967. The respondents continued to enjoy the fruits of their purchase for a period of three years until they made the second purchase recorded in mutation (Exh.P.6), dated 30-4-1970. These facts are also strong proof of the ostensible title of respondents Nos. 6 and 7 and the consent of the appellants implied therein, to enable the said respondents to sell the suit proper to respondents Nos. 1 to 4. There is nothing in the evidence led by the appellants to suggest that they had taken any action to assert their interest in the suit property or to claim control over the same. Had this been done, the respondents would not have purchased the property in the manner appearing on the record. It is entirely on account of the conduct of the appellants that the respondents have come to face the travails of this prolonged litigation.
19. The testimony of the appellants in fact shows that they were totally oblivious of any right, title or interest in the suit property. The appellant Shamshad Bibi as P.W.1 stated that she had no knowledge as to the extent of the suit property. She acknowledged that she had never visited the same. She also stated that she was unaware as to who had procured the allotment of the suit property. Then she also, contrary to the record, denied the suggestion that the form RL-II (Exh.P.8) had been obtained by Javed Iqbal. Later in her cross-examination Shamshad Bibistated that the allotment was correctly made in the name of the appellants but then also deposed that the allotment had been procured by Siraj. Ajjan Bibi (P.W.2) and Muradan (P.W.3) gave similar testimony. They all stated that they did not appear before any officer for the purpose of obtaining the allotment. According to Muradan (P.W.3) only Siraj knew of the circumstances in which the allotment was made. The only inference which can be drawn from the conduct of the appellants is that they impliedly allowed Javed Iqbal initially, and respondents Nos. 6 and 7 subsequently, to transfer title in the land.
20. In addition to the above aspects of the case, I note that in paragraph-7 of the written statement, the respondents have specifically pleaded that on account of the conduct of the appellants they cannot be allowed to set up the pleas taken by them. This averment coupled with the other contents of the written statement discussed above, in my view, constitutes a plea under section 41 of the Transfer of Property Act. The intent of section 41 of the Transfer of Property Act can be expressed in any form as long as it is apparent from such form that reliance is being placed on a vendor's title as it appears from the relevant record and a proper inquiry has been made to ascertain if there is any defect in such title. Thus even though the power of attorney (Exh.P.2) was not proved, the title acquired by respondents Nos. 1 to 4 could not be defeated simply on this score.
21. Learned counsel for the appellants placed a great deal of stress on the fact that it was for the respondents Nos. 1 to 4 to prove the four elements of section 41 of the Transfer of Property Act in order to benefit from the equitable principle enunciated therein. He also relied on the case titled Muhammad Afzal v. Matloob Hussain and. Others (PLD 2006 SC 84) in support of his contention and he specially referred to paragraph-9 of the reported judgment which reads as under:-- "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."
22. I have gone through the cited precedent. In very clear terms, it sets out the law after taking note of the historical background in which section 41 was enacted and the case law on the subject. In the presentcase the ostensible ownership of respondents Nos. 6 and 7, from whom respondents Nos. 1 to 4 purchased the suit property, is indisputably established, for reasons discussed above.
The consent of the appellants in support of such ostensible ownership is implied through the conduct of the appellants considered above. The third essential ingredient of section 41, namely, consideration, stands established from the contents of the two mutations (Exh.P.5 and Exh.P.6) wherein the payment of consideration has been duly recorded. Furthermore, there is no assertion in the plaint or the testimony of the appellants that respondents Nos. 1 to 4 had acquired title in the suit property without payment of consideration. The final element of good faith is also proved on record as held in the earlier parts of this judgment. In these circumstances, the judgment in the case of Muhammad Afzal v. Matloob Hussain, supra, supports the respondents and is of no help to the appellants.
23. At this point, I need to address the argument advanced on behalf of the appellants that no specific issue had been framed by the learned trail Court in respect of the respondents being bona fide purchasers of the suit property from ostensible owners as envisaged by section 41 of the Transfer of Property Act. It was contended by learned counsel for the appellants that the title of the respondents, therefore, could not be defended on this basis. This contention of learned counsel is misconceived on two counts. It is true that an issue in respect of the bona tides of the respondents Nos. 1 to 4 had not been framed. However, issues Nos. 1 and 2, read in the context of the defence taken in the written statement, would encompass the question. Secondly, the parties, through their pleading and the evidence led by them, were fully aware of the controversy between them.
Learned counsel for the appellants was not able to show any prejudice, which may have been caused to the appellants for want of proper wording of the issues framed by the learned trial Court.
24. Learned counsel for the respondents argued that the suit itself was time barred. He relied on the case titled Langar and others v. Ch. Muhammad Shafi and others (1994 M LD 2169) decided by a learned Division Bench of this Court. I have gone through the cited case and find the circumstances thereof applicable to the facts of the present case. It has been held by the learned Bench that where title is in dispute, the plaintiff is obliged to seek declaration of his Own title and then claim possession of the disputed property. In the present case the plaint it and the available evidence show that there was a dispute as to title. Thus following the ratio of the aforesaid case, I hold that the appellants, before seeking possession of the suit-land, were required to obtain declaration of their title. This course was even otherwise necessary in the present case because of the intervening two mutations (Exh.P.3 and Exh.P.4). As held in the aforesaid precedent, the period of limitationwas to be governed by Article 120 of the Schedule to the Limitation Act which prescribes a period of six years for the filing of such suit. I may add here that in their plaint the appellants have been less than forthright and have deliberately not disclosed the time and the manner in which they got knowledge of the mutations (Exh.P.3 to Exh.P.6).
25. Learned counsel for the appellants relied on the case titled Muhammad Sharif and 13 others v.
Inaytatullah and 24 others, supra, to argue that the appellants were justified in filing a suit for possession simpliciter, for which the period of limitation is twelve years as prescribed in Article 144 of the Schedule to the Limitation Act. There is no such finding in the afore-cited precedent. On the contrary, in paras Nos. 11 and 12 of the reported judgment, the contents of the plaint were examined by the Honourable Supreme Court which came to the conclusion that Article 95 of the Schedule to the Limitation Act was not attracted to the facts averred in the plaint. The contents of the plaint in the present case have been considered by me wherein no date or manner in which the appellants acquired knowledge of the impugned mutations has been set out. The cited precedent, therefore, does not advance the case of the appellants. In this view of the matter, I hold that the suit, which was filed on 20-3-1974, i,e,, almost eight years after the mutations (Exh.P.3 and Exh.P.4), was barred by limitation.
26. The detailed examination of this case in second appeal despite the concurrent findings of the learned Courts below, has been necessitated because of the faulty premises on which the appellants were non-suited by the learned Courts below. However, in view of the discussion above, the impugned decrees do not required interference. This appeal, as a consequence, is dismissed.