' ZIA-UR-REHMAN KHAN, J.---Petitioners have directed the instant petition against the judgment and decree dated 30-11-2002 recorded by the learned District Judge/Zilla Qazi Shangla vide which while dismissing the appeal the judgment and decree dated 9-2-2002 passed by the learned trial Court dismissing the suit, has been upheld.
2. Brief facts in short compass are that the respondents in the capacity of plaintiffs sued the predecessors of the petitioners with regard to the suit property by filing a suit for declaration etc. Before the court of Senior Civil Judge Shangla/Alpuri to the effect that they on the basis of an exchange-deed No,180 dated 1-7-1967 were owners to the extent of four shares out of the total 11 shares, but the defendants while denying their said shares entered the total land in their names in the Revenue Record. They also sought the rectification of the adverse entries in favour of the petitioneRs, On being summoned the said defendants entered appearance and through their written statement sought to contest the said suit. The trial Court framed issues and after recording pro and contra evidence decreed the suit. Appeal of the petitioners failed, thus the instant petition.
3. Learned counsel for the petitioners vigorously contended that previously the predecessors in interest of the petitioners and after their death the petitioners are lawful owners of the entire suit property, which during the preparation of the Settlement record was duly entered into their names and as much presumption of truth is attached to the said entries, thus the suit of the respondents was hopelessly barred by limitation, because the same was beyond the prescribed period; that as petitioners Fatehur Rehman while appearing as D.W. has given the background of the ownership of the petitioners in elaborate terms and the same has been proved through other corroborative evidence as well, therefore, the suit of the respondents was liable to be dismissed; that both the courts below while recording the impugned findings have misdirected themselves and have also misinterpreted the relevant entries of the Revenue Record and through misreading and non- reading of evidence so produced by them the cause of the petitioners has been immensely damaged.
4. On the contrary learned counsel for the respondents while controverting the said arguments supported the impugned judgments and decrees maintaining that as the petitioners in their evidence have themselves admitted the original ownership of the father of the respondents and as the petitioners have failed to prove any sale regarding the disputed property in their favour, therefore, the suit of the respondents has rightly been decreed as prayed for.
5. Arguments heard and record perused.
6. It is evident from the record that one Shahbagh was owner of some property in Toray Khawray, which he sold to one Sultan Ahmad. As father of the respondents namely Arafat, being brother of the transferor, was having a superior right of pre-emption, therefore, he preempted the said sale before the then available forum and resultantly the transferee while admitting his superior right handed over the sale-deed to him and in this way the respondents predecessors acquired the title of that property. As the suit property was also owned by Shahbagh, therefore, in lieu of the aforesaid property he entered into an exchange transaction with his brother Arafat and in this regard a proper deed was executed, which deed has been duly tendered in evidence and exhibited without any objection from the petitioners' side. Up to the extent of filing of the pre-emption suit and its culmination into a decree even the petitioners in their court statement have made admission, but their stance is that 'thereafter Arafat sold the suit property to Rahim Maula and the said transferee onward sold the said property to the predecessors of the petitioneRs, In this view of the matter the petitioners accepted the original ownership of the predecessors of the respondents and in this way the burden of proof got shifted to them. It has now become their responsibility to convince this court regarding their ownership vis-a-vis the suit property by referring to the material having been led by the parties in support of their respective allegations. The entire controversy in this regard hinges upon the statement of Rahim Maula, who has appeared as C.W. In his examination-in-chief the said witness has asserted that it was he, who provided the pre-emption amount to Arafat as he had no sufficient amount at that time to pre-empt the sale transaction in favour of Sultan Ahmad. He has further alleged that owing to the provision of the pre-emption amount to Arafat he had promised that he would execute a deed, but before the fulfilment of the saidpromise he passed away. But in the cross examination he has categorically admitted that he never sold the suit property to the petitioners, because the same was not owned by him. With this solitary admission the claim of the petitioners with regard to the title of the suit property crumbles to dust. Likewise Shahbagh while appearing as D.W.3 has also supported the version of the respondents saying that he had entered into an exchange transaction pertaining to the suit property with the father of the respondent, who in lieu of it had given to him the property, which he acquired through the enforcement of his right of preemption. As against that the petitioners have badly failed to produce any other corroborative evidence in support of their alleged ownership towards the suit property, thus this court is confronted with no confusion to hold that they are not the owners of the suit property and it was unlawfully entered in their names in the settlement record. Needless to observe that right/title of vendee is dependent upon the strength or weakness of the title of seller, who cannot confer better title than he himself holds. Likewise a purchaser in order to invoke the provisions of section 41 of Transfer of Property Act, 1882 must prove his bona fide purchase through convincing evidence that his transferor was ostensible owner. Reliance in this regard can will be placed upon a recent judgment of the august Supreme Court of Pakistan reported as 2010 SCM R 18 titled "Muhammad Shamim through Legal Heirs Vs. Mst.Nisar Fatma".
Relevant citations whereof are as under:-- (B,) "Transfer of Property Act (IV of 1882). S.41---Bona fide purchaser----Protection---Pre- conditions---In order to invoke provisions of section 41 of Transfer of Property Act, 1882, it is necessary that transferor should be ostensible owner, his ownership should be consented or implied by real owner, the transfer should be for consideration and transferee must have acted in good faith taking reasonable care to ascertain that transferor had the power to transfer.
(C) ---S. 54---Specific Relief Act (I of 1877), S. 42---Passing of title---Principles---Vendor cannot pass on to vendee anything better than he himself held, therefore, it is vendee, who has to apply maximum care before going for a transaction of sale/purchase---right/title of vendee is dependent upon the strength or weakness of the title of seller---Vendee has to sail, swim and sink with seller and to pursue him for any loss suffered if he was ultimately the loser."
' If the stance of the petitioners is gauged on the yardstick of the principles and guidelines duly enunciated in the supra referred judgment of the apex court, the same appears to have been based upon a hollow foundation.
' The contention of the learned counsel for the petitioners that much presumption of truth is attached to the entries of the Settlement record in their favour at the behest of Rahim Maula, is also not tenable, because the said Rahim Maula in view of the aforesaid facts and as per his own admission was not its owner at all, then how he could have recorded the suit property in the names of the petitioneRs, Likewise in the absence of any lawful ownership serving as a fountainhead even if the entries of the revenue record are in favour of the petitioners, the same being founded upon illegal foundation are of no use to them and the same are liable to be ignored. In other words once these entries of the revenue record are held and declared to be based upon no legal title, the same cannot be treated as sacrosanct, because such like entries must be the product of some unlawful ownership. Meaning, thereby that the said presumption of truth and correctness attached even to the entries of the settlement record is rebutable and the same lose their importance once they have stood falsified. Reliance in this regard can well be placed upon an authoritative judgment of the apex court reported as 1997 SCM R 338 titled "Misri v. Muhammad Sharif". The said judgment imparts immense strength to the version of the respondents.
' Similarly as the respondents have been proved through overwhelming and predominant evidence owners to the extent of 4/11 shares, therefore, they are co-owners in the suit Khasra Numbers with the petitioners and being so the question of limitation is not attracted to the fate of the instant case. Moreover, the factum of any inaction or omission on the part of the respondents has been rightly termed by the courts below to be the result of their being minors at that time.
' In view of the above backdrop this court has come to an irresistible conclusion that both the courts below after scanning and subjective examination of the entire material available on the record have rightly admitted the claim of the respondents by passing a decree in their favour as prayed for. Since they have not committed any irregularity or illegality in recording the said judgments, therefore, the same are not vulnerable to any attack and exception. Resultantly the petition in hand being devoid of substance and in the absence of any other legal infirmity whatsoever is hereby dismissed, leaving the parties to bear their own costs.