' MRS. SYEDA TAHIRA SAFDAR, J.- Through instant petition judgment dated 19th September, 2011 of Additional District Judge-I, Quetta, and judgment dated 17th August, 2010 of Civil Judge-VI, Quetta, have been assailed, whereby the courts below allowed the suit as prayed for, and dismissed the appeal filed by the petitioners. The judgments have been challenged on grounds that the courts below failed to consider the material facts and while misappreciating the evidence arrived to the conclusion which is not in accordance with law, and facts. Further, the courts below failed to appreciate this admitted feature of the case that the petitioners are bona fide purchasers of the property in question, and after transaction they have built house, thereon, and are in constructive possession of the property in question through sale-deeds, therefore, their rights are to be protected under section 41 of the Transfer of Property Act, 1882, but this legal provision was not considered by the courts below, thus their findings are highly prejudicial to them. It was further contended that if there was any fault, the liability of the same goes to the respondent No,2, and grievance of the respondent No,1 was only against respondent No,2, who in collusion with respondent No,1 sold out the property in question to rest of the respondents, but the courts below made an order, which is solely against the petitioners the bona fide purchasers, which is nullity in the eyes of law. It is further contended that the respondent No,1 while appearing before the court admitted the fact that the houses are built on plots in question. She further admitted the status of the petitioners being of bona fide purchasers, but this fact was not duly considered by the courts below. The petitioners have prayed for setting aside of both the orders, and dismissal of the suit filed by respondent No, 1.
2. The learned counsel for the petitioners argued the matter at length. His sole argument was to the effect that the petitioners were bona fide purchasers; therefore, benefit of section 41 of the Transfer of Property Act, 1882 must have been extended in their favour. His further argument was that the petitioners are to be compensated being purchasers of the property, and as they have raised construction on it, thus sustained heavy loss in view of the order passed by the trial court.
3. The perusal of the papers attached with the petition reveals that the respondent No, 1/plaintiff Mst. Hameeda Begum filed a suit in respect of two pieces of land bearing Khasra No,4514/184 and 185 measuring 26 poles and 54 rods, situated at Mohal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil and District Quetta. It was her case that the defendant No,1/respondent No,2 with the help, and collaboration of defendant No,2/respondent No,3 fraudulently sold out both the pieces of land to defendant No,3/respondent No,4, who further sold out the property to defendants Nos.4 and 5/respondents Nos.5 and 6, who further sold out the land to the present petitioners. She sought setting aside of the sale transactions, with further declaration of her title, and also handing over of possession of the land in question to her. None of the remaining respondents appeared, nor contested the suit except present petitioners being defendants Nos.6 and 7 befOre the trial court. In their reply it was their contention that the sale transaction was effected between them (petitioners) and plaintiff/respondent No,1, and defendant No,1/ respondent No,2 in presence of the plaintiff Mst. Hameeda Begum, who put her signatures on blank mutation papers, and also gave photocopy of her CNIC. With further contention that the possession was handed over to them by the adopted son of the plaintiff i,e, respondent No,2 Zahir Hussain in her presence, therefore, the suit is hit by Article 114 of Qanun-e-Shahadat Order, 1984. The trial court after framing of the issues called for the evidence of the parties, and on completion decided the suit through judgment dated 17th August, 2010, while allowed relief as claimed by respondent No,1/plaintiff. Feeling aggrieved of the order the present petitioners challenged the order by way of filing appeal, but the appellate court through order dated 19th september, 2011 concurred with the findings of the trial court. Still feeling aggrieved the petitioners preferred instant petition with contention as recorded hereinabove.
4. There are concurrent findings of facts by the courts below, therefore, it is the petitioners, who have to establish the illegalities committed by the courts below, on basis of which this court can exercise jurisdiction provided under section 115, Civil Procedure Code (C.P.C.), which in fact is of a limited nature. The learned counsel for the petitioners only stressed the point that the petitioners being the bona fide purchasers, therefore, the benefit provided under section 41 of the Transfer of Property Act, 1882 was required to be extended in favour of the petitioners. Section 41 of the Act, 1882 reads as under:---
41. Transfer by Ostensible owner.--- Where with the consent, express or implied, of the persons interested in immovable properly, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not he avoidable 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."
In view of the same it is incumbent on a person, who is claiming his right, and benefit of this section, to establish that the person from whom the property has been transferred to him was ostensible owner, while transfer so made, was with the consent of the real owner either express or implied. Furthermore, the transfer must have been made for some consideration. The last but the most important that the person being transferee or purchaser must have acted in good faith, and had taken all reasonable care, and steps before entering into the transaction. Now it is the petitioners, who have to establish that they had taken all reasonable care before entering into the sale transaction with the remaining defendants. The petitioners have relied on certain sale agreements. Whereby the plots in question were sold to them. Exh.D/2-A is an agreement executed between one Haji Muhammad defendant No,3 and Ali Hassan, who is not party to the suit. While petitioner No,1 Azizullah purchased the property from Ali Hassan through agreement Exh.D/2. While the second sale agreement is Exh.D/3, which is between Haji Muhammad and Rustam Ali (petitioner No,2). In both these agreements Haji Muhammad showed himself to be the lawful owner of the property, which was sold. But, the contents of these sale agreements are in contradiction with the plea of the petitioners, as taken in their written statements. They have specifically asserted therein that the sale transaction was effected between replying defendants the plaintiff and defendant No,1 Zah'r Hussain in presence of the plaintiff. But said Zahir Hussain is not party to any of the transactions. While this Haji Muhammad appeared as their Witness No,4. It was his (D.W.-4) statement that Zahir Hussain respondent No,2 sold out the plot to him, while he demanded for relevant mutation entry, on which said Zahir Hussain handed over a Fard to him, which was not in consonance with the description of the plot, which' was sold to him, whereafter, Zahir Hussain absconded, and he sold out the plot to Ali Hassan and Rustam. He admitted that atter inquiry he came to know that Zahir Hussain was not selling out the plot on behalf of Mst. Hameeda Begum. He being one of the defendants, but did not opt to appear as party to the suit, nor contested the matter, but appeared as witness of the petitioners, which shows mala fide on their part. Even his statement nullifies the plea of being bona fide purchasers taken by the petitioners. There is no evidence that the petitioners were not in the knowledge of the fact that the property in question in fact belonged to Mst. Hameeda Begum respondent No,1, rather they purchased the property from Haji Muhammad or from Zahir Hussain without confirming the actual ownership of the property.
Rather their pleadings are contrary to the contention taken in the instant petition. While during course of his statement their attorney stated that Ali Hassan handed over a blank paper having thumb impression of Mst. Hameeda Begum. In the circumstances, the petitioners cannot ask for benefits of section 41 of the Transfer of Property Act, 1882.
5. The trial as well as the appellate courts properly assessed the material on record, and arrived to the conclusion, which does not suffer from any illegality, which needs interference by this court. The petition being without merits is hereby dismissed in limine.