AMIN-UD-DIN KHAN, J. --- Through this single judgment Intend to decide the above captioned civil revision and civil revision No. 1612 of 2001, as both these revisions are directed against the same judgments & decrees passed by two Courts below.
2. Through the above-captioned civil revision, petitioners-defendants have challenged the judgment & decree dated 28.04.2001 passed by learned Addl. District Judge/Lahore, whereby the appeal filed by them was dismissed, and the judgment & decree dated 08.12.1999 passed by learned Civil Judge 1st Class, Lahore, whereby the suit filed by the respondent-plaintiff was decreed.
3. The facts, in brief, are that the respondent- plaintiff (Mst. Nusrat Zafar) filed a suit for declaration on 12.12.1989 with the following prayer:- "That the plaintiff is owner in possession of plot No. 358 Gulshan Block, Allama lqbal Town Scheme, Lahore as bona fide purchase for value, without notice the defendant have no right to interfere in her possession as owner.
The impugned notice dated 29.04.1987 and all subsequent proceedings, if any, are illegal, void without jurisdiction, mala fide, without lawful authority and ineffective against the rights of the plaintiff. Defendants No. 1 and 2 are estopped from depriving the plaintiff from disputed plot.
As consequential relief it is prayed that .The defendants, now denying the rights of the plaintiff, be perpetually restrained from interfering into her possession owner of the disputed plot.
By filing written statement the suit was contested. Out of the divergent pleadings of the parties, learned Trial Court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the close of trial, vide judgment & decree dated 08.12.1999 suit was decreed by learned Trial Court.
Feeling aggrieved thereby, an appeal was fi' .d before learned first Appellate Court, which was dismissed vide judgment & decree dated 28.04.2001. Hence, these civil revisions.
4. Learned counsel for the petitioners-defendants argues that originally the predecessor of petitioners, namely Hakeem Zahoor-ur-Hassan Ansari was owner of 05-kanals 5-marlas situated in Mouza Bhekhewal, who gone to perform Hajj and after return he fell sick due to paralysis at Karachi. His land was sold to various persons on the basis of forged judgments and L.D.A. Acquired the land. The persons in whose favour land was transferred, received compensation as well as exemption from the L.D.A. After return the said Hakeem Zahoor-ul-Hasean Ansari filed a suit for declaration, in which a declaratory decree was passed in his favour on 16.04.1977. After that he filed his claim in L.D.A., where he was advised to file the same before the President, L.D.A. Acquisition Tribunal. The Tribunal decided the matter in favour of petitioners on 24.02.1985. Learned Counsel states that the exemptees sold out the plots to the various persons including Mrs. Nusrat Zafar and Syed Ayyub A.I Shah, respondents in both the civil revisions, then L.D.A. Issued a notice to them for vacation of plots, therefore they filed the suit and decree were granted in their favour; that as the transaction was fraudulent, therefore no benefit of Section 41 of the Transfer of Property Act, 1882 can be given to them. Learned counsel prayed that the impugned judgments & decrees passed by both the Courts below be set aside and suit filed by the respondents be dismissed.
5. On the other hand, learned counsel for the respondents-plaintiffs (Mrs. Nusrat Zafar & Syed Ayyub All Shah) argues that the plaintiffs purchased plots from the ostensible owners through registered sale-deed in the year 1979, which was validly transferred in the name of respondents in the record of L.D.A. And possession was delivered to them by the L.D.A. And after sanctioning of site plan they raised construction over there by spending their whole life savings and are also living therein. Further states that in the year 1987 the respondents received a notice from the L.D.A. For cancellation of plots and there was a threat of Snatching. Of possession, therefore they filed the suit; that at the time of purchase of plots as well as constructions, there was no lis pending anywhere and as such Section 52 of the Transfer of Property Act, 1882 is not applicable, therefore, they are entitled to the complete benefit of Section 41 of the Transfer of Property, Act, 1882. Learned counsel for the respondents further argues that even the L.D.A. Officials as well, as petitioners have not alleged anything against the respondents that they have purchased the property after observing full care and caution. Learned counsel lastly states that there are concurrent findings of facts in the matter recorded by both the Courts below. Reliance has also been placed upon the judgments reported as "PLD 1983 Supreme Court 53 (Kanwal Nain and 3 others v. Fateh Khan and others) and PLD 2005 Karachi 302 (Haji Muhammad Haroon and others v. Abdul Ghaffar and others.
6. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
7. Learned counsel for the petitioners when confronted to the position that whether the decree in favour of petitioners-defendants allegedly dated 16.04.1977 was produced on the file of Trial Court as well as this Court. The answer is in negative. Then questioned that whether the decree was incorporated in the revenue record or presented in the acquisition proceedings before L.D.A. The answer is also in negative. Learned counsel for the petitioners states that originally the owner, Hakeem Zahoor-ul-Hassan Ansari was not available at Lahore at that time, as has been submitted earlier. I have noticed- that the land was acquired by the L.D.A. And recorded owners were given compensation as well as exemption in accordance with law. The exemptees sold their plots in favour of respondents-plaintiffs .(Mrs. Nusrat Zafar & Syed Ayyub A.I Shah). Another important factor is that Muhammad Saeed was given a plot measuring 10 marlas in exemption, whereas the size of plot was 13 marlas and 2.10 square feet, therefore for the excess land a demand notice was issued to him nor payment of Rs. 20032.22, which he paid on 17.05.1979, copy of challan whereof is Ex.P-4. This extra land has also been transferred in favour of the respondents. If the decree dated 16.04.1977 was issued in favour of predecessor of petitioners, the petitioners have not bothered to bring on record the said decree in their favour and admittedly that decree was not got incorporated in the revenue record or was also not presented before .The Land Acquisition Authorities of L.D.A. In this view of the matter, in the light of judgment referred to by learned counsel for the respondents "PLD 1983 Supreme Court 53", when a person slept over upon his right for a long time and any weapon in his possession with regard to save his property i.e. The decree of the Court; he opts not to use that weapon at the proper stage and place and keeps the decree in his possession without using the same, the other authority or the subsequent transferees of property cannot be said that they were not vigilant at the time of purchase of property. In the circumstances of this case the petitioners and the respondents (Mrs. Nusrat Zafar & Syed Ayyub A.I Shah) are innocent persons, therefore when one of two innocent persons has to suffer by the act of a third person he who enables third person to occasion loss must sustain it. In this case, it is the petitioners whose long silence as well as not using the decree in their favour enabled a third person to occasion loss. Therefore, in the statutory application of law of estoppel,: it is an exception to the rule that no person can confer a better title than he himself has. As such, the respondents are rightly entitled for benefit of Section 41 of the Transfer of Property Act, 1882. Even otherwise, there are concurrent findings of facts in the matter recorded by both the Courts below. As I have earlier observed that, the decree in favour of the predecessor of petitioners dated 16.04.1977 was not even presented in the proceedings as a defence to safeguard their rights. I am unable to understand that why the petitioners want that the said decree in favour of their predecessor should not see the light of the day and they want to keep the same secretly.
8. The crux of above discussion is that I see no force in both the civil revisions, which are hereby dismissed with no order as to costs.
Civil revision .