' MUHAMMAD AMEER BHATTI, J.---Through this civil revision, the petitioners have challenged the concurrent findings of both the Court below whereby the suit of the petitioners had been dismissed and consequently the suit filed by the respondent No,1 was decreed vide judgment dated 23-7- 2001 and appeal filed by the petitioners has been dismissed by the learned First Appellate Court vide its judgment dated 21-1-2003.
2. The brief facts of the case necessary for the decision of this civil revision are that two suits for declaration were filed. One by Ahmed Khan son of Hakim Khan v. Khuda Bukhsh and the other suit was filed ' by the petitioners in the name of Khuda Bukhsh and others v. Ahmed Khan and Province of Punjab etc. The short history of this case is that a total land measuring 64-K was in the ownership of two brothers namely Ahmed Khan 40-K and Allah Dawaya 24-K. This total piece of land was sold through Mutation No,5319 dated 2-11-1974 to one Alam Ali. However, third brother Fateh Khan filed a suit for possession through pre-emption against this transaction which was ultimately decreed on 26-3-1978 against which Alam Ali vendee filed an appeal, however, the same was withdrawn and land was mutated in the name of Fateh Khan and Mutation No,5793 dated 20-1-1979 was sanctioned in the name of Fateh Khan. It is averred in the plaint by the present petitioners in his suit that Fateh Khan vide Mutation No,1068 dated 23-4-1982 sold out to Ghulam Rasool, Imam Bukhsh and Allah Dawaya. Rab Nawaz exchanged his property with Allah Dawaya through Mutation No,1812 dated 24-2-1987. The said Rab Nawaz through a Mutation of gift No,1886 transferred the suit property to his sons Khuda Bukhsh etc, the present petitioners/plaintiffs. It is added that Ghulam Rasool further transferred his share in the suit property to his sons Muhammad Ramzan etc,. Petitioners Nos.4 to 6 vide Mutation No,2999 dated 21-12-1993, hence petitioners/plaintiffs emerged as the exclusive owners of the land in dispute. Through this suit, Khuda Bukhsh etc., petitioners/plaintiffs prayed for the decree of declaration that they are owners in possession of suit property and defendants have no concern with it. As a consequential relief, the petitioners/plaintiffs have also prayed for injunctive decree to restrain the defendants for bringing any change in the revenue record or to interfere in the possession of the plaintiffs qua the suit property. Ahmed Khan defendant No,1 (in the suit of the present petitioner) contested the suit by way of filing written statement wherein he averred that a foot note on Mutation No,5319 was maneuvered in collusion with the revenue officer on 16-4-1984 without any notice to him. Since he has not transferred his land to none, hence the act of the respondents is without lawful authority.
He further clarified that only Allah Dawaya, his brother sold his 24-K land through Mutation No, 5319 dated 2-11-1974 to Alam Ali but the entry regarding the transfer of 64-K, wherein the land of Ahmed Khan has been included was against law and facts, result of fraud and collusion, as he had not sold his 40-K land through this mutation. He further asserted that he neither received any consideration amount nor he appeared before the revenue officer at the time of sanctioning of mutation.
3. An independent suit in this regard was also filed by Ahmed Khan/respondent No,1 through which he had, sought declaration about the Mutation No,5319 dated 2-11-1974 and subsequent mutations as detail mentioned in the headnote of the plaint. The written statement has been filed on behalf of the present petitioners where they took the same stand as already taken in their suit. Both the suits were consolidated and combined issues were framed. However, the evidence of the parties were allowed to be recorded in the case of present petitioners titled Khuda Bukhsh and others v. Ahmed Khan. The parties were allowed to lead their evidence according to their onus on issues. Plaintiffs produced two witnesses and also produced documentary evidence. On the other hand, defendant also led his evidence and Ahmed Khan defendant appeared as D.W.1, however, he exhibited D.1 to D.3.
4. After considering the evidence and hearing the learned counsel for the parties, the learned Trial Court on the basis of the findings recorded on issue No,3, dismissed the suit of the present petitioners and decreed the suit of the defendant/respondent No,
1. Consequently, the mutation impugned in the suit of Ahmed Khan was declared void, result of fraud and collusion and having no legal effects upon the rights of the defendant No, 1/respondent. Against this consolidated judgment dated 23-7-2001, one appeal was filed through which both the decrees were challenged, however, the learned First Appellate Court vide its judgment dated 21-1-2003 dismissed the appeal. Now, the petitioners/plaintiffs are before this Court through this civil revision.
5. Learned counsel for the petitioners contends that the suit property was firstly sold through Mutation No,5319 dated 2-11-1974 against which suit for possession through pre-emption was filed by another brother of the defendant No, 1/respondent and this suit was contested and ultimately it was decreed after four years and appeal was withdrawn on account of compromise and consequently another mutation in the name of Fateh Khan from vendee Alam Khan has been sanctioned and land came in the ownership of the third brother Fateh Khan. It is also the case of the present petitioners that out of this 64-K, they or their predecessors are vendees only to the extent of 32-K but other 32-K were got mutated in the name of the sister of Fateh Khan, Ahmed Khan and Allah Dawaya, as an exchange. However, at the time of filing of the suit she has not been impleaded as party. While referring to the excerpt from the evidence of D.W.1, in which the defendant No,1/respondent admitted about the knowledge of the pre-emption suit as well as the transfer of the land in the name of Alam Ali but he has not raised any objection either at that time or the sanction of mutations in favour of the present petitioners, Further contends that the petitioners are in physical possession apart from the fact that the name of the petitioners stands incorporated in the ownership column of the revenue record. He further contends that the respondent No,1/defendant had filed an appeal before the Deputy Commissioner against the footnote on 7-1-1992 and from every angles, it has been proved on the record that Ahmed Khan defendant was aware of the transaction from the very first day but he did not raise any objection.
Even, while referring to the mutation contends that at the time of mutation, Fateh Muhammad was also present as a "Lumberdar" of the "Patti". Further contends that the petitioners being bona fide purchaser has not been dealt with in accordance with law and the issues on bona fide purchaser have been disregarded without any justification.
6. On the other hand, learned counsel for the respondent No,1 contends that there are concurrent findings of facts recorded by both the Courts below hence this Court has no jurisdiction to interfere in the findings of facts, as no illegality has been pointed out by the learned counsel for the petitioners in the impugned judgment, as declared by the Hon'able Supreme Court. Reliance is placed on Hazara and others v. Muhammad Yar and others (2011 SCMR 758):-- "High Court, in exercise of its Revisional jurisdiction, was not called upon to re-appraise and re- evaluate merits of evidence of parties in absence of any illegality or non-reading/misreading of evidence " .
While referring to different documents, the learned counsel for the .Respondent No,1 contends that since the petitioners have failed to prove on record the presence of the respondent No, 1/defendant No,1 at the time of sanctioning of the mutation, hence it has been rightly held by both the Courts below that the mutation impugned has been sanctioned on the basis of fraud and collusion.
7. I have considered the arguments of the learned counsel for the parties and perused the record of the case.
8. There is no cavil to the proposition that the concurrent findings of facts recorded by Courts below shall not be interfered with in an ordinary manner, unless special circumstances have been brought to the A notice of the Court to prove that some serious injustice has been caused to the party, by rendering perverse decree, if the correction is not made in the judgment. Keeping in view this criterion determined by the Hon'ble Supreme Court, I intend to reappraise the evidence and pleadings of the parties with the assistance of the learned counsel so as to ascertain whether any injustice has caused to the present petitioners or not. With this intention first question which tickles my mind that there was 64-K land and out of this 64-K, Ahmed Khan was owner of 40-K, Allah Dawaya was owner of 24-K. Allah Dawaya has not denied about the sale of his land, rather he accepted the sale of Ahmed Khan also and this total land was pre-empted by the third brother.
This litigation remained pending for about four years and thereafter on compromise, land was transferred through another mutation in the name of Fateh Khan, brother of Ahmed Khan. He admitted this situation in his evidence and even in the written statement that the transaction was in his knowledge and even possession of the same is with the present petitioners as proved by the present petitioners, In the meanwhile, process of consolidation has also been completed and by then, he never raised any objection nor he bothered about his share of land. Another fact which irks my mind and is denting the case of the respondents is that why the suit has been filed against the present petitioners about 32-K. Since the total land 64-K has been sold to the different vendees and the present petitioners are one of them and out of this 64-K, 24-K are not disputed land which was owned by Allah Dawaya. How the Courts below have determined that in this 32-K, the land owned by Allah Dawaya measuring 24-K is not included and the present petitioners could have been vendees of that piece of land. This aspect of the case has not been considered by both the Courts below and there is not even an iota of evidence on the record to establish that the land had been partitioned before it was sold through a Mutation No,5319 dated 2-11-1974, which was the original mutation. Since total piece of land measuring 64-K had been sold out, at this stage, it does not lie in the mouth of Ahmed Khan to claim that whatever had been purchased by the present petitioners, forms his land. At least to the extent of 24-K, out of this 32-K, Ahmed Khan has no rightful claim to get a decree from the Court of law unless he proved on record that the total land had been purchased by the present petitioners, belonging to Ahmad Khan. He is neither in possession of any part of this land in dispute nor he could succeed from the evidence on record that the petitioners have purchased the land from the share belonging to him.
9. I have scrutinized all the documents available on the record and I find that through the decree of Civil Court land measuring 118-K, 4-M has been purchased by Fateh Khan from Ahmed Khan vide mutation No,5712 dated 8-3-1978. This dOcument and the report of Muhammad Iqbal Patwari Ishtamal dated 4-3-1992 available in this file at page No,174, has been brought on record by the defendants. I have also gone through the mutation which is available on the file as Exh.P.13. Out of this total land measuring 118-K 4-M, land measuring 108-K 14-M relates to Khata No,1136, so, at the time of sale by Fateh Muhammad to the different vendees, he was owner of land in Khata No,1136 more than 150-K. By putting all these documents/ mutations in juxtaposition, it can easily be effortlessly determined that at the time of purchase of land 32-K from Khata No,1136, Fateh Muhammad was owner of more Than 150-K. Hence, it cannot be presumed that the land which has been purchased by the present petitioners is the same land which has been obtained by Fateh Muhammad through fraud, if any, committed with his brother because the disputed land is to the extent of 40-K only. Since the petitioners are vendees of the land from Khata No,1136, hence the same cannot be considered to be belonging to Ahmed Khan. As such, from the documents available on the record, it can be easily determined that at the time of purchase of the land measuring 32-K, the vendor was owner of above than 150-K in the same Khata.
10. Even otherwise, the petitioners have purchased the land after scrutiny of the revenue record, where he found a mutation and then decree of the Civil Court and then another mutation in favour of Fateh Muhammad on the basis of the pre-emption decree and for that matter he reached to a definite conclusion that the land was encumbrance-free, and the present vendees/petitioners had rightly drawn the inference that the transferor was an ostensible owner as even possession has been handed over to the present petitioners and from then they possess the same land without any interference. Therefore, on having verified the entry in the revenue record in favour of the transferor, the petitioners purchased from Patti in good faith for value, thus the protection provided under Section 41 of the. Transfer of Property Act. Ingredients of section 41 Transfer of Property Act:
(a) The transferor is the ostensible owner;
(b) he is no by the consent, express or implied, of the real owner;
(c) the transfer is Mr consideration; and
(d) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
Reliance has been placed on Itbar Shah and others v. Ahmad Shah and others (2001 CLC 1021), Muhammad Afzal v. Matloob Hussain and others (PLD 2006 SC 84), Mst. Asia Latif v. Tariq Muhammad Khan (2007 YLR 1636), Muhammad Amin and 2 others v. Santo alias Gaman and another (2005 YLR 2379), Sher Muhammad v. Qutbu and others (2002 SCMR 1447):-- "---S. 41---Protection under S.41, Transfer of Property Act, 1882---Conditions---Bona fide transferee while seeking protection of S.41, Transfer of Property Act, 1882 is required to prove on record that he entered into transaction of sale in good faith having believed that the transferor was the ostensible owner of the property---When the conditions as laid down under S.41 of the Act namely that the transferor was the ostensible owner, and he was so by consent, express or implied, of the real owner, the transfer was for consideration and the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer, the transferee's rights were fully protected".
It has now become settled that where the concurrent findings of facts by the courts below are found perverse, arbitrary and fanciful the same could be interfered with in exercise of Revisional jurisdiction of the High Court under section 115 C.P.C. Reliance is placed on Mushtari Khan v.
Jehangir Khan 2006 SCMR 1238, Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307), Mubarik Ali through L.Rs, v. Amroo Khan through L.Rs, (2007 SCMR 1714), Muhammad Rafique v. Muhammad Iqbal and others (2007 SCMR 863), N.-W.F.P. Through Chief Secretary, Government of N.W.F.P Peshawar and 2 others v. Dost Muhammad and another (1998 SCMR 850), Kamal Din v. The State (PLD 1983 SC 85), Muhammad Sharif and others v. Meraj Din and others (PLD 2005 Lahore 102).
11. For what has been discussed above, the findings of the learned both the Courts below are based on misreading and non-reading of the evidence and misapplication of law, hence this Court, in exercise of the power under section 115, C.P.C., has an ample jurisdiction to interfere in and set aside such erroneous concurrent findings of facts. Consequently, this petition is allowed. The judgment and decree of both the learned Courts below dated 23-7-2001 and 21-1-2003 are hereby set aside and the suit of the present petitioners is decreed and suit for respondent No,1 Ahmed Khan v. Khuda Bukhsh is dismissed. No order as to costs.