AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioners-defendants have challenged the judgment and decree dated 2-2-2000 passed by learned Addl: District Judge, Faisalabad, whereby the appeal filed by them was dismissed, and the judgment and decree dated 28-3-1996 passed by learned Civil Judge 1st Class, Faisalabad, whereby the suit filed by respondent No. 1 (Muhammad yousaf) was decreed.
2. Briefly, the facts as leading to this civil revision are that the plaintiff/respondent No,1 on 16-3-1991 filed a suit for possession of land measuring 2-kanals 5-marlas, the detail of which is fully described in the head note of plaint, and also prayed for cancellation of Mutations Nos.1599 and 1600 as well as registered documents dated 12-10-1976-by defendants Nos.1 and 2 in favour of defendants Nos.3 and 4. The case of plaintiff-respondent No,1 is that defendants Nos.1 and 2 were original owner of suit property measuring 2-kanals 5-marlas. On 19-3-1958 they sold the same through registered sale deed in favour of Muhammad Boota, predecessor of defendants Nos.6 to 11.
Further pleaded that vide registered sale deed dated 20-9-1958 said Muhammad Botta sold the suit land to the plaintiff (Muhammad Yousaf) but inadvertently the mutation could not be attested in his favour. It is further averred that as the plaintiff was not interested in cultivating the land, therefore the same-was given to defendants Nos.1 and 2 on share (Battai). Afterwards in the-year 1976, defendants Nos.1 and 2 sold this property to defendants Nos.3 and 4 on 12-10-1976 and Mutations No,1599 and 1600 were attested, which are result of forgery and fraud. It is further pleaded that defendants Nos.1 to 4 dishonestly kept this transfer secret from the plaintiff. The defendants Nos.1 and 2 who were paying ' Battai' till the year 1976, asked that same be given to defendants Nos.3 and 4 on Bane and till the year 1989 said respondents Nos.3 and 4 paid `Battai' to the plaintiff. When in the year 1989 they stopped the payment of `Battai', therefore plaintiff approached the Patwari Halqa, where the forgery and fraud with regard to registered sale deed and mutations was came into his knowledge. The plaintiff stated that he is the bona fide purchaser. The mutations and registered sale deeds in favour of defendants Nos.3 and 4 are result of forgery and fraud, therefore prayed for decree of the suit. The plaintiff has not specifically challenged both the sale deeds by mentioning their particulars in the plaint.
3. The defendants Nos.1 and 2 filed written statement and contested the suit. With regard to Paragraphs 2 and 3 of the plaint, they stated that they have no knowledge about it. The defendants Nos.3 and 4 also filed their separate written statements and contested the suit. They stated that they are bona fide purchasers for value of suit property through registered sale deeds from defendants Nos.1 and 2 and mutations have also been sanctioned in their favour in the revenue record. They controverted the story with regard to payment of 'Battai'. One of the legal heirs of Muhammad Boota, defendant No,7 filed consenting written statement. Learned trial court framed the following issues:- ISSUES:-
(1) Whether the suit is time barred? OPD
(2) Whether the suit is mis-joinder of cause of action? OPD
(3) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
(4) Whether Mutations Nos.1599 and 1600 dated 12-10-1976 as well as registered sale deed on which those mutations are, baseless, illegal, null and void and is ineffective against the rights of the plaintiff? OPD
(5) If the above issue is not proved then whether the plaintiff is entitled for the possession of disputed property? OPP
(6) Relief.
' The parties were invited to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the close of trial, vide judgment and decree dated 28-3-1996 suit was decreed by learned trial court. An appeal was filed by defendants Nos.3 and 4 before the learned first appellate court. In the appeal an application under Order XLI, Rule 27 of the C.P.C. Was also filed for permission to produce the documents, which was dismissed and permission was not granted to produce additional evidence. Vide judgment and decree dated 2-2-2000 the appeal was also dismissed by learned first appellate court. Hence, this civil revision.
4. Along with this civil revision, the petitioners also filed an application (CM No,1-2000) under Order XLI, Rule 27 of the C.P.C, for permission to produce additional evidence. I have noticed that according to Para 3 of the application, 11 documents have been sought to be produced, Serial Nos.1 to 7 whereof are Fard-Jamabandies from the year 1957 to 1985, Serial Nos.8 and 9 are Khasra- Girdawaries, No,10 is copy of Mutation No,1277 dated 30-7-1975 and No,11 is copy of sale-deed No,2281 dated 5-2-1978.
5. After hearing the arguments of learned counsel for the parties on this application, I am of the view that petitioners-defendants want to further strengthen their case by producing these documents, otherwise the evidence already produced on the file is sufficient to determine the real question in controversy between the parties. Therefore, no further evidence is required in order to determine the question in issue. As such, this application is disposed of accordingly.
6. Learned counsel for the petitioners-defendants Nos.3 and 4 started the arguments from the point that when specifically it was pleaded by the petitioners-defendants that they are bona fide purchaser of suit land for value, therefore learned trial court was bound under the law to frame the issue with regard to this plea of petitioners with regard to bona fide purchaser of land. While relying upon "PLD 2003 Supreme Court 184 (Muhammad Yousaf and others v. Haji Murad Muhammad and others)" learned counsel argues that it was the duty of court to frame issues in accordance with the pleadings of parties; that for non framing of issue the eventuality occurred that petitioners moved an application for permission to produce additional evidence because for non-framing of issue, full opportunity was not available with the petitioners to prove their case pleaded by them.
Learned counsel made a request that if this court is agree to frame the issue with regard to bona fide purchaser, then after framing the issue matter be remanded to learned trial court for recording the evidence. Learned counsel further argues that on the basis of clear title of sellers i.e, defendants Nos.1 and 2 in the revenue record, with full vigilance and without any fault on the part of petitioners- defendants Nos. 3 and 4 they have purchased the property for consideration in good faith and when the possession of suit land was also delivered to them and admittedly they are in possession of said land till today, therefore nothing could be tattributed to the petitioners-defendants Nos.3 and 4 about non observing the full care before the purchase of suit property. Learned counsel states that in accordance with section 41 of the Transfer of Property Act, 1882 they are fully protected, as they have purchased the suit property; that as the petitioners are innocent persons, therefore section 41 of the Act ibid fully protects their rights when they have purchased the land from the ostensible owner. In this context, learned counsel has relied upon "2000 CLC 1745 (Dost Muhammad through Legal Heirs v. Jahangir Khan and another)". While relying upon "1974 SCM R 255 (Rehman Shah v. Muhammad Shah and others)" states that when the alleged sale deed of plaintiff and also of his seller i.e, Muhammad Boota were not incorporated in the revenue record and also the same were not in the knowledge of petitioners, therefore the transferees i.e, petitioners-defendants Nos.3 and 4 were justified in purchasing the property from transferors i.e, defendants Nos.1 and 2 (Mehndi Khan and Muhammad Siddique) as ostensible owner, therefore their rights as bona fide purchaser for value are protected. Further while relying upon "2003 CLC 1805 (Ijaz Baig and 16 others v. Irshad Baig and 2 others)" states that where revenue entries show a person as a sole proprietor of certain land and there are no circumstances leading the purchasers to go behind the revenue record and make any, further inquiry, such purchasers are fully protected by the principle underlying section 41 of the Transfer of Property Act, 1882. In this regard, learned counsel has also relied upon "2002 M LD 589 (Muhammad Tufail and 2 others v. Maula Bakhsh and 45 others)".
7. With regard to the issue of limitation, learned counsel for the petitioners states that in accordance with Order VII Rule 6 of the C.P.C., plaintiff was bound under the law to plead the grounds upon which exemption of such law is claimed; that as the suit for possession can be filed in accordance with the provisions of Articles mentioned in the schedule of the Limitation Act, 1908 but both the courts below without adverting to the provisions applicable in the suit have decided the issue in favour of plaintiff-respondent; that with regard to payment of 'Battai' the stand taken by the respondent-plaintiff is neither plausible nor attracts to a human mind, therefore the suit was ladly time barred and both the courts below have wrongly recorded the findings on this issue against the petitioners-defendants Nos.3 to 4.
8. On the other hand, learned counsel for respondent No,1/plaintiff argues that there are concurrent findings of facts recorded by two courts below; that there is no need to allow the petitioners to produce additional evidence, as they want to fill up the lacunas in their evidence at this stage.
Further states that learned first appellate court has also refused their application, therefore there is no occasion Co allow the application for additional evidence. He has further argued that even there is no need to frame further issue at this stage with regard to bona fide purchase of suit property by the petitioners in good faith for value; that it is not a case of section 41 of the Transfer of Property Act, 1882 but it is a case of sections 48 and 49 of the Registration Act, when the registered document in favour of plaintiff is prior in time, therefore he has rightly been granted the decree by learned trial court, which has been upheld by learned first appellate court. Further argued that even on the point of limitation, learned both the courts below have rightly held that suit is within time. He has relied upon "PLD 1989 Supreme Court (AJ&K) 45 (Maqsood Hussain Shah v. Noor Hussain Shah and 3 others)" to argue that as the possession of petitioners-defendants was permissive, therefore filing of suit was within the prescribed period of limitation under Article 142 of the Limitation Act and no question of limitation will arise. It has been further argued that when the petitioners purchased the suit property from the persons, who are not the real owner of said property, therefore the sale in their favour gives absolutely no right; that the provision of section 41 of Transfer of Property Act is available when the seller is a complete owner.
9. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
10. First of all, I will take the question of limitation, which is issue No, 1 . In accordance with Article 142 of the Limitation Act, 1908, which is reproduced herein for ready reference:- "142-For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession."
' According to the facts of this case, the original owners i.e, defendants Nos.1 and 2 (Mehndi Khan and Muhammad Siddique) sold the suit property through registered sale deed No,610 registered on 19-3-1958, copy of which is available as Exh.P-2, in favour of Muhammad Boota and the plaintiff- respondent No,1 claimed to have purchased the part of property sold in favour of Muhammad Boota measuring 2-kanals 5-marlas through registered sale-deed No,1892 registered on 20-9- 1958 and it is admitted that neither the sale deed in favour of Muhammad Boota nor of the plaintiff was incorporated in the revenue record and the petitioners-defendants Nos.3 and 4 through registered sale deed No,413 dated 15-7-1976 (Exh.D-1) and sale-deed No,10250 dated 20-8-1976 (Exh.D-2) respectively purchased the part of suit land. Admittedly, the same was incorporated in the revenue record through Mutations Nos.1599 and 1600. The plaintiff was bound to prove the delivery of possession by Mehndi Khan and Muhammad Siddique, the original owners, to Muhammad Boota and then delivery of possession by Muhammad Boota to the plaintiff. When defendants Nos.3 and 4 claimed their possession as owner on the suit land, plaintiff was bound to plead delivery of possession to him under the sale by his seller and also to plead the exemption from law of limitation in accordance with Order VII Rule 6 of the C.P.C., the claim of plaintiff only on the basis that previously defendants Nos.1 and 2 (Mehndi Khan and Muhammad Siddique) were giving him 'Battai' and then defendants Nos.3 and 4/petitioners started to give him 'Battai' since the year 1976 till 1989, is neither plausible nor attracts to the human mind. When the petitioners were having a sale deed in their favour in the year 1976, why they were giving 'Battai' to the plaintiff/respondent No,1, which is a material issue. Learned both the courts below recorded the findings on the basis that as the transfer of land in favour of the petitioners-defendants Nos.3 and 4 is illegal and declaring them to be illegal occupants, therefore the limitation not to start run.
These findings are absolutely against the law. The courts below were bound under the law to scrutinize the evidence as well as keep in mind the law applicable on this point. Both the courts below not only ignored the facts of case but also ignored the basic provision of law as well as the law declared by the superior court of the country on the point in issue. I am clear in my mind that when the matter of possession and nature of possession was disputed between the parties, therefore as I have observed the plaintiff was bound to specifically plead taking of possession of suit property under the sale and then giving the same to defendants Nos.1 and 2 on `Battai' basis and then to the petitioners-defendants Nos.3 and 4 on 'Bane basis in the year 1976 and then to prove the payment of `Battai' to him by defendants Nos.1 and 2 from the year 1958 to 1976 and then from 1976 to 1989. No such clear plea is available in the pleadings and therefore no question of evidence. When there is no specific and clear plea on the record, I am clear in my mind that in accordance with Article 142 of the Limitation Act, 1908. the plaintiff failed to prove taking of possession of suit land under the sale and the cause of action accrued to the plaintiff at the time of registered sale deed in his favour. If more liberally the point of limitation be taken into consideration, then at least from the year 1976 when plaintiff has admitted the possession of defendants Nos.3 and 4/petitioners over the suit land, therefore the plaintiff was to prove that suit has been filed within limitation of 12 years from the discontinuation of his possession. This suit has not been filed within 12 years of the prescribed period of limitation provided under the law. Though he claims that he has given the possession on Battai' whereas there are registered sale deeds in favour of petitioners-defendants Nos.3 and 4. For deciding issue of limitation it was incumbent upon the trial court as well as first appellate court to determine the starting point of limitation, and that which provision of limitation Act, 1908 is applicable in the circumstance of this case. I have observed that both the courts below fell in error while not deciding these important points of law.
The only finding that the defendants are in illegal possession of suit property is not sufficient to decide the issue of limitation. In this view of the matter, the findings of both the courts below on issue of limitation ate against the law, therefore are reversed.
11. Now I come to the matter of purchase of property in dispute in good faith for value by the plaintiff or by the petitioners-defendants Nos.3 and 4. At this juncture, I would like to dilate upon the matter of framing of specific issue with regard to purchase of suit property in good faith for value.
In view of the reliance of learned counsel for the petitioners upon "PLD 2003 Supreme Court 184" I extremely agree with the findings of august Supreme Court in this regard and also I am guided by the principles annunciated by the apex Court that in case if there is any prejudice caused to any party, then certainly framing of issue and remanding the case may be necessary for administration of justice. In the circumstances of this case, where the party has pleaded its case, being fully aware of its pleadings and the evidence is in accordance with the pleadings, then non- framing of issue causes no prejudice to the party. Therefore, formal framing of issue will not serve the purpose of administration of justice. I am of the view in the circumstances of this case, formally framing of an issue with regard to purchase of suit property by the petitioners-defendants Nos.3 and 4 in good faith for value in order to take benefit of section 41 of the Transfer of Property Act, is not necessary, because without framing of issue sufficient material in shape of pleadings and evidence is available on the record to decide the matter in issue, as this matter can be decided while deciding issues Nos.4 and 5. As such, the prayer for framing of issue and remanding the case is not tenable at this juncture of the proceedings of case in hand.
12. So far as the purchase of suit property in good faith for value by the plaintiff-respondent No,1, is concerned. It is also determinable while deciding this lis. The case of plaintiff is that inadvertently the mutation could not be entered in the revenue record. This contention of plaintiff is against the record. I have minutely gone through the sale-deed (Exh.P-3), which is in favour of plaintiff. There is no reference of copy of Jamabandi issued by the Patwari and year of Jamabandi as well. It is common practice and required under the law that for transfer of any property the proof of ownership of sale is required. In case of the property where the revenue record is available the best record for purchase is to see the name of seller in the revenue record. In this case, admittedly the seller Muhammad Boota was not recorded owner in the revenue record of the suit property and the name of plaintiff (Muhammad Yousaf), who even having .a registered sale deed in his favour, could not have been entered in the revenue record. Through this documentary evidence the stand taken by the plaintiff that inadvertently the mutation could not be entered, is wrong. In order to substantiate his plea that he has purchased the suit property in good faith for value, it does not borne out from the scrutiny of the record, as admittedly on the basis of documentary evidence it is established that Muhammad Boota was never recorded as owner of the suit property in the revenue record and it is also admitted that in the sale deed in favour of plaintiff (Exh.P-3) there is no reference of ownership, Part of Jamabandi, issued by the Patwari. I have also noticed that even the year of Jamabandi is not mentioned in the sale deed with reference to the mention of number of Khewat and Khasra number etc. It will not be out of place to mention here that without reference of year of Jamabandi, Khewat and Khasra number etc, description of property is not complete and even the property is not identifiable.
13. So far as the purchase of suit property in good faith for value by the petitioners-defendants Nos.3 and 4, is concerned. Their claim is that they purchased the suit property in good faith for value from the recorded owner of suit property after checking the revenue record of ownership, and possession was also delivered to them under the sale. Their stance is in consonance with the record available on the file of this case. As discussed above, admittedly when the sale deed in favour of Muhammad Boota and also Muhammad Yousaf were not incorporated in the revenue record, therefore the names of Mehndi Khan and Muhammad Siddique were available as recorded owner in the revenue record when the petitioners-defendants purchased suit property through registered sale deeds. Their contention that they have purchased suit property for consideration in good faith without notice of previous sale deeds, and possession was also delivered to them under the sale and they are entitled to the benefit of section 41 of the Transfer of Property Act, is not only believable but also established on the record through the documentary evidence, as discussed supra. In this view of the matter, I am clear in my mind that the petitioners-defendants Nos.3 and 4 are purchaser of suit property in good faith for value.
14. So far as issues No,4 and 5 are concerned. The facts are required to be re-mention here in series for the safe administration of justice. It is fact that defendants Nos.1 and 2 (Mehndi Khan and Muhammad Siddique) were owner of suit property. They sold the same along with other property to Muhammad Boota through registered sale deed dated 19-3-1958 (Exh.P-2). The suit property was sold by Muhammad Boota in favour of plaintiff (Muhammad Yousaf) through registered sale deed dated 20-9-1958 (Exh.P-3). Muhammad Siddique Khan sold the part of suit property measuring 1-kanal 2-marlas to Nazir Ahmad-defendant No,3 through registered sale deed dated 15-7-1976, copy of which is available as Exh.D-1. Mehndi Khan sold 1-kanal 2-marlas to Abdul Salam-defendant No,4 through registered sale deed dated 20-8-1976, copy of which is available as Exh.D-2. It is also admitted on the record that till the purchase of suit land by the petitioners- defendants Nos.3 and 4 from the original owners, Mehndi Khan and Muhammad Siddique were recorded owner of suit property in the revenue record. Meaning thereby that on the basis of sale deed (Exh.P-2) the name of purchaser Muhammad Boota was not entered into the revenue record and the name of plaintiff was also not recorded in the revenue record.
15. The argument of learned counsel for the plaintiff-respondent No,1 that benefit of section 41 of the Transfer of Property Act can be taken only when the seller is owner without any defect in his ownership, in my view it is not correct. As section 41 of the Act ibid is with regard to the ostensible transfer by the ostensible owner and ostensible owner does not mean the complete owner without any defect. Before further discussion on this point, I would like to quote herein the meaning of ostensible, which is even in the Concise Oxford English Dictionary 11th Edition by Catherine Soanes Angus Stevenson:-- "ostensible-adj. Apparently true, but not necessarily so."
' Meaning of ostensible from Black's Law Dictionary 9th Edition by Bryan A. Garner: "ostensible-adj.
Open to view; declared or professed; apparent."
' Therefore, ostensible owner does not mean the complete owner without any defect, I am of the view that when at the time of transfer of property by ostensible owner in favour of any person, who is person claiming the title and interest in the property remains silent on that transfer, it means that he has impliedly admitted that transfer. In this case, when possession was admittedly with Mehndi Khan and Muhammad. Siddique till the year 1976, at the time of purchase of their respective properties by the petitioners, the sellers were being recorded owner in the revenue record, there being no resistance from the side of plaintiff at the time of sale in favour of petitioners and at the time of transfer of possession of suit property, makes it crystal clear that the stand taken by the petitioners is proved through the evidence available on the record. Furthermore, the defence taken by the plaintiff-respondent No,1 that at the time of purchase of suit property by him, the property was given to Mehndi Khan and Muhammad Siddique on battai' and further on the asking of original owners Mehndi Khan and Muhammad Siddique in the year 1976 the property was given to defendants Nos.3 and 4 on 'Battai', at least confirms the transfer of possession of property in favour of petitioners-defendants Nos.3 and 4 in the year 1976 and the explanation advanced by the plaintiff that as he was not cultivating the land, therefore the same was given to Mehndi Khan and Muhammad. Siddique, is a flimsy plea and also against the logic. The plaintiff was to prove the transaction of possession of land by Mehndi Khan and Muhammad Siddique in favour of Muhammad Boota, then from Muhammad Boota in his favour the transfer of possession as owner and then giving the same to Mehndi Khan and Muhammad Siddique for cultivation on 'Battai' basis.
Even no such transfer of ownership possession has been claimed from Mehndi Khan to Muhammad Boota, from Muhammad Boota to the plaintiff nor has been proved. In this view of the matter, there was no circumstance in the proceedings of this case to disbelieve the petitioners, whose case is otherwise proved through the documentary evidence as well as impliedly by the plaintiff's admission. In this view of the matter, I am clear in my mind that suit was clearly time barred, as according to the Article 142 of the Limitation Act, 1908, the plaintiff was bound to file the suit within 12 years from the date of dispossession or discontinuation of possession. The plaintiff has not proved the transfer of F possession in his favour under the sale and it is proved on the record that petitioners are in possession of suit land as owner from their purchase since the year 1976 and filing of this suit in the year 1991 is clearly time barred. The decision of issues Nos.4 and 5 by both the courts below, while ignoring the basic law as well as-interpretation of law annunciated by the august Supreme Court as well as this court, is nullity in the eye of law, therefore the findings recorded by both the courts below are reversed.
16. The petitioners purchased the suit property in good faith for value and the possession was also delivered to them under the sale, therefore they are fully entitled to take benefit of section 41 of the Transfer of Property Act, 1882.
17. In the light of what has been discussed above, this civil revision is allowed and the impugned judgment and decrees passed by both the courts below are set aside. Resultantly, the suit filed by respondent No, 1/plaintiff shall stand dismissed with no order as to costs.