' IJAZ AHMED CHAUDHRY, J.---This civil appeal has arisen out of CPLA No, 1956-L/2003 filed by the appellants against the judgment of the Lahore High Court, Lahore dated 20.5.2003 through which Civil Revision No, 1575 of 1993 filed by the appellants against the judgments and decrees dated 11.4.1993 of learned Additional District Judge, Sheikhupura and dated 5.3.1992 of learned Civil Judge IInd Class Sheikhupura, has been dismissed.
2. Appellants had filed a suit for declaration with possession on 25.5.1980 against the respondents with the following prayer:- {{URDU TEXT}}
3. Brief facts as per plaint are that Ashiq Baig, predecessor-in-interest of the appellants and respondent No, 1, died on 20.8.1963 and he was survived by Ijaz Baig, Ikhlaq Baig, Ashfaq Baig, Irshad Baig sons and Mst. Zafria Begum Mst. Mumtaz Begun': Mst. Ijaz Begum, Mst. Iqbal Begum and Mst.
Rahat Begum, daughters. Irshad Baig was supervising the properties owned by Ashiq Baig in Chak.
No, 9, Rakh Branch, Tehsil & District Sheikhupura while taking benefit of his position on the basis of power of attorney dated 23.4.1962 got land measuring 53 kanals, 3 marlas transferred through sale-deed executed on 27.2.1965, as a result of agreement to sell shown to have been executed on 27:08.1963. He also transferred land measuring 79 kanals, 1 maria through oral sale to Shah Nawaz, his brother-in-law (Behnoi) and mutation No, 106 was sanctioned on 4.12.1970. Shah Nawaz further sold the land to respondent No, 1 Irshad Baig on the same date through mutation No, 107 sanctioned on 4.12.1970. It has been claimed by the appellants in the plaint that Irshad Baig was not empowered to transfer the kind as at the time of transfer of land Ashiq Baig had already died and the general power of attorney executed by Ashiq Baig could not have been used for transfer of his property after his death. The appellants, filed appeal against the said mutations which was accepted on 31.10.1972 and the mutation was cancelled. The case was remanded for fresh decision but the Revenue Officer did not decide the matter and the appellants were constrained to file the suit. The appellants have also challenged the sale-deed dated 12.12.1970 in favour of Allah Rakha, respondent/defend= No, 3 and the whole property was transferred through sale on the basis of said sale-deed mutation was sanctioned on 23.9.1974 which was also challenged in the suit. The suit was contested by respondent No 3 Allah Rakha, who raised preliminary objections and also, claimed himself to be bona fide purchasers and sought dismissal of the suit. The divergent pleadings of the parties necessitated framing of following Issues:
(1) Whether the plaintiffs are owner in possession of the disputed property and mutation No, 106, dated 4.12.1970, mutation No, 107, dated 4.12.1970, registered deed dated 24.8.1963, mutation No, 152, dated 27.2.1965, registered deed dated 20.8.1963, registered deed dated 12.12.1970 are illegal, void and against the interest of the plaintiffs? OPP.
(2) Whether the suit in its present form is unmaintainable? OPD
(3) Whether the form of the suit is defective? OPD
(4) Whether the plaintiffs have filed the instant suit at the instance of defendant No, 1? OPD.
(5) Whether the defendant No, 3 is the bona fide purchaser for consideration of the suit property, if so its effect? OPD (5A) Whither the suit is within time? OPP (5B) Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction, if so its effect? OPD
(6) Relief."
3. From the side of the plaintiffs Khaliq Baig s/o Azam Baig appeared as PW-1 and stated that Irshad Baig used to look after, the landin Chak No,9, subject-matter of this case. He also stated that Ashiq Baig had died on 20.8.1963. PW-2 Abdul Saeed I3aig had also made a similar statement, while PW-3 Shah Nawaz, in whose name land was transferred through. Mutation No, 106 sanctioned on 4.12.1970 had also supported the plaint and had categorically stated that no payment was made by him and the sale was fictitious in his name. Plaintiffs had also placed on record certain documents in support of their pleadings.
4. Defendants/respondents had produced DW-1 Muhammad Hanif, who had claimed that Allah Rakha had purchased the land from Irshad Baig and that Ashiq Baig had died on 2.9.1963. Allah Rakha tad appeared as DW-2, Ghulam Muhammad appeared as DW-3, Gulzar Hussain as DW-4 and Nosher Khan as DW-5. Ijaz Baig son of Ashiq Baig has also appeared in the witness-box. After closure of the evidence and after hearing the arguments of the parties, learned Civil Judge IInd class, Sheikhupura dismissed the suit filed by the appellants as being barred by time and also due to the reason that consequential relief for possession had not been sought by the plaintiffs/appellants in their plaint; however, decided Issue No, 4 in favour of the appellants. Against die said judgment appeal was filed which was dismissed and the revision petition also met the same fate.
5. Learned counsel for the appellants has contended that sufficient evidence was produced by the appellants to show that Ashiq Baig, predecessor-in-interest of the appellants and respondent No, 1, had died on 20.8.1963 whereas the date of death has been wrongly got entered as 2.9.1963 by respondent No, 1 Irshad Baig, who had also got registered a fictitious sale-deed and agreement to sell dated 24.8.1963 in favour of Shah Nawaz for the sale of land measuring 53 kanals 3 marlas; that the power of attorney of Ashiq Baig in favour of Irshad Baig had lost its existence due to the death of Ashiq Baig on 20.8.1963 and could not have been used by respondent No, 1 after the death of Ashiq Baig; that mutation sanctioned in favour of Shah Nawaz for land measuring 53 kanals on the basis of sale-deed dated 27.2.1965 and mutation dated 4.4.1970 are nullity in the eyes of law; that respondent No, 1 in order to confuse had firstly transferred the land in favour of Shah Nawaz (respondent No, 2) through mutation sanctioned on 14.12.1970 and on the same day another mutation was got sanctioned through which same land was transferred in his name in order to show bona fide of transaction; that Shah Nawaz had not supported that he had received any amount. He was offered to take oath on Holy Qur'an when he appeared as PW-3 in the Court of Civil Judge and he took oath on Holy Qur'an and stated that no amount was paid by him to Irshad Baig and no amount was paid to him by Irshad Baig and that the said mutations and agreement to sell and sale-deed were fictitious in order to deceive the plaintiffs/appellants. Learned counsel also contended that land measuring 17 kanals, 1 mark could not have been transferred through mutation Nos. 106 and 107, dated 4.12.1970 after the death of Ashiq Baig when the general power of attorney was not in existence and the transaction made in favour of Allah Rakha is also nullity in the eyes of law; that the suit was I maintainable as the consequential relief was claimed impliedly and that during the pendency of civil revision petition C.M. 1-C/2003 was filed before the Lahore High Court for amendment of the suit by adding the prayer of consequential A relief and delivery of possession. On the question of limitation learned counsel contended that under Articles 142 and 145 of the Limitation Act the suit was not barred by time as the appellants/plaintiffs were co-sharer and possession of one co-sharer is the possession of all the co-sharers and there was no need to pray for possession as consequential relief. He has placed reliance upon (i) Khalid Din v. Mst.
Salman (NLR 2003 Civil 146), (ii) Government of Sindh through Chief Secretary & others v. Khalil Ahmed and others (1994 SCM R 782), (iii) Jane Margrete William v. Abdul Hamid Mian (1994 SCM R 1555) and Keramat Ali and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191) in which the amendment in plaint was allowed, at the stage of Supreme Court after 19 years. He has also placed reliance upon Sharif Ahmad and another v. Ghulam Rasool and others (2009 SCM R 1265), Muhammad Taj v. Arshad Mehmood and others (2009 SCM R 114), Maqsood Ahmad and others v.
Salman Ali (PLD 2003 SC 31), Fida Muhammad v: Pir Muhammad Khan (Decd.) through L.Rs, and others (PLD 1985 SC 341) and Shiydeo Singh and others v. State of Punjab and others (AIR 1963 SC 1909) regarding the claim of the respondent as bona fide purchaser. He also contended that the respondent could not sell the property but has sold the property which was void and the vendee cannot claim himself to be bona fide purchaser, Reliance in this behalf has been placed upon (i)
Muhammad Sabir Khan & others v. Rahim Bakhsh & others (PLD 2002 SC 303) (ii) Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah & others (1999 SCM R 2874) and (iii) Gurbaksh Singh v. Nikka Singh and another (AIR 1963 SC 1917). He also contended that though the legal heirs were made party after the death of three appellants but the appeal could not be dismissed for this reason and placed reliance upon (i) Bashir Ahmad through L.Rs, v. Muhammad Hussain and another (2010 SCM R 822), (ii) Miraj Din and others v. Evacuee Trust Property Board, Lahore & others (PLD 2004 SC 430).
6. Learned counsel appearing on behalf of respondent No, 3 Allah Rakha has contended that appellant/plaintiff Ijaz Baig died on 14.4.2006, Irshad Baig died on 7.4.2006 but CMA No, 1052-L/2009 for impleading legal representatives was filed on 20.5.2009 with delay as under Order V, Rule 6, CPC the legal heirs could be impleaded within 90 days and as a consequence of non-filing of the names of the legal heirs was that the appeal was to be dismissed. He has placed reliance upon Wazir Khan and others v. Qutab Din and others (PLD 2009 SC 95). He further contended that suit was filed on 25.5.1980 after 17 years of the death of Ashiq Baig against Irshad Baig, as such, suit was barred by time; that Allah Rakha, one of the defendants (respondent No, 3) had purchased the land as a bona fide purchaser after seeing the revenue record which was in the name of respondent No, 1 and had purchased the suit property as he was not resident of the same, village.
In support of this plea learned counsel has relied upon (i) Wafaq-i-Pakistan v. Awamunnas (1988 SCMR 2041), (ii) Kanwal Nain and others v. Fateh Khan and others (PLD 1985 SC 53), (iii) Rehman Shah v. Muhammad Shah and others, (1974 SCM R 255) and Muhammad Din and another v. Mst.
Sardar Bibi and others (AIR 1927 Lahore 666). Learned counsel further contended that the suit was barred by time under Article 120 of the Limitation Act and relied upon the cases of (i) Wazir Khan v.
Qutab Din (PLD 2009 SC 95), (ii) Atta Muhammad v. Maula Bakhsh, etc. (2008 SCJ 147), (iii) Kala Khan and others v. Rab Nawaz and others (2004 SCM R 517) and (iv),Ahmad Din v. Muhammad Shaft and others (PLD 1971 SC 762). Learned counsel further contended that witnesses were produced who had fully proved that Ashiq Baig died on 2:9.1963 and on this point no question was put to Allah Rakha (respondent No, 3) while appearing as DW-2 and a' witness not cross-examined on a certain point means admission and by placing reliance upon Qamruddin v. Hakim Mahmood Khan (1988 SCM R 819) prays for dismissal of the appeal.
7. Mr. Zafar Iqbal Kalanauri, ASC appearing on behalf of Muhammad Riaz, purchaser, impleaded as party during pendency of this appeal, has adopted the arguments of Syed Muhammad Kaleem Ahmed Khurshid, learned ASC for respondent No, 3 and only relied upon Muhammad Aslam v. Mst.
Ferozi and others (PLD 2001 SC 213).
8. Learned counsel for the appellant, in reply to the arguments of learned counsel for the respondents has contended that sale-deed was executed on 12.12.1970 and mutation was sanctioned after four years after the sale-deed in order to conceal the sale from other legal heirs of Ashiq Baig.
9. We have heard arguments of learned counsel for the parties and have perused the impugned judgments as well as the available record.
10. According to the appellants, Ashiq Baig, predecessor-in-interest of the appellants/plaintiffs and of respondent No, 1 had died on 20.8.1963 but the defendant Irshad Baig, who was looking after the properties of Ashiq Baig, situated in Chak No, 9, Tehsil & District Sheikhupura, had shown the date of death of Ashiq Baig as 2.9.1963 in the Union Council in the register of deaths. Oral evidence has been produced by the appellants/plaintiffs in support of their claim but there was a document in support of the claim of the respondent that Ashiq Baig died on 2.9.1963. We can rely upon the same but the agreement to sell has been got prepared, according to the appellants, by Irshad Baig showing himself general attorney of the deceased, registered on 23.4.1962, had entered into an agreement to sell with Shah Nawaz, respondent No, 2 which was registered on 26.8.1963 and on the basis of the said agreement to sell the mutation was entered on 27.2.1965, through which he transferred the suit land to Shah Nawaz and in this regard mutation No, 106 was sanctioned on 4.12.1970. Subsequently, on the same day another mutation was sanctioned bearing No, 107 in the name of Irshad Baig.
' However, respondent Shah Nawaz, had appeared as PW-3 and had categorically stated that no amount was paid by him to Irshad Baig and Irshad Baig also did not pay any amount to him and these mutations were got sanctioned in order to deceive the other legal heirs of Ashiq Baig, deceased, from their due share in the property and during examination-in-chief the respondent/defendant offered him to take oath on Holy Qur'an which he took and supported his own statement that the said transaction was fictitious and, in such circumstances, the said mutation had lost its sanctity. Even otherwise, both the mutations in favour of Shah Nawaz executed by Irshad Baig on 4.12.1970 and on the same day another mutation in favour of Irshad Baig by Shah Nawaz, cast serious doubt and this fact is also supported by the statement got recorded by Shah Nawaz as PW-3. In such circumstances, we find that both the mutations had lost its credibility and are liable to be declared as nullity in the eye of law.
11. We have also noticed, after perusal of general power of attorney, that it does not fmd mention the description of land for which Irshad Baig was made as attorney and in the absence of description of land for which he was made the attorney, the general power of attorney has lost its veracity. We are also satisfied, after perusal of evidence, that the land is situated in Chak No, 9 while the plaintiffs were residing in other village/chak and that land was being managed by Irshad Baig, who in order to deprive other legal heirs of Ashiq Baig, had sold the land measuring 79 kanals, 1 marla to Allah Rakha although after the death of Ashiq Baig, the said power of attorney could not have been used by Irshad Baig for transfer of the suit land, therefore, the said transfer is illegal and void and is not sustainable.
12. As far as the question of limitation is concerned, admittedly, the legal heirs of Ashiq Baig, except Irshad Baig (respondent No 1), were residing at different places and the land was being managed by. Irshad Baig. He had mutated the land in his favour and had deceived them. Five daughters of Ashiq Baig were parda-nashin ladies and they were not in a position to note that the land had been sold as it was not in their possession. Similarly, other legal heirs were also residing in other village and Irshad Baig being a clever man had defrauded other legal heirs by transferring land in favour of Shah Nawaz and then mutating in his own name when the power of attorney was not in existence as the principal, Ashiq Baig, who had executed power of attorney in favour of Irshad Baig, had already died. Admittedly, the appellants are co- sharers and possession of one co-sharer is the possession of all co-sharers and they were in constructive possession of the suit property. They filed suit when they came to know that such fraud had been committed by their real brothers, therefore, the suit was not barred by time under Article 142 of the Limitation Act. Reference in this behalf is made to the cases of (i) Muhammad Shamim v. Nisar Fatima (2010 SCM R 18), in which it has been held that limitation could not run against a co-sharer, '(ii) Khair Din v. Mst. Salaman and others (NLR 2003 Civil 146), and (iii) Ghulam Ali and two others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).
13. As far as the application for amendment in plaint (C.M. 1-C/2003) filed by the appellants during pendency of civil revision is concerned, in the peculiar circumstances of the instant case it was liable to be accepted which has been rejected by the learned High Court without taking into consideration that the fraud vitiates the whole proceedings and no time would ran against illegal act, therefore, the appellants could not be non-suited if the suit was filed subsequently after gaining knowledge of fraud committed to them. Reference in this behalf can, safely be made to.
The case of (i) Rehmat Ali and another v. Muhammad Yunus Haji and 'others (PLD 1963 SC 191) in which it has been held as under.: "The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where, a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide: Md. Zahoor Ali Khan v.
Mst. Thakooranee Rutta Koer (II MIA 468) and Charan Das and others v. Amir Khan and others (AIR 1921 PC 50). That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer.
' The present, in our view, is a case which comes within this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Ever since 1937, when they auction-purchased the properties in dispute they have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground."
' The above view was also supplemented and followed by this Court in the cases of (i) Muhammad Abdullah Khan Niazi v. Rais Abdul Ghafoor and others (PLD 2003 SC 379), and (ii) Shanf Ahmad and another v. Ghulam Rasool and others (2009 SCM R 1265).
14. As fax as the claim of the respondent Allah Rakha, as bona fide purchaser and the subsequent vendee from Allah Rakha during pendency of this appeal is concerned, we are not impressed by the arguments of the learned counsel for the respondents that they are bona fide purchaser and can retain the said property, even if the suit property was purchased by them and after the sale- deed which was executed in favour of Allah Rakha, he did not get the sale-deed registered for the purpose of mutation in the revenue record and concealed this fact and got entered the mutation after four years. We are also of the considered view that when Irshad Baig was not empowered to execute the sale-deed and to transfer the property in the name of Shah Nawaz and also to transfer the property in the name of Allah Rakha, the said sales are void ab initio and cannot be sustained, as such, legal protection of a bona fide purchaser could not be claimed under an invalid transaction. Reference in this behalf is made to the case of Muhammad Sabir Khan v. Rahim Bakhsh and 16 others (PLD 2002 SC 303). Reference is also made to the case - of Muhammad Shamim through L.Rs, v. Mst.. Nisar Fatima through L.Rs, & others (2010 SCM R 18).In which this Court has observed as under:-- "9.. Moreover, whereas the principle that an innocent buyer: should not suffer for the fraud practiced by the seller; the doctrine of Caveat emptor i,e, let the buyer beware, that the purchaser has only himself to be blamed if he is wronged, due to his fault also has to be kept in view. It is also well-established that a vendor cannot pass on to the vendee anything better than he himself holds. Therefore, it is the vendee who is to apply maximum care before going for a transaction of sale/purchase. His right/title being dependent upon the strength or weakness of the title of the seller, he is to sail, swim and sink with the seller, and to pursue him for any loss suffered if he is ultimately the loser."
' In another case of Maulana Riazul Hassan v. Muhammad Ayub Khan and another (1991 SCM R 2513) regarding bona fide purchaser, this Court has held as under - "8. As regards the bona fide purchaser, he had a duty to look to the registered deeds. Enquiry through the Revenue record was not sufficient and in the absence of having made any enquiry and looked up section 14 of the Act, his interest cannot be held to be bona fide or protected."
15. For what has been discussed above, this appeal is allowed, the judgments and decrees of all the three Courts below are set aside. CMA No, 1-C of 2003 filed by the appellants/plaintiffs during pendency of civil revision for amendment in the plaint is also allowed and the suit of the appellants/plaintiffs is decreed. Parties are left to bear their own costs.
Judgments of Three Courts Set Aside/ by Allowing Amendment of Plaint/Suit for Declaration Decreed.