MUHAMMAD DAUD KHAN,-Through this revision petition, the petitioner challenged the concurrent judgments and decrees of learned Civil Judge-I, Bannu dated 31/10/2006, and that of Additional District Judge-IV, Bannu dated, 04/06/2007, concurrently dismissing the suit as well as appeal of the petitioner.
2. Basic facts giving rise to the instant revision petition are that plaintiff/ petitioner instituted a suit against the defendants, hereinafter called respondents, 11)r declaration to the elThet that the registered sale deed bearing # 558 dated 30.10.1934 executed by Sher Abbas Khan in favour of Mir Sahib Khan and Mir Sahib Khan subsequently transferred the same in favour of one Sharaf Din predecessor in interest of the respondents/ defendants vide registered sale deed # 513 executed on 20.11.1935, was illegal, based on fraud and ineffective on the right of petitioner and liable to be cancelled. The petitioner also prayed for permanent injunction that the respondents may be directed not to interfere in the suit property.
3. The petitioner's version of the plaint is that originally one Khawaja Ahmad Khan was the owner of the disputed property and after his death Mir Kabaz, Sher Abbas and Farakhzad being real sons became equal owner in the suit property but only Sher Abbas Khan and Mir Kabaz Khan have been shown the sons of Khawaja Ahmad Khan and deprived Farakhzad despite being owner of the 1/3rd of the legacy. Sher Abbas Khan transferred 1/2 share instead of 1/3rd transferred in favour of Mir Sahib Khan vide sale deed # 558 dated 03.10.1934 and that property was further transferred by Mir Sahib Khan through sale deed # 513 dated 20.11.1935 in favour of Sharaf Din, predecessor of interest of respondents. The plaintiff claimed that both the transactions are based on fraud, illegal and liable to be cancelled.
4. Conversely, the respondents contradicted claim of the petitioner by submitting written statements through which many legal and factual objections were raised; especially, the plea for bonafide purchaser was raised in their written statements. On divergent pleadings of the parties, the learned trial court framed the following issues:-
1. Whether the plaintiff has got cause of action?
2. Whether registry # 558 attested on 30.10.1934 and registry # 513 attested on 20.11.1935 are liable to be correction being not in accordance with law?
3. Whether the plaintiff is estopped to sue?
4. Whether this court has got jurisdiction to entertain the present suit?
5. Whether the suit of the plaintiff is within time?
6. Whether the suit of the plaintiff is maintainable in its present form?
7. Whether the suit of the plaintiff is based for misjoinder and nonjoinder of the necessary party?
8. Whether defendants are bonafide purchasers?
9. Whether the plaintiff is entitled to the decree as prayed for?
10. Relief.
5. To support their case, the parties produced their evidence as they wished. On conclusion of the trial and hearing the learned counsel for the parties, the learned trial court was of the view that plaintiff/petitioner failed to prove the case as well as suit of the plaintiff is hopelessly time barred.
The appeal filed by the petitioner also failed and learned District Appellate Court upheld the judgment and decree of the learned trial court.
G. Aggrieved by the concurrent judgments and decrees of both the subordinate courts, the present petitioner challenged the above judgments through this revision petition.
7. Mr. Anwar ul Haq, learned counsel for the petitioner submitted that the real son of the original owner Mir Khawaja Khan, Fakharazad was alive at the time of execution of aforesaid deeds and died issueless in year 1954, therefore; both the deeds were illegal, based on fraud and ineffective qua the rights of the petitioner being a legal heir of Farakhzad. He further contended that the petitioner proved his case through solid, cogent, reliable documentary as well as oral evidence, but both the subordinate courts failed to proper appreciation of evidence and illegally dismissed the suit of the petitioner and also failed to consider the evidence in its true prospective and committed misreading and non-reading of evidence.
8. On the other hand Mr. Fayyaz Khan, learned counsel for the respondents supported the concurrent judgment of the subordinate courts. He contended that Sharaf Din, the predecessor of the respondents, was the bonafide purchaser of the sale deed # 513 executed on 20.11.1935 as at the time of the said sale Mir Sahib Khan was the ostensible and real owner of the property vide deed # 558 ibid. He further contended that Farakhzad also remained alive more than twenty years after the execution of the sale deed and never challenge the same in his life time. He further contended that the petitioner failed to prove the disputed property was the legacy of Khawaja Muhammad Khan, rather the property was owned Sher Abbas Khan. He further contended that there are concurrent findings of the facts recorded by both the courts below, hence, this court has no jurisdiction to interfere in the findings of the trial courts as no illegality has been pointed out by the learned counsel for the petitioner in the impugned judgments.
9. Arguments of learned counsel for the parties heard and with their valuable assistance, record perused.
10. The controversy between the parties that need to be dealt with this court are, whether Sharaf Din the predecessor of the respondents was bonafide purchaser and his right of purchase was protected under the law; secondly, the suit of petitioner is within time.
11. To resolve this controversy, it is advantageous to produce the section 41 of the Transfer of Property Act, 1882. For convenience it is reproduced below:- S.41.Transfer by ostensible owner: Where, with the consent, express or implied of the person entrusted immoveable property, a person is ostensible of such property and transferred the same, for consideration, the transfer shall not be voidable 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".
12. In the above section of law, the necessary conditions are :
(i) The transferor is the ostensible owner. (ii) He is so by the consent, express or implied, of the real owner. (iii) the transfer is for consideration (iv) the transferee had acted in good faith, taking reasonable care to ascertain that the transfer had power to transfer.
This section of law is based on the principle of natural equity and universal application. It is well- established that section 41 of the Transfer of Property Act, 1882 is statutory application of law of estoppel and exception to the role that person cannot confer a better title than he has.
13. Plaintiff produced Farid Ullah Khan, Incharge Record, EPI, Bannu as PW-1 and according to his death register record as Ex PW-1/1 Farakhzad was died in 1954. Raqiaz Khan, Addl Registry Muharrir, Sub Registrar Office, Bannu, PW-2, who produced both sale deeds Ex PW 2/1 and Ex PW 2/2 respectively. Flaqdar Khan, ADK Bannu who produced revenue record regarding the property devolved upon the legal heirs of Khawaja Muhammad Khan. The perusal of the documentary and oral evidence, produced by the parties, it appears that when sale deed # 513 was executed on 20.11.1935, Sharaf Din, predecessor of the interest of the respondents purchased the suit property from Mir Sahib Khan. Mir Sahib Khan was from the record of the muharrir registry and other relevant circumstances was the real and ostensible owner of the suit property on the basis of previous registered sale deed # 558 dated 30.10.1934. It is also astonishing fact that the sale deed # 558 dated 30.10.1934, the bare reading of this deed, it reveals that according to this document the suit property is the sole ownership of Sher Abbas Khan and this property was not nexus with the legacy of Khawaja Muhammad Khan as petitioner claimed. The said document clearly negates the version of the petitioner/plaintiff. In the instant case, Sher Abbas Khan was the ostensible owner of the property, who sold the land to Mir Sahib Khan and Mir Sahib Khan became the ostensible owner of the property vide sale deed # 558 dated 30.10.1934 and the predecessor of the respondents Sharaf Din had purchased that property as Mir Sahib Khan was the real ostensible owner in the public documents as well as having the possession of the property and paid the sale amount as consideration that is just according to the relevant time. Meaning thereby he purchased the said property with care and in good faith. Furthermore the property was purchased in year 1935 and at that time Farakhzad was alive and remained alive more than twenty years and died in year 1954, if he had any right, he would have challenged it in his life time. Farakhzad remained alive more than two decades and not challenge the same in his life time, negating the claim of the petitioner.
14. The other aspect of the case is worth consideration. Admittedly, Farakhzad died issueless in year 1954. If this property is for the sake of arguments was the legacy of the Khawaja Muhammad Khan, the legacy of Farakhzad, being issueless would be devolved equally in favour of two brothers and Sher Abbas Khan, would be sharer of 1/2 of the property and result would be the same as it is.
15. As the predecessor-in-interest of respondents clearly. qualifies the provision contained in section 41 of the Transfer of Property Act, 1882 and his purchased right is protected under the law.
The Supreme Court of Pakistan in the case titled "Sher Muhammad versus Outahu and others"
(2002 SCM R 1447) wherein it has been held: "if the transferee act, after taking reasonable care to ascertain that the transfer has acted in good faith, then his rights are protected".
16. This court fortified this view by the judgment of Apex Court of Pakistan, in the case of Muhammad Ismail and others versus Lahore Development Authority and three others (1999 SCM R 2015), Chaudltry Muhammad Salim versus Fazal Ahmad and two others (1997 SCMR 313).
17. The story in shape of averments made in the plaint was neither asserted in its evidence produced by the petitioner nor tried to prove the case as narrated in the plaint and he failed to prove his case through solid, cogent and reliable evidence. The documentary evidence produced by the petitioner had no nexus with the case as he asserted in the plaint. It is now well settled law that pleading of the parties are not sustentative piece of evidence unless and until averments in the pleadings are proved from evidence in court or admitted by the other party. The Apex Court of Pakistan in the case titled "Faqir Muhammad and eight other versus Momin and others (PLD 2003 S.0 594), wherein it has been held "the general rule is that the pleadings of parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless prove through the evidence in court or admitted by the other party". In another case, the Hon'ble Supreme Court relied on the above dictum reiterated in the case titled "Hakeem ud Din through legal representative and others versus Faiz Bakhsh and others" (2007 SCM R 870) and Muhammad Akram and others versus Mst Fara(' Bibi and others (2007 SCM R 1719), wherein the later cited case when relying in Amir Shah case 1998 SCM R 593, it has been held that "it is a settled law that pleading of the parties are not substantive piece of evidence unless and until the parties proved from the evidence in the court or admitted by the other party". It is an admitted fact that the petitioner did not adduce any evidence to prove the averment of the plaint with regard to his right in his oral evidence as well as documentary evidence and failed to prove his case.
18. Both the learned courts, on proper appraisal of the evidence produced by the parties, rightly dismissed the suit of petitioner/plaintiff and no illegality, irregularity, misreading and nonreading is pointed out by the learned counsel for the petitioner in the concurrent judgment of the subordinates courts.
19. For the reasons discussed above, the instant revision petition, being devoid of merits, is hereby dismissed. No order as to costs.