' Through this revision petition the petitioner has called in the question the judgment and decree dated 19.11.2009 passed by the learned District Judge, Lakki Marwat vide which the civil appeal filed by Respondent No, 29 Noor Ali was accepted and judgment and decree of the trial Court of Civil Judge-II, Lakki Marwat dated 16.6.2008 was set aside.
2. Brief facts of the case are that petitioner Khan Wali instituted a civil suit against Rozi Khan etc. for declaration as in prayer "A" and permanent mandatory injunction as in prayer "B" that he and proforma defendants are joint owners to the extent of 1/4 share in the joint property measuring 548 kanals 3 marlas including in the impugned mutation total measuring 1866 kanal 4 mralas, pertaining to Khata No, 553, 554, 574 and 310 situated in Moza Baist Khel and Mutations No, 2073 dated 17.5.1925, 3014 dated 10.4.1931, 3071 dated 26.6.1931 and 11488 to 11492 attested on 22.8.1990, Mutation No, 390 dated 29.7.1995, Mutation No, 491 attested on 24.7.1996, Mutation No, 1042 dated 14.2.2000 and Mutation No, 167 dated 20.6.1993 as well as other mutations if any are illegal, collusive, void and against law and are ineffective upon the rights of Khan Wali and proforma defendants i.e, the legal heirs of Akbar Khan and are liable to be cancelled and for possession etc.
3. It was asserted in the plaint that the suit property was the ownership of Qalandar Khan, ancestor of plaintiff and proforma defendants and real Defendants No, 1 to 5 who owned landed property in two mouzas, namely Bachkan Ahmadzai and Baist Khel. After the demise of Qalandar Khan, his inheritance devolved upon his four sons namely Mir Azam, Mir Akbar, Mir Khan and Akbar Khan.
Mutation No, 4334 attested on 14.01.1934 regarding inheritance of Qalandar Khan about landed property situated in Mouza Bachkan Ahmad Zai was correctly sanctioned in the name of his four sons including Akbar Khan but Mutation No, 2073 attested on 17.5.1925 regarding inheritance of Qalandar Khan of Mouza Baist Khel the name and share of Akbar Khan, the predecessor of present plaintiff and proforma defendants, was collusive and maladroitly not entered and attested by his other three brothers about landed property measuring 548 kanals and 3 marlas pertaining to Khata Nos. 553, 554, 548, 574, 310, 1/3 of total measuring 1866 kanals 4 marlas which comes to 548 kanals 3 marlas and thus plaintiff and proforma defendants predecessor Akbar Khan was deprived from his vested legal right to inherent his 1/41h share in the said 548 kanals 3 marlas property of Mouza Baist
4. The plaintiff and proforma defendants having no knowledge of this impugned inheritance Mutation No, 2073 despite the fact that they are coming in joint possession of land to the extent of their shares. Akbar Khan the son of Qalandar Khan afterward died and the inheritance of Akbar Khan devolved upon plaintiff and proforma defendants while that of Mir Aazam upon Rozi Khan, Mir Akbar upon Gul Wali and Mir Khan upon Mehrab Khan, Ghani Rehman and Sher Ali Khan. Mir Azam, Mir Akbar and Mir Khan transferred the suit land including the share of his predecessor. Akbar Khan vide sale Mutation No, 3071 and 3014 in the name of Abdul Haeyi Khan the ancestor of original defendant Abdul Qayum Khan while later on it was transferred by the legal heirs of Abdul Hay Khan in the name of Noor Ali Khan etc vide Mutations No, 11488, 11489, 11490, 11491, 11492, 390, 492, 1042 and
167. It Was asserted in the plaint that all the above mutations to the extent of share of Akbar Khan i.e, 1/4th of 548 kanals 3 marlas which comes to 137 kanals are wrong, fraudulent against law, based on mala fide and as such are ineffective upon the rights of the plaintiff and proforma defendants all particulars fully detailed in the plaint.
5. Upon summon the defendants filed their written statement and upon the divergent pleadings of the parties issues, were framed and the parties led their respective evidence in the light of their respective pleas and upon hearing arguments the learned trial Court decreed the suit vide his judgment and decree dated 16.6.3008.
6. Feeling dis-satisfied with the judgment and decree of the trial Court the only Defendant No, 29 on his behalf had challenged the judgment and decree of the learned trial Court and filed regular civil appeal before the Appellate Court of learned District judge Lakki Marwat. Here it is pertinent to mention that rest of defendants did not challenge the same judgment. The learned appellate Court below after hearing the arguments accepted the appeal and set aside the judgment a
7. Feeling aggrieved from the judgment and decree of the learned appellate Court bnd decree of the trial Court vide his judgment and decree dated 19.11.2009 and suit of the plaintiff was dismissed with costs throughout by giving protection under Section 41 of the Transfer of Property Act.elow the present petitioner assailed the same impugned judgment of appellate Court dated 19.11.2009 through instant Revision Petition inter alio on the grounds mentioned in the petition.
8. The learned counsel for petitioner argued vehemently and advanced his arguments that the inheritance Mutation No, 2073 and all onwards mutations based on impugned Mutation No, 2073 are liable to cancellation as admittedly Qalandar Khan had four sons and one son Akbar Khan was collusively and fraudulently was deprived from his inheritance rights by the other three brothers and this fact came to the knowledge of plaintiff when defendants tried to cut the trees and upon forbidding them for their act , of cutting trees the present petitioner disclosed that he had purchased the suit land. After having knowledge filed the instant suit, as fraud has been committed and one brother has been deprived from his right to inheritance by other three brothers so no limitation would run first on the fraudulent entry in revenue record of impugned Mutation No, 2073. and subsequently sale of his father's share by his three uncles to one Abdul Haeyi Khan and so all the subsequent mutations, are based on one fraudulent, Mutation No, 2073; subsequent: purchasers could take no refuge under Section 41 of the Transfer of Property Act and the learned appellate Court below had erred in law by accepting the appeal by according benefit of protection of Section 41 of the Transfer of Property Act. Moreover, except Khan Wali none amongst the real defendants challenged that judgment and decree of the learned. trial Court which attained finality to their extent.
9. Conversely the learned counsel for respondents supported the judgment of learned appellate Court below and submitted that suit is time barred; their father in his life time had kept mum and had not challenged the inheritance Mutation No, 2073; the present owners are bona fide purchasers and protection under Section 41 of the Transfer of Property Act was rightly accorded; that the judgment and decree of the learned appellate Court below is well reasoned and according to correct appreciation of law particularly application of Section 41 of the Tranefer of Property Act to the matter, no misreading and non-reading of evidence had been done by appellate Court below hence the petition is liable to dismissal.
10. Valuable arguments of both the learned counsel for the parties heard and have gone through the record with their assistance.
11. I have scrutinized all the documents available on record which transpires that Qalandar Khan owned landed property in two Mouzas i.e Bachkan Ahmadzai and Baist Khel. According to plaint the father of plaintiff namely Qalandar Khan died before 1930 and after his death his inheritance Mutation No, 4334 was attested in the names of four sons of Qalanadar Khan about the landed property situated in Mouza Bachkan Ahmadzai but inheritance Mutation No, 2073 pertaining to landed property of other Mouza Baist Khel was attested in the names of his three sons Mir Azam, Mir Akbar and Mir Khan excluding his fourth son Akbar Khan and the three brothers Mir Azam, Mir Akbar and Mir Khan vide Mutation No, 3071 sold out all. devolved property measuring 548 kanals 3 marlas of Mouza Baist Khel to one Abdul Haeyi Khan including the share of their fourth brother Akbar Khan, predecessor of present petitioner and proforma respondents/proforma defendants are the other L.Rs of Akbar Khan. Here it is necessary to mention that vide impugned Mutation No, 3071 the said Abdul Haeyi Khan also purchased some other property in the same mouza, so the property of Qalandar Khan's sons was included in that suit muation.
12. From the perusal of record it is proved that Qalandar Khan owned agricultural land in two mouzas and after his death landed agricultural property situated in mouza Bachkan Ahmadzai devolved upon his four sons namely Mir Azam, Mir Akbar, Mir Khan and Akbar Khan vide inheritance Mutation No, 4334 attested on 14.01.1934 placed on record as Ex.PW-3/1. Though the defendants admitted Akbar Khan as son of Qalandar Khan even then for proof amended Shajara Nasab pertaining to year 1941-42 and 1991-92 of Mouza Bachkan Ahmadzai relating to the family of Qalandar Khan son of Shanak Khan alias Shah Nawaz Khan, relating to Khandan No, 144 is placed on record as EX.PW-3/12 which shows his four sons including Akbar Khan. From this Shajara Nasab relating to Mouza Bachkan Ahmadzai it is proved that Akbar Khan was the real son of Qalandar Khan and Mir Azam, Mir Akbar and Mir Khan are also his real brothers.
13. The record further reveals that ADK appeared as PW-3 who produced record relation to the inheritance Mutation No, 2073 attested on 17.5.1925 relating to Mouza Baist Khel placed on record as Ex.PW-3/5. According to which landed property devolved from Qalandar Khan to his three sons only and name of Akbar Khan in Column No, 4 of mutation is missing and the same mutation was entered by Patwari.
14. The perusal of Mutation No, 2073 EX.PW-3/5 of Mouza Baist Khel shows that name of fourth brother Akbar Khan is not appearing as a legal heir of Qalandar Khan. The record further reveals that these three brothers sold out the above said inherited. property/vide sale Mutation No, 3071 attested on 21.6.1931 placed on record as EX.PW-3/4 to one Abdul Haeyi Khan measuring area 548 kanals and 3 marlas including the share of Akbar Khan by Mir Az am, Mir Akbar and Mir Khan and not Akbar Khan along with other land purchased from other land owners.
15. Further the legal heirs of Abdul Haeyi Khan sold out of their landed property measuring 924 kanals 16 marlas including the share. of Akbar Khan i.e, 137 kanals suit land out of 548 kanals and 3 marlas (total land owned by Qalandar Khan) to one Noor Ali Khan and others vide mutation 11488 Ex-PW-3/6 and Mutation No, 11489 as Ex.PW-3/7 and Mutation No, 11499 as Ex.PW-3/8 of Mouza Baist
16. It is pertinent to mention that the real three brothers of deceased Akbar Khan were served through summons but they did not appeared and were placed as ex-parte and they neither submitted written statement nor they appeared in witness-box in support of impugned inheritance Mutation No 207,3 of Monza Baist Khel. So under Article 129(g) of Qanun-e-Shahadat Order, adverse presumption goes against them. In this regard reliance is placed on the judgment of the Hon'ble Supreme Courtin case titled "Farid Bakhsh vs. Jind Wadda" (2015 SCM R 1044) wherein it was held that failure to call one witness and in absence of any plausible explanation to not produce those witness, strong presumption would arise against the person intending to prove the same document. In another judgment of the Hon'ble Apex Court in case titled "Dr. Muhammad Javeaid Shafi vs. Syed Rashid Arshad" (PLD 2015 SC 2124 was also taken the same view with addition that such defaulting person is not entitled for any protection under Section 41 of the Transfer of Property Act. Relevant principle annunciated by the Apex Court is reproduced as under: "Failure of appellant to examine the attorney, the attesting witnesses of a power-of-attorney, the executants of sale deeds in their attesting witnesses would give rise to a strong presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 that evidence would could be but was not produced, would, if produced be unfavourable to the person withholding it--Appellant in such circumstances could not be termed a bona fide purchaser either so as to entitled him to protection under Section 41 of the Transfer of Property Act."
' And it is abundantly proved that the three brothers of Akbar Khan being alive did not appear in the witness-box being beneficiary of the impugned mutation rathcr they willfully avoided appea:ance and were placed ex-parte.
17. Fraud is proved as they had to deprive their real brother had got entered and attested impugned fraudulent mutation and being beneficiary of the same Mutation No, 2073 they failed to produce any cogent, believable evidence while it is admitted position that Akbar Khan was the real sun of Qalandar Khan and real brother of Mir Azam, Mir Akbar and Mir Khan and landed property of Qalandar Khan, their father situated in Mouza Bachkan Ahmadzai was entered and attested in the name of Akbar Khan along with his other three brothers and that mutation has not been challenged by his other three brothers that Akbar Khan was not their real brother and was not the son of Qalandar Khan or has received consideration amount from them or has any documentary proof about relinquishment of his right to suit property, so it is proved that Akbar Khan was fraudulently deprived from his inherited properly relating to land situated in Mouza Baist Khel.
18. Now the other question for determination for this Court to decide is, as to whether suit instituted by the legal heirs of deceased Akbar Khan is time barred? Learned counsel for both the parties exhaustively argued over this point but in this respect it is settled law that bar of limitation would not stand in way amongst co-heirs and to their successors and wrong mutation conferred no right in property as revenue record is maintained only for the purpose of ensuring realization of land revenue. Reliance is placed on case titled as "Muhammad and others vs. Sharif Din and others"
(1983 SCM R 626).
19. Similar view has been laid down by the Hon'ble Supreme Court of Pakistan in judgment case "Ghulam Ali vs. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Relevant principles annunciated here under is reproduced below: "The questions of limitation, adverse possession and ouster may, in one way, be disposed of with reference to recent decisions of this Court.
' The main argument of the learned counsel in this behalf is that the mutation sanctioned in 1903 against the respondent and her failure to challenge it for a long period would constitute such a conduct which would render the petitioners' possession as adverse to her. In answer to the query that she having become a co-sharer immediately on the death of her father the plea of adverse possession against such a co-sharer would not be available to the petitioners, learned counsel further contended that the mutation which was sanctioned against her interest together with her conduct of not challenging the same for a very long term, would constitute her ouster and that being so the plea of co-sharership in this behalf would stand repelled. This controversy now stands finally settled by a recent judgment of this Court. It was held in Haji v. Khuda Yar' (PLD 1987 Supreme Court 453) that a similar adverse entry and non-participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of Anwar Muhammad and others v.
Sharif Din and others' (1983 SCM R 626) in extenso it was observed that "wrong mutation conferred no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue".
The suit in the said case was ,treated as having been "based on title and not far correction of revenue record". Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation. "
20. Further from the perusal of record ahd the evidence it is proved that Akbar Khan was neither paid any consideration amount nor had tendered any consent regarding relinquishment of his right about his share in the inherited property situated in Mouza Baist Khel in favour of his brothers or subsequent vendee Abdul Haeyi Khan so the wrongful exercise of attestation of suit Mutation No, 2073 was done in back of Akbar Khan which proves the element of fraud and it is settled principle of law that fraud if committed and proved vitiates most solemn transaction and no limitation run against the transaction which itself is outcome of fraud like impugned Mutation No, 2073 etc. and if challenged upon knowledge it is held that the suit filed would be deemed to be well within time. As the entry in shape of wrong mutation adverse to the interest of plaintiff would give afresh cause of action. Wisdom is derived from case titled "(Wali and others vs. Akbar and others" (1995 SCM R 284), wherein it was held that: "A suit for declaration of title of the plaintiffs to a particular property is a subsisting right and the right to bring a declaratory suit is a continuing right, so long as the right to the property itself is subsisting.
' The right to sue acc-ues when the right in respect of which the declaration is sought is denied or challenged by the defendants. The time starts running only When the rights are actually interfered with. In such cases, a fresh cause of action would arise from the date of the last attack on the plaintiff right or denial thereof. Where the plaintiff is in possession, more particularly as a co- sharer in the joint Khata, he is not bound to sue on every denial of his right. He can file a declaratory suit at his option. "
21. Moreover, in most of judgments protection under Section 41 of the Transfer of Property Act was not accorded to such vendees when such transaction was declared null and void and proved to be the outcome of fraud, so the inheritance Mutation No, 2073 is wrong and had, been rightly declared null and void and set aside by the trial Court.
22. The learned appellate Court below while giving the findings has quite contrary to law as such protection under Section 41 of the Transfer of Property Act could not be accorded to the vendees who had not bothered to perfectly inquire about the lawful ownership of the vendors even the vendees are responsible to make thorough satisfaction and has to examine the entire record without leaving any missing link. The learned appellate Court below only on the ground as discussed above and discussed in the judgment of the appellate Court has set aside the judgment and decree of the learned trial Court and has not considered the law and the evidence as the vendee Abdul Haeyi and subsequent vendees are not entitled for any protection about the share of one of legal heir of Qalandar Khan namely Akbar Khan with whom his real brothel have committed fraud and had deprived him and afterward his successors. Moreover, its settled law that upon the strength of wrong mutation no title could be conferred on any one and if it is conferred then upon challenge, the whole superstructure built on wrong mutation has to fall and has been rightly declared by the learned trial Court. In this respect wisdom is derived from the judgment of the Hon'ble Supreme Court titled as "Muhammad Afzal vs. Matloob Hussain" (PLD 2006 SC 84) the relevant principle annunciated about protection under Section 41 of the Transfer of Property Act is reproduced below: "Regarding his second subniission, about the plea of protection under Section 41 of the Transfer of Property Act, 188Z taken by the petitioer's counsel, it would be appropriate to reproduce section 41 as under: "41. Transfer by ostensible, owner. --Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers 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."
7. The general principle of law of Transfer of Property is enunciated by the maxim that no man can transfer to another or can confer a right or title greater or higher than what he himself possesses and he gives not who bath not as held in Kanwal Nain's case (supra). In other words, generally a purchaser cannot take more than what the vendor has to sell. Section 41 (ibid) provides an exception to this general rule. This section underlying the principle that whenever one of the two innocent persons has to suffer by the act of third person, he who has enabled that person to occasion the loss, must sustain it or where one of the two innocent persons suffer from the fraud of third party, the loss should fall on him who has created or could have prevented the opportunity for fraud. As described in Mulla's Transfer of Property Act (10th Edition 1987) author has pointed out the foundation of this section by referring to a passage from the Judgment of the Judicial Committee in Ramcoomar v. Macqueen: "It is a principle of natural equity which has universally applicable that where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recovIr upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it." so when the very mutation of inheritance in the name of three brothers of Akbar Khan was wrong, void ab-initio and had no lawful title in their favour to the extent of share of their brother Akbar Khan, so in such like circumstances protection under Section 41 of the Transfer of Property Act could not be extended to the extent of 137 kanals, the share of Akbar Khan to the purchasers ownards. The appellate Court below had not considered the matter in the above discussed legal scenario and had fallen in error.
23. Upshot of the above discussion is that u/S. 115 of CPC this Court has power to examine the record and the findings of facts given by the trial Court as well as the lower appellate Court and if found those findings contrary to evidence, material on record and the law, then the Revisional Court has jurisdiction to rectify the same, and can well exercise its jurisdiction in the interest of justice when the illegality and irregularity committed by the appellate Court below is surfacing which has resulted into miscarriage of justice.
24. In view of the above discussion the findings of the learned appellate Court below are suffering from legal, factual and jurisdictional error and has failed to properly re-appraise the evidence in its proper legal perspective and has indulged into illegality by setting aside the judgment of the learned trial Court.
25. In consequence of the above discussion this petition is accepted and judgment and decree of the learned appellate Court below is set aside and that of the learned trial Court being well reasoned and based on law is restored with no order as to cost.
(R.A.) .