CH. MUHAMMAD MASOOD JAHANGIR, J--- Uncontroversially, Kareem Bakhsh was an oustee of Islamabad, who was allotted subject property with regard to his entitlement in 1977, which was also implemented in the revenue record through attestation of mutation followed by conferment of proprietary rights through a conveyance deed attested in his favour on 24.09.1977 and thereafter, the subject property changed hands through different transactions and ultimately it was transferred to the petitioners. The District Collector at his own after consulting the record forwarded a reference to the Member (Colonies) Board of Revenue, Punjab, with the endorsement that Kareem Bakhsh, original allottee, prior to allotment of the suit property had already got allotment against his eligibility certificate in another revenue estate and requested for the cancellation of allotment and revocation of the conveyance deed under Section 30(2) of the Colonization of Government Lands Act, 1912 Pursuant thereto the learned Member while exercising its suo motu powers fixed the case in Peshi, consequent to issuance of notice, the original allottee in its acquiescence put appearance before him and made a statement that neither he had applied for the allotment of disputed land not it was ever allotted to him, whereupon the learned Member cancelled the allotment as well as conveyance deed through order dated 20.11.1983, while observing as under:-
3. I have heard the learned counsel for the respondents. He contended that one Muhammad Jan managed to obtain allotment in the name of the respondent through fraud and in token of the obtaining allotment Chit Muhammad Jan signed the allotment order. He contended that Muhammad Jan thereafter sold the land. He also further contended that a criminal case has been registered on 26.8.1981 against Muhammad Jan and others on the information of the respondent.
He contended that he obtained allotment in Tehsil Lodhran of Multan District on a genuine eligibility certificate issued by the Capital Development Authority. He urged that he has no objection if the allotment in Sahiwal District is cancelled.
4. I have, considered the arguments and examined the record of the case. It is evident from the record that the allotment in Sahiwal District was obtained through fraudulent means on a false eligibility Certificate which cannot stand. The Board of Revenue can competently exercise its jurisdiction under section 30(2) of the Colonization of Government Land (Pb.) Act, 1912.
Consequently I would cancel the allotment obtained in the name of the respondent in Chak No.56/12-L, revoke the deed of conveyance executed in his name and rescind mutation No.416 entered and decided in favour of Karim Bakhsh on the basis of the conveyance deed. Mutation No.417 of further sale in favour of Muhammad Bakhsh etc. is also rescinded. The possession of land should immediately be taken over and files of illicit cultivation be prepared. The Suo Motu revision petition is thus disposed off.
This order was challenged by the petitioners/subsequent transferees through a declaratory suit before the learned Civil Court, but they could not succeed before it as well as the Appellate Court, who through impugned judgments and decrees dated 19.12.2000 and 03.03.2003 respectively dismissed the suit as well as appeal. Hence the Civil Revision in hand.
2. Heard. Record scanned.
3. Before deliberation, in reply to a query extended by this Court, it was conceded by Ch. Muhammad Riaz Jahania Advocate that during the trial not an iota of evidence could be led to belie the statement of the original allottee, which he had made before, the Member/respondent No.2. Having gone through the evidence of the parties, it was also established on suit file that in fact the original allottee had already been adjusted against his eligibility certificate in Lodhran Tehsil and his alleged attorney managed to have the double allotment by means of cheating, misrepresentation and fraud, however, Mr. Riaz emphasized with great vehemence that petitioner No.1 had purchased the land in good faith with consideration after consulting the revenue record, but the Courts below erred in law while ignoring the mandate of Section 41 of the Transfer of Property Act, 1882. There is no doubt that as per general principle, a person cannot transfer to another a right or title better than what he himself possesses and he gives not what hath not, but to this principle there is exception enshrined in Section 41 of the Act ibid that if actual owner of the property permits another to hold himself out as the real owner as by entrusting him with the documents of title or in some other way, a third person, who bonafidely deals therewith may acquire a good title to the property as against the true owner. Necessary ingredients for protection under section 41 of the Transfer of Property Act, 1882 are that transferor is an ostensible owner; that he is so by the consent, express or implied, of the real owner; that transfer is, for consideration; and that transferee has acted in good faith, taking reasonable care to ascertain that the transferor has power to transfer. Protection of the provision ibid can only be extended if the requirements referred hereinabove will be available, however, if any of such essentials is lacking, the transferee shall be denied this protection. Obviously the existence of aforementioned facts and the ascertainment thereof is an issue between the parties, which requires resolution from the Court. The apex Court in a case cited as Hafiz Tassaduq Hussain v. Lal Khatoon and others (PLD 2011 SC 296), after elaborating scheme provided in Articles 117 to 120 of Qanun-e-Shahadat Order, 1984 affirmed that initial onus to prove his bona fide purchase is always on the shoulder of the subsequent vendee.
On the touchstone of this principle when case of the petitioners is visualized, it is borne out that it was their stance that after conferment of proprietary rights to Kareem Bakhsh through sale deed dated 24.09.1977, he sold out the disputed property to respondents Nos.5 to 9, who further transferred land measuring 98 Kanals and 14 Marlas to Mukhtar Ahmed petitioner No.1 through sale deed dated 17.01.1982, whereas rest of 97 Kanals and 10 Marlas land was also purchased by him through another sale deed dated 15.04.1982, but later on through mutation No.609 dated 30.05.1982 entire land was transferred by him to his father by means of gift, whereas the donee again alienated this land to his four sons/petitioners through oral gift mutation No.762 of 1985. All this shows that ultimately the petitioners were not the purchasers rather by means of oral gift they acquired the title and on confrontation with the said situation, Mr. Riaz, Advocate for the petitioners stressed that Mukhtar Ahmed petitioner No.1 was the bona fide purchaser, who through sale deeds dated 24.09.1977 and 17.01.1982 acquired it. At this juncture, he on asking, after going through the record admitted that Mukhtar Ahmed did not appear in the witness-box to prove his plea of bona fide purchaser. No doubt, his brother Masood Akhter, petitioner No.2, was examined as PW2, but neither it was narrated in the plaint that petitioner No.1 made the consideration through petitioner No.2 or that probe was conducted by the latter prior to making the said purchase. So, his statement was of no help to the claim of bona fide purchaser. It is well established till now that a party having personal knowledge with regard to a fact must appear in the witness-box to prove the same, otherwise adverse inference under Article 129 illustration (g) of the Qanun-e-Shahadat Order, 1984 will come into play against him. This view has already been elaborated in case a reported as Hall Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 (W.P.) Peshawar 81) wherein it was held as under:- ... So far as the other defendant-appellants are concerned, none of them appeared in the witness- box except Mir Afzal Khan. It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. By nonappearance, therefore, the defendant-appellants except Mir Afzal Khan failed to discharge the onus or shift the onus on to the plaintiffs...
It is also taken by surprise that neither the revenue Patwari was examined to prove that from his record the probe was made or that the copies of the record were obtained from him to verify about the title of the vendor nor the attesting witnesses of the sale deed or any other person of corroborative nature were summoned to affirm that there was no dishonesty, purpose or tainted intention to enter into the transaction, rather it was settled with bona fide intention.
4. The submission of learned counsel for the petitioners that learned Trial Court omitted to frame proper issue with regard to protection provided under Section 41 of the Act ibid is forceless. The petitioners did not press the said issue before both the Courts below, where protracted trial of the suit was conducted. This Court is conscious of the fact that it was the prime duty of the learned Civil Court to settle the issues as per pleadings of the parties, but the petitioners were also contributory towards that obligation, who remained mum before it. Moreover, the entire pleadings were in their knowledge and they were under legal obligation to prove the same by production of the best available evidence during trial of the suit, but they omitted to lead inspiring evidence, who for that lapse could blame themselves and not any else. The august Supreme Court of Pakistan has dealt with such question authoritatively while holding that where the parties have led evidence keeping in mind their pleadings, objection regarding non-framing of any issue or improper settling of issue loses its weight. Reliance in this respect can be placed upon the judgments reported as Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another (1988 SCMR 04), Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) and Abdul Karim v. Haji Noor Bakhsh (2012 SCMR 212).
5. As discussed above that original allottee himself appeared before the learned Member, Board of Revenue while claiming that he had already been awarded lard against his entitlement, whereas, the allotment of subject property was result of forgery and fraud and in such scenario, neither any protection could be extended to the subsequent purchaser nor a fraud could be perpetuated. The apex Court while dealing with identical proposition in a case reported as Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCMR 489) concluded as under:- As to the argument that the petitioners are bona fide purchasers for value, it is clear that no protection be afforded to them when it has been found that their vendor had no right, title or interest in the demised property.
6. In the fag end of his arguments while relying upon judgments reported Alhajj Shahzadi Mumtaz Jahan and 2 others v. Rana Akhtar Saeed and 13 others (PLD 2000 Lahore 84), Muhammad Siddique v. Additional Settlement Commissioner and others (1993 CLC 1947), Muhammad Liaqat and 5 others v. Member Board of Revenue (Colonies), Punjab, Lahore and 3 others' (2000 CLC 953) and Shahzadi Mumtaz Jehan v. Mst. Aqeela Parveen Jjaz and others (2001 CLC 1860) it was emphasized by Mr. Riaz, Advocate that powers under section 30(2) of the Act ibid were only available to the Board of Revenue for the period during which the transferee from the crown retained title to the said land, might have some force, but each case has to be decided on its own facts. In the case in hand, Kareem Bakhsh, the original allottee is not in league with the transferee, rather he came forward with the stance that not only the State but he was also defrauded by his attorney. In such situation, the case law referred hereinabove being run on different lines is not applicable. The basic allotment having been procured by means of fraud, there can be no second voice, but to say that fraud vitiates solemn proceedings as held in the judgments reported as Khair Din v. Mst. Saluman and others (PLD 2002 SC 677), Rehmatullah and others v. Saleh. Khan and others (2007 SCMR 729), Mst. Zulaikhan Bibi through L.Rs and others v. Mst. Roshan Jan and others (2011 SCMR 986) and Ghulam Farid and another v. Sher Rehinan through L.Rs. (2016 SCMR 862) and it, therefore, neither can be protected nor perpetuated, thus, no protection was available to the petitioners. It is; however, open to the petitioners to make a claim against them from whom the property was transferred to them. I am satisfied that the Courts below were quite justified in non- suiting the petitioners on the valid reasons.
7. The learned counsel for the petitioners has failed to pinpoint any misreading and non-reading of the material evidence available on the record to render the impugned judgments and decrees passed by the two courts below to be illegal, unlawful and without jurisdiction for calling interference by this Court in the exercise of revisional jurisdiction. Consequently, the instant revision petition being devoid of any merit is hereby dismissed with no order as to costs.