MUHAMMAD SALEEM JESSAR, J.---This Civil Revision under Section 115, C.P.C. is directed against the Judgment and decree dated 12.11.2014, whereby the learned Addl. District Judge, Shadadkot while allowing Civil Appeal No.40 of 2010, filed by respondents Nos. 1 to 13, set aside the Judgment and Decree dated 30.04.2010, thereby the learned Senior Civil Judge, Shandadkot decreed the F.C. Suit No.30 of 2006, filed by the applicants/plaintiffs.
2. Briefly stated, the facts of the case are that the applicants herein filed the aforesaid civil suit initially for Specific Performance of Contract against the respondents No. 14 to 18/defendants Nos. 1 to 5, later on they filed amended plaint adding the relief of possession and respondents Nos. 1 to 13 as defendants Nos. 6 to 21, averring therein that the agricultural land bearing Survey Nos.71 (3-39 acres), 72 (7-27 acres), 73 (6-12 acres), 74 (3-13 acres) and 75 (6-20 acres), situated in Deh Lal Khan Mastoi of D-Pump, Taluka Meero Khan now Taluka Sajawal, District Kambar-Shandadkot (hereinafter referred to as the "suit land") belonged to deceased Syed Ghulam Saqlain Shah son of Zawar Hussain Shah, the ancestor of respondents Nos. 14 to 18, who sold out the suit land to applicants, vide sale agreement dated 25.01.1984, for total consideration of Rs.1,11,100/-. Out of which, the applicant No. 10 paid Rs.81,100/- as an earnest money and remaining amount of Rs.30,000/- was agreed to be paid by the applicants to said Syed Ghulam Saqlain Shah at the time of execution of registered sale deed before Sub-Registrar concerned. It has further been averred that the applicants approached to Syed Ghulam Saqlain Shah in his life time for execution of registered sale deed, but he shown his inability to do so due to pending litigation. It has also been averred that after the death of Syed Ghulam Saqlain Shah, his legal heirs viz. respondents Nos. 14 to 18 kept the applicants on false hopes for about three months prior to filing of the suit, and when the applicants came to know that the respondents Nos. 14 to 18 were not inclined to perform their part of contract, they maintained the civil suit.
3. The respondents Nos.1 and 2/defendants Nos. 6 and 7 contested the suit by filing their written statements wherein they denying the right and title of the deceased Syed Ghulam Saqlain Shah contended that the agreement dated 25.01.1984 was collusive, forged and fabricated, as Syed Ghulam Saqlain Shah was neither owner of the suit land, nor he was in its possession, as it belonged to one Abdul Rehman son of Muhammad Raman Mastoi and after his demise, the mutation in record of rights was made in favour of his legal heirs, vide Entry No. 114 dated 09.08.1983 and subsequent entries Nos. 42 to 112. The rests of the respondents/defendants adopted the written statement filed by the defendant No.2, except respondents Nos. 14 to 18/defendants Nos.1 to 5 who were declared ex-parte, vide order dated 01.04.2009.
4. Although the learned trial Court had framed 5 issues out of pleadings of the parties, but during pendency of the suit, the respondents Nos.1 and 2 filed an application to decide the matter on preliminary issues to which, the counsel for the applicants agreed to decide the matter on following issues:-- Issue No. 1. Whether suit is not maintainable according to law? OPD Issue No. 2. Whether plaintiffs are not entitled for the relief claimed? OPD.
Issue No. 3. What shall be decree be?
5. On the assessm ent of evidence led by the parties, the learned trial Court decreed the suit, vide judgment and decree dated 30.04.2010. Being aggrieved, the respondent Nos. 1 to 13/defendants Nos. 6 to 21 preferred Civil Appeal No.40 of 2010 which was heard and allowed by the learned Additional District Judge, Shandadkot, vide judgment and decree dated 12.11.2014. It is against those conflicting findings of the appellant Court that the instant civil revision application has been maintained by the applicants/plaintiff before this Court.
6. Mr. Gulab Rai Jessrani, learned counsel for the applicants, has contended that the deceased Ghulam Saqlain Shah was the owner of the suit land which he sold out to applicants by entering into sale agreement dated 25.01.1984 against the consideration of Rs.111,100/-; therefore, the respondent Nos. 14 to 18, being legal heirs of said deceased were under obligation to perform their part of contract. He has further contended that the claim of the respondents Nos. 1 to 13 with regard to the ownership of the suit land has no force as deceased Ghulam Saqlain Shah was the owner of the suit land by virtue KHATTONI/Purchi Taqseem (Exh.107-B) issued in his favour by the concerned Mukhtiarkar. He added that F.C. Suit No. 38 of 1984 filed by the respondents No.2 and others against the Abdul Qadir Khoso and Syed Ghulam Saqlain Shah was partly dismissed and partly decreed by the 1st Senior Civil Judge, Larkana; it was decreed only to the extent of permanent injunction relating to the respondent No.2, vide judgment dated 27.11.1991 and decree dated 18.12.1991 (Exh.
107/D). The said judgment and decree was assailed by respondent No.2 and others in Civil Appeal No. 01 of 1992,in terms of Section 96 of C.P.C. and same met with the same fate, vide judgment and decree dated 25.04.1994 and 19.05.1994 respectively passed by learned 3rd Additional District Judge, Larkana and; thereafter, the concurrent findings of the courts below were assailed by the respondents No. 2 and others before this Court by means of Civil Revision Application No.S-143 of 1994, which was also dismissed by this Court by declaring the permanent injunction granted by the courts below to be without lawful authority, vide order dated 19.03.1999, which order the respondents No.2 and others impugned in C.P. No. 309-K of 1999 but the same was dismissed by the Hon'ble Supreme Court of Pakistan for non-prosecution, vide order dated 10.07.2000. He has also submitted that since the possession and title of the respondents was not recognized by the courts in aforementioned civil proceedings, the claim of the respondents over suit land is without any legal footings, as such, the impugned judgment and decree passed by the Appellate Court is liable to be set aside by maintaining the judgment and decree passed by the learned trial Court. In support of his contention, Mr. Jessrani has placed his reliance on the case of Ghulam Mustafa and others v. Maqsood Ahmed and others (2006 M LD 1014) and Mst. Hamida Khatoon and others v.
Moomal and others (2006 CLC 664).
7. Conversely, Mr. Rab Nawaz Soomro, learned counsel for the respondents, has vehemently argued that the deceased Ghulam Saqlain Shah was neither the owner nor in possession of the suit land, so much so, the so-called KHATTONI/Purchi Taqseem was not mutated in the record of rights; as such, he had not acquired any transferable right and title in respect of suit land and, only on this score, the alleged sale agreement being void is not enforceable under the law. He has further contended that Ghulam Saqlain Shah had died in the year 1995, but the applicants deliberately concealing this fact, malafide did not mention it in the memo. of plaint to cover question of limitation in the suit. He has further contended that so-called claim of Ghulam Saqlain Shah over the suit land on the basis of KHATOONI/ Purchi Taqseem has no legal value and effect in the eyes of law, nor it can be termed as the title document to claim right of the ownership. Mr. Soomro has maintained that the alleged sale agreement is an un-registered document and its scriber and witnesses were not examined by the applicants before the trial Court, therefore, there is a big question mark on its admissibility. Mr. Soomro has further maintained that the case of the applicant also hit by section 54 of the Transfer of Property Act, 1882 as deceased Syed Ghulam Saqlain Shah had no legal capacity to enter into a sale agreement with applicants. Mr. Soomro added that even deceased Syed Ghulam Saqlain Shah was not in possession of the suit land, yet it is mentioned in the sale agreement that the physical possession was handed over to applicants by him and when the respondents No. 1 to 13 joined the suit claiming to be in possession of the suit land, the applicants sought amendment in the plaint seeking relief of possession. While referring the judgment, passed in F.C. Suit No.38 of 1984 (Exh. 107/D), Mr. Soomro has also maintained that the possession of the respondents Nos. 1 to 13 over the suit land right from 01.04.1919 is an admitted fact, so also, the mutation in record-of-rights in their favour. Mr. Soomro has contended that the learned trial Court had decreed the suit believing the case of the applicants as gospel truth, without considering the evidence on record produced by the answering respondents; however, the learned Appellate Court set aside the judgment and decree passed by the trial Court by passing well-reasoned judgment, which requires no interference by this Court under its revisional jurisdiction. In support of his contentions, Mr. Soomro has placed his reliance on the case of Haji Wahid Bux v. Ahmed and 2 others (2013 M LD 1039), Hafiz Tassaduq Hussain v. Muhammad Din, through legal heirs and others (PLD 2011 SC 241), Jang Bahadar and others v. Toti Khan and another (2007 SCM R 497) and Muhammad Azam and 5 others v. Abdullah and 15 others (1999 CLC 200).
8. I have heard the learned counsel for the parties and have gone through the material available on record as well as the case-law cited at bar.
9. It appears that the whole claim of the applicants in respect of suit land rests upon sale agreement (Exh. 107/C) allegedly executed between the predecessor of respondents Nos. 14 to 18, namely, deceased Syed Ghulam Saqlain Shah and them on 25.01.1984. It is the case of the applicants that the former was the owner of the suit land by virtue of KHATOONI/Purchi Taqseem. It needs not be mentioned here that status of such KHATOONI / PURCHI TAQSEEM was specifically and categorically denied by the defendants and since the present applicants were claiming rights and interests under the same therefore, it was obligatory upon the applicants / plaintiffs to first have proved the purchase to be bona fide because one to seek protection of Section 41 of Transfer of Property Act was / is required to establish four required ingredients which are a) that the transferor was the ostensible owner; b) that the transfer was made by consent express or implied of the real owner; c) that the transfer was made for consideration; and d) that the transferee while acting in good faith had taken reasonable care before entering into stich transaction. It has come on record that as per Revenue Record the ownership was shown in name of 'Abdul Rehman Mastoi' and on whose death Khata was mutated in name of his successors vide entry No.114 dated 09.8.1983. Thus, if the applicants/plaintiffs had taken reasonable care in going into the genesis of the ownership, and examining the record, which they, as purchasers were required to do so, they would have found that the property being an inherited property was originally owned by Abdul Rehman Mastoi which devolved upon his legal heirs. Thus, prima facie failure on part of the applicants/plaintiffs to establish bona fide disentitles them to claim any exception with reference to Section 41 of the Transfer of Property Act and purchase by an unauthorized person was/is always 'void'. Reference may well be made to the case of Ghulam Rasool and others v. Noor Muhammad and others (2017 SCM R 81) wherein it is held as:-- "5. ... the essential ingredients of this section are, (a) that the transferor was the ostensible owner;
(b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and (d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction. These four imperative/ essential ingredients must co-exist in order for a person take the benefit of the equitable principle, however, merely on account of some error committed by the revenue staff in the revenue record unintentional or deliberate or motivated which excludes the name of the lawful owner of the property there from and the property, shown to be in the name of some other person who is not the owner of the whole or a part thereof by itself shall not deprive and denude the true and actual owner from the title of the property and this by no means can be construed that the transfer, to the person claiming protection of the rule of equity ibid by a person who actually is not the owner is being made by consent express or implied of the real owner. This even is not the case of the appellants that the transfer to them was with the consent of two brothers whose names have been illegally and unauthorizedly removed from the column of ownership by the revenue authorities, so as to bring the case within the purview of section 41 ibid. In the instant case as it is an undisputed fact that the property in question was owned by Muhammad Siddique who was survived by four sons (named above) and they all became the joint owners of the property. The entries in the revenue record to that effect were made and are vivid and uncontroverted. How and why the names of the two brothers from the revenue record were removed in absolutely obscure. It is not the case of the present appellants that the said brothers had transferred their share in the joint property (purchased by them) in favour of the other two brothers by any lawful transaction/ means i.e. exchange, gift, sale, relinquishment etc. Thus if the appellants had taken reasonable care in going into the genesis of the ownership, and examining the record in depth, which they as purchasers were required to do so, they would have found out that the property being an inherited property was originally owned by Muhammad Siddique which devolved upon his legal heirs i.e. four brothers jointly and that all these four brothers still continue to be the co-owners of the property; and that the exclusion of Ghulam Muhammad and Jewan's name from the revenue record is not on account of any legal or authorized transaction or mode, rather for either a human error or because of some tainted reason. Be that as it may, the mere omission of Ghulam Muhammad and Jewan's name in the revenue record in no manner can be construed to mean that they had consented either express or implied for the sale in favour of the appellants and that the appellants took reasonable care in good faith, within the contemplation of condition No.(iv) of section 41 ibid. Obviously such unauthorized sale to the extent of their share in the sold property was void and that the case of the appellants do not squarely qualify the test of section 41 and, therefore, they could not take up the plea of bona fide purchaser and their sale could not be protected on that account. Resultantly this appeal has no merit and it hereby dismissed.
Emphasized.
Further, the present applicants/plaintiffs never made any attempt to establish the genuineness of KHATOONI/PURCHI TAQSEEM which they could have done only by producing the official (s) of quarter concerned or least certified copy thereof, as required by Article 88 of Qanun-e-Shahadat Order. The failure of the applicants/plaintiffs would legally allow presuming an adverse inference against the pleaded claim well within meaning and object of Article 129(g) of Qanun-e-Shahadat Order, 1984. I may add here that even Article 100 of Qanun-e-Shahadat Order, 1984 is of no help in such a situation where the beneficiary of a 30 years old document even does not prove the same as required by law or least by scriber or custodian of such document. Reference may be made to the case of Hajyani Bar Bibi through L.R. v. Mrs. Rehana Afzal Ali Khan and others (PLD 2014 SC 794).
Further, it is an admitted position that the suit land neither stood mutated in record-of-rights in the name of Syed Ghulam Saqlain Shall nor he was ever in possession of it at any point of time. On the contrary, it appears that the suit land is in possession of respondents Nos.1 to 13 and it is mutated in record of rights on their names as ancestral property. Further, it is also a matter of record that the successors of Ghulam C Saqlain Shah did appear before appellate court where they in their cross- objections mentioned that their father Ghulam Saqlain Shah was not owner of the suit property nor was in its possession. There can be no denial to the well-established principle of law that one cannot give a better title then what he holds'. Reference may be made to the case Muhammad Nawaz Magsi v. Nisar Ahmed and others (2010 CLC 407) wherein it is held as:-- "13. The law does not entitle a person to transfer a right in a property which he himself does not possess though the property may be in his name. As survey number 694 and 695 had already been agreed to be sold under an agreement to sell dated 04.3.1982 which was coupled with transfer of possession, the subsequent transferees cannot be conferred with any lawful title in the disputed land. The subsequent transferees cannot even claim to be bona fide purchasers for value without notice for the simple reason that when survey numbers 694 and 695 were transferred in their favour, the applicant was already in possession of the same and the subsequent 'transferees did not approach the applicant to ask him about the nature or basis of his possession. Hence subsequent transfers being not bona fide are not legally valid transfers."
It also appears that the alleged KHATOONI/Purchi Taqseem was issued in favour of Syed Ghulam Saqlain Shah on 15.12.1959, if it is so, then again question arises as to why mutation in record of right was not effected in his favour in respect of suit land; again answer is not available. Needless to add that when legally a mutation is not a proof of title hence mere production of Khatooni would never be sufficient title of person, named in Khatooni, unless transaction is otherwise proved by the beneficiary or the one claiming under such document. Reference may be made to the case of Muhammad Iqbal and another v. Mukhtar Ahmed through L.Rs. (2008 SCM R 855) wherein it is held as:-- '6. Before entering into appreciation of evidence, we may recall that this Court on numerous occasions has categorically held that the mutation proceedings are not judicial proceedings and mutation do not at all happen to confer title. That, therefore, whenever the genuineness of any such mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction. Hakim Khan v. Nazeer Ahmed Lughmani (1992 SCMR 1832) can be referred to in this behalf .... This Court in recent judgment rendered in Muhammad Akram v. Altaf Ahmed PLD 2003 SC 688 has categorically declared that mutation confers no title and once a mutation is challenged, the party relying thereon is bound to revert to the original transaction and to prove such original transaction which resulted into the entry of attestation of any such mutation.
It may be added that the term Khatooni is not a title document but is a register of person persons cultivating or otherwise occupying land and since it is Revenue Officials who are custodian of such record to affirm the same hence if someone claims such title he must establish entry/ mutation thereof in record of the Rights, maintained with reference to Section 33 of the Land Revenue Act which, per record, was never established by applicants / plaintiffs nor was owned by revenue officials.
The learned trial court entirely ignored that as per deposition of official witnesses Ghulam Saqlain Shah was not having title of suit land. in the instant case when deceased Ghulam Saqlain Shah was not recorded in record of rights as the owner of the suit land, he was not legally competent to transfer the same in terms of Section 54 of the Transfer of Property Act, 1882; and on the same premises, he was not having any legal capacity to enter-into sale transaction with the applicants, thus the alleged contract being void cannot be specifically enforced in terms of section 21 of the Specific Relief Act, 1877. Thus, it could safely be concluded that sale agreement of the applicants / plaintiffs, if any, was void; it is settled principle of law that a relief of Specific Performance of Contract is not available for a 'void' agreement. Needless to add here that 'no rights and liabilities could be attached to or arise out of a void contract'.
Be as it may, since the applicants / plaintiffs claim sale agreement with Ghulam Saqlain Shah hence the rights to seek enforcement first squarely lie against the seller or his successors as is evident from Section 23(a) and (b) of the Specific Relief Act which reads as: "23. Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by--
(a) any party thereto;
(b) the representative in interest, or the principal, of any party thereto: provided that, where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless where his part thereof has already been performed; but equally when the applicants / plaintiffs had come to active notice and knowledge of independent title of the respondents / defendants but same was not challenged nor cancellation thereof was sought which omission was always sufficient for decline the relief, sought by the plaintiff because principle of lis-pendens shall not be applicable to an already existing independent title.
Not only this it may be relevant to observe here that, as per applicants' claim, Syed Ghulam Saqlain Shah died in the year 1995 but they did to adduce any documentary evidence to prove it nor made any attempt to justify for remaining silent for decades together. Even if it is, then question arises as to why the applicants remained silent and did not file any suit for specific performance of contract and possession in the life time of Syed Ghulam Saqlain Shah, who allegedly died after 11 years of the execution of so-called sale agreement; no answer is available.
The applicants also failed to prove execution of sale agreement by examining its executants and attesting witnesses and if they have been died no such proof has been brought on record to substantiate their plea. The applicants filed a suit for specific performance of contract upon the basis of sale agreement which shows that the possession was given to them at the time of execution of sale agreement. During pendency of the suit, applicants filed an application for amendment of their prayer to sue for possession which was contrary to the alleged sale agreement. The Trial Court has ignored the basic requirement of law which must have been proved by the applicants for establishing their case for specific performance of contract. It is well settled principle of law that onus to prove agreement/ instrument/claim always lies on the beneficiaries but the applicants had miserably failed to adduce such evidence.
11(sic). The learned counsel for the applicants has relied upon the law, which, being on distinguishable facts, are not applicable to the facts and circumstances of the present case.
12. For the foregoing facts and reasons, I find no illegality or irregularity in the impugned judgment and decree passed by the learned Addl. District Judge, Shandadkot. Consequently, the instant Civil