SYED ARSHAD ALI, J.---Through the instant revision petition, the petitioners have assailed the judgmen t and decree dated 02.12.2009 passed by the learned Additional District Judge/Izafi Zila Qazi Matta Swat, whereby the appeal preferred by the defendants/respondents against the judgment and decree dated 02.07.2008 of the trial Court was accepted and as a consequent thereof suit of the plaintif fs/petitioners stood dismissed.
2. Essential facts of the case are that on 26.8.1993 the plaintif f/petitioner No. 1 Mukaram Khan had instituted a suit against the respondent No. 2 Noor Zada and his father namely Khaitab for specific performance of agreement dated 15.6.1993 before the erstwhile PATA Courts. However , on abolition of PATA Courts, the said ,case was transferred to the regular Courts on 09.9.1996, where the defendants/ respondents did not appear and on 20.6.1997 the said case was decreed ex parte against the respondents. On the basis of the said ex parte decree dated 20.6.1997 the suit property was initially incorporated in the revenue record in the name of petitioner No. 1 Mukaram Khan through mutation No. 413 dated 26.7.1997, who had subsequently sold the said property in favour of the petitioners Nos. 2 to 6 vide mutation No. 663 dated 12.3.2002. Later , on the application of the respondent/ judgment debtor , the said ex parte decree was set aside on 12.04.2006, however , by that time the father of the respondent namely Khaitab was dead.
3. In view of the changed situation, the plaintif f who was initially only Mukaram Khan was joined by the subsequent purchasers of the suit property as co-plaintif fs and accordingly amended suit was filed on 10.05.2006. The defendants/respondents on appearance filed their written statement, wherein they have disputed the execution of the alleged agreement to sell dated 15.6.1993.
4. In view of the divergent contentions of the parties, the trial Court had framed eleven (11) issues and the parties were asked to lead their evidence. On closure of evidence, the learned trial had decreed the suit vide judgment and decree dated 02.7.2008 in favour of the plaintif fs/petitioners. The said judgment and decree was challenged by the respondents/defendants before the appell ate Court by way of civil appeal. The learned appeal Court vide impugned judgment and decree dated 02.12.2009 by accepting the said appeal has dismisse d the suit of plaintif fs/petitioners, hence the present petition.
5. Arguments heard and record of the case was perused with the able assistance of the learned counsel for the parties.
6. The entire claim of the plaintif f No. 1 Mukaram Khan is based on the agreement bearing No. 1386, Ex. APW -2/1 dated 15.6.1993. According to this agreement, the defendant/respondent No. 2 had undertaken that he had received an amount of Rs. 60,000/- from Mukaram Khan, the petitioner No. 1 as sale consideration for a vehicle No. CL-0579, however , he (defendant No. 2) will hand over the said vehicle on 10.7.1993. In case of his failure to hand over the vehicle within the prescribed period by 10.07.1993 he will pay Rs. 2,25,000/- to Mukaram Khan and on his further failure to pay the said amount by 10.7.1993 then in lieu of the said amount his property ("disputed property") will be considered as sold to plaintif f Mukaram Khan and he will be bound to attest mutation in his favour (Mukaram Khan). In the said agreement, he (defendant No. 2) has further admitted that he had also received Rs.
2,25,000/- as sale consideration against the vehicle. Since the said Noor Zada was not owner of the property at the relevant time, therefore, there is a note on the said agreement attributed to his father Khaitab that he agrees to the terms and conditions of the agreement.
7. In support of this deed, which was allegedly witnessed by Khanadan son of Muhammad Yar, Fazal Rabi son of Nausherawan and Sardar Ali Khan as marginal witnesses, the plaintif f Mukaram Khan has produced Muhammad Haleem, the scribe of this deed as APW -2. He has confirmed in his statement that he is the scribe of this deed dated 15.6.1993, Ex. APW -2/1 and in his presence all the parties including the father of the respondent No. 2 namely Khaitab had thumb impressed/ signed this document. However , in his cross-examination, he has admitted that the CNIC numbers of the witnesses were not mentioned in the deed. He has further stated in his cross- examination that another witness of the deed namely Fazal Rabi is alive and he does not know about the other witness Sardar Ali. He has further affirmed that no transaction has taken place in his presence and he has only scribed the deed, which was later notarized by Sultan Ahmad, Advocate, APW -3. The said Sultan Aham, Advocate appeared as APW -3, who has notarized the deed. Mukaram Khan appeared as APW -4. In rebuttal, the defendants/ respondents produced Dawa Khan as DW-1, who was the erstwhile owner of the property which he had sold to the father of the defendant/respondent No. 2. The defendants also produced Muhambar as DW-2, who in his statement has stated that he was earlier tenant under the father of Noor Zada, however , in his cross-examination, he has confirmed that some 9/10 years back he had surrendered the land and since then the said property is in possession of Malangay Khan, father of the plaintif fs/petitioners Nos.2 to 6. Noor Zada, the defendant/ respondent appeared as DW -3, who has denied the execution of the said deed.
8. Although, from the perusal of the statem ents of the parties, particularly the admission of DW-2 it appears that the plaintif fs are in possession of the suit property , however , he claims title of the suit property on the basis of agreements bearing Nos. 1849 to 1852 dated 29.5.1964, wherein the predecesso r of the defendants/respondents namely Khaitab was shown as owner . Under Article 79 of the Qanun-eShahadat Order , 1984, it is mandatory upon the beneficiary , of a document, on the basis of which he claims his title that not only he has to establish the deed by producing marginal witnesses (two in number) of the same but has also to establish the contents of the said deed. Admittedly , at the time of execution of the deed, the defendant No. 2 Noor Zada was not owner of the suit property and the transaction has allegedly taken place with him, which was allegedly affirmed by his father . The perusal of this deed exhibits a shaky transaction. As per contents of the said transaction Mukaram Khan, the plaintif f had paid an amount of Rs. 60,00 0/- for a vehicle which was not even in possession of the purchaser . The agreement says that on the date of execution he has paid Rs. 60,000/-and in case of default the seller shall pay Rs. 2,25,000/- and at the end it is written in the deed that the total amount received by the purchaser is Rs.
2,25,000/-. These confusing contents must have been established by the plaintif fs before the Court as to when the said consideration was given to the defendant and in whose presence and what happened to the vehicle then and whether the defendant was owner of the said vehicle. Even the scribe, who has affirmed in his cross-examination that the said transaction has not taken place in his presence and even the CNIC number of the father of the seller i.e. defendant No. 2 Noor Zada has not been mentioned in the deed. It is clear from his statement that one of the marginal witness of the deed namely Fazal Rabi was available but the same witness has not been produced by the plaintif fs. Therefore, the said deed, which is a basic document in favour of the plain tiffs could not be established by them before the trial Court. Although, there are some weaknesses in the defendants' evidence, however , it is settled principle of law that the plaintif f has to establish his case on his own evidence and cannot get benefit from the weakness of defence.
9. Moving on further to the contention of the learned counsel that the plaintif fs Nos. 2 to 6 have purchased the suit property for a valuable consideration, therefore, their rights are protected under section 41 of Transfer of Property Act. It is indeed settled principle of law that a person cannot transfer to another a title or a right greater than what he himself possess. Hence, the purchas ers from the seller cannot take more than what the seller can sell. This principle is based on the maxim; "Nemo dat qui non-habet'. No one can give what he has not got. However , an exception to this general rule has been embodies in section 41 of the Transfer of Property Act, which read as under:- "41. T ransfer by ostensible owner .
Where, with the consent, express or implied, of the person interested in immoveable property , a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable o the ground that the transferor was not authorized to make it: prov ided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer , has acted in good faith."
However , the superior Court of this country in authoritative pronouncements cited as Muhammad Afzal's case (PLD 2006 SC 84), Haji Abdul Ghafoor Khan's case (PLD 2007 SC 433), Mst. Bilqees Begum and others ' case (PLD 2003 SC 899), Maulana Riazul Hassan's case (1991 SCMR 2513 ), Mst. Noor -un-Nisa's case (1994 SCMR 2087 ), Muhammad Bashir's case (2003 SCMR 774), Moulvi Abdul Qadir and others' case (2010 SCMR 1877 ) and Noor Hassan and others' case (2015 SCMR 452) has laid down the following 5 conditions should be established by the purchaser in order to avail the said protection :-
(i) The transferor is the ostensible owner;
(ii) The transfer is for consideration,
(iii) He has by consent express or implied of the real owner ,
(iv) The transferee has acted in good faith,
(v) The transferee took reasonable care to ascertain that the transferor had power to transfer .
None of the said plaintif fs had appeared before the Court to establish that indeed they are bona fide purchasers of the suit property . Their non-appearance before the Court is fatal to their alleged claim of being bona fide purchasers.
10. In view of the above, this petition has no merit, which is accordingly dismissed.