1. SHAH ZAMAN BABAR, J.---This Civil Revision filed on 2-1-1963, will be treated and disposed of as second appeal. In view of subsection (5) of section 5 of the Code of Civil Procedure (Amendment)
2. Act, 1963, notified in the Gazette of Pakistan on 4th April 1963.
2. The admitted facts of the second appeal are reproduced below:-- The present suit Khasras Nos. 1624, 1625, 1626, 1627, 1606, 2281/1607, 1608 and 1609, measuring 132 kanals, according to the Misli Haqiat of the year 1925-26 (copy Exh. P. W. 3/16) have been carved out of their previous corresponding Khasra Nos. 1555, measuring 36 kanals 16 marlas, 1560, measuring 55 kanals, and 1561, measuring 22 kanals 18 marals, total 114 kanals 14 marlas. (See also copy of jamabandi of Misli Haqiat 1895-96, Exh. P. W. 3/9). The land is situated in village liathian.
3. From the evidence and revenue record exbibited on file, it is established that Dalel and Atta Muhammad were the original owners of the suit land then comprised of Khasra Nos. 1555, 1560 and 1561. Atta Mohammad had two wives. Phulel was a son of Atta Muhammad from his first wife while Ghulam Muhammad and Gul Ahmad were his sons from the second wife. Mst. Sahib A was the wife of Ghulam Muhammad. According to the column of ownership in Misli Haqiat of the year 1895-96 (copy Exh. P. W. 3/9), Mst. Sahib Ji, widow of Ghulam Muhammad, Gul Ahmad from first wife in equal share, 1/4th share, Phulel from the second wife, 1/4th share, sons of Atta Muhammad and Dalel son of Gul Khan ; half share, were owners. Phulel died issuless and his inheritance devolved on Mst. Sahib A and Gul Ahmad. After the death of Gul Ahmad, his inheritance devolved on his sons Ahmad and Muhammad. Dalel had a son named Faqir. Majid Khan, Akram Khan. Mahmood Khan, sons, Msts. Dilbaro, Basran, Zaujan, Amirzadgai, daughters, and Mst. Pari, widow (defendants 1 to 8) are the heirs of Faqir. By mutation No. 2085, attested on 27-5-1957, the inheritance of Mst. Sahib Ji, on her death, was attested in the names of the heirs of Faqir, who are defendants 1 to 8 in this suit, and A. Hmad and Muhammad. By another inheritance mutation No. 2087, attested on 27-5-1957, the inheritance of Ahmad was sanctioned in the name of Mahmood. Thus it is clear that Mst. Sahib ji, Gul Ahmad and Dalel were the predecessors of defendants I to 8, while the formers were the owners of suit land previously comprised of old Khasra Nos. 1555, 1560 and 1561, measuring 114 kanals 14 marlas.
4. Gul Ahmad son of Atta Muhammad sold Khasra No. 1555, measuring 36 kanals 16 marlas to Jabbar, son of Bacha of village Lundkbuwar by deed (copy Exh. P. W. 1/1) executed on 19-12-1904. It appears from the Khans-i-Kaifiat of the jamabandi of the year 1904-1905 (copy Exh. P. W. 3/11) that mutation No. 334 on behalf of Gul Ahmad was attested in favour of Jabbar son of Bacha on 8-3-1905 with respect to the sale of entire Khasra No. 1555. By correction mutation No. 1923 (copy Exh. P. W. 3/17) attested on 19-12-1913, the name of Raidul son of Hamza Khan, was substituted for the name of his uncle Jabbar son of Bacha with respect to the ownership of Khasra No. 1555. This mutation No. 1923 has also been mentioned in the Khani-i-Mulkiat of the jamabandi of the year 1916-17 (copy Exh. P.
5. W. 3/14). By another deed (copy Exh P. W. 4/1) executed on 18-1-1905, Mst. Sahib Ji, widow of Ghulam Muhammad, Gul Ahmad, son of Atta Muhammad, and Dale, son of Gul Khan, sold 40 kanals of land out of Khasra No. 1560, measuring 55 kanals to Shahbaz son of Mirbaz, Shahbaz then sold the area of 40 kanals purchased by him out of Khasra No. 1560 by registered deed (copy Exh. P. W. 4/2) executed on 6-3-1914, to Raidul son of Hamza Khan. Mutation No. 2113 (Exh. P. W. 3/18) was attested to this effect in the name of Raidul on 27-5-1914. The Revenue Officer had also ordered at the time of the attestation of the mutation that it should be given effect to in Khans-i-Kaifiat. This mutation No. 2113 also finds mention in the Khans-i-Kaifiat of the jamabandi of the year 1916-17 (copy Exh. P.
6. W. 3/14).
7. It is established from the copy of the judgment (Exh. P. W. 4/6), decided in 1926, that Faqir son of Dalel, sold 3/4 share out of Khasra No. 1561, measuring 22 kanals 18 marlas, in favour of Mahmood son of Ahmad. The remaining 1/4th share, out of Khasra No. 1561, was sold by Faqir son of Dalel to Muhammad Nur son of Mahmud also by a registered deed. The two sales were pre-empted by Raidul son of Hamza Khan by two separate suits. Raidul was granted decree for possession through pre-emption of land measuring 22 kanals 18 marlas compared of Khasra No. 1561, by the judgment dated 31-7-1926 (copy Exh. P. W. 4/6) and reference of the second suit in copy of judgment Exh P. W.
8. 4/5, dated 25-8-1930, Raidul obtained possession of Khasra No. 1561, decreed in his favour, during - the execution proceedings, decided on 24-2-1927 (copy Exh. P. W. 4/3). Thus Raidul became owner in possession of an area of 99 kanals 15 marlas out of 114 kanals 14 marlas in Khasra Nos. 1555, 1560 and 1561. A glance at Misli Haqiat of the year .1925-26 (copy Exh. P. W. 2/1) will show that the sales by the owners of Khasra No. 1555, measuring 36 kanals 16 marlas and of Khasra No. 1560 to the extent of 40 kanals out of 55 kanals were given effect to in favour of Raidul son of Hamza, in the revenue record. Raidul has been shown in Khans-i-Kasht In possession of the land purchased by him, while Faqir Hissa Dar is shown in possession of Khasra No. 1561. It appears that the pre-emption decree with respect to Khasra No. 1561, measuring 22 kanals 18 marlas in favour of Raidul son of Hamza was not given effect to in the Misli Haqlat of the year 1925-26. In view of the inheritance mutation Nos. 1088, 1161 and 1163, mentioned in the column of Kaifiat of the jamabandi of the year 1938-39 (copy Exh. P. W. 2/4), Farid became the sole heir of his father Raidul.
9. By a Registered deed executed on 21-4-1928, registered on 26-4-1928 (copy Exh. P. W. 1/1), Faqir son of Dalel, sold 44 kanals 3 marlas of land out of 132 kanals in Khasra Nos. 1606 to 1608, 1609, 1624 to 1626 and 1627, in favour of Gul Khan. Barkat Khan, sons of Gul Muhammad Khan and -Khawaja Muhammad Khan, son of Dost Muhammad Khan, of village Lundkhawar. This led to a litigation between Raidul and Faqir son of Dalel etc. On 14-1-30 Raidul son of Hamza instituted a suit for possession of 44 kanals 3 marlas against Gul Khan, Barkat Khan sons of Gul Muhammad Khan, Khawaja Muhammad Khan son of Dost Muhammad Khan, Kashmir, son of Hubab Shah. Faqir son of Dalel, Mst. Sahib Ji, widow of Ghulam Muhammad, and Gul Ahmad son of Atta Muhammad. By judgment dated 25-8-1930 (copy Exh. P. W. 4/5) the Sub---Judge Mardan decided that the plaintiff Raidul had become owner of 99 kanals 14 marlas out of 114 kanals 14 marlas of land comprised of Khasra Nos. 1555, 1560 and 1561.
10. By sale mutation No. 1636 attested on 23-11-1948 (mentioned, in Khana-i-Kaifiat of the jamabandi of the year 1942-43, copy (Exh. P. W. 2/5) Faqir son of Dale], sold 26 kanals out of the-- entire suit land measuring 132 kanals to Ghazi Shah son of Amir Shah. By a registered deed (copy Exh. D. W 1/11, executed and registered on 13-3-1958, Ghazi Shah son of Amir Shah (defendant No. 9) sold 37 kanals 3 marlas out of the present suit Khasra Numbers, measuring 132 kanals, in favour of Muhammad Sarfaraz and Sher Ali Khan, sons of Khan Redi Khan (defendants 10 and 11). Mutation No. 2149 was attested in favour of the two vendees on behalf of Ghazi Shah, on 7-4-1958, vide note in Khan-i-Katfiat of the jamabandi of the year 1953-54, (copy Exh P. W. 2/7). By another deed (copy Exh. D. W. 1/2) executed and registered on 31-3-1958, Umar Khan, son, Mst. Part, widow, Msts.
11. Amirzadgai, Zaujan, Basran and Dilbaco, daughters of Faqir (defendants 3 to 8) sold, 26 kanals of land out of the suit land measuring 132 kanals, comprised in suit Khasra Numbers, to Muhammad Sarfaraz Khan and Sher Ali Khan, sons of Khan Redi Khan. Mutation No. 2151 was attested to this effect on 6-6-1958 as shown by a note in Khana-i-Kaifiat of the jamabandi of the year 1953-54.
3. On 24-5-1958 Farid plaintiff instituted a suit for-- declaration against Majid Khan, Akram Khan, Umar Khan, sorts, Msts. Dilbaro, Basran, Zaulan, Amirzadgai, daughters, and Mst. Part, widow of Faqir (defendants 1 to 8), Ghazi Shah son of Amir Shah (defendant No. 9), Muhammad Sarfaraz Khan and Sher Ali Khan, sons of Khan Redi Khan (defendants 10 and 11) and six others. The plaintiff prayed that the land comprised in Khasra Nos. 1625, 1626, 1624, 1627, 1609, 1606 and 2281/1607-1608, situated in Raqba Hathian, recorded as measuring 132 kanals, in fact measures 124 kanals 5 marlas (or whatever area proved) and is owned and possessed by him. That defendants 1 to 9 had no right or title in it, and the sale by defendant No. 9 on the basis of registered deed dated 13-3-1958 and the sales by defendants 3 to 8 by registered deed dated 31-3-58 in favour of defendants 10 to 11 are ineffective, against the rights of the plaintiff: And that he is not bound by them.
12. The suit was tried by S. Shaukat Ali Shah, Civil Judge 1st Class, Mardan. The pleadings of the parties gave rise to the-- following issues:-
(1) Whether the plaintiff is the owner of the suit land and the sales in favour of defendants 10, 11 by defendants 3 to 8 (and 9) through the sale deeds dated 13-3-58 and 31-3-58 are illegal and inoperative against the rights of the plaintiff?
(2) Whether plaintiff has a-cause of action?
(3) Is the suit not competent in the present form?
(4) Is the suit within time?
(5) Relief.
13. By the judgment dated 10-6-1960, the trial Sub-Judge decided issue No. I in favour of the plaintiff.
14. Issues 2 and 3 were also decided in favour of the plaintiff. On his finding on, issue No. 4, the suit was held to be within time. In the result, he granted the plaintiff the declaration prayed for, with costs, against the defendants.
4. Muhammad Sarfaraz Khan and Sher Ali Khan (defendants 10 and 11) preferred appeal. The appeal was heard by the Additional District Judge, Mardan, who by his order dated 9-5-61, framed the following issue and remanded the case back to the trial Judge under Order XLI, rule 25, C. P. C., with the direction to take further evidence:- "Whether defendants 10 and 11 purchased the disputed land from the ostensible owners in good faith and for consideration, if so, what is its effect?"
15. After remand, Mr. Khalid Paul, then Civil Judge 2nd Class, Mardan, recorded the evidence adduced by the parties with respect to the additional issue. By his order dated 28-6-1962, the Civil Judge held that defendants 10 and 11 acted negligently while purchasing the suit land and hence they did not act in good faith so as to entitle them to the protection of section 41, T. P. Act. He, therefore, decided the issue against the defendant---vendees, and sent the report back to the appellate Court.
16. The defendants' appeal was re-heard by the Additional District Judge, Mardan. Before the appellate Court the finding on the additional issue was solely attacked. The learned appellate Court after considering the evidence on the additional issue and the law on the subject affirmed the finding of the lower Court on the additional issue and thus held that the plaintiff-- (Farid) is the owner to possession of the suit land and the defendant-appellant, namely, Muhammad Sarfaraz Khan and Sher Ali Khan are not protected by the provisions of section 41,. T. P. Act, and that the suit land measures 124 kanals 5 marlas and not 132 kanals. He thus while maintaining the judgment and decree of the trial Judge, dismissed the appeal with costs, by his judgment dated 8th September 1962.
5. Muhammad Sarfaraz Khan and Sher Ali Khan defendants preferred civil revision, challenging the judgments and decrees of the two Courts below. This civil revision, as earlier stated, has --been treated as second appeal.
17. Mr. Abdus Sattar Khan, learned counsel for the appellants, argued that the defendant-appellants were entitled to the protection under section 41 of the T. P. Act. To substantiate his argument, the learned counsel took us through the evidence, revenue record, and various other documents exhibited on file.
18. The history of the suit land has been given in detail. By the judgment dated 28-5-30 (copy Exh. P. W.
19. 4/5) Raidul, father of Farid plaintiff in the present suit, has been held to be a full owner in possession of an area of 99 kanals 14 marlas out of an area of 114 kanals 14 marlas formerly comprised of old Khasra No. 1555, measuring 36 kanals 16 marlas, 1560, measuring 55 kanals and 1561, measuring 22 kanals 18 marlas (total` 114 kanals 14 marlas). The present suit Khasra numbers, referred to above, have been carved out of these three old Khasra. Numbers. The jamabandi of the year 1938-39 (copy Exh. P. W. 2/4) will show that Raidul, father of Farid plaintiff, entered into possession of almost the entire suit area, according to the entries in the Khana-i-Kasht. However, Mst. Sahib Ji, widow of Ghulam Muhammad and Gul Ahmad, son of Atta Muhammad. To the extent of half and Faqir son of Dalel, to the extent of half, are entered in the column of ownership in spite of the fact that they are proved to have sold 99 kanuls 14 marlas out of the suit land to Raidul. They could not, therefore, sell the same land either to Ghazi Shah, defendant No. 9, or to Muhammad Sarfaraz Khan and Sher AIL Khan, defendants 10 and 11. By the registered deed, dated 13-3-58, and 31-3-58 copies Exh. D. W. 1/1 (or Exh. P. W. 4/7) and Exh. D. W. 1/z (or Exh. P. W. 4/8). In these two deeds, it is mentioned that the suit land was sold on the basis of the jamabandi of the year 1953-
54. A close scrutiny of the jamabandi of the year 1953-54 (copy Exh. P. W. 2/7) is essential. In the column of ownership of this jamabandi Mst. Sahib Ji, widow of Ghulam Muhammad, Ahmad and Muhammad, sons of Gul Ahmad, Faqir son of Dalel, and Ghazi Shah son of Amir Shah, are entered as co-sharers, while Farid, son of Raidul plaintiff is entered as vendee co-sharer in possession of almost all the suit Khasra numbers.
20. The entries of Farid being vendee-co-sharer in possession of the suit land tantamount to notice of title. The entries should also have put on guard the two appellants to make diligent inquiry as to why Farid is entered as vendee-co-sharer in possession of the suit land, and more so, to find out whether Farid plaintiff or the persons who have been mentioned in the column of ownership of the jamabandi (of the year 1953-54) had the real title to property. Such avenues of inquiry were open to the appellants and they should have followed the inquiry in that direction in order to discover that the vendors who sold the land to them were or were not the real owners of the property. The appellants have certainly omitted to make such inquiries in good faith and taking reasonable care to ascertain that the transferors of the suit land to them had the power to make the transfer. The general principle of law is that no man can transfer to another a right or title greater than what he himself possesses and he gives not who has not. The principle contained in the provisions of section 41, T. P. Act is an exception to this well-recognised rule. This exception is really a form of the equitable doctrine of estoppel. In the present case, in view of the evidence and circumstances, explained above, the appellant---transferees cannot take recourse to this equitable principle so a to entitle them to the protection of section 41, T. P. Act. Reliance is placed on:-
(1) Shah Muhammad v. Inayat Ullah and others PLD 1953 Lah. 87.
(2) Baidya Nath Dutt v. Alef Jan Bibi and others AIR 1923 Cal. 240.
(3) Sheotahal Dube v. Lai Narain Prasad Chand and others AIR 1930 All. 422.
21. Consequently this second appeal is without merits, and is hereby dismissed. Parties to bear their own costs.