1. ANWARUL HAQ, J.-This appeal, by leave of the Court, has arisen out (if a suit instituted by the appellant Rehman Shah for a declaration that he and his two sisters, Mst. Pari Roshan and Mst.
2. Balqis, were owners in possession, as heirs of their father Mahbub Shah, of the disputed land, measuring 3 kanals and 10 marlas and situate in village Bakhshali in the Mardan district, and that the defendant Muhammad Shah had not acquired any title in respect of 8 -- marlas of the said land by virtue of a registered deed of exchange dated the 8th of December 1962, between him and defendant Hikmat Shah, a son of Mahbub Shah's brother Mubarik Shah. The suit was decreed by the trial Court, and this decree was upheld in first appeal by the learned Additional District Judge, Mardan. However, in second appeal, the decree was reversed by a learned Single Judge of the High Court of West Pakistan, Peshawar Bench, and the appellant's suit was dismissed on the ground that the defendant Muhammad Shah was a bona fide purchaser for value, without notice of the sale relied upon by the plaintiff.
3. The relevant facts may now be stated. One Sher A.I was the original occupancy tenant of land measuring 156 kanals and 18 marlas. He died issueless in the year 1908 and the tenancy was mutated in the name of his widow Mst. Rehana as a limited owner, under section 59 of the Punjab Tenancy Act. Plaintiff-appellant Rehman Shah's father Mahbub Shah and Mahbub Shah's brother Mubarik Shah were collaterals of Sher A.I.
4. By means of 'an unregistered sale deed dated the 26th of February 1908, htubarik Shah sold his reversionary interest in the occupancy tenancy in favour of Mahbub Shah for Rs.
99. However, no effect was given to this sale in the revenue papers, presumably because the widow Mst. Rehana was still alive. On her death, mutation of inheritance bearing No. 394 (Exh. P. 6) was attested on 27- 9-1932 in favour of the collaterals including the two brothers Mahbub Shah and Mubarik Shah.
5. Mubarik Shah died in 1934 and mutation No. 621 (Exh. P. 5) was attested on 3-3-1934 showing in-- heritance of his estate in favour of his three sons Mir Ahmad Shah, Hikmat shah and Nobat Shah. It would thus be seen that during the lifetime of Niubarik Shah no attempt was made by Mahbub Shah to enforce the sale which had been made in his favour by Mubarik Shah in 1908.
6. On 3-8-1931, Mir Ahmad Shah executed an unregistered deed of acknowledgement to the effect that as his father Mubarik Shah had sold his rights in the occupancy tenancy of Sher A.I by sale deed dated 26-2-1908 in favour of Mahbub Shah, Mir Ahmad Shah had no claim to the said land and that he accepted the sale made by his father. The Courts below have incorrectly stated that this document (Exh. P. 2) contained an acknowledge--ment on behalf of the two brothers of Mir Ahmad Shah. However, on 9-3-1935 mutation of sale bearing No. 842 was attested in regard to the interest of not only Mir Ahmad Shah but also of his brother Hikmat Shah. The share of their third brother Nobat Shah was left intact on the ground of his minority. 'This mutation of sale does not contain any reference to the sale by the vendor's father Mubarik Shah, but purports to be a fresh sale by Mir Ahmad Shah and Hikmat Shah.
7. On Nobat Shah's death, mutation of his inheritance, bearing No. 6034 was entered on 4-12-1962 and attested on 19-2-1963 in favour of his brother Hikmat Shah, his four sisters and his widow Mst.
8. Sahib Jan. On 8-12-62 Hikmat Shah gave in exchange 8J marlas out of this land to the respondent Muhammad Shah for an equal area given by the latter. The exchange is evidenced by a registered deed.
9. On the pleadings of the parties the trial Court framed several issues which need not, however, be repeated here except issues Nos.4 and 6, which are directly relevant for the purpose of deciding the present appeal, and ate given below :- "4. Whether Mahboob Shah predecessor-in-interest of the plaintiff and defendants 9 and 10 has validly purchased the entire share of Mubarak Shah in the khata in dispute through sale-deed dated 26-2-1908 and the plaintiffs and defendants 9 and 10 are the owners through inheritance of the land in suit?
6. Whether defendant No. 1 is transferee in good faith without notice for valuable consideration from an ostensible owner. If so to what effect?"
10. Relying on AIR 1930 Lah. 928 and Ghulam Muhammad Shah v. Fateh Muhammad Shah (PLD 1955 FC 1), the trial Court decided issue No. 4 in favour of the plaintiff on the ground that although in 1908 Mubarik Shah was not possessed of the property, yet the sale of his teversionary rights of succession could be enforced against him when inheritance opened. The learned trial Judge also took note of the fact that the sale was acknowledged by two sons of Mubarik Shah, vie., Mir Ahmad Shah and Hikmat Shah in the year 1934-35. Issue No. 6 was decided against the defendant Muhammad Shah on the ground that it was admitted by his agent that the vendee had not inspected the Khasra Girdawari at the time of effecting the exchange in dispute. It was observed that there was evidence to show that Hikmat Shah had refused to pay the land revenue for the land in suit on the ground that the same had been sold by his father to the plaintiff's father. The learned trial Judge thought that in these circumstances the defendant Muhammad Shah was not protected under section 41 of the Transfer of Property Act.
11. The findings of the trial Court on both these issues were armed by the learned Additional District Judge in appeal. In the second appeal before the High Court the argument on behalf of the defendant Muhammad Shah seems to have proceeded mainly on the ground that he was protected under section 41 of the Transfer of Property Act, as he was a bona fide purchaser for valuable consideration and had no notice of the sale said to have been made by Hikmat Shah's father Mubarik Shah in favour of the plaintiff's father Mahbub Shah by unregistered sale-deed of the 26th of February 1908. This contention was accepted by the learned Single Judge, but the question whether any title had indeed passed to Mahbub Shah under the sale effected in the year 1908 was not examined.
12. Leave to appeal was granted to the plaintiff to examine the following two contentions :-
(a) That as the transfer by Hikmat Shah in favour of respondent No. 1 Muhammad Shah was in respect only of a portion of the said property, the whole suit could not be dismissed ; and
(b) That the concurrent finding of fact of the trial Court and of the first appellate Court on the question whether respondent No. 1 was a bona fide purchaser for value could not be set aside by the High Court in second appeal.
13. It will be apparent from the narration of facts given in the preceding paragraphs that these two questions can arise only if it is first found that the plaintiff's father Mahbub Shah had acquired a valid title to the land in dispute under the unregistered sale-deed executed in his favour by Hikmat4 Shah's father Mubarik Shah. It is common ground between the parties that in the year 1908 the vendor Mubarik Shah was not the owner of the .4 occupancy rights in question, and, therefore, he was disposing of merely his reversionary rights of succession. There is authority for the view that such a contract is legally permissible, but it does not affect any transfer of property unless enforced against the executants when succession opens out and he becomes possessed of the property rights in question. (See AIR 1930 Lah. 928, PLD 1955 FC 1 and PLD 1956 Lah. 795).
14. The Courts below have erroneously assumed that the contract was enforced by Mahbub Shah, or his successor-in-interest, against Mubarik Shah. We have already stated that the widow Mst.
15. Rehana died in 1932 and under the mutation of inheritance then attested Mubarik Shah became one of the owners of the occupancy rights in dispute. He survived until 1934, but during these two years no attempt was made by Mahbub Shah to enforce the sale effected by Mubarik Shah in 1908.
16. On Mubarik Shah's death mutation of inheritance was entered in favour of his three sons Mir Ahmad Shah, Hikmat Shah and Nobat Shah. The acknowledgement deed executed by Mir Ahmad Shah on 3-8-1934 did not bind his brothers Hikmat Shah and Nobat Shah. The mutation of sale bearing No. ~ 42 attested on 9-3-35 purported to be regarding a fresh sale made by Mir Ahmad Shah and Hikmat Shah of their shares in the property in favour of Mahbub Shah. It was for this reason that the share of the minor brother Nobat Shah was left intact. If this mutation of sale had been by way of enforcement of the sale of reversionary rights made by Mubarik Shah in the year 1908, then the share of Nobat Shah could not have been left un disposed of. We have scrutinised this mutation and we do not find any mention therein of the unregistered sale deed of the year 1908. In these circumstances, it is clear that the sale made by Mubarik Shah in favour of Mahbub Shah 24 years before the opening out of succession, was never enforced by the plaintiff his predecessor-in-interest Mahbub Shah. Such being the case, the Court below were wrong in thinking that Mahbub Shah had acquired any title to that part of the property which had fallen to the share of Nobat Shah which, measures 3 kanals and 10 marlas.
17. On this view of the matter, the very foundation for the appellant's suit disappears, and it is therefore unnecessary to examine the questions on which leave to appeal was obtained. However, we find that as the sale of the year 1908 was not mentioned in the revenue papers, and the mutation of sale attested on 9-3-35 at the instance of Mir Ahmad Shah and his brother Hikmat Shah purported to evidence a fresh transaction, leaving intact the share of the minor brother Nobat Shah, the defendant Muhammad Shah could have no notice of any other sale in favour of the plaintiff or his predecessor-in---interest Mahbub Shah. On the contrary, the exchange was entered into by Hikmat Shah after the death of his brother Nobat Shah who had died issueless. The defendant Muhammad Shah was, therefore, justified in regarding Hikmat Shah as the ostensible owner of the 8 -- marlas of land which he had obtained from him in exchange. The High Court was, there--fore, clearly right in regarding Muhammad Shah as a bona fide purchaser for valuable consideration from the ostensible owner of the property, without any notice of any previous sale in favour of the appellant. In these circum--stances the protection afforded by section 41 of the Transfer of Property Act was available to Muhammad Shah.
18. If the plaintiff had been found to have title to the land in dispute, then the first question mentioned in the order granting leave to appeal would have to be answered in his favour, as the suit could not have been dismissed with regard to the area to which the bona fide purchaser was not laying any claim. However, in the absence of the plaintiff's title, this question does not arise.
19. For the foregoing reasons, the appeal fails and, is hereby dismissed, but in view of the legal questions involved, the part; ---'s are left to bear their own costs.