' ABDUR REHMAN KHAN, J.---Leave in this matter was granted to examine as to how far the High Court while exercising revisional power was legally justified to reverse the agreed judgment of the learned trial and Appellate Court in a dispute involving factual controversy.
2. Akbar Khan appellant No,1, since dead and represented by the other appellants, filed a suit for possession with the allegations that he had become owner of the disputed land having purchased it through Mutation No,336 sanctioned on 23-8-1963 from Mst. Khair Khanum defcndant No,1 who was wife of Dost Muhammad defendant No,2. The property in question was originally owned by defendant No-.2 who had gifted it to defendant No,1 by. Mutation No,151 attested on 31-1-1953. The Revenue Authorities revived the above-referred sale and gift mutations on the ground that the original owner defendant No,2 had transferred an area in excess of his ownership by Gift Mutation No,151. The land covered by these mutations reverted to defendant No,2 who then sold it through various mutations to defendants Nos.3 to 5. The relief that was sought in the plaint was that the said gift and sale mutations in his favour be restored, he be given possession and the sale mutations in favour of defendants Nos.3 to 5 may be cancelled. Defendants Nos.4 and 5 contested the suit, controverted the averments made in the plaint and justified attestation of mutation in their favour.
3. The learned trial Court decreed the suit on 26-5-1976 under the relevant observations:-- "After careful perusal of the documentary evidence produced by the plaintiff and defendants, it has become crystal clear that Mutation No,336 previously attested in favour of the plaintiff was rejected and reviewed only on the ground that the transferor/donor had transferred an area excess of his entitlement and that the donor has, subsequently, backed out from the gift provisionally made by him in favour of his wife. The statement and comment of defendant No,2 in review proceedings were not required by any canon of law because he had agreed to transfer the suit land by way of gift in favour of his wife and had parted with the possession also. He had never moved for review of the mutation nor he ever took any action to challenge the transfer made by him. It was on account of this that his wife further transferred the suit land in favour of the plaintiff. If the shares of the suit land were wrongly calculated or wrongly entered, the fault could not be attributed to the plaintiff.
He could not be made suffer on this count. Only logical and legal thing was to exclude excess area transferred to him. But this was not done and the entire sale transaction in his favour was annulled.
' So far as transaction of gift through Mutation No,151 and transaction of sale through Mutation No,336 are concerned, they have remained unchallenged by the parties throughout in the past.
The default has been committed by the revenue staff and on account of the fault of revenue staff, the plaintiff cannot be disentitled to get his legal rights which he had bona fidely purchased from defendant No,1, who got the same from her husband defendant No,2. Similarly, the defendants Nos.3 to 5 cannot get benefit from the fault committed by the revenue staff or by the donor defendant."
4. The learned Appellate Court affirmed the decision of the trial Court and held ' Apparently no notice come to have been given to the vendee Mst. Khair Khanum although this fact was known. He also did not appreciate that cancellation of mutation in the manner in which he was proceeding was against rules of natural justice. The appellants had purchased the suit land after the gift to Mst.
Khair Khanum by her husband and after sale made to respondent No,l. They referred to the principle contained in section 41 of the Transfer of Property Act and stated that they had purchased the land from an ostensible owner for a consideration and the sale in their favour correct have been held voidable on the ground that the transfer was not authorised to make it. I do not agree with the contention of the appellants. It was hardly borne on the revenue record that the land was gifted to Mst. Khair Khanum and she had further transferred it through sale mutation. At least, it was well known that the matter was reported for correction of the record and not for cancellation of the mutation, and until there was cancellation of the mutation, the purchase by them would not be called having been made after taking considerable care in ascertaining the transfers the powers to make transfer in good faith. The case of the appellants is further weakened by the fact that the transfer was made to a 3rd party before them on the basis of a valid property title derived from the gift and, therefore, they could not efface the rights of the respondents. The gift made to the wife of the husband was a valid proper gift as it also borne out from the attestation proceedings. The husband never objected to the gift after making it in 1953 having made a gift once he could not have resold that property without first seeking the revocation of the gift through a separate procedure'.
5. However, in revision the learned Judge in that High Court interfered with the said concurrent finding and while accepting the revision reversed both the judgments and dismissed the suit of the plaintiff/appellants.
6. We heard the learned Advocates appearing for the parties who also referred to the relevant portion of the paper book in support of their respective contentions.
7. There is no denying the fact that the donee had never challenged the validity of the Gift Mutation No,151 which was attested on 31-1-1953. This could also not be controverted that the donee then sold the land gifted to her by Mutation No,336 sanctioned on 23-8-1963 in favour of the deceased plaintiff Akbar Khan. It appears from the record that the revenue officers on their own initiated review proceedings of the mentioned two mutations after ten years on the sole ground that the donor had gifted the property in excess of his entitlement. However, it is very interesting that after the cancellation of the gift and sale mutations referred to above when the property reverted in favour of the original owner, he again sold it to defendants Nos.3 to 5 through various mutations but this time the revenue officers did not object to these sales. It is thus obvious that the entire exercise for review of the gift and sale mutation was motivated by ulterior motive. It has been observed in the impugned judgment of the High Court that there is no evidence about the transaction of gift except the mutation. As the correctness or otherwise of the gift mutation was a matter between the donor and the donee and the latter had not challenged this gift mutation, therefore, the High Court was not legally justified in doubting the genuineness of the gift mutation on this count alone. Similarly, the sale mutation in favour of Akbar Khan had not been challenged by the donee, therefore, there was no occasion for discarding its attestation and correctness. The second reason which prevailed with the learned Judge in the High Court for accepting the petition was that the sale in favour of the vendee/defendant was protected under section 41 of the Transfer of Property Act as they were bona fide purchaser. This reason is also not sustainable; firstly, on the ground that there was no issue on this point and obviously it was not pleaded in the written statement. And secondly, the gift and sale mutations had been entered in the revenue record and the proceedings for their cancellation remained pending for years which should have alerted the defendant/vendee to make inquiry about these mutations from the donor, donee or vendee but it was not done and as such protection under section 41 of the Transfer of Property Act was not available.
8. This appeal is accepted, the judgment and decree of the High Court are reversed while that of the Appellate Court and trial Court are restored but with no order as to costs.