' This appeal and Regular Second Appeal No,55 of 1980 are against the judgment, dated 6-10-1979 passed by a learned Additional District Judge, Mianwali whereby the appeals filed by both the appellants were dismissed maintaining the judgment and decree of the trial Court, dated 9-5-1977.
The two appeals arise in the following circumstances.
2. Regular Second Appeal No,1 of 1980 ' The appellant in this appeal had filed a suit for declaration regarding Houses Nos.G/15 and G/22, situated in Mohallah Alam Khel, Mianwali City, that he was the real owner of the same and Abdul Rauf Khan (appellant in the other appeal) was Benamidar. The suit was contested by Abdul Rauf Khan. Pending the same, the two respondents herein were impleaded as party as House No,G/15 had been sold to them by Abdul Rauf Khan, and they pleaded to be bona fide purchaser of the same. From the pleadings of the parties, learned trial Court framed necessary issues. Evidence was led by the parties in support of their respective pleas. On consideration of evidence, so produced, the learned trial Court vide its judgment, dated 9-5-1977 returned the finding that the appellant was the real owner whereas Abdul Rauf Khan was Benamidar. The suit was decreed regarding House No,G/22. However, with regard to House No,6/15, it came to the conclusion that the respondents were bona fide purchaser for valuable consideration and were protected by section 41 of the Transfer of Property Act, 1882. The suit of the appellant was dismissed in respect of this house. The judgment and decree of the trial Court was challenged by two separate appeals by Dost Muhammad Khan, appellant, and Abdul Rauf Khan, appellant, which were dismissed by a learned Additional District Judge, as mentioned above. Regular Second Appeal No,1 of 1980 has been filed by Dost Muhammad Khan, plaintiff, challenging the finding of the two Courts below as to the bona fide nature of the sale in favour of the respondents, whereas R.S.A. No,55 of 1980 has been filed by Abdul Rauf Khan challenging the concurrent findings of fact recorded by the Courts below declaring him as Banamidar.
3. For the appellant in R.S.A. No,1 of 1980, it is contended by the learned counsel that the two Courts below have erred in law in treating the respondents as bona fide purchasers for valuable consideration of House No,G/15, whereas the real owner being the appellant they were not entitled to any protection under section 41 of the Transfer of Property Act, 1882. Reference has been made by him to Tarachand Mondal and others v. Hazari Shaikh and another PLD 1967 Dacca 203, Khair Din and another v. Mst. Zainab Bibi and 2 others PLD 1973 Lah. 586, Shukri and 3 others v. Ch. Muhammad Shafi Zaffar PLD 1975 Lah.
619.
4. On the other hand, learned counsel for the respondents contends that Abdul Rauf Khan was the ostensible owner of the house in all the official records and acting upon the entries in the official records the respondents purchased the house for valuable consideration acting in good faith and was thus, rightly held by the two Courts below, entitled to the protection of section 41 of the Transfer of Property Act. Has placed reliance upon Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25. He has also raised an objection as to the competency of the appeal, which according to him, is bad for non joinder of Abdul Rauf Khan, who had been defendant No,1 in the suit filed by the appellant but has been left out now in this second appeal. In other appeal i,e, R.S.A. No,55 of 1980, the case of appellant Abdul Rauf Khan is that the findings recorded by the two Courts below that he was Benamidar is not supported by the evidence on record.
5. There are concurrent findings of fact by the two Courts below on the question that Abdul Rauf Khan, who was nephew of the appellant, was Benamidar. The learned Additional District Judge on this aspect of the matter observed as follows:- "It has also come on record that the appellant was serving in the police at that time and was under a statutory embargo to purchase the property in his own name without going through certain formalities. It is for that reason that he had to repose trust in his nephew for purchasing the property in dispute. This state of affairs will not suggest anything unusual or abnormal because people placed in such circumstances may have to rely on their kith and kins. If the appellant had chosen his nephew and confided trust in him to purchase the property for his benefit then it would not be something improbable, particularly if the finances or the consideration for the said property is proved to have gone through his pocket. In this regard the document of paramount interest would be Exh.P.1, which is an authority letter issued to the Bank by the appellant in favour of respondent No,1-. This transfer of amount would definitely go to show that the appellant wanted to purchase evacuee property for his benefit through his trusted person."
' After finding that Dost Muhammad Khan was in possession of House No,G/22 and living in the said house, it was observed as follows:- "In view of my discussion, it is clearly proved that the consideration for the disputed houses emanated from the Bank account of the appellant/plaintiff and came into hands of respondent No,1 who has not been able to explain about its utilization except that those were utilized for purchashig houses in question. Similarly, the title deeds alongwith the part possession will go to prove that, in fact, he was the owner whereas the respondent No,1 was Benamidar. The motive for Benami-transaction is apparent in this case because the appellant was serving in the Police Department at the relevant time and according to the Government Rules he could not purchase the property without going through certain formalities. It is for that reason that he placed trust upon respondent No,l."
In view of his above conclusion, he affirmed the finding of the learned trial Court as to Benami character of the transaction.
6. These are .Findings of fact recorded by the two Courts below on due and fair appraisal of the material brought on record by the parties. No misreading or non-reading of any material piece of evidence has been pointed out so as to come to any different conclusion. The findings so recorded by the two Courts below, thus, do not warrant interference by this Court in second appeal.
7. As to whether the respondents were bona fide purchasers for valuable consideration of House No,G/15, it is to be seen as to what steps were taken by them before the purchase of the same from Abdul Rauf Khan. Admittedly the title documents of the house showed him as. The owner of the same. The P.T.O. And P.T.D. Were official documents. The respondent acted upon the entries therein and particularly when Dost Muhammad Khan was not in possession of the same purchased the same from Abdul Rauf Khan on payment of their price. The learned trial Court has from the evidence on record and admitted position, recorded a finding that the appellant/plaintiff was not in possession of House No,G/15 and the respondents were . In possession. In the presence of the entries in the name of Abdul Rauf Khan in the official records it cannot be said that the said respondents acted negligently or were obliged to make any further inquiry into the matter of title.
The ostensible owner was Abdul Rauf Khan from whom they purchased the house for valuable consideration. The reliance of,learned counsel for the appellant on Khair Din and another (supra), seems to be misplaced, inasmuch as the principle contained in section 41 of the Transfer of Property Act was applied by maintaining the judgments of the two Courts below. Similarly, in Shukri and 3 others (supra), the observation made therein that a mere entry of one's name as an owner in the Government recorded or in private papers did not relieve the purchaser from such owner from the duty and the responsibility of making an inquiry of the title is not of any help as admittedly the appellant/plaintiff in the present case was not in possession of the house, which is one of the elements for a vendee to consider before purchasing a property and also a consideration for the Court for application of section 41 of the Transfer of Property Act. Likewise; the case Tarachand Mondal and others (supra) had its own peculiar facts. In the said case, it had been found as a fact by the Courts below that the vendee-defendant had not made any inquiry whatsoever and simply pleaded themselves as bona fide purchaser for valuable consideration. This is not so in the present case, .c wherein concurrent findings of fact by the two Courts below are in favour of the respondents.
8. In Armada Mohan Roy Choudhry v. Nilphamari Loan Office Limited and another AIR 1921 Cal. 549 where a husband had purchased the property in the name of his wife, the plaintiffs, who had later on took a mortgage of the property from the wife, were held to be entitled to protection of section 41 of the Transfer of Property Act. In Arta Rout v. Bhagabat Barg and another AIR 1957 Orissa 157 question of applicability of section 41 of the Transfer of Property Act cropped up with regard to a transaction by a Benamidar. It was observed that:-- ' Benamidar is an ostensible owner and if a person purchases from a Benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title."
9. There is a principle of estoppel as well, which gets attracted against - the appellant on the strength of the principle stated by the Privy Council in Tsang Chuen v. Li Po Kwai AIR 1932 PC 255. It is that:-- "If a grantor conveys property in a form actually and actively misleading, so that any persons reading the conveyance necessarily conclude that the grantees are the absolute owners the grantor cannot subsequently, be heard to say that this is not the real transaction but that the grantees take on a secret trust not disclosed in the conveyance."
10. The principle contained in section 41 of the Transfer of Property Act is one of equity aimed at to protect an innocent- person. In the present case the two Courts below have come to a concurrent view of the matter that the respondents were bona fide purchaser for valuable consideration and acted in good faith. They, therefore, cannot be allowed to suffer.
11. For the above reasons, findings of fact recorded by the two Courts below, which are amply justified by the material on record, do not warrant any interference by this Court.
12. Learned counsel for the appellan' t (R.S.A. No,1 of 1980) cited few precedents to contend that the appeal, even without impleading Abdul Rauf Khan, was competent. But in view of the fact that the appeal on merits could not succeed, I have not felt it necessary to record any finding about the same.
' As a result of the above, these appeals have no merit and are dismissed accordingly. However, there will be no order as to costs.