' On 12-11-1983 the respondents filed a suit against the petitioner. In the plaint it was stated that the respondents purchased land measuring 169 Kanais, 16 Marlas vide registered sale-deed, dated 15- 12-1976 from the petitioner for a consideration of Rs,25,000 and took possession of the land sold; that some land from the Khata was cancelled from the name of the petitioner and he was left with only 87 Kanals, 12 Marlas of land; that after the death of Khurshid, the brother of the petitioner he became owner of 58 Kanals, 7 Marlas of the suit-land vide Mutation No,1351 attested on 5-12-1981; that the land which the petitioner became owner because of his brother's death had already been sold by him to the respondents vide the said sale-deed and also in view of the indemnity clause contained in the sale-deed, they have become owners of the suit land; that Mutation No,1374 was attested on the basis of the said sale-deed on 3-7-1982 but only to the extent of 87 Kanals and 12 Marlas of land. With these averments the respondents sought a declaration that they are the owners in possession of the suit-land. The petitioner in his written statement took the plea that he had sold only the land which vested in him to the petitioners which he had inherited from his mother; that some of the land was later on cancelled as a result of double allotment; that he had never sold the land which he inherited from his brother, to the petitioner. That the petitioner never notified him of the factum of cancellation of mutation that was initially entered on the basis of the sale-deed. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit vide judgment and decree dated 24-11-1987. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Jhang who dismissed the same on 17-3-1988.
2. Learned counsel for the petitioner contends that the learned Courtskelow have acted with material irregularity in exercise of their respective jurisdiction as no case stood made out to attract the provisions of section 43 of the Transfer of Property Act, 1882. Learned counsel for the respondents, on the other hand, relying on the cases of Suba through his 8 L.Rs, v. Mst. Fatima Bibi through her L.Rs, and others 1992 SCM R 1721 and Shamoon and others v. Ahmad and others 1986 SCM R 888, contends that the said provisions of law was fully attracted in the circumstances of the case..
3. I have gone through the copies of the records appended with the civil revision. As would be evident from the respective contentions of the learned counsel for the parties the only point to be resolved in this case is as to whether the provisions of said section 43 have been rightly held to be applicable by the learned Courts below.
4. Now the said section 43 which embodies the equitable principle of "feeding the estoppel" may be reproduced here for facility of reference:-- "Where a person fraudulently or erroneously presents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
' Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
' A bare perusal of the said provision would show that the transfer contemplated therein ought to have been the result of a fraudulent or erroneous representation on the part of the transferor that he is authorised to transfer the property transferred. This in fact is ratio of the said case of Suba 1992 SCM R 1721 relied upon by the learned counsel himself. The sale-deed admittedly executed by the petitioner in favour of the respondents is available on record as Exh. P.1. According to the recitals of the said document the petitioner represented that he is owner of 2/5th share of the land measuring 424 Kanals, 9 Marlas detailed in the document on the basis of RL.II No,117/1 and Mutation No,1141. He also refers to Fard Intikhab and the copy of RL.II prepared by Munshi Akbar Ali Patwari on 14-2-1976 (document was executed on 15-12-1976). The further representation is that the land is not encumbered as it was neither mortgaged nor sold and he had not entered into any agreement to sell the same to another person. With these averments he proceeded to sell 169 Kanals, 16 Marlas of land to the respondents. Now the said document would reveal that the statement contained therein is based on document referred to in the said Exh.P. I. i.e, RL.II No,117/1, Mutation No,1141 (inheritance of petitioner's mother) Fard Intikhab Malkiat prepared by Munshi Akbar Ali Patwari on 14-2-1976. It is neither the plea of the respondents in their plaint nor have they led any evidence that the representation made in the said sale-deed was not found to be in accordance with the contents of the documents mentioned therein. Learned counsel for the respondents when confronted is unable to controvert that the documents mentioned in the sale-deed were not in accordance with the said representation. There is of course no plea and no evidence that the documents were got verified and were found to be wrong. I also find that the petitioners did not produce a copy of the said documents referred to in the sale-deed.
5. It is a matter of record that for the first time on the basis of said Exh.P.1, Mutation No,1191 was entered on the report of Ameer one of the vendees and was rejected on 12-2-1978 by the Revenue Officer. Thereafter, Mutation No,1374 was entered on 19-6-1982 on the report of Ameer one of the vendees with reference to the said registered sale-deed, dated 15-12-1976 (Exh.P.1) who reported that prior to the consolidation proceedings 169 Kanals and 16 Marlas of land was sold but after the consolidation the total Khata comes to 218 Kanals, 19 Marlas, 2/5th share wherein comes to 87 Kanals, 12 Marlas. The mutation was accordingly entered and was taken up by the Revenue Officer.
Now before the Revenue Officer the plea taken by the said vendees was that 169 Kanals, 16 Marlas of land was sold prior to the consolidation but after the consolidation only 87 Kanals, 12 Marlas remained with the vendor. It was also stated that the vendor has inherited some land and thus, the total land comes to 146 Kanals and that the mutation be attested in respect of 146 Kanals. The prayer was of course refused by the Tehsildar who attested mutation only to the extent of 87 Kanals, 12 Marlas. This Mutation is Exh.P.6 produced by the respondents themselves. Now according to the said document produced by the respondents the sale had taken place before consolidation and the land of the vendor became less after the consolidation. It is thus, own representation of the respondents that the petitioner in fact was the owner of the land sold at the time of sale but somehow after the consolidation he came to be recorded as owner of only 87 Kanals, 12 Marlas of land. The same Ameer, one of the respondents, appeared as P.W.3. He states that the sale-deed was executed in respect of 170 Kanals and 4 Marlas of land which includes the suit land also; that 7-1/4 acres and 7 marlas of land (58 Kanals, 7 Marlas) came to stand in the name of Khurshid, brother of the petitioner who has died and the petitioner has inherited the said land. A perusal of the said statement of the said respondent would show that it is not even their case that the petitioner was not the owner of the land mentioned in the sale-deed at the time of sale.
6. Thus, from the said representation made by Ameer respondent before the Tehsildar during the course of entry and attestation of Mutation Exh.P.6 and while he was in witness-box as P.W.3 does not at all make out a case of any fraudulent or erroneous representation on the part of the petitioner when he was executing the sale-deed and transferring the land to them.
7. A perusal of the said evidence further shows that although it is not that clear, vet I find that it is highly probable that somehow or the other a part of the land sold to the respondents by the petitioner came to be lost by them but after the execution and registration of the sale-deed. This latter loss of land being not even attributed to the petitioner by the respondent at any stage should not have been made the basis to deprive the petitioner of the land lawfully owned by him by stretching the provisions of the section 43.
8. Coming to the latter contention of the learned counsel for the respondents as to the indemnity clause in the sale-deed that can certainly not be interpreted to mean that there was an agreement on the part of the petitioner With the respondents that he will transfer the suit-land to them. In fact he could not have made such agreement at all as the suit-land was never owned by him at the relevant time and he came to inherit the same only on 22-3-1981 when his brother Khurshid died. All that the said indemnity clause means is that if for any reason attributable to the petitioner the respondents lost the entire or a part of the land sold then they will be compensated by him. This was of course not the case of the respondents.
9. As a result of the above discussion I find that neither in the pleadings nor in evidence of the respondent any case stands made out that the petitioner had made a fraudulent or erroneous representation to them while the land mentioned in sale-deed Exh.P. I was sold by the petitioner to the respondents. Section 43 of Transfer of Property Act, 1882, therefore, had no application whatsoever. The learned Courts below have thus, acted without jurisdiction while passing a decree in favour of the respondents in respect of the suit-land against the petitioners. This civil revision is accordingly allowed. The judgments and decrees of both the learned Courts below are set aside and the suit filed by the respondents is dismissed leaving the parties to bear their own costs.