JUDGMENT MUHAMMAD NAWAZABBASI, J. -- The relevant facts in the background giving rise to this civil revision are that Muhammad Tufail and others filed a suit claiming themselves to be the owners in possession of land bearing Khasra No. 312 measuring 26 Kanals and 11 Marlas situated in Village Mirza District Attock. The case of the respondents in the suit was that. Maula Bakhsh and others, respondents herein, filed a suit for declaration: claiming -their ownership in the suit land to the extent of 1 18th share, in Khewat No. 166 and the petitioners and others were entitled to the extent of 1 /4th share in said Khewat., The suit was decreed vide judgment dated 15.10.1974 and the appeal filed by1 the judgment- debtor in the said suit before the learned District Judge and the second appeal before this Court were dismissed. Consequently, mutation No. 828 was sanctioned in favour of the respondents on the basis of the decree in question. The grievance of the respondents in the suit was that the petitioners irr collusion with the revenue staff also included Khasra No. 312 in their land, which was not part of the decree. However, respondents Nos. 1 to 45, got mutation No. 828 sanctioned on 28,6.1979 in their favour and in execution of the decree dated 15.10.1974 sold an area of 7 Kanals, 3 Marlas pertaining to Khasra No. 312 to respondent No. 46 vide mutations Nos. T729 to 1733. The petitioners, therefore, challenged the legality of mutation No. 828, dated 28.6.1979 in the suit. Ijaz Ahmad Shah, respondent No. 46 claiming himself to be the bona fide purchaser contested the suit. The remaining respondents while filing separate written statements also contested the suit. The learned Trial Judge in the light of the pleadings of the parties and the evidence brought by them on record decreed the suit declaring the petitioners as owners to the extent of land bearing Khasra No. 312 with the exclusion of 7 Kanals and 3 Marlas which was alienated in favour of Ijaz Ahmad Shah, respondent No. 46. The learned District Judge while upholding the findings of the learned Trial Judge in the .Appeal made in observation that Ijaz Hussain Shah, the subsequent purchase from the remaining respondents could avail the protection of Section 41 of the Transfer of Property Act, 1882, and dismissed the appeal. The petitioners aggrieved of the exclusion of an area of 7 Kanals and 3 Marlas, which was alienated by some of the respondents in favour of respondent No. 46 have challenged that the said respondents having no title in the land could not transfer the same and the findings of the Trial Court as well as the Appellate Court regarding exclusion of the area from the decree were illegal.
The judgment and decree passed by the Trial Court and upheld T>y the Appellate Court to the extent of remaining land attained finality for want of challenge.
2. Learned counsel for the petitioners contended that the learned Trial Judge as well as the Appellate Court having found the present petitioners exclusive owners of land of Khasra No. 312 under issue No. 7 with the conclusion that the respondents being not owners of said Khasra were not competent to alienate the land measuring 7 Kanals, 3 Marlas through mutations Nos. 1729 to 1733, dated 30.11.1981 in favour of Ijaz Hussain Shah have wrongly held that respondent No. 46 was entitled to the protection of Section 41 of the Transfer of Property Act, 1882. The learned counsel contended that the two Courts Without taking notice of the fact that the essential requirement for seeking protection under Section 41 of the Transfer of Property Act, 1882, in the present case was not being fulfilled allowed the benefit of said section to respondent No. 46.
3. Learned counsel representing the respondents on the other hand, has contended that during the proceedings of the present revision petition, the petitioners were directed to place on record copy of the decree to ascertain the correct factual position but the needful was not done, therefore, strong presumption would be raised that the mutation was rightly entered in the name of the respondents and. That two Courts have concurrently held that Ijaz Ahmad Shah being bona fide purchaser was entitled to the protection of Section 41 of the Transfer of Property Act, 1882, and thus the alienation of land measuring 7 Kanals and 3 Marlas in his favour by the remaining respondents was not questionable.
4. The dispute in the present revision petition confines only to the extent of 7 Kanals, 3 Marlas alienated by some of the respondents in favour of respondent No. 46 on the basis of mutation No. 828, dated 28.6.1979 which was sanctioned in execution of decree dated 15.10.1974. The two Courts have concurrently held that mutation No. 828 to the extent of Khasra No. 312 was illegal. The findings to that extent attained finality for want of challenge by the respondents through appeal or revision, as the case may be, therefore, the petitioners cannot be allowed to re-open the dispute relating to the remaining property. The question whether the two Courts having come to the conclusion that the alienation of land measuring 7 Kanals, 3 Marlas in favour of Ijaz Ahmad Shah, respondent No. 46, was not legal as the said respondent was entitled to the benefit of Section 41 of the Transfer of Property Act, 1882, would need determination. Section 41 of the Transfer of Property Act, 1882, is read as under:- "S. 41. Transfer by ostensible owner. - Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
5. The provisions embodied in Section 41 is an exception to the general Rule that a person cannot confer better title to that of the title he is holding. The following essential ingredients would require for getting benefit of said section:-
(a) The transferor was the ostensible owner.
(b) The transferor was acting as such by the consent, express or implied, of the real owner.
(c) The transfer was for consideration.
(d) The transferee had acted in good faith taking reasonable care to ascertain that the transferor had the power to transfer.
6. In addition to the above essentials, it would be ascertained, whether equitable doctrine contained in Section'41 of the Transfer of Property Act, 1882, would be applicable in the facts of a particular case, In case of missing of any one of the above-referred essential ingredients, the transferee will not be entitled to the protection of Section 41 of the Transfer of Property Act. This Court in Khair Din and another Vs. Mst. Zenab Bibi and 2 others (PLD 1973 Lahore 586) held as under:- "The principle, on which Section 41 of the Transfer of Property Act has been enacted, is based on the following observations of their Lordships of the Judicial Committee in Ramcoomar Koondoo and others Vs. Macqueen and another (2):- "............................................ It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless,. He can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."
As a matter of fact the principle is a statutory application of the law of estoppel, which was enunciated as follows in Gairacross v. Lorminer (3) at p. 829 of the report:- "If a man, either by words or by conduct, has initiated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they might have abstained he cannot question the legality of the act he had so sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct."
Admittedly the section is an exception to the rule that a person cannot confer a better, title than he has and when once we find that the under-mentioned ingredients of the section are present in a given case, the protection to the transferee is complete:-
(a) The transferor is the ostensible owner;
(b) He is so by the consent, express or implied, of the real owner;
(c) The transfer is for consideration; and the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer."
7. In the present case, mutation No. 828, dated 15.3,1979 was sanctioned in favour of the respondents by the revenue officer on the basis of a decree of the Civil Court and the interirs in the revenue record attaching presumption of truth would show that the alienors were ostensible owner of the property despite the fact that they were not lawful owner of the property. The respondents were being shown as owners in Khasra No. 312, which was not made part of the decree in the revenue record, therefore, ostensibly there being no defect in the title of the respondents/vendors, respondent No. 46 being vendee of the land while placing reliance on the revenue record entered into the transaction bona fidley and thus he being a bona fide purchaser for value would be protected under law. In the given facts, it cannot be said that either he was negligent or he had not taken due care to ascertain that the transferor had no power to transfer the land. The transferee while acting in good faith entered into the transaction of sale and thus despite defect in the titlu of transferor, he would acquire a valid title. The next essential ingredient for the purpose of Section 41 of the Transfer of Property Act is that the transfer would be deemed to be by consent express or implied by the real owner. This is noticeable that the suit was filed by the petitioner on 21.12.1981 whereas ljaz Ahmad Shah, respondent No. 46, purchased the land through mutations Nos. 1729 to 1733, dated 30.11.1981 and thus the sale in his favour was prior to the institution of the suit, therefore, it would be deemed that the sale was by the consent express or implied of the real owner who have not challenged mutation No. 828, dated 28.6.1979 before the date of sale in favour of the transferee. There is no denial to the fact that Ijaz Hussain Shah respondent purchased the land from his co-respondents for valuable consideration and that he while taking reasonable care to ascertain that the transferor had power to transfer the land had enter into a transaction of sale in good faith,
8. Section 41 of the Transfer of Property Act is an exception to the general rule that no person can dispose of share in the property which is not invested in him and thus the initial onus was on the transferee to show that the transferor was the ostensible owner and that the transferee had acted in good faith with reasonable care. If the burden to the extent of the above two ingredients is discharged satisfactorily, the same is shifted on the party seeking to defeat the title of the transferee of the property; The provisions of this section apply to all the subsequent purchasers from an ostensible owner and mere denial of the title would not be enough despite the fact that the defect was known to the original purchaser. If the ultimate purchaser has acted bona fidley with reasonable care, he would be protected by the provisions of Section 41 of the Transfer of Property Act, 1882.
9. In the present case, I find that the essential ingredients of ostensible ownership of the property was fulfilled as vendors were shown the owners of the land in mutation No. 828, dated 15.8.1979 which made to believe Ijaz Ahmad Shah, respondent No. 46, that they were lawful owners and the said respondent while acting in good faith entered into a transaction of sale and thus the onus was shifted on the present petitioners to defeat the title of Ijaz Hussain Shah by proving that he had prior knowledge of the defect in the title of the transferor. The examination of the evidence would show that nothing was brought on record, to show that either the transferee did not act in good faith or take reasonable care or that he had prior knowledge of the defect in the title of respondents Nos. 1 to 45. Therefore, notwithstanding the fact that the learned Trial Judge and the Appellate Court have not discussed th^ reason for grant of benefit of Section 41 of the Transfer of Property Act, 1882, to respondent No. 46 as bona fide purchaser, he was entitled to the said protection in the given facts. Consequently, this civil revision fails and is dismissed accordingly with no order as to costs.