' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been filed agianst order, dated 4th June, 1999 passed by Lahore High Court, Lahore whereby R.S.A. No,235 of 1981 has been dismissed.
2. Precisely stating facts of the case are that the Qutabu was the owner of the land situated in Village Thatt, Tehsil Wazirabad, District Gujranwala. He made a gift of the land on 25-1-1967 vide Mutation No,22 (Exh.P.1) in favour of Sher Muhammad, petitioner. Later on 2-2-1968 a sale-deed in respect of the same property was executed by Qutabu in favour of respondents Khushi Muhammad and Iqbal after receiving Rs,12,000 as sale consideration. The petitioner instituted a suit on 13-2-1968 against respondents seeking declaration to the effect that he was the owner of the property and in possession after it was gifted to him and that the registered sale-deed dated 2-2- 1968 was illegal, void and ineffective to his rights. He also prayed for consequential relief by way of perpetual injunction restraining respondents Nos.2 and 3 from interfering in his possession over the disputed property.
3. The suit was contested by the respondents Nos.2 and 3 on the ground that they were bona tide purchasers for value. It was also asserted by them that their rights were protected under section 41 of the Transfer of Property Act.
4. Learned trial Court on pleadings of the parties framed as many as six issues. However, issues Nos.2, 3 and 4 being relevant for disposal of instant petition are reproduced hereinabelow:- "(2) Whether defendant No,1 gifted the suit land to the plaintiff on 25-1-1967 as alleged by the plaintiff? (OPP)
(3) Whether the sale-deed dated 2-2-1968 in favour of defendants Nos.2 and 3 was a result of fraud and misrepresentation? (OPD-1)
(4) If not, what is the effect of prior gift in favour of the plaintiff on this sale? (OPP)
5. Learned trial Court after recording evidence of both the parties decreed the suit by means of judgment/decree, dated 11-11-1971.
6. The respondents Nos.2 and 3 being dissatisfied from the judgment of Civil Judge, Wazirabad preferred appeal which came up for hearing before Additional District Judge, Gujranwala while setting aside the judgment/decree of trial Court framed an additional issue "Whether defendants Nos.2 and 3 are bona fide purchasers for value without notice and are thus protected? If so, its effect" and remanded the, case.
7. On remand learned trial Court once again decreed the suit. On appeal preferred by respondents Nos.2 and 3 case was again remanded to Civil Judge for specific findings whether the purchasers were protected. Learned trial Court gave finding that no protection was available to the purchasers.
8. The respondents/purchasers preferred appeal before District Judge, which was accepted, vide judgment/decree, dated 18-10-1981.
9. The petitioner being aggrieved from the judgment of Appellate Court preferred R.S.A. No,235 of 1981 before Lahore High Court, Lahore which has been dismissed by means of impugned judgment dated 4-6-1999.
10. Learned counsel contended that petitioner/plaintiff acquired proprietary rights in the land subject-matter of proceedings by means of a gift executed by Qutabu son of Qabool Khan in favour of petitioner on 25-1-1967 in pursuance whereof possession of the land was also given to him which was being cultivated by his tenants, therefore, after completion of such transaction respondent No,1 had no legal entitlement to sell this very property to respondents Nos.2 and 3 vide a sale-deed, dated 2nd February, 1968. As such the transaction of sale was required to be declared as null and void based on misrepresentation and fraud etc. To deprive the petitioner from his proprietary rights in the land in question.
11. On the other hand learned counsel for caveators/respondents Nos.2 Ad 3 contended that petitioner failed to prove factum of delivery of gift allegedly executed on 25th January. 1967 in his favour by respondent No,1. He further contended that respondents by producing overwhelming evidence had proved that sale-deed 2nd February, 1968 in favour of respondents Nos.2 and 3 was legally valid.
12. We have heard learned counsel of both the parties and have gone through the judgments of the trial and Appellate Courts respectively, dated 11th November, 1971 and 18th October, 1981 as well as impugned judgment, dated 4th June, 1999. It may be noted that learned trial Court to resolve the controversy between the parties decided Issues Nos.2, 3 and 4 in favour of plaintiff/petitioner but learned Appellate Court/Additional District Judge vide judgment dated 21-11-1969 remanded the case to trial Court by framing additional issue. On remand the new incumbent Civil Judge once again recorded evidence of the parties on additional issues and vide his order, dated 3rd November, 1970 held that respondents Nos.2 and 3 were bona fide purchasers for value without notice of the disputed land but failed to give findings as to whether for such reasons they are protected so what was the effect of their being purchasers for value etc. Against this order/decree appeal was filed and the District Judge, Gujranwala noted that additional issue has not been decided, therefore, vide judgment/decree, dated 7th July, 1971 once again case was remanded to Civil Judge with the observation to ascertain as to whether respondents Nos.2 and 3 were protected and so what was the effect of their being bona tide purchasers for value without notice of the disputed land. Learned Civil Judge vide his judgment, dated .11th November, 1971 recorded that as the petitioner has become full owner of the disputed land on the basis of gift in his favour made by respondent No,1 therefore, the sale of the disputed land by respondent No,1 in favour of respondents Nos.2 and 3 was neither protected nor the same was binding on the petitioner. As such against this order/decree again appeal was filed and learned District Judge scanned the evidence produced by the parties in support of their respective contentions and concluded that although respondent No,1 by means of gift transferred the land in dispute to petitioner on 21st January, 1967 and proceedings for the transfer of the land in favour of the petitioner also commenced but the mutation was not attested for a period of about one year due to failure of petitioner to pay the District Council fee. However, it was also observed that the possession of the subject land was also delivered to petitioner who started cultivation through his tenants i.e, P. Ws.
Ghafoor and Mehmood Ellahi. On having held that the transaction of gift was complete legally then the learned District Judge while deciding additional issue referred to hereinabove concluded that as respondents Nos.2 and 3 were bona fide purchasers for value, therefore, their interest is protected under section 41 of the Transfer of Property Act, 1882 (hereinafter referred to as the "Act") and, they enjoy a valid title in their favour. As a result whereof the judgment of the trial Court/Civil Judge was set aside on 18-10-1981. Against judgment/decree of District Judge petitioner preferred R.S.A. Before Lahore High Court, which has been dismissed by means of, impugned judgment. In view of judgment/decree of learned Civil Judge dated 6-11-1968 and Additional District Judge dated 21- 11-1969 on Issue No,2 holding that the respondent No,1 executed a gift in favour of petitioner on 25-1-1967 question arises as to whether respondent No,1 without revoking the gift could have sold the same property '10 respondents Nos.2 and 3 vide sale-deed, dated 2nd February, 1968 and if they are bona tide purchasers for value whether they would be entitled for protection of section 41 of the Act because as per Revenue Record respondent No,1 Qutabu was recorded as owner of the land subject-matter of the proceedings. Learned High Court endorsed the judgment of District Judge by making observations that as respondents Nos.2 and 3 were bona fide purchasers, therefore, their rights are protected under section 41 of the Act. For sake of convenience section 41 is reproduced hereinbelow:-- "41. Transfer of 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 the transferor had power to make the transfer, has acted in good faith."
13. It may be noted that as per the mandate of above provisions of law if the transfree after taking reasonable care to ascertain that the transferor has acted in good faith, then his rights are protected. It is pertinent to point out here that donor i.e, respondent No,1 in pursuance of gift transaction dated 25-1-1967 approached P.W. Syed Muhammad Akber Kazmi, Tehsildar on 31st January, 1967 for transfer of the land in the name of the petitioner but despite lapse of period of about 1 year transfer entry could not take place. In this behalf photocopy of unsanctioned Mutation No,22 was perused by District Judge. According to his observations sanction of the entry was denied because despite lapse of one year requisite District Council Fee was not paid. Therefore, in such state of affairs in the Revenue Record respondent No,1 Qutabu stand recorded as owner of the property. Statements of P.Ws.4 and 5 Ghafoor and Mehmood Ellahi also indicate that land subject- matter of proceedings remained under their cultivation as tenant of petitioner but fact remains that physically in the field petitioner was not in possession of the land. It may be noted that a bona tide transferee while seeking protection of section 41 of the Act is required to prove on record that he entered into transaction of sale in good faith having believed that the transferor is the ostensible owner of the property. As far as the question of going an ostensible owner is concerned it being a question of fact is required be determined on the basis of evidence. In the instant case there is no controversy between the parties that respondent No,1 remained recorded owner of the property in the Revenue Record despite of transferring the same through a gift to the petitioner.
Similarly petitioner was not in physically cultivatory possession of the land because P. Ws. Ghafoor and Mehmood Ellahi were cultivating the same. Undoubtedly on the basis of these two aspects of the case one can draw an inference that respondent No,1 was ostensible owner. As such on having seen entries in the Revenue Record in favour of respondent No,1, respondents Nos.2 and 3 purchased property in good faith for value of Rs,12,000. Thus the conditions laid down under section 41 of the Act namely that the transferor is the ostensible owner, and he is so by the consent, express or implied, of the real owner, 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, the respondents' rights are fully protected. In forming this view we are fortified by judgments in the cases of Muhammad Jamil and others v. Lahore Development Authority and 3 others (1999 SCM R 2015) and Ch. Muhammad Saleem v. Fazal Ahmad and 2 others (1997 SCM R 315).
14. This petition was heard on 29th May, 2002 when it was dismissed but again to further clarify certain aspects of the case in view of the judgments cited hereinabove notice was given to both the parties. However, after hearing them in support of their respective contentions petition was dismissed in view of the discussion made hereinabove.
' Thus, in view of above discussion we see no merit in instant petition as such the same is dismissed and leave declined.