' SARDAR MUHAMMAD RAZA, J.---Nawab Khan son of Mashal Khan resident of Dag Ismail Khel, Tehsil and District Nowshera, has filed these two appeals against the judgment, dated 4-5-1995 of an Hon'ble Single Judge of Peshawar High Court, whereby Civil Revisions Nos.153 and 619 of 1994 were dismissed. Leave to appeal was granted by this Court on 20-4-1998 to consider as to whether the protection of sections 41 and 53-A of the Transfer of Property Act was available to the appellant and was wrongly refused.
2. The chequered and irritating history of the case begins from 1966 when Hasan Raza etc., the original owners of the suit-land, on 31-5-1966 entered into an agreement to sell the land in favour of one Muhammad. Younas Qureshi. The latter filed a suit against Hasan Raza etc. For specific performance of the aforesaid contract, which was decreed by the Trial Court at Nowshera on 8-3- 1969. Hasan Raza etc., the original owners, filed an appeal heard by Additional District Judge, Peshawar and accepted on 23-12-1970. Muhammad Younas Qureshi went in revision before the High Court which was accepted on 23-2-1976, restoring the decree granted by the Trial Court on 8- 3-1969.
3. The real trouble commenced through an intrigue when a Mutation No,3196 was attested on 12-4- 1979. According to the decree of Civil Court, the mutation should have been attested in favour of Muhammad Younas Qureshi but the same with utmost surprise was attested in favour of Nawab Khan, the present appellant.
4. On 25-1-1987 Mst. Raisa Begum etc., the legal heirs of Muhammad Younas Qureshi, brought a suit against Nawab Khan for declaration-cum-possession etc. Challenging the attestation of Mutation No,3196 aforesaid. In the background mentioned above, the suit was decreed against Nawab Khan on the basis of the decree granted to Muhammad Younas Qureshi by Peshawar High Court on 23- 2-1976. This decree, dated 8-4-1990 by Civil Judge First Class, Nowshera having been challenged by both the parties in appeal heard by Additional District Judge, Nowshera; that of Nawab Khan was dismissed and that of Mst. Raisa Begum was accepted, alongwith decree for possession which was partly denied by the trial Court. Nawab Khan filed two petitions aforesaid before the High Court which were dismissed through impugned judgment, dated 4-5-1995.
5. It is a fact proved on record that Muhammad Younas Qureshi, predecessor-in-interest of the respondents, had obtained a decree on 23-2-1976 from the High Court which had restored the decree, dated 8-3-1969 of the trial Court. The mutation, if any, on the basis thereof required to be entered in the name of the decree-holder but surprising it is to note that Mutation No,3196 though entered on the basis of decree, dated 23-2-1976 of Peshawar High Court, was attested in favour of Nawab Khan who was never a party to such proceedings. It is rightly observed by the learned High Court that through attestation of Mutation No,3196 the decree, dated 23-2-1976 of the High Court was totally mutilated and that Nawab Khan had all along been trying to grab the suit land by using all conceivable tactics. The mutation was, therefore, rightly set aside by the impugned judgment which cannot be taken any exception to.
6. Another intriguing aspect of the case is that Nawab Khan claimed to be the owner of suit-land on the basis of a Civil Court decree, dated 17-3-1967 and further claimed that Mutation No,3196 was attested on the basis thereof. This has been a claim altogether dishonest and fraudulent because, related to the decree, dated 17-3-1967, he had filed a suit on 21-10-1966 but the decree aforesaid obtained on the strength of the statement of Muhammad Yousaf, the alleged general attorney of the owners Hasan Raza etc., was set aside in appeal by learned District Judge, Peshawar and the case was remanded to the trial Court for its disposal afresh in accordance with law. After the remand Nawab Khan had withdrawn the suit with permission to file a fresh one which was and is never filed so far. Meaning thereby, the manipulated decree, dated 17-3-1967 had not only become void but the original suit stood also dismissed as withdrawn. There was no basis at all for the attestation of Mutation No,3196 in favour of Nawab Khan either with reference to the decree, dated 23-2-1976 of the High Court in favour of Muhammad Younas Qureshi or the decree, dated 17-3-1967 in another suit which had become non-existent and the very suit whereabout had stood withdrawn. In the circumstances, the present suit filed by Mst. Raisa Begum etc., the legal heirs of Muhammad Younas Qureshi, has rightly been decreed by the three Courts giving concurrent findings on questions of law as well as fact.
7. So far as the question of benefit under sections 41 and 53-A of Transfer of Property Act is concerned, we have given our considered thought to the legal proposition involved and have come to the conclusion that such benefit cannot be extended to a party whose entire claim is based on fraud, intrigue and misrepresentation. Rather, the benefit under section 53-A, in view of the proviso thereof, is available to the present respondents whose predecessor-in-interest Muhammad Younas Qureshi had entered into agreement, dated 31-5-1966 which was much prior in time and who at the time of such agreement was not aware of any rights of Nawab Khan which, in view of the facts mentioned above, were non-existent as well as unknown for being concealed at the relevant time and brought to light dishonestly only through a suit, dated 21-10-1966 that stood subsequently dismissed as withdrawn.
8. In these circumstances, both the appeals in hand are hereby dismissed with costs throughout as well as with special costs of Rs,15,000 (Rupees fifteen thousand only).