Hamidullah and 14 others filed suit against, Rawas Khan and 19 others in the Court of learned Civil Judge, Swabi seeking declaration that they were owners of land measuring 18 Marlas out of land measuring 6 Kanals, 14 Marlas comprising Khasra No.3530 Khata No.327/560 situated at Mauza Kalu Khan, Tehsil and District Swabi and Mutation No.3799 attested on 30-6-1945, Mutation No.3803 attested on 28-3-1945, Mutation No.4370 attested on 31-1-1946 and Mutation No.4368 attested on 31-1-1946 are illegal based on fraud and are ineffective upon the rights of plaintiffs. A prayer for possession and perpetual injunction was also made as consequential relief. The said suit was resisted by the petitioners/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed land measuring 16 Marlas, 6-3/4 Sarsaies in favour of respondents/plaintiffs vide judgment and decree dated 18-6- 1995. Feeling aggrieved with the said judgment and decree, the petitioners filed Appeal No. 19/13 of 1998 in the Court of learned Additional District Judge, Swabi, which was also dismissed vide judgment and decree dated 29-9-1999. Being not contented with the judgments and decrees of the Courts below the petitioners have filed revision petition in hand.
2. Mr. M. Younis Shah, Advocate the learned counsel for the petitioners argued that the petitioners are owners in possession of the suit land on the basis of sale Mutation No.8772 attested on 3-3-1961 which mutation has not been challenged by the respondents/plaintiffs.
3. It was also argued that Mir Akbar the predecessor of respondents Nos.16 to 20 had sold half land of the total i.e. 3 Kanals, 7 Marlas in favour of Adam Khan, the predecessor of petitioners vide Mutation No.8772 attested on 3-3-1961 and through this mutation share of Mst. Tayeba, predecessor of respondents/plaintiffs in the suit Khata had been transferred in favour of Adam Khan. The rights of the petitioners who were subsequent transferees were therefore, protected under section 41 of the Transfer of Property Act.
4. It was also argued that the suit filed by the respondents/plaintiffs was also barred by time. Right to sue if any had accrued to the respondents/plaintiffs at the time when entries in the Jamabandi for the year 1945-46 were made. The suit was filed after 50 years, hence was barred by time.
5. On the other hand Mr. Abdul Latif Afridi, the learned counsel for the respondents argued that Hazrat Jee was owner of half share out of land measuring 6 Kanals, 14 Marlas. Mst. Tayeba, his widow got 1/4th share in the property left by Hazrat Jee and Mutation No.3799 was attested on 30- 6-1945 in this respect. The respondents/plaintiffs were L.Rs. Of Mst. Tayeba and were entitled to get the property left by her according to Sharia Muhammadi. The entries in the Revenue Record striking of the name of Mst. Tayeba were collusive; based on, fraud and ineffective upon the rights of respondents/plaintiffs.
6. It was also argued that the Courts below have properly appreciated the evidence while decreeing the suit in favour of respondents/plaintiffs. The concurrent findings of the Courts of competent jurisdiction need no interference.
7. I have heard the learned counsel for the parties and perused the record.
8. It is admitted position that land measuring 6 Kanals, 14 Marlas comprising Khasra No.3530 was half owned by Kapoor and' Said Mahmood, whereas the remaining half was owned by Hazrat Jee as is clear from Fard Jamabandies for the years 1926-27 to 1940-41 Exhs.P.W.1/1 to 1/4. Hazrat Jee died leaving behind Mst. Tayeba as his widow. According to Muhammadan Law of Inheritance Mst.
Tayeba inherited 1/4th share out of 1/2 share owned by Hazrat Jee in land measuring 6 Kanals, 14 Marlas i.e. She inherited 1/4th share out of 3 Kanals, 7 Marlas and the remaining 3/4th devolved upon Kapoor and Said Mahmood. Inheritance Mutation No.3799 of Hazrat Jee was attested in favour of Mst. Tayeba on 30-6-1945 Exh.P.W.3/2. The perusal of the Revenue Record shows that the effect of this Mutation was not given in Revenue Record i.e. This Mutation No.3799 'was omitted in Jamabandies.
9. Taking advantage of the omission of Mutation No.3799 attested on 30-6-1945 Exh.P.W.3/2 Kapoor and Said Mahmood the predecessor of defendants No. 15 to 20 alienated the entire land measuring 6 Kapals, 14 Marlas in favour of Mir Akbar and Adam Khan vide Mutation No.3804 attested on 28-3- 1945 and Mutation No.4370 attested on 31-1-1946 respectively.
10. Mir Akbar sold whatever land he had purchased in favour of Adam Khan vide Mutation No.8772 attested on 3-3-1961, therefore, Adam Khan became owners of entire land measuring 6 Kanals, 14 Marlas. Adam Khan died somewhere in 1995 and his inheritance Mutation No. 15680 was attested on 18-7-1995 in favour of defendants Nos.1 to 9, who claimed to be the owners of the entire land measuring 6 Kanals, 14 Marlas.
11. The above narrated background of the case shows that Mst. Tayeba who had acquired 1/4th share out of land measuring 3 Kanals, 7 Marlas on the death of Hazrat Jee, her husband remained owner as she neither sold her share to anybody nor authorised Kapoor and Said Mahmood to transfer her share. It is also on record that inheritance mutation of Mst. Tayeba No. 14231 was attested on 18-1-1986 Exh.P.W.3/6. This fact also shows that she was owner of land which had fallen to her share.
12. The argument of the learned counsel for the petitioners that the petitioners were entitled to protection under section 41 of the Transfer of Property Act has no force at all. The provisions of section 41 of ibid Act makes an exception to the rule that a person cannot confer a better title that he has, but the person who seeks protection under this section has to prove that the transferor was ostensible owner, he had the consent, express or implied of the real owner to transfer the property for consideration and that the transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. Where any one of these elements was missing, transferee was not entitled to the benefit of the principle of this section. In the case in hand there is no evidence available on record to indicate firstly that transferors (Kapoor and Said Mahmood) had obtained the consent, express or implied of Mst. Tayeba for transferring her share in favour of Mir Akbar and Adam Khan. Secondly there is not an iota of evidence to show that Mir Akbar and Adam Khan had made any attempt to ascertain as to whether Kapoor and Said Mahmood were the ostensible owners of the entire land they were selling to them, therefore, the petitioners are not entitled to any protection under section 41 of the Transfer of Property Act.
13. The argument of the learned counsel for the petitioners that the suit filed by the respondents/plaintiffs was barred by time also has no force. It has been established on record that Mst. Tayeba was the co-owner/co---sharer of the property in dispute and it is by now settled law that possession of one co---sharer in law is possession of all the co---sharers and for the benefit of other co---sharers. Reliance in this regard is placed on Jan Muhammad v. Abdur Rashid and 5 others (1993 SCM R 1463) and Shahro and others v. Mst. Fatima and others (PLD 1998 SC 1512).
14. The Courts below while granting decree in favour of respondents/plaintiffs have properly appreciated the evidence available on record and I have not been able to find out any misreading/non-reading of evidence or any illegality or any material irregularity or any jurisdictional error or defect warranting interference. Resultantly, the revision petition is dismissed with no orders as to costs.