The petitioners feeling not satisfied with the decree and judgment of learned Additional District Judge, Mardan at. Takht Bhai dated 13-10-1998 whereby the decree passed by Civil Judge, Takht Bhai in favour of respondents dated 29-10-1997 was set aside, have tiled the instant revision petition.
2. The petitioners filed a suit on 20-7-1992 for possession through redemption of property bearing Kitasra Nos.915 and 918 (now Khasra Nos.772, 773 and 775 comprised in Khata No,468/1223 as per Jamabandi for 1980-81) measuring 13 Kanals, 13 Marlas comprised in Khata No,156/225 per Jamabadi for the year 1895-96 situated in the Revenue Estate Narai. In the body of the plaint it was averred that Fazal Shah, the original owner of Khasra Nos.455, 456, 170, 254, 758, 793 and 909 measuring 21 Kanals, 17 Marlas as per Jamabadni for the year, 1887 mortgaged the same in favour of Hamza Khan for an amount of Rs,43 for a period of 60 years. The registered mortgage deed was executed and attested on 23-3-1887 which was given effect in the revenue record through mortgage Mutation No,382. In the year 1891-92 in Khasra No,909 measuring 21 Kanals 3 Marlas (now Khasra No,74) Fazal Shah was recorded in the ownership column as mortgagor and Gulab son of Hamza is recorded as mortgagee. In the year 1895-96 Fazal Shah was recorded in the ownership column while Gulab son of Hamza was recorded as first mortgagee and Yar Muhammad son of Lal Muhammad as second mortgagee of the land bearing Khasra Nos.915 and 918 measuring 8 Kanals 4 Marlas. The same entry remained intact in the Jamabandi for the year 1900-01 and 1905-06. In the year 1899 Fazal Shah transferred his ownership rights to Nawab Khan and predecessor of petitioners-plaintiffs for a sale consideration of Rs 98. Rs,77 as sale consideration was received while the remaining sale consideration of Rs,2i was left with the petitioners for redemption. (The remaining outstanding sale consideration of Rs,21 was never paid to the vendee or to mortgagee).
As per Jamabandi for the year 1909-10. The suit land was recorded in the name of Mula Ahmad son of Faqir as third mortgagee. The petitioners' predecessor did not produce the registered sale-deed for acting upon in the revenue record (probably due to its incompleteness for want of outstanding sale consideration of Rs,21) and the land being mortgaged one remained in possession of the mortgagees. The non-entry of sale-deed in favour of petitioners' predecessor in the revenue record, the original owner Fazal Shah taking its benefit resold the same property to the predecessor of defendants-respondents. The subsequent registered sale-deed is illegal and does not transfer the title as Fazal Shah has already parted with his ownership by executing a registered sale-deed in petitioners' predecessor favour. In this background the relief in the shape of possession through redemption was sought against the defendant-respondents who are the successors of last mortgagee namely Mula Ahmad.
3. The defendants respondents contested the suit through written statement wherein it was alleged that the sale-deed relied upon by the plaintiffs allegedly executed in 1899 was fictitious, without any consideration, fraudulent, illegal and ineffective upon their rights. It was further alleged that the suit land was sold by Fazal Shah, the original recorded owner through registered sale-deed dated 28-1-1908 in favour of their predecessors namely Fazie Khaliq, Fazle Malik, Abdul Wase and Fazle-e- Raziq sons of Mula Ahmad who was also in possession of the suit land as last mortgagee. The sale- deed was given effect in the revenue record through sale Mutation No,1184 attested on 29-7-1909.
The defendants are continuously recorded owners in the ownership column as well as in the column of cultivation. Apart from factual controversy the suit was also challenged on a number of legal objections. The trial Court framed 12 issues including the relief arising from pleadings of the parties. Parties adduced their evidence as they wished to produce and ultimately a preliminary decree for redemption on payment of Rs,43 was granted to petitioners-plaintiffs which was challenged in appeal and vide impugned judgment dated 13-10-1998. The appellate Court reversed the findings of the trial Court and dismissed the suit of the plaintiffs-petitioners. Hence this revision petition by the plaintiffs' side.
4. I heard the learned counsel for petitioners who mainly contended that Fazal Shah remained no more owner of the suit land when it was transferred to Nawab the predecessor at plaintiffs in the year 1989 through registered sale-deed (copy Exh.P.W,1:4) and the subsequent sale by the said Fazal Shah in favour of Muth. Atnuad through Exh.P.W.1/D1 is fictitious, illegal, fraudulent and ineffective upon the rights of plaintiffs. He contended with vehemence that Fazal Shah has taken the advantage of non-incorporation of sale-deed in the revenue record collusively executed registered sale-deed in favour of Mula Ahmad. The revenue record is meant for collection of revenue only and any title or right in an immovable property can only be validly transferred through registered sale-deed, thus non-incorporation of registered sale-deed in favour of petitioners' predecessor will not deprive them of their duly acquired title subject to the charge of mortgage.
5. The learned counsel for respondents submitted that under section 42 of the West Pakistan Land Revenue Act, a vendee is required to produce the sale-deed for giving effect in the revenue record within three months. In this regard he referred to Muhammad Iqbal v. Muhammad Asghar PLD 1986 SC 1. Further submitted that rights of the respondents/defendants is protected under section 41 of the Transfer of Property Act, 1882 in light of the dictum laid down in Rehman Shah v. Muhammad Shah and others 1974 SCMR 255, Muhammad Hussain and others v. Khuda Bakhsh 1989 SCMR 1563; Sahib Noor and others v. Feroz Khan 1992 MLD Pesh.2563. He objected to the form of suit and the relief prayed for. The plaintiffs have not challenged the registered sale-deed duly incorporated in the revenue record which was not specifically challenged and no relief in this regard was sought in the plaint. Even copy of the sale-deed or sale mutation was not appended with the plaint. In this regard he relied upon Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469. Further submitted that the predecessor of respondents was recorded owner in the relevant column from the date of attestation on 29-7-1909 and after his death he was replaced by the respondents in the ownership column. Right from 1909 till today the entries in favour of defendants in the revenue record are constant but no relief regarding the correction of revenue record is sought in the plaint. In this regard he placed reliance on Ghulam Hassan v. Soharu and 131 others PLD 1984 Pesh. 278, Nawab Ali and others v. Bajwant Singh and others 1995 CLC Lah.1823; Ghulam Siddique v. Mst. Ajaib and others 2002 CLC Pesh.1244. Above all the aforesaid objections, it was argued that for filing a suit for redemption there must be relatinship of mortgagor and mortgagee while in the present case no such relationship exists as the respondents-defendants are recorded owners with possession while there is no mention either of the plaintiffs or their predecessor as per available revenue record. The petitioners have filed a suit for a total area of 13 Kanals 13 Marlas bearing Khasra Nos.915 and 918 as per settlement record of 1895-96 but strangely enough the fictitious registered sale-deed relied upon by the plaintiffs, is for an area of 8 Kanals 4 Marlas. The first mortgage was created on 28-3- 1887 through registered mortgage deed No,28 (copy Exh.PW.1/3) in favour of Hamza Khan as mortgagee with possession. Through the said mortgage deed the original owner Fazal Shah has created a charge of mortgage over an area of 7 Kanals 17 Marlas bearing Khasra Nos. 455, 456, 170, 254, 758, 753 and 909 (7 parcels of land). The second mortgage charge was created through registered mortgage deed dated 20-2-1900 in favour of Gulab as mortgagee only in Khasra Nos.915 and 918 (new Khasra Nos.) for an area of 3 Kanals 4 Marlas through Exh.P.W.1/1.Suleman executed a mortgage deed in favour of Mula Ahmad registered on 20-2-1900 (copy Exh.P.W.1/2).
The sale-deed relied upon by the plaintiffs was in respect of land bearing new Khasra Nos.915 and 918 measuring 3 Kanals 4 Marlas on 15-12-1899 (copy Exh.P.W.1/4). While the registered sale-deed in favour of defendants/respondents was attested on 28-1-1908 through Exh.P.W.1/D1 and the vendees are recorded owners mortgagors from the date of sale-deed. The successors of Fazle Raziq, one of the vendee mortgagors, have not been arrayed as party to the suit. The registered sale-deed was entered in the revenue record as Exh.P.W.2/D1.
6. The suit of the petitioners is found defective because no relief regarding the actual controversy was sought in the relief part of the plaint. Though the plaintiffs were in the knowledge of sale-deed in favour of defendants but the same was neither produced along with the plaint nor relief against it was prayed for. The suit of the petitioners is also found bad for non-joinder of necessary parties.
The original owner from whom title of the suit-land was transferred to the petitioners' predecessor, namely Nawab, or his successors were not impleaded as party to the suit and the circumstances prevailing at the time of sale-deed relied upon by the plaintiffs and the sale deed relied upon by the defendants could only be explained by him as original owner. The first mortgagee or his successors and the second mortgagee or his successors have also not been arrayed as party to the suit. While the defendants have been arrayed as successors of Mula Ahmad who is recorded mortgagee, but Fazle Raziq one of the vendees through Exh.P.W.1/D1 was not arrayed as defendant. -
7. The unexplained prolong silence of the plaintiffs and their predecessor to assert their title on the suit land since its purchase in the year, 1909 makes the document in their favour doubtful while the possession of defendants who obtained the title through inheritance from the bona fide vendees through deed Exh.PW.1/D1, is recorded in the ownership column from the date of their purchase, they have also purchased the right of redemption and the last mortgagee was the predecessor of the vendee namely Mula Ahmad. Since no formal redemption was made by the subsequent vendees therefore the names of first, second and third mortgagees are continuing in the revenue record but at the same time the defendants or their predecessors who had validly purchased the suit land are continuously recorded in the ownership column as owner-mortgagors. Under section 41 of the Transfer of Property Act, 1882 the rights of subsequent vendees are protected which reads as under:-- "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 trans:eree, after taking reasonable case to ascertain that the transferor had power to make the transfer, has acted in good faith." In this respect the judgments cited at the bar as 1974 SCMR 255, 1992 MLD 2563 and 1989 SCMR 1563 support the contention of the defendants who claimed protection under section 41 of the Transfer of Property Act.
8. The petitioners-plaintiffs have not challenged the revenue record wherein the respondents are recorded owners in possession since their purchase in the year 1908-09 and without seeking relief to that effect the plaintiffs could not be granted any relief prayed for because no relationship of mortgagor and mortgagee exists between the parties. In this regard reliance has rightly been placed on PLD 1984 Peshawar 278, 1995 C LC 1823 and 2002 C LC 1244.
9. The upshot of discussion made in the preceding paras. Is, that I found no illegality or jurisdictional defect, or misreading or non-reading of evidence or misinterpretation of law in the impugned judgment of appellate Court. The revision petition is, therefore, dismissed being without any substance. No order as to costs.