2001 PLP 1021 (CLC)

2. Haji M. Zahir Shah; Advocate the learned counsel representing the petitioner argued that the Courts below have failed to appreciate the evidence in its true perspective. The respondents/plaintiffs have miserably failed to prove that they were to possession of the suit property as tenant‑at‑will as heirs of Zaman Shah. They have produced no reliable evidence in this behalf. The petitioners are bona fide purchasers of the occupancy and non‑occupancy rights and their case was not contested by other respondents/defendants in this behalf.

3. On the other hand Mr. Abdul Samad Khan the learned counsel representing the respondents argued that the learned trial Court after appreciating the evidence passed decree in favour of respondents/plaintiffs and the learned appellate Court concurred with the same. This Court in its revisional jurisdiction, cannot interfere into the findings of facts given by the Courts below.

4. It was also argued that the respondents Nos. l to 3/plaintiffs have proved their case through cogent evidence. Marghun Shah, respondent No.4 was not legal heir of Zaman Shah, therefore, he could not inherit any property from him.

5. I have heard the learned counsel for the parties and perused the record.

6. As. per Jamabandi for the year 1933‑34 Zaman Shah son of Ghulam Shah was recorded in the Column of Cultivation on payment of ' Naqdi Basharah Malik', the said. entries continued till 1957‑

58. Thereafter, on the basis of entries of File No. 18 Zaman Shah was replaced by Marghun Shah son of Hanif Khan (respondent No. A). The Jamabandi for the year' 1965‑66 shows that Marghun‑Shah was recorded in possession as 'Ghair Dakhalkar' on payment of ' Naqdi Basharah Malikan' vide File No. 18 Mall, dated 4‑3‑1965 through inheritance of late Zaman Shah. The evidence further shows that Marghun Shah had submitted an application to the Deputy Commissioner Kohat through Tehsildar Hangu that Zaman Shah was his uncle who died issueless and he was the only successor‑in‑interest and therefore, the property left by him be mutated in his name. He also claimed to have purchased' the rights of ' Ghair Dakhalkari' in the suit property from predecessor of respondents Nos. l to 3/plaintiffs vide unregistered sale‑deed Exh.P.W.3/D‑1 to Exh.P.W.3/D‑7 in the year 1946. The alleged sale‑deed were not proved by him by producing the marginal witnesses.

7. The stand taken by Marghun Shah was self‑contradictory. On the one hand he claimed to have purchased the rights of ' Ghair Dakhalkari' in the suit‑property from predecessor of respondents Nos. l to 3/plaintiffs vide unregistered sale‑deeds Exh.P.W.3/D‑1 to Exh.P.W.3/D‑7 in the year 1946 and on the other hand he submitted an application to the Deputy Commissioner in File No. 18 Mall, dated 4-3‑1965 showing himself to be the only legal heir of Zaman Shah on the basis of which his name was recorded as Ghair Dakhalkar Basharah Malikan'.

8. Keeping in view the fact that respondents Nos.1 to 3/plaintiffs are the L.Rs. of Zaman Shah and that Marghun Shah was not legal heir of deceased Zaman Shah and the contradictory stands of Marghun Shah, respondent No.4, the learned trial Court rightly, declared that entries in‑File A No.l8, dated 17‑4‑1965 and sale‑deed Exh.P.W.3/D‑1 to Exh.P.W.3/D‑7 are fraudulent and bogus; and decreed the suit in their favour. The learned appellate Court on re‑appraisal of evidence also rightly concurred with the learned trial Court.

9. The appellants who were defendants Nos.5 and 6 in the original suit claimed‑to have purchased a portion of property from Marghun Shah and seek protection under section 41 of the Transfer of Property Act, 1882, which is reproduced hereunder:‑‑‑ "

41. Transfer by ostensible owner.‑‑‑ Where, with the consent, express or implied, of the person 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 authorised 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." Section 41 of the Transfer of Property Act can be invoked if the transferee can establish:‑‑ (i) the transferor is the ostensible owner; (ii) he is so by the consent‑express or implied of the real owner; (iii) the transfer is for consideration; and (iv) the transferee has acted in good faith, taking reasonable .care to ascertain that the transferor had power to transfer.

10. If any of the said conditions is not satisfied the transferee would not be eligible to seek protection under the above section of law, In the case in hand, Marghun Shah was neither the legal heir of Zaman Shah nor he succeeded in. proving that he had purchased the disputed property from hire, through unregistered sale‑deed Exh.P.W.3/D‑l.to EXh:P.W.3/D‑

7. Marghun Shah, therefore, was not ostensible owner of the property and could not transfer the same to the petitioner. Wisdom in this respect has been drawn from Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874.

11. It is also established principle of law that a person cannot transfer a better title/right than he has in the property. Marghun Shah had no right and title in the property in dispute, therefore, he could not transfer any portion of the property to the petitioners.

12. I have not been able to find out any misreading/non‑reading of evidence or any jurisdictional error or defect in the. concurrent findings of facts recorded by the Courts below warranting interference by this Court. Resultantly the revision petition in hand is dismissed alongwith Civil Miscellaneous No.757 of 1994, with no orders as to costs. H.B.T./233/P Revision dismissed.