2005 PLP 165 (CLD)

(3) Appellant also secured ex parte decree against respondent No.4 without impleading the bank as defendant in the suit on 26-2-1988 from the Civil Court. (4) The bank filed a suit for recovery against respondents allegedly in the year 1989. (5) Order was passed in favour of the bank by the Banking Court on 14-3-1992. (6) Original title deed/document of the property in question was not secured by the appellant from respondent No.4. (7) The original document qua the property in question is still with the respondent-Bank.

4. In case the aforesaid facts are put in juxtaposition, then it is crystal clear that the appellant has purchased the property without any investigation and without securing the original document qua the property in question from respondent No.4. The property in question was mortgaged with the respondent-Bank on 30-12-1985, whereas the appellant has purchased the same on 26-4-1987, therefore, the appellant's case does not fall under the phrase of "bona fide purchaser". It is better and appropriate to reproduce section 41 of the Transfer of Property Act, 1882:-- "

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 transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith." Mere reading of the aforesaid provision of law shows that the case of the appellant does not fall under the aforesaid provision of law. The appellant purchased the property in question without obtaining original title documents from respondent No-42 meaning thereby that appellant failed to prove that the appellant purchased the A property in question with consideration, in good faith and without making reasonable enquiries in order to get valid title qua the property in question. It is pertinent to mention here that it is the duty of appellant to prove that transfer was for consideration, and transferee had acted bona fide and in good faith. All such ingredients must concomitantly exist together otherwise principle enunciated in section 41 of the aforesaid Act would not apply. It is also settled lain that protection of section 41 cast by negligence meaning thereby protection of said provision is available to transferee of property who purchased the same after reasonable care. Even otherwise the impugned order is in accordance with law laid down by the superior Courts in the following judgments:-- (1) Tarachand Mondal and others v. Hazari Shaikh and another PLD 1967 Dacca 203; (2) Syed Sajid Ali Asif through legal heirs v. Mumtaz Ahmad and 3 others PLD 1993 Karachi 520; (3) Sattar Muhammad and 2 others v. Hussain and 3 others PLD 1988 Peshawar 48; (4) Ilahi Bakhsh and others v. Hassan Khan and others PLD 1966 (W.P.) Lahore 654; (5) Riazul Hassan v. Muhammad Ayub Khan and another 1991 SCMR 2513; (6) Ilam Din and others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 4 others 1984 CLC 221 (7) Mst. Noor-un-Nisa and another v. Ghulam Sarwar and 6 others 1994 SCMR 2087. In view of what has been discussed above we do not find any infirmity or illegality in the impugned order therefore, the appeal has no merits and the same is dismissed in limine. M.H./M-751/L Appeal dismissed.