2001 PLP 1431 (CLC)

Munir Khan and 9 others filed Suit No.386/ 1 in the Court of learned Civil Judge, Mardan for seeking declaration etc. The said suit was partially decreed on 17‑8‑1989. Parties being not satisfied with the judgment and decree, dated 17‑8‑1989 filed separate appeals in the Court of learned Additional District Judge, Mardan. Appeals were accepted vide judgment and decree, dated 27‑3‑1990 and the case was remanded back to the learned Civil Judge Mardan for decision afresh. The learned trial Court after recording pro and contra evidence of the parties vide judgment and decree, dated 6‑2‑1992 partially decreed the suit of respondents/plaintiffs. The respondents/plaintiffs being aggrieved of the said judgment and decree filed Appeal No. 21/13 in the Court of learned, Additional District Judge, Mardan, which was accepted vide judgment and decree, dated 13‑7‑1992 and the case was again remanded back to the learned Additional District Judge with the directions to bring on record Goshwara of ownership of vendor Adam Khan with the Jamabandi for the year 1964‑

65. The learned trial Court on receipt of the file after remand, recorded the statement of.Patwari Halqa and the parties relied upon the already produced evidence. However, after hearing the arguments, the learned trial Court vide judgment and decree, dated 18‑9‑1994 again partially decreed the suit in favour of respondents/plaintiffs to the extent of land measuring 7 Kanals, 14 Marlas comprising Khasra Nos'1434/8081 and 75 and also directed the petitioners/defendants to pay a sum of Rs.26,230 to the respondents/plaintiffs. Parties being again not satisfied with the said judgment and decree filed appeals separately in the Court of learned Additional District Judge, Mardan. The respondents/plaintiffs filed Appeal No.39/13 of 1994 whereas the petitioners/defendants filed Appeal No.38/13 of 1994. The learned Additional. District Judge vide judgment and decree, dated 9‑7‑1996 dismissed the appeals filed by the parties and maintained the judgment and decree, dated 18‑9‑1994 passed by the learned Civil Judge, Mardan. The parties have now filed separate revision petitions against judgment and decree, dated 9‑7‑1996 passed by learned Additional District Judge, Mardan. The petitioners/defendants (Darvesh Ali Khan) has filed Civil Revision No.461 of 1996, whereas Munir Khan and others plaintiffs/petitioners have filed Civil Revision No.976 of 1996. Through this judgment recorded in Civil Revision No.461 of 1996 1 shall dispose of both the C.Rs. as the same arise out of the single judgment, dated 9‑7‑1996 passed by learned Additional District Judge, Mardan.

2. Mr. Mazullah Barkandi, the learned counsel representing the petitioner in Civil Revision No.461 of 1996 argued that the suit filed by the respondents/plaintiffs was barred by time. The property in dispute was allegedly transferred vide registered deed, dated 29‑6‑1967 whereas the suit was filed by the respondents/plaintiffs (Munir Khan and others) on 7‑6‑1983 i.e. after a period of 16 years. The limitation prescribed for filing suit for declaration is six years under Article 120 of the Limitation Act.

3. It was also argued that the possession of land measuring 12 Kanals comprising Khasra No.959/2/2 was handed over to the vendee as per sale deed and this fact has been admitted by Munir Khan P.W.I in his statement also, therefore, the respondents/plaintiffs have no cause of action against the petitioners/defendants.

4. It was further argued that there was no method prescribed for compensating the vendee in case of any defect found in the title of the vendor in the sale‑deed Exh.P.W.I/1 and there is no justification to hand over the other property of the petitioner.

5. On the other hand Messrs Muhammad Alam Khan and Ghulam Ali, Advocates, the learned counsel representing the respondents/plaintiffs in Civil Revision No.461 of 1996 and petitioners in Civil Revision No.479 of 1996 argued that the suit of the respondents/plaintiffs was not barred by time. Darvesh Ali petitioner filed suit for ejectment against the respondents/plaintiffs in the Court of Assistant Collector 1st Grade Mardan, which was decided on 1‑10‑1984. A decree for produce was granted but the ejectment suit was dismissed. Being aggrieved of the said judgment, he filed appeal in the Court of Collector Mardan which was dismissed vide order, dated 1‑10‑1986. He filed 'Revision No.105/Rev. of 1987 in the Court of Commissioner Peshawar Division, which was partially allowed vide judgment, dated 4‑5‑1987. Against the said judgment, the respondents/plaintiffs (Munir Khan and others) filed Writ Petition No. 156 of 1988 in this Court, which was dismissed vide order, dated 12‑3‑1989. The parties were litigating before the Revenue Court, however, in order to establish their title the respondents/plaintiffs filed suit on 7‑6‑1983 when their right of ownership was threatened. Therefore, the suit of the respondents/plaintiffs was not barred by time. The respondents/plaintiffs were in possession having purchased the land in question through a valid registered deed, therefore, no limitation would run against them. Reliance was placed on Abdul Latif and others v. Manzoor Ahmad and others 1993 MLD178.

6. It was also argued that the predecessor of respondents/plaintiffs was made to believe that Adam Khan was owner of Khasra Nos. mentioned in the sale‑deed, therefore, fraud was played upon him by Adam Khan. He was put into the possession of the property also, therefore, the predecessor of the respondents/plaintiffs was under bona fide belief that he was ostensible owner of the property in dispute if a fraud is played upon another, therefore, under section 18 of the Limitation Act, no limitation would run against such person.

7. It was also argued that the predecessor of respondents/plaintiffs sold land comprising Khasra Nos.73 to 76, 78 to 79/1 and 81, Khata No.73 situated at Mauza Koragh Tehsil and District Mardan vide sale‑deed Exh. P.W.1/1. He, therefore, became co‑sharer in Khata No.73. The predecessor of the respondents/plaintiffs was put into possession of land measuring 12 Kanals in Khasra No.959/2/2. Having become co‑sharer in Khata No.73 no limitation would run against the respondents/plaintiffs.

8. It was also argued that the petitioner or any other L.R. of Adam Khan has not challenged the validity of the sale‑deed Exh.P.W.1/1. till date and the same was proved in accordance with law and exhibited without any objection from the other side. The said deed contained indemnity clause. The respondents/plaintiffs were therefore, entitled to be indemnified from the property left by Adam Khan.

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

10. So far as the first argument of the learned counsel for the petitioner that the suit is barred by time is concerned, the same has no force. Admittedly land measuring 12 Kanals comprising Khasra Nos.73 to 76, 78 to 79/1 and 81 situated at Mauza Koragh was sold by Adam Khan to Khaki Gul predecessor of plaintiffs vide registered sale‑deed No.576, Book No.1 Volume No.319, darted 29‑6‑1967 registered in the Office of Sub‑Registrar Mardan. EXh.P.W.1/1. The predecessor of respondents/plaintiffs was put into the possession of the land in Khasra No. 959/2/2 and 75 at the time of execution of sale‑deed. Darvesh, the petitioner filed suit for produce and ejectment against the respondents/plaintiffs in the Revenue Court and a partial decree was granted in his favour on 1‑10‑1984. The matter came up to the level of this Court. It was during the pendency of the abovementioned suit filed by Darvesh that the respondents/plaintiffs checked the revenue record which revealed that land measuring 4 Kanals, 6 Marlas comprising Khasra No.75, 1485/80‑81 was in the name of Adam Khan, whereas land measuring 7 Kanals, 4 Marlas did not exist in his name in the Khasra Nos. mentioned in the sale‑deed Exh.P.W.1/1. The respondents/plaintiffs therefore, filed suit seeking the declaration that they are owners of land measuring 4 Kanals, 6 Marlas in Khasra Nos.75, 1485/80‑81 and (sic) they are entitled for land measuring 4 Kanals, 6 Marlas in other property left by Adam Khan, the Khasra Nos. of which were mentioned in detail in the heading of the plaint. Since the respondents/plaintiffs were already in possession in Khasra Nos.75 and 959/2/2 which was part and parcel of Khata No.73, they were, therefore, co‑sharers and the question of limitation does not arise in the case of joint possession as co‑sharer. In Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462 it was held:‑‑ "In the case of Mst. Daulan and another v. Noora and another 1987 SCMR 54 no interference was made and leave was refused on the ground that question of limitation does not arise in the case of joint possession as co‑sharers. " A similar view was taken by this Court in Mst. Slaoo Bibi and 3 others v. Gul Rehman and 13 others PLD 1996 Pesh. 1.

11. The suit is also not barred by time. In view of section 18 of the Limitation Act, which is reproduced hereunder for convenience;‑ "Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application:‑ (a) against the person guilty of the fraud or accessary thereto, or (b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production."

12. The respondents/plaintiffs have successfully proved the execution of sale‑deed Exh.P.W.1/1 which has not been denied/challenged till date by the petitioner. It has been proved on record that Adam Khan, the predecessor of the petitioner was not owner of land comprising Khasra Nos.73, 74, 76, 78, 79/1 and 81, his title about land in the said Khasra Nos. was defective. He has either defrauded or made erroneous representation by showing himself to be the owner in the abovementioned Khasras received consideration from Khaki Gul the predecessor of respondents/plaintiffs. It is by now established law that fraud vitiates the most solemn proceedings and the question of fraud is always open to scrutiny by the competent Court and no fraudulent transaction can be given coverage due to bar of limitation. Where a party was kept away from the knowledge of his right to sue or file a suit, because of r fraud of other party, for purpose of limitation 64time would be computed from i the date of discovery of fraud.

13. The respondents/plaintiffs were in possession of the suit‑property and when they continued to be in possession of propriety rights, question of IC limitation does not arise in such case.

14. The other argument of the learned counsel for the petitioner that there was no method prescribed for compensating the vendee in case of any defect found in title of the vendee in the sale‑deed Exh. P.W.1/1, therefore, the respondents/plaintiffs could not be compensated from the other property of the petitioners also has no force. The perusal of the sale‑deed Exh. P.W.1/1 shows that there was indemnity clause in the sale‑deed in the following words:‑‑ Admittedly Adam Khan, predecessor of petitioner was not owner of land in Khasra Nos.73, 74, 76, 78, 79/1 and 81 but he owned land in Khasra Nos.75 and 959/2/2. It is worth‑mentioning that Khasra Nos.75 and 959/2/2 were parcel of Khata No.73. Adam Khan deceased was owner of full Khasra No.959/2/2 which consisted of land measuring 108 Kanals. At the time of sale he had put the predecessor of respondents/plaintiffs namely Khaki Gul in possession of land measuring 12 Kanals in Khasra No.959/2/2. On his death, huge property was left by him in Khasra Nos.75, 1485 /80‑81, 959/2/, 15, 19, .810/1, 426, 1123/438 to 440, 48, 801, 806, 1484/592 to 61, 547, 63, 67, 68, 45, 65, 802, 810/2, 800/1, 800/2, 41, 46, 44, 46/2. The said property left by Adam Khan devolved upon his two sons namely Darvesh Ali Khan, Abdul Halim, widow Mst. Mehr Taja and one daughter Mst. Insaf Begum. Since the predecessor of respondents/plaintiffs was bona fide purchaser for consideration and the title of the vendor Adam Khan in respect of Khasra Nos.73, 74, 76, 78, 79/1 and 81 was defective, therefore, the vendee had the right under section 18 of the Specific Relief Act, 1877 to compel him to make good the contract out of the other property left by him. Relevant portion of section 18 is reproduced hereunder:‑‑‑ "Where a person contracts to sell or let certain property having only an imperfect title thereto, the purchaser or lessee (except as otherwise provided by this Chapter) has the following rights:‑‑‑ (a) If the vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;

15. Article 114 of Qanun‑e‑Shahadat Order, 1984 old section 115 of the Evidence Act recognize the principle of estoppel and similarly section 43 of Transfer of Property Act binds the transferor who have professedly transferred property for consideration upon a fraudulent or erroneous representation when he was authorised to make such a transfer of immovable property when the transferor does in fact acquire an interest in such property. In Sayed Ghulam Muhammad Shah v. Sayed Fateh Muhammad Shah PLD 1955 FC 1 it was held:‑‑ "An assignment for value binds the conscience of the assignor. A Court of Equity as against him will compel him to that which ex hypothesi he has not yet effectually done. Future property, possibilities and expectancies are all assignable in equity for value; Taiby v. Official Receiver (1888) 13 A.C. 523 at P.543) But when the assurance is not for value, a Court of Equity will not assist a volunteer'. The exception has received statutory recognition here in section 43 of the Transfer of Property Act, section 115 of the Evidence Act and section 18 of the Specific Relief Act. The doctrine of feeding the grant by estoppel which appears as the solitary illustration to section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys that he does not own but subsequently he acquires the title which he conveyed, then the transferee can enforce the conveyance against him. A Court of Equity in such cases will not only actively assist the person paying the value but will also repel the transferor's plea based on the invalidity of the transfer in law. Similarly section 18 of the Specific Relief Act recognizes and enforceable at law the right of a person contracting to purchase or to take in lease property from a person who at the time of the contract does not own it but who subsequently acquires it. This rule, being founded on equity, has been applied in the Punjab, where the Transfer of Property Act is not in force. Thus, where a person acting on the consent of the next reversioner has purchased for valuable consideration property from a limited owner, as for instance, a sonless proprietor or a widow, his right to the property has been held to be enforceable against the consenting reversioner, if he has on the expiry of the limited estate succeeded to the property. " Similarly in Ziauddin Rafi v. Muhammad Khan and others PLD 1962 (W.P) Lah. 321 it was held:‑‑ "The principle of the Muhammadan Law relating to release or transfer of a mere spes successions is in accord with the general principle of English Law that an expectancy is not property which can be assigned. But the Courts in England have since long applied the rule of feeding by estoppel whereas the benefit of a subsequent acquisition by a grantor of an, interest in land which he did not possess at the time of the grant went to the grantee when the grantor subsequently came to acquire the interest in the said land. This principle was recognized in the case of Rajapakse v. Fernando " "‑"' AC 892‑

897. Under the equitable principle which is contained in the doctrine 'equity regards that as done which ought to be done, the Courts in England have enforced a contract against a person who had, for consideration, made a transfer in respect of a property the title to which be acquired subsequently. This principle has found statutory recognition in this country by section 18 of the Specific Relief Act, section 115 of the Evidence Act, and section 43 of the Transfer of Property Act."

16. Keeping in view the abovementioned dicta it can be safely held that the respondents/plaintiffs were entitled to land measuring 7 Kanals, 14 Marlas from the other properties left by Adam Khan. He was even bound to compensate the vendee from the property subsequently, acquired by him.

17. Neither the petitioner (Darvesh Ali Khan) nor any other legal heir of deceased Adam Khan has challenged the validity of the sale‑deed Exh.P.W.1/1 till date. The sale‑deed was proved in accordance with law and placed on record without any objection from the petitioners/defendants. It is, therefore, binding on the successors of Adam Khan and they are liable to compensate the respondents/plaintiffs from the property left by Adam Khan according to the proportionate shares inherited by them.

18. Keeping in view the above discussion, I accept Civil Revision No.479 of 1996 (Munir Khan etc. v. Darvesh Ali anti others) and modify the impugned judgments and decrees to the extent that since the respondents/plaintiffs are already in possession of land measuring 12 Kanals in Khasra No.959/2/2, therefore, the respondents/plaintiffs are held entitled to land measuring 7 Kanals, 14 Marlas in the said Khasra. It is worth mentioning that they are already in possession of land measuring 4 Kanals, 6 Marlas in Khasra Nos.75, 1485/80‑

81. They are also declared owners of land measuring 4 Kanals, 6 Marlas in Khasra Nos.75, 1485/80‑

81. The Revenue Record be corrected accordingly and the possession of the respondents/ plaintiffs be not disturbed. Consequently, Civil Revision No.461 of 1996 Munir Khan and others) is dismissed with no orders as to costs. Q.M.H./M.A.K./262/P Order accordingly.