2017 PLP 81 (SCMR)

MIAN SAQIB NISAR, J.

The respondents' suit for declaration challenging the sale made in the appellants' favour by some of the respondents of the case, to the extent of their (plaintiffs) share was dismissed by the learned Trial Court, however the appeal of the respondents (plaintiffs) was accepted and the suit was decreed. The civil revision filed by the appellants before the learned High Court was dismissed.

2. Leave in this case was granted to consider if the appellants in the facts and circumstances of the case are the bona fide purchasers of the property.

3. The facts of the case are that Muhammad Siddique was the original owner of the property in question who was survived by four sons, namely, Ahmad Yar, Muhammad Yar, Ghulam Muhammad and Jewan. The mutation of inheritance was attested in favour of all the brothers but subsequently for unknown reasons seemingly on account of lapse or deliberate error on part of the revenue authorities in the following record (perhaps the jamabandi), the names of Ghulam Muhammad and Jewan were omitted and-the other two brothers, namely, Ahmad Yar and Muhammad Yar were shown to be the owners who sold the suit land i.e. which they had inherited along with their two brothers from their father, vide mutation No.13 dated 30.7.1992. The legal heirs of the deceased brothers have challenged the mutation vide suit mentioned above on account that the sale on behalf of the plaintiffs' side is unauthorized. The appellants took up the plea that they are bona fide purchasers and have bought the property after having examined the revenue record. This plea did find favour with the learned Trial Court and the suit was dismissed, while in the appeal the view of the learned Appellate Court is otherwise which has discarded the bona fide plea of the appellants and allowed the suit. This view has been affirmed by the learned High Court in revision.

4. The learned counsel for the appellants states that the appellants have taken due care before buying the property and have examined the revenue record per which Ahmad Yar and Muhammad Yar are shown to be the exclusive owners of the suit property. They have paid the full price of the property and have no notice at that time that Ghulam Muhammad and Jewan were also co-owners and that their names have been illegally and wrongfully omitted from the revenue record. Thus in the facts and circumstances, the provisions of Section 41 of the Transfer of Property Act, 1882 are duly attracted and, therefore, the suit of the respondents has been rightly dismissed by the learned Trial Court.

5. We have heard the learned counsel for the parties and find that the rule of bona fide purchaser as enunciated by section 41 ibid is founded upon the principles of equity. The said section 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 transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith." The essential ingredients of this section are, (a) that the transferor was the ostensible owner; (b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and (d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction. These four imperative/essential ingredients must co-exist in order for a person to take the benefit of the equitable principle, however, merely on account of some error committed by the revenue staff in the revenue record unintentional or deliberate or motivated which excludes the name of the lawful owner of the property therefrom and the property, shown to be in the name of some other person who is not the owner of the whole or a part thereof by itself shall not deprive and denude the true and actual owner from the title of the property and this by no means can be construed that the transfer, to the person claiming protection of the rule of equity ibid by a person who actually is not the owner is being made by consent express or implied of the real owner. This even is not the case of the appellants that the transfer to them was with the consent of two brothers whose names have been illegally and unauthorizedly removed from the column of ownership by the revenue authorities, so as to bring the case within the purview of section 41 ibid. In the instant case as it is an undisputed fact that the property in question was owned by Muhammad Siddique who was survived by four sons (named above) and they all became the joint owners of the property. The entries in the revenue record to that effect were made and are vivid and uncontroverted. How and why the names of the two brothers from the revenue record were removed is absolutely obscure. It is not the case of the present appellants that the said brothers had transferred their share in the joint property (purchased by them) in favour of the other two brothers by any lawful transaction/means i.e. by exchange, gift, sale, relinquishment etc. Thus if the appellants had taken reasonable care in going into the genesis of the ownership, and examining the record in depth, which they as purchasers were required to do so, they would have found out that the property being an inherited property was originally owned by Muhammad Siddique which devolved upon his legal heirs i.e. four brothers jointly and that all these four brothers still continue to be the co-owners of the property; and that the exclusion of Ghulam Muhammad and Jewan's name from the revenue record is not on account of any legal or authorized transaction or mode, rather for either a human error or because of some tainted reason. Be that as it may, the mere omission of Ghulam Muhammad and Jewan's name in the revenue record in no manner can be construed to mean that they had consented either express or implied for the sale in favour of the appellants and that the appellants took reasonable care in good faith, within the contemplation of condition No.(iv) of section 41 ibid. Obviously such unauthorized sale to the extent of their share in the sold property was void and that the case of the appellants do not squarely qualify the test of section 41 and, therefore, they could not take up the plea of bona fide purchaser and their sale could not be protected on that account. Resultantly, this appeal has no merit and is hereby dismissed. Before parting, it may be observed that the copy of this order be sent to the concerned Member, Board of Revenue who shall consider taking action against the delinquent revenue officers who are instrumental in omitting or excluding the,names of Ghulam Muhammad and Jewan from the revenue record which'I c-cording So the appellants case has misled them to buy the property and they remained entangled in litigation for 31 long years. If they (revenue staff) are found responsible and are still in service the competent authority may consider taking appropriate action against them in accordance with law. MWA/G-16/SC Appeal dismissed.