2007 PLP 2735 (YLR)

SARDAR MUHAMMAD ASLAM, J.

This Civil Revision by the petitioners, subsequent transferee, claiming to be bona fide purchasers, is directed against the concurrent judgments and decrees of the learned Courts below decreeing the suit of respondent No.1 against the petitioners as well as respondents Nos.2 to 5.

2. Briefly the facts giving rise to the Civil Revision are that Muhammad Asim Usmani (respondent No.1 hereinafter caked plaintiff) filed a suit for declaration claiming to be owner of the land measuring 103 Kanals, 6 Marlas fully detailed and described in the Bead note of the plaint. Sadar ul Ala, defendant No.1 and Ilam ud Din defendant No.5 hatched conspiracy in order to secure the land. A fictitious civil suit against the plaintiff was got filed by defendant No.

1. Defendant No.1 was a relation of plaintiff; came to him and persuaded him to appoint him as his attorney to defend the suit filed against both of them by defendant No.5. He constituted, Sadar-ul-Ala, as his attorney. He appeared in person on his own behalf and as attorney for the plaintiff. The suit was fixed for filing of written statement on 5-9-1987. Defendant No. l and defendant ` No.5 submitted an application for accelerated hearing of the matter on 30-7-1487. Suit was taken up on the said date. He made a statement that Ilam Din; (plaintiff in the said suit) has delivered .possession of the suit-land to him and withdrew the suit.

3. On the strength of General Power of Attorney, Mutation No. 1458 purporting to be gift, was got sanctioned in favour of his real son, defendant No.2. It way pleaded that the entire proceedings' commencing from appointment of General Attorney, culminating into transfer of land through gift was wholly without jurisdiction, secured by way of mis?representation, and, thus, nullity in the eye of law. Defend2xtt No.2 sold out parcels of land measuring 16 Kanals 8 Marlas, 19` Kanals 7 Marlas, 67 Kanal, 1 Marla out of the suit property to petitioners by various deeds. Separate written statement was filed by Sadar-ul-Ula; defendant No.1; defendants Nos.2 and 5, jointly, filed their written statement. Similarly, defendants Nos.3 and 4 filed joint written statement while defendant No.6 filed his separate written statement.

4. The Revision. petitioners are vendees from Muhammad Hamad Usmani, defendant No.2 and claimed protection under section 41 of Transfer of Property Act. On the pleadings of the parties issues were framed. Both the side produced their evidence oral as well as documentary. Trial Court decreed the plaintiff suit. The petitioners have assailed the judgments and decrees. The findings on issues Nos.1-A, 1-B, 1-C, 1-D, 6, 7, 7-A, 7-B, 7-C were challenged before the appellate Court. The plaintiff's legal heirs also challenged the findings on issues Nos.1-A and 1-B, through cross objections. Revision petitioners did not press findings on issues Nos.5 and 7-C. Cross-objections were allowed to the extent of findings recorded on issue No. 1-B. Appeal was dismissed on ?_~-2-2003 by a Darned Additional District Judge.

5. Learned counsel for the petitioners contends that both the Courts below failed to frame proper issues arising out of pleadings; the sale in favour--of the petitioners was with consideration; that bath the Courts below have rendered decision answering issue No. 1 -A against the plaintiff holding that he has executed General Power of. Attorney, whereafter transfer made in their favour of the petitioner cannot be nullified; that findings on issues Nos.1-A, 1-B, 1-C, 1-D, 2 to 7, 7-B and 7-C are not .sustainable in law; and, that both the Courts have misread evidence.

6. On the other hand, learned counsel for respondent No.1-plaintiff, in opposition, vehemently defended the concurrent findings recorded by two Courts below. He argued that the petitioners were not bona fide purchaser for consideration, as no lawful title was possessed by their vendor (defendant No.2).

7. Heard. Record perused.

8. Even, if, it is conceded that the plaintiff has appointed defendant No.1, Sadar-ul-Ula, as his General Attorney, this transfer by the said General Attorney, in favour of his son through a gift without adverting to the plaintiff or seeking his permission was not sustainable in law. Reference can be had to Fida Muhammad v. Pir Muhammad Khan, deceased through legal heirs and others (PLD 1985 SC 341). Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818) and Haji Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811).

9. It has been held in the above judgments that transfer by way of gift by the donor in favour of his own relation falling in prohibited degree without reference to the principal, is of no avail and such transaction is not sustainable. When confronted petitioner's learned counsel has expressed .no cavil to the above proposition of law. He argued that factually his petition for additional evidence has been dismissed on wrong premises, and, secondly he has proved through documentary evidence that transaction in favour of defendant No.2 was not of gift, though .it was given such a colour, to avoid pre-emption suit and .evidence in this context has been misread.

10. Firstly dealing. with the application for additional evidence seeking permission to prove that amount through Bank Draft Exh.D.S (Rs.70,000) dated. 6-3-1991, Exh.D.6 (Rs.35,000) dated 12-2-1991 and Exh.D.7 (Rs.1,50,000 dated 13-1-1991) issued in the name of Muhammad Azam Usmani, were in fact meant for Muhammad Asim Usmani; the plaintiff who has appeared as P. W.1. Except bare suggestion, that he had authorized Muhammad Sadar-ul-Ala, defendant No.1 to sell his property and received an amount of Rs.2,20,000 through his son .Azam Usmani by way of different bar? drafts, no evidence is available. Whether drafts were encashed or not and, if, en-cashed whether on the instruction of the plaintiff. Muhammad Azam Usmani was a Vice-President in the Bank.

11. Sales were made in favour of revision petitioners by Muhammad Hamad Ullah Usmani, defendant No.2. There is no evidence as to who was prospective pre-emptor, which compelled to give the transaction colour of gift. Revision petitioners raised a bald -plea without rendering any proof. Case of the defendants revision petitioners will not be. improved in any manner, even, by allowing the evidence sought to be produced by the petitioners. Learned Appellate Court rightly rejected the petition for additional evidence.

12. Plea of bona fide purchaser for consideration raised by the petitioner under section 41 of the Transfer of Property Act does not come to their rescue. The gift was allegedly made on 25-4-1991. Sale-deed in favour of Muhammad Yousaf, revision petitioner was executed on 7-?-1991, while in favour of tvluhammad Hanif on 12-6-1991 and of Muhammad Yaqoob on 29-10-1991. If entire land was sold allegedly at the instance of the plaintiff for a .sum of Rs.2,20,000 of 2~-4-1991 in favour of Muhammad Hamad Ullah Usmani, then how after short span of time, it was transferred to petitioners against a consideration of Rs: 1,75,000, Rs.1,50,000, Rs.5;00,

000. The petitioners were required) to be careful in ascertaining the correct title' of their vendor. They did not examine the title of Muhammad Hamad Ullah Usman and consulted the record vis-a-vis, the general power of attorney. They failed to inquire the plaintiff, before entering into sale. Suit-land, according to their cwai showing have been sold to Muhammad Hamad Ullah Usmani for a consideration of Rs.2,20;000 and within 6 months was -sold to revision petitioner for a total sum of Rs.8,25,000 which clearly render proofi that, they were not bona fide purchaser for consideration, and were fully aware of the) defective title of defendant No.2. the petitioners cannot claim better title than that) possessed by their vendor. Learned counsel for the petitioners have failed to point out as to what issues were regaired to be framed arising out of the controversy, yet it is suffice to say that parties were alive to the controversy, raised and produced their)) evidence in their possession, thus, cannot turn round at this stage to claim that correct issues were not framed. Even if some issues were not correctly framed or happily) worded when evidence has come on record on the controversy, no prejudice is caused. Reverence can be had to Mehr Din (represented by his legal heirs) v. Dr. Bashir Ahmad Khan and 2 others (1985 SCMR 1). 12-A. Learned counsel has failed to point out misreading or non-reading of A evidence. Concurrent findings recorded by learned Courts below, after appraisal of evidence do not call for interference and the same is, thus, declined.

13. For what has been discussed above, there is no force in this civil revision, which is dismissed. M.H./M-396/L???????????????????????????????????????????????????????????????????????? Revision dismissed.