1985 PLP 1428 (SCMR)

(6) Whether Mir Alam defendant No. 4 is in adverse possession of Khasra No. 97 for more than 12 years? The learned trial Court decided issues Nos. 1, 2, 4 and 5 in favour of the appellant and held that after the death of Ghulam, who was occupancy tenant of 1/4 share out of Khasra No.97, his interest devolved on his widow Mst. Sadiqa, two sons Ghani and Alif Khan and daughter Mst. Gul Andama, Mst. Sadiqa and Alif Khan sold this field measuring 4 Kanals 17 Marlas to Mir Alam respondent No.

1. As a result of the enforcement of Tenancy Act, 1950 the occupancy tenants became owners of their tenancy.

3. Under issue No. 3 the learned trial, Judge held that the heirs of Ghulam the vendors of plaintiff /appellant were not entitled to the entire interest of Ghulam in Khasra No.

97. Their share in the property comes to 21/40 who were entitled to 4 Kanals and 4.1/2 Marlas, 1/4 share in Khasra No. 97 measuring 4 Kanals and 14 Marlas. The vendors can sell only the share of their father in the property and no more. It was claimed by the appellant, however, that he was entitled to be compensated for the deficiency in the land purchased by him in Khasra No. 97 out of Khasras Nos. 920/1 and 925 in which his vendors were recorded owners. On going through the sale‑deed, the learned trial Court observed that there was no reference or clause in the sale‑deed to the effect that the vendors were to compensate him for the deficiency in area out of their other land and in the absence of any such agreement, the plaintiff cannot ask for compensation out of the other land of the defendants/ vendors. The learned trial Judge finally came to the conclusion that the appellant was entitled to the share of Mst. Gul Andama and Ghani equal to 21/40 share i.e. 4 Kanals and 4.1/2 Marlas in Khasra No. 97, and, therefore, he dismissed the rest of the claim vide his judgment, dated 29‑4‑1961. Regarding the claim of Alif Khan, it was held under issue No. 6 that claim of respondent No. 1 that he had become owner by prescription in Khasra No. 97 was not accepted.

5. Against the aforesaid judgment, an appeal was preferred before the District Judge which was heard by learned Additional District Judge, Peshawar who, vide his judgment, dated 9‑9‑1961 held: "Since Mst. Gul Andama and Ghani Khan tvere the owners of only 21/160 share of Khasra No. 97 the sale of 2 Kanals 13 Marlas of land out of this Khasra number by them in favour of the plaintiff Nawab was a Hissadari sale and, therefore, subject to the right of partition of the other co‑sharers. Now in the partition that took place vide Mutation 1397, 2 Kanals 14 Marlas of land, out of Khasra No. 97, went to the other co‑sharers and the plaintiff had, therefore, no right to that portion of the Khasra number from the other co‑sharers. 2 Kanals 3 Marlas of Khasra No. 97 went to Alif Khan one of the heirs of Ghulam but then the plaintiff cannot get any portion of 2 Kanals 3 Marlas as he was a party to the suit in which this land was claimed by Mir Alam from Alaf Khan. The plaintiff is thus not entitled to any portion out of Khasra No. 97." The learned Additional District Judge further held: "He cannot claim any portion of Khasras Nos. 920 and 925 from Ghani and Mst. Gul Andama on the basis of the sale‑deeds in his favour because there is no stipulation in the sale‑deeds that in the event of his losing Khasra No. 97 he was to be reimbursed from any other land of the vendors. The sale‑deeds clearly shows that he was purchasing land from co‑sharers in excess of their shares and if he wanted any safeguard for himself, he should have entered an indemnity clause in the sale‑deeds as his sale‑deeds were apparently subject to the rights of the other owners to enforce a partition." Consequently, the learned Judge upheld the finding of the trial Judge on issue No. 3 and set aside his findings on issues Nos. 1 and

2. He thus dismissed the appeal of Nawab appellant while accepted the appeal filed by Mir Alam as two appeals were preferred before him by both the parties.

6. Civil revision filed by the appellant before the Peshawar High Court was dismissed by a learned Single Judge, per order, dated 1‑7‑1969 holding. .It is the appellant's case that at the time when Ghani Khan and Mst. Gul Andama sold the land in dispute to the appellant, they had not inherited the land from Mst. Sadiqa, their mother. She, infect, remarried later, and was inherited by Mst. Gul Andama and Ghani Khan. What the two had inherited, could not have been given to the appellant for the bargain in which he had suffered. In fact the appellant was entitled to the decree of the particular land that he had purchased. The fact that the transferors later inherited other land, would not entitle the appellant to a decree or possession of that land." Letters Patent Appeal, filed by appellant Nawab and others was also dismissed by a Division Bench of the Peshawar High Court per order, dated the 13th March, 1979.

7. Learned counsel contended that the Courts below have failed to apply the law as contained in section 43 of the Transfer of Property Act. The learned Judges of the High Court has not given any cogent reasons for the application of the section which reads as under:‑

"

43. Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of said option. " That even if it be assumed that the vendors subsequently became the owners of the property, they were bound under the principle of estopple to make good the loss and not to claim their subsequent interest, they had to face their estoppel and the principle of feeding the estoppel was very much applicable; and that the equitable doctrine of estoppel requires a man to make his representation good under section 115 of the Evidence Act, whether the representation at the time of sale was fraudulent or erroneous. That the above principle is also contained under section 18(a) of the Specific Relief Act and is supported by the Judgment of this august Court in P L D 1964 S C 337 note (1).

8. It was observed in S. Sibtain Fazli v. Star Film Distributors and Muhammad Ali Khan P L D 1964 S C 337. "It is true that at that date as yet the vendors were not owners of what they were transferring, but this clause has the same effect as the sale of property to which the vendor at the time of sale does not have a title. In the case of such a sale, two consequences follow. The first is that it implies an agreement to sell which has not yet been legally performed and, therefore, has to be performed. The second is that the principle of feeding the estoppel contained in section 43 of the Transfer of Property Act becomes applicable. A transfer by a person of property which he represents he is entitled to transfer, but in which his title is doubtful or lacking, will operate on any interest which he may acquire subsequent to the transfer in that property so that the transferee becomes the owner of that interest. If defendant No. 1 sold Chandranath at the time of transfer then any title which he acquires afterwards in Chandranath will pass to the vendee." But reading the facts of this case would show that the defendant entered into an agreement with the Star Film Distributors, the plaintiff in that suit, for transfer to them of rights of distribution, exhibition and exploitation of the film 'Chandranath' for a specified sum out of which part payment was made and balance was to be paid later on in two instalments. In this agreement there was a clause to the effect that if 'Chandranath' was not available the plaintiff firm would be entitled to have another picture of its own choice imported by defendant No.

1. Later on the import licence which had been sanctioned for the import of the said film, was not issued on account of general stay order granted by the Karachi Bench of the High Court of West Pakistan in a writ petition. The plaintiff received a letter from defendant to the effect that the agreement between them had become infructuous as defendant No.l had failed to open, in accordance with the terms of that agreement a Letter of Credit within four months. There was a clause in the agreement that if a Letter of Credit was not opened within four months the Screen Classics was entitled to treat the Agreement as null and void. On receipt of this letter the plaintiff apparently accepting that the Agreement had become null and void, replied that there was a clause in the Agreement permitting the plaintiff to have a picture of its own choice in case Chandranath was not available and, therefore, gave his choice for another film and requested the defendant to import that film. The defendant in the first place denied that there was any such clause in the Agreement and it was in this context that the learned Judges had made the observations quoted above. This case, therefore, is not near the proposition in hand for the reason that the Courts below have already held that there was no warranty in the Agreement to compensate the appellants for the loss he may sustain due to non‑availability of the area of the land which he had purchased from Ghani Khan and Mst. Gul Andama.

9. This Court has held in Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C (Pak. ) 9 . at page 12: "A plain consideration of the nature of the transaction in the circumstances of this case, could, in our opinion, lead to but one conclusion. The vendee of a co‑sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property, no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co‑sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the adjoining property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co‑sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co‑owner, in an undivided Khata, does not become a co‑sharer in that Khata. It may be pointed out that the mutations in favour of the appellant, which are on the record, describe the sale transactions in his favour as Hissadari sales of the joint Khata in suit ...."

10. The facts admitted are that the sale‑deeds in respect of Khasra No. 97 were executed by Ghani and Mst. Gul Andama the vendors and their plea that these were obtained fraudulently and were ineffective against their interest because at the time of their execution, Ghani was minor and Mst. Gul Andama was a Purdahnashin woman. The burden of proof was on the defendants/ respondents to prove the allegations but they have failed to discharge their burden. There is no evidence to show that any fraud was practised on the vendors/ respondents or they were subject to undue influence. The claim of defendant No.l that he was minor at the time of sale is also not established. The sale‑deeds executed by him in favour of the plaintiff are dated 19th February, 1950. On the record we find copy of entries as regards the birth of defendant No.l, from the Birth Register which is Exh. P.W.

11. Its perusal will show that defendant No.l was born on 12‑7‑1928 and at the time of execution of the sale‑deeds he was more than 21 years of age. In these circumstances he could not avoid his responsibility by pleading minority. It leads us to the conclusion that defendants Nos. 1 and 3 sold two Kanals and thirteen Marlas of land in favour of the plaintiff. The sale‑deeds were neither fictitious nor were these obtained fraudulently and these were binding as far as the interest of the vendors in Khasra No. 97 was concerned.

11. Result of the above discussion would be that the plaintiff /appellant is entitled to the share of his vendors sold to him in Khasra No.97 only as successor‑in‑interest of the deceased Ghulam by vendors of the plaintiff /appellant alongwith Alif Khan and Mst. Sadiqa who had inherited 1/4th share in Khasre No.

97. They were shown as such in the revenue record till the Jamabandi of 1954‑

55. In the succeeding Jamabandi of 1958‑59 Khasra No. 97 has been shown divided in three pieces and is shown by Nos. 1865/97/2, 1866/97/3 and 1863/97/1. Mir Alam has been shown owner of Khasra No. 1863/97/2, Sharif Khan that of Khasra No 1866/3 and Lal Bahadur etc. that of 1863/97/1. The present plaintiff had purchased the share of Ghani and Mst. Gul Andama out of Khasra No. 97 before partition. At the time of partition, he was not given any share in Khasra No.

97. The partition was evidently wrong. He should have been given the share of Mst. Gul Andama and Ghani in Khasra No.

97. As such he was entitled to the share of these two vendors.

12. In the light of above discussion we allow this appeal and grant the plaintiff /appellant decree for possession of 21/40 share which comes to 1 Kanal and 4J Marlas in Khasra No.

97. As regards the share of Ghani and Mst. Gul Andama in the remaining Khasra numbers the plaintiff /appellant shall be entitled to the share of these two vendors. Appeal allowed in the above‑mentioned terms with no order as to costs. M . B . A . Appeal allowed.