1993 PLP 450 (MLD)

5. Meanwhile one Musawar Hussain got Mutation No. 112 entered on 1‑9‑1962 on the ground that he had purchased some land from Mst. Mehmoona Begum. She resisted his claim and the mutation was rejected on 1‑11‑1962. Musawar Hussain filed an appeal before the Collector, who, vide his order, dated 23‑7‑1963, accepting the same, remanded the case to Assistant Collector‑II (Tehsildar). While proceedings after the remand were pending before him, respondents Nos.2 to 5 by an application moved by them, became a party thereto on the allegations that they had purchased 404 Kanals 14 Marlas, including the suit land, from Mst. Mehmoona Begum and her brother Nawab Noor Khan, vide registered sale‑deed, dated 7‑12‑1960. On 8‑11‑1963 Musawar Hussain applied to the Assistant Collector‑II (Tehsildar) for the appointment of a receiver for the standing crops. At this stage the plaintiff petitioner, who had allegedly harvested the crops, was also impleaded as party to those proceedings. The transaction in his favour was endorsed by Mst. Memoona Begum and her brother Nawab Noor Khan on 14‑10‑1964. On the basis of this endorsement, the Assistant Collector‑II (Tehsildar) rejected the claim of Musawar Hussain as also of respondents Nos.2 to

5. The latter challenged this order before the Collector, Sheikhupura, who, vide his order, dated 3‑11‑1965, again remanded the case. Against this order the plaintiff petitioner went up in appeal, which was accepted by the Additional Commissioner, Lahore, vide his order, dated 24‑6‑1966. Against this order, respondents Nos.2 to 5 fled a revision before the Board of Revenue, which accepted the same on 4‑7‑1969, upholding the order of remand passed by the Collector, Sheikhupura.

6. In this order; the Board of Revenue, however, gave an indication that the petitioner could seek his remedy in a civil Court. Acting on this observation, the petitioner brought a suit against Mst. Mamoona Begum and the respondents herein, praying for a declaration that he was owner of the disputed land on the basis of registered sale‑deed, dated 19‑2‑1963 and the consequent Mutation No.113 sanctioned on 15‑4‑1963, and the registered sale- deed, dated 7‑12‑1960 executed by her in favour of the respondents was without lawful authority. He also sought to restrain his opponents from interfering in his possession. The suit was dismissed on 23‑11‑1987 and his appeal was dismissed by the learned Additional District Judge Judge, Sheikhupura on 11‑3‑1989, giving rise to this civil revision.

7. Another offshoot of the litigation between the parties was that against the, cancellation of the allotment of land of Mst. Mamoona Begum and her brother Nawab Noor Khan under Martial Law Regulation No.89, the respondents herein had filed an appeal, challenging the order of Assistant Rehabilitation Commissioner, Ferozewala, dated 15‑11‑1961. The Deputy Settlement Commissioner, Sheikhupura, vide his order, dated 24‑1‑1964, dismissed their appeal. They went up in revision before the Additional Settlement Commissioner, Lahore, who, vide his order dated 25‑9‑1964, accepted the same and restored their allotment.

8. In any case, the respondents had resisted the suit of the petitioner in the Court of Civil Judge Ist Class; Ferozewala, by asserting the genuineness of the sale transaction, dated 7‑12‑1960 of the disputed property, besides other land, in their favour and on the pleadings of the parties the following issues were framed: ‑ (1) Whether the suit is within time? O.P.P. (2) Whether the suit is not maintainable in its present form? O.P.D. (3) Whether the sale‑deed, dated 7‑12‑1960 in favour of defendants 2 to 5 is void, illegal and ineffective upon the rights of the plaintiff? O.P.P. (4) Whether the plaintiff is a bona fide purchaser for valuable consideration of the disputed land vide registered sale‑deed, dated ‑. 19‑2‑1963? O.P.P. (5) Relief.

9. After recording the evidence of the parties and hearing their counsel, learned trial Judge decided Issue No. 1 in favour of the plaintiff, Issue No.2 against the defendants and Issues Nos.3 and 4 against the plaintiff. Aggrieved by these findings, the plaintiff‑petitioner went up in appeal before the learned Additional District Judge but there too he remained unsuccessful as the same was dismissed, vide judgment, dated 11‑3‑1989, against which he came up in revision to this Court.

10. Before me, the learned counsel for the plaintiff‑petitioner called in question the findings of the Courts below on Issues Nos.3 and

4. His main contention was that his client was a bona fide purchaser for valuable consideration of the disputed land pursuant to the registered sale‑deed, dated 19‑2‑1963, as he was not aware of the sale transaction of the suit land in favour of defendants‑respondents Nos.2 to 5 as allegedly embodied in their registered sale‑deed, dated 7‑12‑1960, nor he could possibly have any notice thereof because it had not been incorporated in the Revenue Record nor they were in possession of the disputed land. According to him, Mst. Mehmoona Begum, one of the vendors, had, during the pendency of the proceedings before the revenue officer, initiated against her by Syed Musawar Hussain Shah in respect of Mutation No.112 of village Toong, made a categorical statement, copy of which is (Exh.P.l), that she had not sold the suit land to anybody and this statement was sufficient to repudiate the existence of sale transaction in favour of the defendants‑respondents but this piece of evidence was not considered by the Courts below in its true perspective.

11. On the contrary, it was argued on behalf of the defendants respondents that before the registered sale‑deed, dated .7‑12‑1960, could be incorporated in the Revenue Record, the allotment of suit land and other land in favour of Mst. Mehmoona Begum and her brother Nawab Noor Khan was cancelled under Martial Law Regulation No.89 which gave rise to protracted litigation between the parties, in which one Musawar Hussain had also jumped in and since it still continues, there could be no occasion for the Revenue Authorities to incorporate it in the revenue papers. According to the learned counsel, the sale‑deed, dated 7‑12‑1960, executed and registered in favour of defendants‑respondents Nos. 2 to 5 was by itself a clear notice to the entire world including the defendant‑petitioner, and during the trial it was duly proved by the testimony of its marginal witnesses but the so‑called sale‑deed, dated 12‑2‑1983, relied upon by the plaintiff‑petitioner was never lawfully proved and it could not be even read in evidence. With regard to the statement of Mst. Mehmoona Begum (Exh.P.1) the learned counsel commented that it had no evidentiary value because in the first instance it was not ascertainable as in which Court or forum it was made nor it was put to Mst. Mehmoona Begum, who was once impleaded as defendant in the suit but later her name was omitted on the request of the plaintiff‑petitioner himself.

12. It is an admitted position that the disputed land formed part of two sale transactions, one in favour of the defendants‑respondents Nos.2 to 5 as I embodied in their registered sale‑deed, dated 7‑12‑1960, and the ether in favour of the plaintiff‑petitioner, as incorporated in his registered sale‑deed, dated 19‑2‑1963. Each of the parties clams preference of its transaction over the other on the basis of bona fide purchaser for valuable consideration and without notice. Between these two transactions an important event took place in the form of overriding legislation i.e. Martial Law Regulation No.89, which had the effect of entailing the cancellation of the allotment of the disputed land, besides other land, held by Mst. Mehmoona Begum and her brother Nawab Noor Khan. However, the allotment of most of the land including the disputed one was soon after restored in their name. Therefore, the validity of the sale transaction, dated 7‑12‑1960, in favour of defendants‑respondents Nos.2 to 5 remained unaffected. It appears that Mst. Mehmoona Begum and her brother Nawab Noor Khan, taking advantage of this event or otherwise out of mala fides, resold the suit land to the plaintiff‑petitioner, vide registered sale‑deed, dated 19‑2‑1963. It may also be a genuine transaction so far as the plaintiff‑petitioner is concerned but it could not displace or substitute the earlier one, which was in favour of his opponents. The statement of Mst. Mehmoona Begum, copy of which is (Exh. P.1), allegedly made by her before some revenue officer can be of no avail to the plaintiff petitioner because it was basically directed against Syed Musawar Hussain, whose claim she was contesting, and not against defendants‑respondents Nos.2 to 5, who were not a party to those proceedings. Even if she had made this statement, it could not take effect in the subsequent proceedings of the civil suit brought by the plaintiff‑petitioner, unless she was confronted with it by bringing her in the witness‑box. This procedure was not followed by the plaintiff‑petitioner, who, instead of retaining her as defendant in the suit, had thought proper to drop her from the array of the defendants. Therefore, her statement (Exh. P.1) could be of no avail to him.

13. Defendants‑respondents Nos.2 to 5 proved their registered sale‑deed, dated 7‑12‑1960, by examining the marginal witnesses. It was a genuine document. It might not have been incorporated in the Revenue Record because soon after it came into existence, Martial Law Regulation 89 did away with the very allotment of the vendors and the litigation having many off‑shoots started and it still continues. There was, therefore, no occasion for the Revenue Authorities to incorporate it in the Revenue Record. In these circumstances, the plaintiff‑petitioner cannot take advantage of the non‑ B existence of its entries in the Revenue Record to assert himself as a bona fide purchaser for value without notice. Rather, the defendants‑respondents Nos. 2 to 5 are the bona fide purchaser of the suit land and once the vendors sold it to them, there was no justification for them to resell .it in favour of plaintiff petitioner, who was virtually deceived by them and he can proceed against them or their successors‑in‑interest for the vindication of his rights. In view of the above, there is no substance in the civil revision and the same is dismissed, leaving the parties to bear their own costs. H.B.T./M‑445/L Revision dismissed.