2006 PLP 189 (CLC)

SYED ZAHID HUSSAIN, J.

A suit for possession instituted by the appellants qua the suit property situated in Mohallah Qureshian, Lala Musa, (fully described in the plaint) was contested by the respondents and was decreed in the first instance by the learned trial Court on 9-6-1990. On appeal however, the matter was remanded by the Appellate Court vide judgment 4-3-1996. On retrial of the matter, the suit was again decreed by the learned trial Court on 8-10-1997. The appeal preferred there against was however, accepted by the learned Additional District Judge, Kharian on 30-6-1998. This is regular second appeal in that context.

2. Assailing the judgment of the learned Appellate Court, it is contended that the Court had itself found that the true owner was Mst. Iqbal Begum but despite that respondent No. 1, has been held to be the bona fide purchaser who had purported to purchase the same from one Muhammad Younas who had no title whatsoever, in the property. According to the learned counsel, for proving the plea of bona fide purchaser the preconditions/ingredients. factual/legal were not satisfied by respondent No. 1, the Appellate Court thus acted illegally in reversing the well-reasoned judgment of the trial Court. It is further contended that respondent No.1 did not act with reasonable care nor made any inquiry as to the ownership of the property and thus, failed to exercise due care and caution and cannot be considered as bona fide purchaser. The non-production of Muhammad Younas from whom respondent No. 1 claims to be the vendee is one such defect, which has been highlighted by the learned counsel. It is further contended that despite notice published in the press the respondent No.1 chose to purchase the property, it was thus, for him to have proved that he acted in good faith. So far as entries in taxation record are concerned it is contended that the same do not establish of their own the title to the property. He has cited Mst. Aimna Bi v. Mst. Bivi and others 1993 MLD 1207; Muhammad Jamil and others v. Lahore Development Authority and 3 others 1999 SCMR 2015; Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303.

3. The learned counsel for the contesting respondent, while supporting the judgment of Appellate Court has endeavoured to cast doubt as -to the title of Iqbal Begum (the predecessor-in-interest of the appellants) in view of some patchy entries in the Revenue/Excise and Taxation record. It is contended by him that the plaintiff should have first sought declaration as to ownership and only then they could claim possession. According to the learned counsel findings rendered by the Appellate Court that respondent No. 1, was a bona fide purchaser for value, do not suffer from any factual/legal infirmity and should be upheld.

4. On 16-4-1979 the appellants/plaintiffs had brought the suit for possession as successors-in-interest of Mst. Iqbal Begum on the basis of entries in the Jamabandi of 1964-65 (Exh.P.1) and mutation of inheritance dated 18-11-1978; whereas the defence of respondent No.1 was that he was vendee from Muhammad Younas vide sale-deed dated 8-2-1979 (Exh.D.1), and had protection of S-41 of Transfer of Property Act, 1882. In the first round of contest, the trial Court decided issue No.3(as to the ownership of Mst. Iqbal Begum) in favour of the appellants that Mst. Iqbal Begum was the owner of the house and after her death they had become owners thereof. As to the plea of respondent No.1, being the bona fide purchaser, findings on issue No.8-A was returned against the defendant, that he had not even inspected the Revenue Record and the suit was decreed on 9-6-1990. On 4-3-1996 the learned Additional District Judge, Kharian, however, remanded the matter to the trial Court by framing additional issue No.8-C (as to limitation). After that the successor Judge of the trial Court on reconsideration of the evidence again came to the conclusion that Mst. Iqbal Begum was owner of the property and after her death her legal representatives became owners: It was found by him that admitted position of respondent No.1 was that he never inspected the Revenue Record before purchasing the house, therefore, he could not claim protection as bona fide purchaser. The issue of limitation was also decided against the defendants. On appeal the learned Appellate Court also affirmed the findings as to ownership of Mst. Iqbal Begum but held respondent No.1 as bona fide purchaser from Muhammad Younas as per findings in paras.21 and 23:-- "(21) The result of the above discussion is that on the one hand Revenue Record existed in favour of Mst. Iqbal Begum and her legal heirs and on the other hand, the record maintained by the Municipal Committee, Lalamusa existed in favour of Zafar Qureshi. The said material pertained to one and the same house and at the time of the execution of the registered sale-deed Nazir Hussain Shah was confronted with the record of the Municipal Committee and at the relevant time Muhammad Younas was in possession of the disputed property. Nazir Hussain Shah, as it appears, was not presumed to consult the Revenue Record and he had every reason to accept Muhammad Younas to be an ostensible owner of the disputed house. Consequently, despite the fact that house recorded in the said Khasra number belonged to Iqbal Begum yet Nazir Hussain Shah was a bona fide purchaser. (23) In view of my above discussion, it is held that Nazir Hussain Shah purchased the disputed house from Younas Qureshi in consideration of Rs.60,000 vide registered sale-deed dated 8-2-1979 and he is its bona fide purchaser." Since findings as to ownership and title of Mst. Iqbal Begum have successively and concurrently been in favour of the appellants as her successors the same need not be re-examined particularly, when no cross-objections have been filed by respondent No.1. The Appellate Court has, however, while reversing findings of trial Court on issue No.8-A, held respondent No.1 as bona fide purchaser. In doing so the Appellate Court has acted not only contrary to the evidence and the law, its approach was entirely self-contradictory and inconsistent. How far, the Appellate Court was justified in holding respondent No.1 as bona fide purchaser may be considered. The principle of bona fide purchaser or purchaser in good faith stems from the provisions of section 41 of Transfer of Property Act, 1882. It has come up for consideration before the Courts, time and again. Broad guiding principles culled out are that; (i) the transferor is the ostensible owner. (ii) he is so by the consent, express or implied, of the real owners; (iii) the transfer is for consideration; (iv) the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer. There is admission by respondent No. 1, (D.W.7) that he did not make enquiry as to title of Muhammad Younas by inspecting Revenue Record. That should have been the basic and first thing to be done by him but he simply seems to have relied upon the word of Muhammad Younas who claimed to be the brother of Zafar Qureshi: He was nowhere recorded as owner of the property. He could not have passed on title to anyone. The record of municipality for taxation purpose, at the most showed Zafar or Muzaffar as the owner but not Muhammad Younas. He was not even produced by respondent No.

1. There was heavy burden upon respondent No. 1, qua issue No. 8-A, which he failed to discharge. Since the findings of fact as to ownership of property was in favour of the appellants, even if they did not claim declaration would not make any difference. It was indeed respondent No.1, who should have exercised care and caution before the purported purchase by him, particularly when there was a public notice published in the newspaper dated 25-1-1979. The view taken by the Appellate Court does not have the backing of any substantial material and the law. I am, therefore, unable to uphold such an illegal and erroneous approach of the Appellate Court. As a result, by accepting the appeal, the judgment of the Appellate Court dated 30-6-1998 is set aside and that of the trial Court dated 8-10-1997 is restored. No order as to costs. M.B.A./A-662/L????????????????????????????????????????????????????????????????????????????????? Appeal accepted.