P L D 1972 Lahore 855 (PLP)

Claim In appeal.‑Revision Petition (appeal) be accepted and the judgment and decree of the Courts below set aside and the suit of Ghulam Hassan plaintiff (respondent) dismissed with costs throughout. Sh. Ataullah Qureshi for Appellants. Date of hearing: 5th November 1971. A. R. SHEIKH, J.‑This second appeal has arisen out of :these facts. Muhammad Khan of Basti Gil Kala, Tehsil Shorkot, District Jhang, died leaving him surviving six sons including Hasan Khan (respondent No. 22) and Ghulam Hussain (respon dent No. 1). Out of his inheritance Hasan Khan sold his I/6th share in the holding, without share in the shamilat, In favour of his nephew Ghulam Khan by means of mutation No. 43, dated the 11th of January 1930 (Exh. P. 4). Subsequently Hasan Khan sold his share in the shamilat to different persons, with which property we are not concerned in the present litigation. Because of inadvertence of the Revenue officials, Hasan Khan's name continued to appear in the proprietor's column of the revenue record as a co‑sharer along with his five brothers in the Khata and taking advantage of that erroneous entry, Hasan Khan re‑sold his 1/6th share to Amir Shah, the father of Manzoor Hussain, Riaz Hussain (appellant) and Mst. Hakim Bibi (respon dent No. 23), by a registered sale‑deed, on the 12th of June 1940 (Exh. D. 1) The land sold to Amir Shah fell by partition to the share of Ghulam Hussain, who brought the present suit for declaration to the effect that he is the owner in possession of 44 kanals 18 marlas of land (details of which appear in the plaint) with share in the shamilat according to the Jamabandi for the year 1955‑

56. The claim rested on the ground that Hasan Khan having sold his share in the land to Ghulam Khan as far back as the 11th of January 1930 was left with no title in the land In suit and the re‑sale of the same property to Amir Shah In 1940 was void and ineffective against the proprietary rights of Ghulam Hussain. The suit was resisted on the pleas of limitation, form and valuation of the suit and bona fide purchase for consideration. The trial Court while rejecting the defensive pleas has granted a decree to the effect that Ghulam Hussain, the plaintiff, is the owner of 35 kanals 2 marlas of land situate in Khata No.

13. The heirs of Amir Shah have remained unsuccessful in their appeal before the Additional District Judge.

2. Before us, learned counsel has not challenged the concurrent findings as to limitation and incompetence of Hasan Khan to resell the land, previously sold to Ghulam Khan. However, on the question of bona fide purchase for considera tion by Amir Shah, he made a feeble attempt to argue that the Courts below have erred in not invoking the principle laid down in section 41 of the Transfer of Property Act in favour of Amir Shah, who, according to him, was a bona fide purchaser for value, without notice of any defect in the title of the vendor Hasan Khan, who was the ostensible owner of the disputed land. Under this limb of the argument it was contended that the Courts below have failed to take notice of the fact that Ghulam Hussain bad not prayed for the cancellation of the registered sale -deed made in favour of Amir Shah by his vendor Hasan Khan on the ground of want of title of the said vendor and as such the decree cannot have the effect of cancelling the sale transaction. This argument has been met by learned counsel for the respon dents by saying that the finding of the Courts below that the alleged payment made by Amir Shah vendee to Hasan Khan vendor is not free from doubt was not assailable in second appeal, especially when there is no misreading of evidence. He further maintained that no doubt the principle of equity embodied in section 41 of the Transfer of Property Act is applicable to the Province of the Punjab, the same could not be pressed into service in the instant case. He referred to the Full Bench authority of the Lahore High Court in Shamsher Chand v. Bakhshi Mehr Chand and others (A I R 1947 Lah. 147).

3. Section 41 of the Transfer of Property Act makes an exception to the rule that a person cannot confer a better title than he has but the presence of the following ingredients is essential for the application of the principle embodied ` therein‑ (a) the transferor is the ostensible owner; (b) he is so by the consent, express or implied, of the real ill owner; (c) the transfer is for consideration; and (d) the transferee has acted in good faith, taking reason able care to ascertain that the transferor had power to transfer. On the principle that the proper legal effect of a proved fact is necessarily a question of law, we agree with learned counsel for the appellants that the question whether the equitable doctrine contained in section 41 of the Transfer of Property Act applies to the facts of the case before us is a question of law. We, however, find that out of the four elements enumerated above, the only proof available on the record is that of Hasan Khan being the ostensible owner in the revenue record. The rest of the three elements are wanting and as such the transferee is not entitled to the benefit of the principle of the said section. Con fronted with this situation, learned counsel for the appellants did not press the argument further.

4. The result is that the appeal fails and is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs. K. B. A. Appeal dismissed.