P L D 1977 Quetta 60 (PLP)

(5) Whether the plaintiff acquiesced in the alleged fraud and if so, is the plains tiff not entitle "J to injunction era; ad fox ? (6) Whether the plaintiff had approached the Police in April, 1906, after being aware of the alleged sale and defendant No. 3 had given an undertaking the; he would not construct ? If so, to what effect ? . (7) Whether the defendants 3 and 4 acted in good faith ? If so, to what effect ? (8) Relief ? The plaintiff examined as many as 8 witnesses in Court while four were examined on Commission. Defendant No. 3 examined only one witness. The learned Additional District Judge, Quetta who ultimately decided the suit partly granted the relief. He in his judgment dated 13th May, 1971 held that the suit was properly valued ; that no power of attorney has been executed by plaintiff Nisar Ali in favour of Muhammad Aslam, and that if any was executed it must be held to be forged one. As no receipt was brought an record, and the onus to prove the alleged forgery lay on the plaintiff: which was not discharged, the learned Additional District Judge decided Issue No. 3 against him. The learned trial Judge also held that construction on the plot had been completed but the plaintiff's prayer for demolishing the same could not be granted. This was so held because the learned trial Judge came to the conclusion that the purchase by defendant No. 4 was protected under section 41 of the Transfer of Property Act (hereinafter referred to as the Act). However the contention of Muhammad Jan Ghaznavi defendant No. 3, that he was a bona fide purchaser with Consideration, did not find favour with the learned trial Judge and he held that thi3 defendant had failed to produce the alleged power of attorney much less to prove it, that he had failed to prove the payment of any amount to the actual owner who is admitted by him to be the plaintiff, and the purchase of the disputed plot by him is found by the trial Judge to be maid fide. As to relief the learned trial Judge came to the conclusion that as defendant No. 4 being entitled to the protection of section 41, the relief of possession could not be granted. He absorbed that as defendant No. 3 was found to be a male fide purchaser, who had paid no consideration for the plot in dispute he was not entitled to the same protection. The plaintiff was therefore granted a money decree in the amount of Rs. 23,191 as against defendant No.

3. Regular First Appeal No. 3 of 1971 is filed by Mohammad Jan Ghaznavi defendant No. 3 challenging the decree passed against him. At the same time plaintiff Nisar Ali has filed cross-objections claiming that he is entitled to the original relief prayed for by him in his suit. In the alternative he claims he be granted decree equivalent to the price received by Muhammad Jan Ghaznavi from Asgbar Ali. Mr. W. N. Kohli, has appeared for the appellant while cross-objector respondent Nisar Ali is represented by Mr. Moquim Ansari, and respondent Asghar Ali is represented by Mr. Basharatullah. Respondents 1 and 2 have not appeared inspite of service. Mr. Kohli contends that appellant Mohammad Jan Ghaznavi is equally entitled to the protection afforded by section 41 of the Act. His grounds are that an attested power of attorney was produced before him, that the alleged attorney was a permanent resident of Quetta while the executor used to stay permanently in Karachi, that part payment was made at the time the agreement to sell was entered into, sad that full payment was made at the time of mutation entry on 11th December, 1965. He further contends that physical possession was delivered and he raised Kacha construction on it soon after. It is also asserted by Mr. Kohli that till the filing of the suit about one and a half year after the purchase of land by the appellant, the plaintiff had raised no objections. Section 41 of the Act is based on the principle enunciated by the Privy Council in the famous case of Ramcoomar Koondoo v. Macqueen (521 A 40 (Suppl.)). This principle of law appears in the following passage :

"It is a principle of natural equity which must be universally applicable that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief -that he is the real owner, the man who so allows the ether to hold himself out shall not be permitted to recover upon his Secret title, unless he can overthrow that of the purchaser by sewing either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it." These principles were later incorporated in section 41 of the Act, which was subsequently enacted. The section is reproduced below for facility sake :

"S. 4l.-Where with consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it ; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith." Generally a purchaser cannot take more than vendor has to sell. Bu the rule as contained in section 41 of the Act provides an exception to the general rule. It is based on the principle that where one of the two innocent persons must suffer from the fraud of a third party, the loss should fall on him who has created: or could have prevented, the opportunity for fraud and that in such cases hardship is caused by the strict enforcement of the general rule that no one can confer a higher title on property than he himself possesses. The rule, as an exception to that general principle, is a deduction from the law of estoppel. An estoppel has always to be pleaded clearly with specific facts to be relied upon in this behalf. And the onus to prove that a poison is entitled to the benefits of section 41 always lies on the person who pleads such protection. One Muhammad Jan Ghaznavi admitted Nisar Ali to be the real owner, as he did in his written statement, it was for him firstly to specifically plead the protection under section 41 of the Transfer of Property Act together with the facts on which such protection is claimed. And secondly the onus lay entirely upon him to prove all the facts in support of such a plea. He did not take any such plea in hill written statement. If from the facts pleaded it could be reasonably inferred that a plea of protection under section 41 of the Act could be extended to the appellant, then it was for him to discharge the onus that the law lays upon him to prove the elements of such a protection. This is the principle enunciated in Hargovind Prasad v. Ambika Durt Ram (A I R1934 Oudh 165) and Ram Sarup v. Maya Shankar (33 P W R 1919). The elements of section 41 of the Act, are ;

(1) The transferor is the ostensible owner, (2) he is so by consent, express or implied of the real owner, (3) the transfer is for consideration, and (4) the transferee has acted in good faith, taking reasonable care to, ascertain that the transferor had the power to transfer. In order to show that Muhammad Aslam wag the ostensible owner Muhammad Jan Ghaznavi took the plea that Aslam was the regularly constituted attorney of Nisar Ali. No power of attorney has been produced. Mr Kohli has felt aggrieved at the lower Court's decision when it lay the onus to produce arid prove the power of attorney on the appellant. He contends that as the photostat copy of that power of attorney has come from the possession of Nisar Ali therefore it should be presumed that the original would also be with him. This is one of the strangest arguments one can hear in Court. There is no principle of law according to which such a presumption could be drawn. No independent evidence has been brought on record to show if the power of attorney was not with the alleged attorney but with the principal. It may however, be mentioned that photostat copy was refused to be admitted in evidence by the learned trial Judge. However the onus to show that Mohammad Aslam was the regularly constitued attorney of Nisar Ali lay squarely upon the shoulders of Muhammad Jan Ghaanavi ; firstly because Nisar Ali, was, admittedly the owner of the plot Muhammad Jan Ghaznavi, wanted to purchase, and secondly because, it is contended that Aslam bad the power to sell the sane. He made no efforts at the discovery of the alleged power of attorney, much less to prove if any was executed. On the other hand Nisar Ali examined Masood Ahmed Ansari, Clerk of a Notary Public in Karachi, to show that a it was not Niaar Ali, but somebody else wino posed as Nisar Ah, when a power-of-attorney was brought to him sometimes in November, 1965. He categorically state that power of attorney, which was purported to have been executed by one Haji Nisar Ali was rot brought by the Nisar Ali of the present proceedings ; and that the efforts to get that power-of attorney registered did not succeed. Although Nisar Ali was under no obligation to prove a negative fact but still in view of this evidence there are no grounds to interfere with findings of the learned trial Judge that Nisar Ali had not executed any power of attorney, and that if any executed it should be held to be a forged one. That being the case it does not lie with the appellant to claim that Muhammad Aslam was the ostensible owner of oho disputed piece of land or had the power to sell it. This finding alone is enough to repel the contention of the appellant as regards the extention of the principle underlying section 41 of the Act to his case. But he has also failed if be paid any consideration either to the real owner or to Muhammad Aslant. In his statement before the Court Muhammad Jan Ghaznavl contended that the earnest money was paid through a cheque and that the balance was paid before the Tehsildar at the time of attestation of the mutation. No counterfoil of the cheque has been produced nor is there any other proof of the payment of earnest money. Mutation No. 413 (Exh. D/1) states that the sale price had been paid outside the Court. This recital in the mutation belies the second contention of the appellant. The Tehsildar has also not been examined in this behalf. In these circumstances the payment of consideration by Muhammad Jan Ghaznavi to Nisar Ali, or even to his alleged attorney is not proved. Thus two of the important elements of section 41 of the Act are wanting in the case of Muhammad Jan Ghaznavi and he is therefore not entitled, to the protection afforded by this section. As far as the case of Asghar Ali is concerned he purchased the disputed plot, alongwith the additions, area of 1949 sq. ft. from Muhammad Jan Ghaznavi, who was the ostensible owner, ant the payment of consideration is duly proved. But Mr. Moquim Ansari, the learned counsel for Nisar Ali, contends that element of reasonable care on the part of Asghar Ali to ascertain if Muhammad Jan Ghaznavi had the power to transfer is conspicuously missing His contentions are that according to section 54 of the Act any transfer of a tangible immovable property of the value of Re. 100 and upwards could only be made through a registered instrument and because on which instrument bad been executed between Muhammad Aslam and Muhammad Jan Gheznavi therefore the title for the property had not passed. In the absence of a registered sale Asghar Ali should have been thrown on his guards to inquire if Muhammad Jan Ghaznavi had the power to sell. This is a weighty objection to which Mr. Basharatullah could net provide any answer. The expression 'reasonable care' as used in section 41 of the Act means such care as an ordinary man of business or a man of ordinary prudence would take. As observed by the Privy Council is Ram Commar Kundoo's case, referred to above, that it is not enough generally to assert that inquiries should be mace by the prospective purchaser, but that the circumstances should be of "such a specific character that the Court can place its fins, upon them and say that upon such facts some particular inquiry ought to have been made". Now in the present case a question can be asked if on the basis of entry in the revenue record in favour of Muhammad Jan Ghaznavi was it enough for Asghar Ali or his guardian, to have felt satisfied as to the tile of Muhammad Jan Ghaznavi to sell the property ? The purchase by Muhammad Jan Ghaznavi was through a mutation, while the law required that all such transfers could only be made through a registered document. Secondly is a mutation proper proof of the title of the person shown therein ? Was it not necessary for Asghar Ali's guardian, if he were a man of business or of ordinary prudence to go behind the mutation entries and make further inquiries as to the title of Muhammad Jan Ghaznavi. Mr. Basbaratullah relies upon section 52 of the Land Revenue Act, 1967 to claim that a presumption of truth is attached to an entry its the record of rights. But the question is it an entry in a mutation forms part of the record of rights. The Punjab Land Record Manual in its para. 7.1 clearly states that it does not. Punjab Settlement Manual in its para 270 lists the documents which form part of record-of-rights. But a register of mutations is conspicuously absent. Not being a part of the record-of-rights the provisions of section 52 of the Land Revenue Act do not apply and therefore no presumption of truth can be attached to it. As it is, an entry in the register of mutations has, at best, an evidentiary value. It neither creates nor extinguishes a title. This is the principle laid down in Allah Bux v. Ghulam Hussian (P L D 1975 Lab. 1349) which observes that a revenue officer is not an authority invited with power to decide civil rights of persons. The Privy Council as far back as 1926 observed in Nirman Singh v. Lal Rudra Partab (AIR 1926 P C 100) as follows;

The perusal by their Lordships of the Judgment of the Court of the Judicial Commissioner of Oudh. at page 482 of the record, leads their Lordships to think that its judgment is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding, in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of Immovable property may be put into occupation of it with greater confidence that the revenue fir it will be paid. After this authoritative pronouncement there is no room left to contend that an entry in a register of mutations reflects the title of the person shown therein as owner. Time and again, the Courts have held that a purchaser who relies merely) upon an entry in the revenue records and makes no further inquiry into the title of the seller cannot be held to have acted with reasonable care. In, Pratab Chand v. Saiyida Bibi (I L R 23 All. 442), a Government official had got certain property entered in the names of his minor sons in the district where he was serving. The sons sold portions of the property and mortgaged others. The vendee and the mortgagee satisfied himself that the property had been recorded for some years in the name of tire sons, but there he stopped and made no further inquiries as to whether the property really belonged to the sons, who were the ostensible owners, or not. It was hold that the transferor had not taken reasonable care to ascertain that the transferor had the power to make the transfer. In Khatoon Fatima v. Shib Singh (147 I C 840) it was bold that the fact that transferor's names stood recorded in the Khewat and defendant accepted the entry as correct did not afford him protection under section 41 of the Transfer of Property Act. In Thungarella Cheery v. Mangathaye (21I C 21) it was observed that a man who chooses to act on a Collector's certificate as to title does so at his own risk. Muhammad Sujat v. Mst. Chandbi ( 97 I C 988) is a case for the proposition that mutation of names by itself creates no proprietary title, and that a purchaser who acts on a mutation only, or on any entry in the record of rights does so at his own risk, as neither of the entries can supply the place of a title deed and that the burden of proof that he acted in good faith is consequently enhanced in such cases. To the same effect are the rulings reported as Nageshar Prasod v. Raja Pateshai (34 I C 673) and Ram Challtra v. .Shivnandan (150 I C 922). Here Asghar Ali accepted the entries in the mutation register as evidence of title of Muhammad Jan Ghaznavi and evidently he did so at his own risk. He did not care to look into the title of Muhammad Jan Ghaznavi, and did not care to ascertain if he had the power to transfer the same. If he had made further inquiries he must have become aware of the shadows cast on his title by the persistent and repeated efforts made by Nisar Ali to get the mutation cancelled. Now I come to the question of acquiescence pleaded by Asghar Ali and vehemently contended in arguments on behalf of Muhammad Jan Ghaznavi. According to the statement in Court made by Nisar Ali, he, for the first time came to know of the transaction between Haji Kabir and Muhammad Aslam and Muhammad Jan Ghazanvi sometimes in March,1966. The F. I. R. (Cr. P/3) is based on letter addressed by Nisar Ali to Tehsildar Quetta, on 30Eh April, 1966. This letter has a reference to an earlier written an 1st April, 1966 by the advocate of Nisar Ali to the Tehsildar. In this letter after recounting the details of forgery and fraud a prayer was made for the cancellation of tire disputed mutation. This letter of Nisar Ali ultimately found its way to the Deputy Commissioner, Quetta, who. through a D. O., requested the Superintendent of )Police to take legal action in the matter of Forgery committed in this behalf. This D. O. appears on record as Exh. P/6. During tire course of investigation the Inspector, C. I. A. through a Robkar (Eah. P/5) asked Muhammad Jan Ghaznavi to stop construction on the disputed plot. This must have been done at the instance of Nisar Ali. Independently however Nisar Ali moved the Deputy Commissioner or 14th September, 1966, (Exb. Mark E) alleging that Muhammad Jan Ghaznavi was raising construc tion on the disputed plot and that he be restrained from doing so. On 13th July, 1966 Nisar Ali addressed a direct applications (Exh. Mark 'C') to Deputy Commissioner Quetta, in which he recounted the events of fraud and prayed for cancellation of the mutation entered in revenue records, which was adverse to his interest. Subsequently on 13th October, 1966 he addressed another detailed application (Exh. Mark D) to the Deputy Com missioner repeating the same prayer. All these documents clearly speak of the repeated and persistent efforts on the part of Nisar Ali to challenge the fraudulent entry against him in the register of mutations. It therefore does not lie either with Muhammad Jan Ghaznavi or Asghar Ali to contend that Nisar Ali did not object to the wrong entries appearing against him in register of mutations or acquiesced in it. Mr. Basharatullah however contends that Niser Ali did not take steps as the law enjoined upon :aim for the cancellation of the disputed mutations and In this regard ire particularly refers to the provisions of Chapter XIII of the Lan1 Revenue Act. But even this argument is not available to him. The applications of Nisar Ali dated 30th April, 1966, addressed to Tehsildar was nothing but a review application under section 163 of the Land Revenue Act, I: is a different matter that the learned Tehsildar, who is the Assistant Collector under that Act, did not care to take action required of him in this behalf. Similarly Nisar Ali's subsequent two applications of 13th July, 1966 and 13th October, 1966, were by way of appeals. It, therefore, cannot be claimed that Nisar Ali did not take the steps required under the law. It is a different matter that the functionaries of the State, including the Collector, did not move according to law. For that Nisar Ali cannot be blamed. Finally Mr. Basharatullah contends that Asghar Ali is a minor and therefore his interest is to be protected by tire Court. Mr. Moquim Ansari on the other hand contends that the transaction in favour of Asghar Ali is benami and that the real owner of the property is his father Samandas Khan. In this behalf he has referred me to the cross-examination of Samandar Khan wherein he has admitted that Asghar Ali does not pay any income-tag. If that were so, it is contended by Mr. Ansari, how was he able to accumulate funds enough to spend about three to four lacs of rupees on the construction of the house. Otherwise also there is no evidence to indicate if Asghar Ali had any independent source of income. Bald statement of Samandar Khan that the purchase of plot and construction of the house took place with the money of Asghar Ali is not acceptable. In view of the above discussion I have come to the conclusion that the principles of section 41 of the Act are not attracted either in the case of Muhammad Jan Ghaznevi or Asghar Ali. The appeal of Muhammad Jan Ghaznavi is therefore dismissed with costs. Cross objections of Nisar Ali are accepted and the prayers made by him in the suit are granted. It is declared that he is owner of Z/13th Share of Plot No. 3974, now bearing 131 7 2/3974 of Khewat No. 1753 of Khatuni No. 192, situated in Ward No. 11 on Mir Ahmed Khan Road, Quetta. He be put in possession of the same. Respondent Asghar Ali who had completed the construction of the house during the pendency of the suit at his own risk and cost may remove the superstructure within a period of one month from today. S. A. H. Appeals dismissed.