1994 PLP 2430 (MLD)

Briefly stated facts of the case out of which present Regular Second Appeal has arisen are that landed property situate in the revenue estate of Bahawalpur, District Gujrat belonged to Muhammad Ismail and Ghulam Haider, two real brothers in equal shares. After the death of Muhammad Ismail, it was inherited by Mst. Aimna Bibi, his wife, Mat. Suraya Bibi, his daughter and Muhammad Ashrai, his son. On the death of Ghulam Haider, the property left by him was inherited by Allah Ditta respondent No. 2 his son, who is admittedly deaf and dumb. Consequently, Muhammad Asharf sold the whole propertY referred to above in favour of M/s. Fazal Ahmad and others including the land belonging to respondent No. 2 posing himself to be his guardian. The fact of the matter, however, is that he was never appointed as Guardian of Allah Ditta referred to above. This sale was subsequently pre-empted by Sadiq Ali who is the appellant. Original sale as well as the decree for pre-emption was challengedby Allah" Dina and Mst. Aimna Bibi by way of declaratory suit on the ground that Allah Ditta being deaf and dumb and the sale having not been made by him, the sale made on his behalf by Muhammad Ashraf, was unauthorised, and hence void, the pre-emption decree also suffered from infirmity. This suit was contested by the appellant on the grounds that the sale was valid and as he is pre-emptor, the suit has been filed in collusion with the vendees who have failed in the pre-emption suit. The plea of estoppel was also raised. Admitted position, however, is that in the pre-emption suit neither Allah Ditta respondent No. 2, nor Mst. Aimna Bibi was itnpleaded as party. From pleadings of the parties, learned trial Court framed issues and after recording of evidence vide judgment and decree dated 16-7-1965 dismissed the suit. Aggrieved by said judgment and decree Mst. Aimna Bibi and Allah Ditta plaintiffs who are respondents in the present appeal filed appeal before District Court, Gujrat. Appeal of Mst. Aimna Bibi was not allowed. However, the appeal filed by Allah Ditta respondent No. 2 was accepted and the suit to the extent of his share in the land-in-question was decreed. Aggrieved by the said judgment and decree, the pre-emptors-defendants have filed this Regular Second Appeal.

2. Learned counsel appearing for the appellants has contended that the pre-emptor is bona fide decree-holder and has acquired the property in pursuance of pre-emption decree and as the suit was not filed prior to the passing of decree, the same is collusive in nature. Learned counsel further argued that Allah Ditta respondent although admittedly is deaf and dumb, yet the land on his behalf has been sold by Muhammad Ashraf, his real cousin, who has no adverse interest against his rights rather the land has been sold for the purpose of better management of his property, inasmuch as by the sale amount other landed property has been purchased in other village where Allah Ditta is living alongwith Muhammad Ashraf and others. Protection of title under section 41 of Transfer of Property Act is also claimed by the learned counsel for the appellants. Learned counsel further argued that the plaintiff is estopped to file the suit. Learned counsel appearing for the respondents has vehemently argued that Allah Ditta respondent being deaf and dumb, his property could not have been sold by Muhammad Ashraf without being properly appointed or a natural guardian and as Muhammad Ashraf was neither an appointed nor a lawful guardian, he had no lawful authority to alienate the property owned by respondent No.

2. Learned counsel further argued that the sale itself being unauthorized, infirmity attaching to the transaction of sale shall remain attached to the pre-emption decree as well and the pre-emptor-decree-holders who have stepped into the shoes of the original vendees could not claim better title. It is further argued that as the land has not been sold by the vendor himself and is void, protection under section 41 is not of any benefit to the appellant, and, this section is not applicable in this case. Learned counsel further argues that principle of estopped is also not attracted in this case and it is absolutely incorrect that sale of land was for better management of the property and hence it being a beneficial transaction shall bind respondent No.2.

3. I have considered the arguments addressed by the learned counsel for the parties. Admittedly, Allah Ditta is deaf and dumb. It is also an admitted fact that Muhammad Ashraf was neither an attorney not a Guardian of Allah Ditta. Consequently, he had no lawful authority to transfer the land belonging to him. Hence he could not have sold the property of Allah Ditta. The original sale, therefore, being unauthorized, no lawful right will accrue to the appellant, the substituted vendee merely because he obtained pre-emption decree passed in a suit in which Allah Ditta was not impleaded as party. Findings recorded by the learned First Appellate Court on the above question are unexceptionable, and, cannot be interfered with in this second appeal. As the original sale is void neither protection of section 41 of Transfer of Property Act nor principle of estoppel applies to the case in hand. Principle of better management is also not attracted, nor is there any evidence to this effect. There is absolutely no evidence of collusion, hence it cannot be said that it is a collusive suit. Resultantly, the appeal fails and is dismissed with costs throughout. A.A./A-640/L????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.