1976 PLP 348 (SCMR)

ANWARUL HAQ. J.‑This petition .seeks a review of the order of this Court dated the 18th of January 1974. whereby Civil Petition No. 266 of 1973, instituted by the petitioners, was dismissed. The dispute relates to 11 kanals and 2 marlas of agricultural land situated in Mauza Miana Pura in the district of Sialkot The last male owner was the petitioner's father Allah Rakha. By a mutation of inheritance sanctioned by the revenue authorities a portion of the land devolved upon respondents Nos. 1 and 2, as daughters of Allah Rakha, and they sold an area of 4 kanals and 7 marlas out of this land to respondent No. 3, Kb. Muhammad Ashraf. The petitioners filed a suit for a declaration that they were the exclusive owners of this land, and that the sale effected by the two daughters was ineffective as against their rights. While there was some difference of opinion between the trial Court and the first appellate Court as regards the true share of the daughters, both of them agreed that the vendee was protected under section 43 of the Transfer of Property Act he was a bona fide purchaser for value from the ostensible owners. The High Court, in second appeal, upheld this finding and also agreed with the learned Additional District Judge about the quantum of shares of the several heirs of Allah Rakha. While upholding the dismissal of the petitioners' suit by the Courts below, it was observed by this Court, in the order under review, that the two daughters of Allah Rakha having been recorded as the ostensible owners of the property the vendee was protected as a bona fide purchaser from them. It was also added that according to the learned counsel for the vendee the total area left by Allah Rakha in the revenue estate concerned was 85 kanals and 14 marlas, as entered in the Jamabandi of 1960‑61, with the result that the area falling to the share of the two daughters would be more than the area sold by them to respondent No.

3. It was further observed that "this area, and the particular Khasra member would be adjusted against their share, and, therefore, the petitioners could not lay any claim to it." Learned counsel for the petitioners seeks a review of this order on the following grounds :‑ (a) That the High Court as well as this Court were in error in taking the view that the vendee was protected under section 43 of the Transfer of Property Act, as he had not in fact taken due care in ascertaining the extent of ownership of the two vendors ; and (b) That the observation made by this Court as to the availability of other area of the two daughters of Allah Rakha is incorrect, as the only holding left by Allah Rakha was the one in dispute, extending to 11 kanals and 2 marlas and not to 85 kanals and 14 marlas as stated by the learned counsel for respondent No. 3 at the bearing of the main petition. We see no merit in these submissions. On the first question, there is consistent finding against the petitioners by all the three Courts below, finding which were not persuaded to disturb at the instance of the petitioners. We also had that this finding was based on Jambandies (Exh. D. 3 to Exh. D. 5) produced by the defendants at the trial. No justification is made out for a review in this behalf. As to the second contentions suffice it to say that the petition for special leave to appeal was not decided by us on the basis that Allah Rakha had abandoned a holding measuring 85 marks. This was only an additional factor stated by the learned counsel for the vendee in support of the judgment and decree of the trial Court. Our decision rested on the ground that the vendee teas a bona fide purchaser from the two daughters of Allah Rakha who had ties recorded, in the revenue records, as the ostensible owners of the property sold. Therefore, nothing turns on the statement contained in the penultimate, paragraph of the order under review, and it is accordingly not necessary for us to decide the question whether Allah Rakha had indeed abandoned only 11 kanals and 2 marlas of land or an area of 85 kanals and 14 marlas. On this view of the matter, no justification is made out for a review of the order already made by us in the main petition. The review application is accordingly dismissed. Petition dismissed.