1999 PLP 2687 (YLR)

Umaid and Balla sons of Malook were admittedly owners of land measuring 38 Kanals, 8 Marlas with proportionate share in Shamlat of village Gill Kala, Tehsil Bhakkar, District Mianwali. The said owners sold the said land to Sardar son of Khana through an unregistered sale deed dated 19‑8‑1904 for a sum of Rs.99, Mutation No.6, dated 3‑8‑1905 was attested, but the transaction came to be recorded as a mortgage. The mutation was corrected and Mutation No. 37 was attested on 28‑3‑1915. This sale in favour of Sardar was successfully pre‑empted by one Noora son of Murad and on the basis of the decree, Mutation No. 43 was attested on 6‑2‑1917. The said Noora sold the land to Muhammad Bakhsh son of Noor Khan through Mutation No. 79, dated 25‑11‑1919. Against this sale one Madara son of Kaura filed a suit for possession by pre‑emption, which was decreed and the decree was incorporated in the revenue record through Mutation No. 93 dated 25‑3‑1924. This Madara sold the land to one Shah Alam vide registered sale deed on the basis whereof Mutation No.3 was attested on 23‑4‑1928. This Shah Alam is stated to be the predecessor of the present petitioners. Some further alienations were also made through Mutation No. 506, dated 25‑6‑1963 by the said Shah Alam. The plaintiffs/ respondents filed a suit seeking declaration that the Shamlat appurtenant to the said land measuring 38 Kanals, 8 Marlas was never transferred by the said Umaid and Balla, the predecessors‑in‑interest of the plaintiffs/respondents. However, at the time the mutation was attested on the basis of pre emption decree in favour of Madara son of Kaura (No. 93 dated 25‑3‑1924), it came to be recorded that the Shamlat share has also been transferred and as a result of the said wrong entry the alienation made by Madara to Shah Alam, the predecessor of the petitioners also incorporated the said share. The petitioners filed written statement, wherein they claimed to be bona fide purchasers for value and without notice and asserted that Umaid and Balla had transferred the share of Shamlat alongwith the said ownership or Khewat land. The learned trial Court framed several issues. Relevant being Issues Nos. 1, 6 and 9 are reproduced here:‑‑ "(1) Whether the suit is within time? OPP (6) Whether Umaid and Balla, the predecessors‑in‑interest of plaintiffs had sold the property in suit without Shamlat rights to Sardara son of Khana, on 19‑8‑1904? If so, its effect? OPP (9) Whether defendants Nos. 1 to 14 are the bona fide purchasers of the land in suit for value and are their rights protected under section 41 of the Transfer of Property Act? OPD" After recording the evidence, the learned trial Court found the said issues in favour of the plaintiffs/respondents and decreed the suit, vide judgment and decree, dated 29‑9‑1979. A Regular First Appeal filed by the petitioners was heard by the learned District Judge, Mianwali, who dismissed the same on 16‑3‑1981.

2. Ch. Khurshid Ahmad learned counsel for the petitioners argued that the previsions of section 3 of the West Pakistan Land Disposition (Savings of Shamlat) Ordinance (I of 1959) do not contain a non obstante clause and do not have the effect of destroying a defence available to his clients under any other law i.e., the Limitation Act, 1908 and section 41 of the Transfer of Property Act, 1882. Mr. Allah Wasaya Malik, learned counsel for the plaintiffs- respondents on the other hand, supported the impugned judgments.

3. I have gone through the records placed on the file of this civil revision with assistance of the learned counsel for the parties. Both the learned Courts below have concurrently held that the share of Shamlat was not sold by the said predecessor‑in -interest of the plaintiffs/respondents, The learned District Judge has, while upholding the judgment of the learned trial Court, relied upon section 3 of the West Pakistan Land Disposition (Savings of Shamlat) Ordinance (I of 1959). The effect of the said provision of law is that unless specifically so stated, disposal of a holding would not carry with it disposal of share in the Shamlat. The finding of the learned Courts below on issue No. 6 are supported by the evidence on record and in fact not seriously contested by Ch. Khurshid Ahmad. What learned counsel stresses is that notwithstanding the said provisions of law a transaction in violation thereof can be defended on plea of limitation and bona fide purchase. Mr. Allah Wasaya Malik, learned counsel for the respondents is not opposed to the said contention of the learned counsel. He, however, contends that the said defences taken by the petitioners have not been substantiated and both the Courts below have recorded findings against the petitioner under Issues Nos. 1 and 9 covering the said two defences. Since the said two issues involve a question of law, I have examined the record to adjudge the validity of the findings recorded by the learned Courts below on the same. On the question of limitation, the case of the plaintiffs respondents is that admittedly the land in sure forms part of an undivided Shamlat The precise plea is that the land being joint would be deemed to be in possession of all the co- sharers therein. The plaintiffs/respondents acquired knowledge of the factum of the entry in the revenue record showing disposal of Shamlat share during the proceedings of Ishtemal dated 30‑3‑1957, when they were informed that the share corresponding to the said holding of Umaid and Balla (in the ratio of 61 Kanals of Shamlat of land for every single Kanal of ownership/Khewat land stands disposed of as per entries in the record. The suit was filed on 24‑1‑1964. The suit is for possession, which changed hands as a result of partition of Shamlat due to the said consolidation proceedings. The suit, therefore, is within time and has been correctly held to be so.

4. So far as the plea of bona fide purchase is concerned, I have not been able to find any thing on record to support the argument of the learned counsel that his clients were bona fide purchasers for value. There is no evidence on record as to whether any enquiry was conducted by the petitioners before the said purchase and if so what was the nature of said enquiry. Learned counsel, confronted with this situation, insists that it should be deemed that since adverse revenue entries were being recorded continuously and as such the petitioners relying upon the same purchased the land and qualified for the protection of section 41 of the Transfer of Property Act, 1882. I am afraid, the contention is far‑fetched section 41 supra is based on principles of equity and good conscience. Any person, who seeks equity under the said provision, has to satisfy the requirement of section 41 supra. There is not even a bald statement on oath on record by any of the petitioners that their vendors were recorded as owners of the said Shamlat land in the revenue record and were so ostensibly recorded with the express or implied consent of the plaintiffs/respondents. I have already observed above that there is no evidence of any enquiry, which might have been made by the petitioners or its nature so as to enable the learned lower Courts or this Court to hold that an enquiry as envisaged by section 41 was made. So far as consideration is concerned, all the D.Ws. are silent regarding the said aspect. I, therefore, do not feel inclined to differ from the conclusions of law and facts arrived at by the learned lower Courts.

5. Ch. Khurshid Ahmad has drawn my attention to para. 12 of the judgment of the learned District Judge, wherein reference has been made to a compromise between Diwaya (present respondent No.5) son of Kaura himself and also as L.R. of his brother Sadda (plaintiff No. 5 before the learned trial Court). A certified copy of his statement is present on the file of this civil revision, which is reproduced here for facility of reference:‑‑‑ The said statement was recorded by the learned District Judge and was also counter signed by the learned counsel for the said respondent on 14‑3‑1981. The persons referred to in the said statement appear to be Mst. Ganwar since deceased and represented by her son Muhammad Iqbal and daughter Mst. Ghulam Sarwar Mai. The learned District Judge has left the matter undecided. In my opinion, the said statement constitutes a lawful agreement adjusting the part of the suit and it is obligatory upon the Court to record the same and to pass a judgment in accordance with the same.

6. As a result of above discussion this civil revision is partly allowed only in the light of the said statement of Diwaya (present respondent No.5) in his capacity as son of Kaura and also as L.R. of Sadda, the original plaintiff No. 5 before the learned trial Court. The result would be that the suit to the extent of Diwaya for himself as also L.R. of Sadda shall stand dismissed and the shares of Sadda and Diwaya sons of Kaura (original plaintiffs Nos. 5 and 6 in the trial Court) out of 9/16 share in the suit land shall vest in Muhammad Iqbal son and Mst. Ghulam Sarwar Mai daughter of Malik Amir Muhammad (present petitioners Nos. 1 and 2). With the said modification, the judgments and decrees under revision are upheld and the civil revision is dismissed. Parties are left to bear their own costs. H.B.T./G‑144/L