1982 PLP 2049 (CLC)

Jangi v. Jhmnda P L D 1961 B J 34 ; Hamida Begum v. Murad Begum P L D 1975 S C 624 ;Razia Begum v. Hijrayat Ali P L D 1976 S C 44 and Aahar Saleem v. Muhammad Anwar Khan 1974 S C M R 484 ref. Ch. Iqbal AhmadKhan for Appellant. Ch. Qamar‑sud‑Din Khan Meo for Respondents. Date of hearing :15th July, 1976. The facts giving rise to this second appeal are that Taj Muhammad respondent No. 2 agreed to sell the land m dispute to respondent No.

1. He thereafter sold the property to the appellant during the pendency of the suit for specific performance of the contract brought by Rehman respondent No. 1 against Taj Muhammad, respondent No.

2. The question involved is whether the right of the appellants is protected under section 41 of the Transfer of Property Act. This is an admitted principle of law that a person who comes forward to claim protection under section 41 of the said Act has to prove that before purchasing the property in dispute he had made inquiry into the title of the seller and A to the effect if there was any agreement in favour of any other person. Since the agreement to sell existing in favour of Rehman respondent No. 1 I was an unregistered document, there is no presumption that the appellant had notice of it. Learned counsel for the respondents has argued that since the appellant purchased the property in dispute after Rehman respondent No. 1 had brought the suit, he purchased it with notice of the previous agreement to sell and thus his right is not protected. In fact the appellant had purchased the property after the institution of the suit brought by Rehman against Taj Muhammad although in the beginning the appellant had not been impleaded as a party. He, on his own application dated 21‑2‑1968 was impleaded as party after purchasing the property. Taj Muhammad vendor had been served with a summons of the suit before the date of sale. Although there is no direct evidence that Taj Muhammad had told the appellant about the previous agreement and the suit but it was the duty of the appellant to make proper and reasonable inquiry before purchasing the property. The father, (guardian‑ ad‑litem) of the appellant took this matter very lightly while appearing as his own witness and stated this much that he had inquired about the previous sale but did not disclose the name of the person fxom Whom he had made the inquiry. In cross‑examination he stated that‑'he had made inquiry from the. Patwari and Taj Muhammad who told him that the property had not till then been sold to any other person. But neither Taj Muhammad nor the Patwari was examined by hint. If he had made inquiry from other persons also besides Taj Muhammad and the Patwari, they too were' not examined. So the Courts below have rightly come to the conclusion that the appellant did not make the inquiry. The right person from whom he could make inquiry was Taj Muhammad; therefore, his statement was very necessary but he was not examined. Failure on his part to examine Taj Muhammad rather shows that the latter had told him that he had already executed an agreement to sell in favour of respondent No. 1 and that he had brought a suit also against him lie knew that if he examined Taj Muhammad he would, instead of saying that the appellant had made inquiry from him, say that he had told the appellant before he had purchased the property that he had already agreed to sell the property to respondent No: 1 and the latter had brought a suit also against him. If he had produced cogent evidence to the effect that he had actually made inquiry, it could be said that he was deceived by Taj Muhammad and thus his right was protected.

2. Learned counsel for the appellant has cited P L D 1961 B J 34 but the same is not helpful. It has been held in the authority :‑ "Sale of land shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the revenue records was sanctioned about it. Title in the property passes when the transaction of sale is completed and is not postponed till the attestation of the mutation in the revenue records." No such point is involved in this case as to when the sale in favour of respondent No. 1 had become complete because so far as the sale is concerned, admittedly it took place in the pendency of the suit.

3. This is a question of fact whether the appellant had made inquiry to find out if there was already any sale or agreement to sell in favour of any other person and when two Courts of fact have concurrently g held that no such inquiry was made, J cannot in second appeal? hold the otherwise. In this respect reliance may be placed on P L D 1975 Supreme Court 624, P L D 1976 Supreme Court 44 and 1974 S C M R 484.

4. As a result of the observations made above I do not find any force in the appeal and dismiss it with costs. M.Y.M.?????????????????????????????????? ??????????????????????????????????????????????? Appeal dismissed.