1992 PLP 743 (SCMR)

WALI MUHAMMAD KHAN, J .‑‑‑Through the instant appeal under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973, the appellant Mst. Dilbar Jan has called in question the judgment and decree dated 12‑9‑1989 passed by a Division Bench of the Peshawar High Court in Regular First Appeal No.20/1984, whereby the appeal filed by Sohrab Khan and others; respondents herein, against the judgment and decree dated 15‑4‑1984 passed by the Senior Civil Judge, Peshawar, dismissing their suit for declaration and permanent injunction, was accepted and the decree prayed for by them was passed in their favour against the appellant. The brief facts of the case are that Khadim Hussain, respondent No.4 herein and the father of plaintiffs/respondents 1 to 3, sold the suit property vide registered sale‑deed dated 14‑6‑1968 in favour of Mst. Dilbar Jan defendant/appellant. The plaintiffs /respondents 1 to 3 claimed the suit house to be their ownership having been purchased in their name by their father Khadim Hussain vide deeds dated 10‑5‑1954 and 17‑1‑1962, confirmed by the Civil Court decree in Suit No.203/1, during their minority. They alleged that at the time of the sale vide registered deed dated 14‑6‑1968 they were major and they being owners, their father defendant No.2 was not legally competent to sell the same in favour of the appellant and that the impugned sale is based on fraud and collusion and ineffective on their rights. They also asserted that they were in physical possession of the suit property and that their father never remained in possession thereof and also that he was residing elsewhere as their relations were strained. The suit was contested by the appellant and she in her written statement, besides raising certain technical objections denied the ownership of the plaintiffs/respondents 1 to 3 and claimed protection under section 41 of the Transfer of Property Act being a bona fide purchaser in good faith for valuable consideration without knowledge or notice of the alleged rights of the plaintiffs. She averred that defendant No.2 had constructed the suit property and was in possession of the same before entering into agreement to sell thereof with the appellant and later on selling the same through the registered sale‑deed coupled with the delivery of possession and also attestation of mutation on the strength of the sale‑deed. According to her, the suit was collusive between the father and the sons in order to squeeze extra money from the appellant who was an aged illiterate Pardah Nashin lady. Necessary issues were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment and decree dated 15‑4‑1984, dismissed the suit of the plaintiffs/respondents 1 to

3. Not content with the same, they preferred Regular First Appeal before the Peshawar High Court which was accepted, the judgment and decree of the trial Court was set aside and the decree prayed for was passed in their favour against the appellant. Hence the instant appeal. We have heard Mr. Bashir Ahmed Ansari, Advocate for the appellant and Mr. Z. Mahfuz Khan, AOR for the plaintiffs/respondents 1 to

3. The learned counsel for the appellant contended that the suit property was originally purchased by Khadim Hussain in the name of his minor sons respondents 1 to 3 and the presumption can obviously be that he was the real owner and that the plaintiffs were Benamidars. However, the learned counsel for the plaintiffs/respondents 1 to 3 conceded that the property was purchased by Khadim Hussain in the names of respondents 1 to 3 during their minority but at the time of the sale by him in favour of the appellant the respondents 1 to 3 had attained majority and only they were competent to transfer the suit property to anybody they liked and that Khadim Hussain was not legally competent to enter into the agreement to sell or execute a regular registered sale‑deed in favour of the appellant. We are afraid, he cannot be allowed to approbate and reprobate. On the one hand he concedes that the property was' purchased by Khadim Hussain with his own funds but in the names of his minor sons and on the other, pleads the exclusive ownership of respondents 1 to 3 disclaiming the ownership of Khadim Hussain. It is specifically alleged in the plaint that the property was constructed by Khadim Hussain and was rented out to tenants. It is not established on the record that the tenants, at any time, paid rents to the plaintiffs/respondents 1 to 3 nor it is borne out from the record that the tenants ever denied the title of Khadim Hussain and attorned to plaintiffs/respondents 1 to

3. The appellant is an illiterate Pardah Nashin lady and parted with valuable cash consideration for the suit property. The transfer was finalised through a registered sale‑deed of which the plaintiffs/respondents 1 to 3 are presumed to have the knowledge but curiously enough, they did not choose to challenge the same during long ten years. There appears to be force in the arguments of the learned counsel for the appellant that the suit is collusive between the plaintiffs and their father for extracting extra money from the appellant as during the intervening period the prices of immovable property situated in the area of Municipal, Corporation Peshawar must have gone up manifold. We are, therefore, clear in our mind that the transfer by Khadim Hussain in favour of the appellant was genuine, with the implied consent of the plaintiffs/respondents 1 to 3 and they are estopped to deny the title of the appellant. Consequently, the instant appeal is accepted, the judgment and decree of the High Court is set aside and that of the trial Court is restored with the result that the suit of the plaintiffs/respondents 1 to 3 stands dismissed. There is no order as to costs. M.B.A./D‑92/S ?????????????????????????????????????????????????????????????????????? Order accordingly.