2012 C L C 1268
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
AZIZ ULLAH ----Petitioner
Versus
Mst. HAMEEDA BEGUM and another ----Respondents
Civil Revision No.346 of 2011, decided o n 2nd January, 2012.
Transfer of Property Act (IV of 1882) ---
----S. 41 ---Specific Relief Act (I of 1877), S.42 ---Transfer by ostensible owner ---Benefit ---
Scope ---Suit for declaration of title was decreed concurrently by the courts below ---
Contention o f the defendants was that they were bona fide purchasers of suit property,
therefore, benefit of S.41 of the Transfer of Property Act, 1882, must have been extended to
them ---Validity ---Person claiming right and benefit under section 41 of the Transfer of
Property Act 1882 was bound to establish that the person from whom the suit property had
been transferred to him was an ostensible owner, while transfer so made was with the consent
of the real owner, either express of implied ---Said transfer must have bee n made for some
consideration and the person being transferee or purchaser must have acted in good faith and
taken all reasonable care and steps before entering into said transaction for transfer ---
Defendants had to establish that they had taken all reason able care before entering into sale
transaction for suit property -----Contents of the sale agreements in favour of the defendants
for the suit property, in the present case, were in contradiction with the written statements of
the defendants ---No evidence was available to the effect that the defendants were not in
knowledge of the fact that the suit property belonged to the plaintiff, and had purchased the
property without confirming ownership ---Pleadings of the defendants were contrary to their
contention s in the revision petition ---Defendants, in circumstances, could not ask for benefit
of S.41 of the Transfer of Property Act, 1882 ----Revision was dismissed.
Abdul Ghani Mashwani for Petitioner.
Date of hearing: 15th November, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- Through instant petition judgment dated
19th September, 2011 of Additional District Judge -I, Quetta, and judgment dated 17th
August, 2010 of Civil Judge -VI, Quetta, have been assailed, whereby the courts below
allowed the s uit as prayed for, and dismissed the appeal filed by the petitioners. The
judgments have been challenged on grounds that the courts below failed to consider the
material facts and while misappreciating the evidence arrived to the conclusion which is not
in accordance with law, and facts. Further, the courts below failed to appreciate this admitted
feature of the case that the petitioners are bona fide purchasers of the property in question,
and after transaction they have built house, thereon, and are in co nstructive possession of the
property in question through sale -deeds, therefore, their rights are to be protected under
section 41 of the Transfer of Property Act, 1882, but this legal provision was not considered
by the courts below, thus their findings a re highly prejudicial to them. It was further
contended that if there was any fault, the liability of the same goes to the respondent No.2,
and grievance of the respondent No.1 was only against respondent No.2, who in collusion
with respondent No.1 sold ou t the property in question to rest of the respondents, but the
courts below made an order, which is solely against the petitioners the bona fide purchasers,
which is nullity in the eyes of law. It is further contended that the respondent No.1 while
appeari ng before the court admitted the fact that the houses are built on plots in question. She
further admitted the status of the petitioners being of bona fide purchasers, but this fact was
not duly considered by the courts below. The petitioners have prayed f or setting aside of both
the orders, and dismissal of the suit filed by respondent No.1.
2. The learned counsel for the petitioners argued the matter at length. His sole argument
was to the effect that the petitioners were bona fide purchasers; therefore , benefit of section
41 of the Transfer of Property Act, 1882 must have been extended in their favour. His further
argument was that the petitioners are to be compensated being purchasers of the property, and
as they have raised construction on it, thus su stained heavy loss in view of the order passed
by the trial court.
3. The perusal of the papers attached with the petition reveals that the respondent
No.1/plaintiff Mst. Hameeda Begum filed a suit in respect of two pieces of land bearing
Khasra No.4514/ 184 and 185 measuring 26 poles and 54 rods, situated at Mohal Karkhasa,
Mouza Kirani, Tappa Shadinzai, Tehsil and District Quetta. It was her case that the defendant
No.1/respondent No.2 with the help, and collaboration of defendant No.2/respondent No.3
fraudulently sold out both the pieces of land to defendant No.3/respondent No.4, who further
sold out the property to defendants Nos.4 and 5/respondents Nos.5 and 6, who further sold
out the land to the present petitioners. She sought setting aside of the sa le transactions, with
further declaration of her title, and also handing over of possession of the land in question to
her. None of the remaining respondents appeared, nor contested the suit except present
petitioners being defendants Nos.6 and 7 before th e trial court. In their reply it was their
contention that the sale transaction was effected between them (petitioners) and
plaintiff/respondent No.1, and defendant No.1/ respondent No.2 in presence of the plaintiff
Mst. Hameeda Begum, who put her signatur es on blank mutation papers, and also gave
photocopy of her CNIC. With further contention that the possession was handed over to them
by the adopted son of the plaintiff i.e. respondent No.2 Zahir Hussain in her presence,
therefore, the suit is hit by Arti cle 114 of Qanun -e-Shahadat Order, 1984. The trial court after
framing of the issues called for the evidence of the parties, and on completion decided the
suit through judgment dated 17th August, 2010, while allowed relief as claimed by
respondent No.1/pla intiff. Feeling aggrieved of the order the present petitioners challenged
the order by way of filing appeal, but the appellate court through order dated 19th
September, 2011 concurred with the findings of the trial court. Still feeling aggrieved the
petitioners preferred instant petition with contention as recorded hereinabove.
4. There are concurrent findings of facts by the courts below, therefore, it is the
petitioners, who have to establish the illegalities committed by the courts below, on basis of
which this court can exercise jurisdiction provided under section 115, Civil Procedure Code
(C.P.C.), which in fact is of a limited nature. The learned counsel for the petitioners only
stressed the point that the petitioners being the bona fide pu rchasers, therefore, the benefit
provided under section 41 of the Transfer of Property Act, 1882 was required to be extended
in favour of the petitioners. Section 41 of the Act, 1882 reads as under: ---
41. Transfer by Ostensible owner. --- Where with the consent, express or implied, of the
persons interested in immovable properly, a person is the ostensible owner of such property
and transfers the same for consideration, the transfer shall not he avoidable on the ground that
the transferor was not authoriz ed to make it: provided that the transferee, after taking
reasonable care to ascertain that the transferor had power to make the transfer, has acted in
good faith."
In view of the same it is incumbent on a person, who is claiming his right, and benefit
of this section, to establish that the person from whom the property has been transferred to
him was ostensible owner, while transfer so made, was with the consent of the real owner
either express or implied. Furthermore, the transfer must have been made f or some
consideration. The last but the most important that the person being transferee or purchaser
must have acted in good faith, and had taken all reasonable care, and steps before entering
into the transaction. Now it is the petitioners, who have to es tablish that they had taken all
reasonable care before entering into the sale transaction with the remaining defendants. The
petitioners have relied on certain sale agreements. whereby the plots in question were sold to
them. Exh.D/2 -A is an agreement exec uted between one Haji Muhammad defendant No.3
and Ali Hassan, who is not party to the suit. While petitioner No.1 Azizullah purchased the
property from Ali Hassan through agreement Exh.D/2. While the second sale agreement is
Exh.D/3, which is between Haji Muhammad and Rustam Ali (petitioner No.2). In both these
agreements Haji Muhammad showed himself to be the lawful owner of the property, which
was sold. But, the contents of these sale agreements are in contradiction with the plea of the
petitioners, as ta ken in their written statements. They have specifically asserted therein that
the sale transaction was effected between replying defendants the plaintiff and defendant
No.1 Zahir Hussain in presence of the plaintiff. But said Zahir Hussain is not party to any of
the transactions. While this Haji Muhammad appeared as their Witness No.4. It was his
(D.W. -4) statement that Zahir Hussain respondent No.2 sold out the plot to him, while he
demanded for relevant mutation entry, on which said Zahir Hussain handed o ver a Fard to
him, which was not in consonance with the description of the plot, which was sold to him,
whereafter, Zahir Hussain absconded, and he sold out the plot to Ali Hassan and Rustam. He
admitted that after inquiry he came to know that Zahir Hussai n was not selling out the plot on
behalf of Mst. Hameeda Begum. He being one of the defendants, but did not opt to appear as
party to the suit, nor contested the matter, but appeared as witness of the petitioners, which
shows mala fide on their part. Even his statement nullifies the plea of being bona fide
purchasers taken by the petitioners. There is no evidence that the petitioners were not in the
knowledge of the fact that the property in question in fact belonged to Mst. Hameeda Begum
respondent No.1, r ather they purchased the property from Haji Muhammad or from Zahir
Hussain without confirming the actual ownership of the property. Rather their pleadings are
contrary to the contention taken in the instant petition. While during course of his statement
their attorney stated that Ali Hassan handed over a blank paper having thumb impression of
Mst. Hameeda Begum. In the circumstances, the petitioners cannot ask for benefits of section
41 of the Transfer of Property Act, 1882.
5. The trial as well as the ap pellate courts properly assessed the material on record, and
arrived to the conclusion, which does not suffer from any illegality, which needs inte 2012 C
L C 1165
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
SECRETARY BOARD OF REVENUE, GOVERNMENT OF BA LOCHISTAN,
QUETTA and 2 others ----Petitioners
versus
QADIR BAKHSH and 6 others ----Respondents
Civil Revision No.57 of 2007, decided on 29th February, 2012.
(a) Limitation Act (IX of 1908) ---
----S. 5 & Art. 152 ---First appeal by Government Department ---Delay, condonation of ---
Plea was that filing of appeal beyond prescribed period was due to official procedure ---
Validity ---Such plea was no ground for condonation ---Appeal was dismissed for being
time-barred.
(b) Limitation Act (IX of 1908) ---
----S. 3---Specific objection was that suit having been filed beyond prescribed limitation
thus not maintainable ---Duty of Trial Court and Appellate Court ---Scope ---Appellate
Court would be obliged to consider legality of findings rendered on issue of limitation by
Trial Court ---Where issue of limitation was found by Appellate Court to have been
wrongly decided by Trial Court, then suit would become non -maintainable and decision
made in respect of merits of case would be of no legal effect.
(c) Limitation Act (IX of 190 8)---
----S. 120 ---Qanun -e-Shahadat (10 of 1984), Art.117 ---Specific Relief Act (I of 1877),
S.42 ---Suit for declaration of title and correction of mutation entry filed beyond
prescribed period of limitation ---Plaintiff's plea was that he came to know of suit
mutation two months before filing of suit ---Burden of proof ---Plaintiff in order to
bring suit within prescribed period had to establish that he was ignorant of such
entry at the relevant time, which recently came into his knowledg e.
(d) Limitation Act (IX of 1908) ---
----Ss. 3 & 5 ---Time -barred suit ---Validity ---Time -barred relief could not be granted to a
party that slept over its right and that too without showing any genuine cause for
condonation of delay caused in filing of c ase.
(e) Possession ---
----Mere possession would not create any title in favour of a person.
(f) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 42 ---Mutation entry in revenue record ---Evidentiary value ---Such entry for not
being a tit le document would not create or extinguish title or right of a person in respect
of land, rather same would amount to declaration of his title ---Cogent evidence would be
required to rebut such entry.
(g) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 56(1)(e) ---Ownership of waste land ---Presumption ---Scope ---Such presumption
would arise in favour of Provincial Government, but could be rebutted by a person by
establishing his clear title.
Tariq Ali Tahir Addl. A. -G. for Petitioners.
Nemo for R espondents.
Date of hearing: 31st October, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioners through instant petition
assailed judgment dated 31st January 2005 of Qazi Turbat, whereby the suit filed by the
respondents was decreed as prayed f or, and judgment dated 25th November 2006 of
Majlis -e-Shoora Mekran at Turbat, whereby the appeal preferred by them was disallowed,
and order of the trial court was upheld. It was contended that the courts below failed to
appreciate the oral, as well as th e documentary evidence, and due to this non -appreciation
the decision had been made, which is in contravention of law, thus liable to be set aside.
It was further contended that the appellate court failed to consider the merits of the case,
rather made dec ision only on the point of limitation, which is contrary to the principle of
Justice, therefore, not sustainable. It was contention of the petitioners that the questioned
mutation entry was carried out in the year 1994, but the suit was filed in the year 2 004,
therefore in view of the fact the basic suit was filed beyond the provided period,
therefore, not maintainable, but this legal aspect was overlooked by the courts below,
which resulted into a decision made in violation of law. It has been prayed that the
impugned judgments be set aside, and the suit filed by the respondents be dismissed.
2. The perusal of the case file reveals that after effecting of service there was
presentation on behalf of the respondents by Messrs Mujeeb Ahmed and Rauf Ahmed
Hashm i, Advocates on several dates of hearings, and there was clear undertaking by them
for submitting of power on behalf of the respondents. But despite obtaining several
opportunities, the learned counsel failed to submit their power, rather failed to appear,
therefore, due to their non -appearance the respondents were proceeded against ex parte
through order dated 30th September, 2011. Therefore, in the circumstances only the
learned Additional Advocate -General (A.A. -G.), representing the petitioners, was hear d.
3. While arguing the case it was contention of the learned A.A. -G. that the
respondents/plaintiffs have failed to disclose the source through which land in question
devolved on them. It was further his argument that mere possession' of the landed
proper ty does not create any right or title in favour of any of the parties. It was further his
argument that though the plaintiffs showed their ignorance about effecting of the
questioned mutation entry, but they have not established that at the time of settlem ent
process carried by the Revenue Authorities, they were not present in the area.
Furthermore, the suit was filed beyond the provided period, but this fact was not
considered by the courts below, which is an illegality. In addition the burden was on the
respondents/plaintiffs, who failed to discharge the same, despite their failure relief was
granted to them by the courts below, therefore, the decisions are in contravention of the
law. The Learned A.A. -G. further argued that the appeal was filed within tim e, but a
wrong view was taken by the appellate court, which needs interference. Furthermore, no
reasons were assigned, nor discussion was made by the appellate court, while making
decision on their appeal, therefore, order of the appellate court is non -speaking, failed to
fulfil the legal requirements, thus not sustainable.
4. The perusal of the papers attached with the petition reveals that the respondents
Nos.1 and 2, and the predecessor in interest of respondents Nos.3 to 11 filed a suit
seeking declarat ion of their title in respect of the land bearing Khatooni No.196, Khewat
No.189, Khasra No.140, situated at Mouza Kolowahi Ward, Tehsil Turbat, bounded as
East road and embank of plaintiffs, West landed property of Dad Muhammad, north Grid
Station Absar T urbat and South mountain, with contention that the land in question is in
their cultivating possession since long without any interference from any side. Further, at
northern side of the property a well was also excavated, which had already been entered
in their names. Despite the fact that the disputed property is portion of the land owned by
the respondents situated under Khewat No.69, Khatooni No.60, Khasra No.139, the
defendants/petitioners deliberately, and with mala fide intention entered the property in
question in their (petitioners) names. It was also contended that two months prior to the
filing of the suit when they approached the Settlement Authorities the disputed mutation
entry came within their knowledge, hence the suit. They prayed for correc tion of mutation
entry effected in favour of the petitioners, in addition declaration of their title of
ownership in respect of land in question. The petitioners/defendants in their written
statement strongly denied the suit, and it was their plea that the property bearing Khasra
No.140, Khatooni No.196, Khewat No.189 belongs to the Provincial Government, and
claimed to be in its possession. It was their objection that the suit had been filed beyond
the period of limitation, thus not maintainable.
5. Out of the pleadings of the parties issues were framed. While the
respondents/plaintiffs produced six witnesses, and respondent No.1 got recorded
statement for himself, and on behalf of the remaining respondents/plaintiffs. In rebuttal
the petitioners/defendants produced two witnesses, and recorded their statement through
their representative. The trial court after hearing the parties allowed the suit through
judgment dated 31st January, 2005. Feeling aggrieved appeal was preferred, which was
decided by the Majli s-e-Shoora Mekran at Turbat through judgment dated 25th
November, 2006, whereby the appeal was dismissed being filed beyond the provided
period, and also being without merits. Still feeling aggrieved the instant petition had been
filed, whereby both these judgments are assailed.
6. As far as findings of the appellate court to the affect that the appeal was filed
beyond provided period is concerned, the record reveals that the initial order was made on
31st January, 2005 by the trial court. Therefore, an app eal has to be preferred within a
period of thirty days as provided under Article 152 of the Limitation Act, 1908, from the
date of order or decree, against which appeal bas been preferred. The Perusal of the
instant memo of appeal reveals that the petition ers have not disclosed the date when the
appeal was preferred by them before the appellate court, but according to the learned
A.A. -G. the appeal was filed within the provided period. It appears from the copy of the
judgment of the appellate court that the date for filing of the appeal is mentioned as 17th
June, 2005. Keeping in view the same the appeal was surely filed beyond the provided
period. Therefore, in view of the fact it was the petitioners/appellants to establish the
ground on which condonation o f delay was sought by them. In present case the only
ground urged before the appellate court, for the filing the appeal beyond the provided
period, was to the effect that due to official procedure the filing of the appeal was
delayed. Though it is no groun d, but a mere ground reality. It is further observed that the
appellate court refused the appeal mere on the ground, without going into legality of the
order of the trial court, which is to be seen in either case before making an order for
refusing the req uest for condonation of delay. Because, there was a specific objection to
the effect that the suit was filed beyond the provided period, thus not maintainable. The
legality of the findings on the issue of limitation were required to be considered by the
appellate court, because if the appellate court arrived to the conclusion that the issue of
limitation was wrongly decided by the trial court, it would adversely effect the decision
made in respect of merits of the case. And in view of such the suit will not remain
maintainable, and the order pertaining to merits of the case will be of no legal effect. In
addition, in such circumstances limitation will not have any adverse effect, because
against a void order there is no question of limitation.
7. Keeping in view this legal proposition the material on record has to be analyzed,
and a decision is to be made. From pleadings of the parties it is apparent that the property
in question had been entered in the name of the Government of Balochistan during the
course of the settlement, held in the area by the concerned Authorities, but the plaint
failed to disclose the year, and date when said process was held. Nor even during course
of evidence the questioned mutation entry was brought on record by the respondents to
disclose the exact date. But, this fact had come on record through petitioners' evidence,
and not also disputed by the other side that the settlement process was held in the year
1994 in the area, while the final attestation was made on 18th June, 1994. It is further an
admitted position that the instant suit was filed by the respondents in the year 2004.
Further, to overcome in between period the only reason assigned by the
respondents/plaintiffs for filing the suit in the year 2004 was to the effect that two months
prior to the filing of the suit they came into knowledge about attestation of the mutation
in favour of the petitioners. In view of their own plea, the burden was on the
respondents/plaintiffs to establish that they were ignorant of the fact at relevant time, and
recently they came into knowledge of the same to bring their claim within the provided
period. But the evidence disclosed the contrary. The witnesses appeared on behalf of the
respondents/plaintiffs though stated that the land i n question is in possession of the
respondents, and they are cultivating the same, but their statements were completely
silent to the extent of ignorance an knowledge of the respondents/plaintiffs, thus failed to
substantiate their plea. Even respondent No .1, while recording his statement for himself,
and as attorney of the remaining respondents only stated that 3/4 months back, when he
approached the Settlement Authorities, it revealed that the land in question had been
entered in the names of the petition ers. But during course of cross -examination admitted
that certain other lands in the area were owned by them, which were entered in their
names during the same settlement process. Though he raised plea that questioned
mutation entry was effected due to mal a fides and in collusion of Revenue staff. But he
was unable to disclose any reason that when they were in knowledge of the remaining
mutation entries effected in their favour during same course, why they remained ignorant
of the fact to the extent of the land in question, despite the fact that they are residents of
the area, and claimed to be in possession of the land in question.
8. There is nothing on record to establish that there was any fraud committed by the
concerned staff, or with mala fide intenti on or in collusion with each other the questioned
mutation entry was effected in favour of the Provincial Government. The
respondents/plaintiffs kept silent since 1994, and approached the court for correction of
the entries in the year 2004, that is after lapse of ten years, that too without any reason.
The suit was surely filed beyond the provided period of three years, which starts from the
knowledge of the facts entitling the plaintiff to have instruments cancelled or set aside.
Keeping in view the menti oned facts it was quite clear that the suit was filed beyond
provided the period, that too without any reasonable cause, therefore, time -barred, thus
not maintainable. The trial court made an error while deciding the issue pertaining to
limitation. The tri al court simply relied on the contentions of the plaintiffs/respondents as
taken in the plaint, without even assessing the remaining circumstances and material, as
discussed hereinabove, thus made an error. Further, the time -barred relief cannot be
granted in favour of a party who slept over his right, that too without showing any
genuine cause for condonation of delay occurred in filing of his case.
9. As far as merits of the case are concerned, the respondents/plaintiffs were
claiming their right of owner ship in respect of land in question. They claimed to be in
cultivating possession of the land in question since last many years. Their witnesses also
affirmed the same. But neither the witnesses, nor even the respondent No.1/plaintiff No.1
disclosed the so urce from which they (plaintiffs) derived their title in respect of the land
in question. Rather it was their statements that the respondents/plaintiffs occupied the
land in question since long. Even respondent No.1 in his statement stated that: --
urdu
They all described the questioned property as ( ). Their own contention
showed that they are claiming their right only on basis of possession, that too disputed,
without having any legal title therein. In addition the period of possession is showe d only
to the extent of 18 to 20 years, from this fact it can easily be assessed that it is neither
their ancestral property, nor even they have purchased it or derived title through any other
means. Mere possession does not create any title in respect of a person. In present case
even the possession of the plaintiffs is a disputed fact, which is not established by them
(plaintiffs). Furthermore, the mutation entry is not a title document, nor it create or
extinguish right or title of a party in respect of a landed property. But it amounts to
declaration of title in favour of a party. Therefore, to rebut the entry effected in Revenue
Record some cogent evidence is required. But, in present case no such evidence had been
brought on record. In addition it is e vident from the material on record that the land in
question is an open land, having no construction thereon, nor have any mark of
cultivation. Though the respondents asserted that the land in question remained in their
cultivating possession, but no speci fic evidence has come on record to establish the fact.
10. Furthermore the oral evidence is of not such a standard, on which reliance can be
made. Therefore, in view of the facts it was incumbent upon the respondents/plaintiffs to
produce specific evidence in respect of their title to enable them to obtain an order for
cancellation of the questioned mutation entry, and recording the same in their names,
thereby declaring them to be the owner of the land in question, but they failed. Except
oral assertions, that too not specific, no other evidence had come on record on which
reliance can be made. In addition from material on record the land in question is covered
by the term "waste land", therefore, a presumption of ownership as provided under
section 54 of t he Land Revenue Act, 1967, is in favour of the Provincial Government.
This presumption can be rebutted by the other side by establishing a clear title in their
favour. But the trial court in contravention of this provision, placed burden on the
petitioners / defendants which is a clear error. Rather the burden was on the
respondents/plaintiffs, who had to establish their right, and title in respect of the land in
question, but they failed. Both the courts below while misappreciating the material, and
also wi thout giving due consideration to the relevant law, arrived to the conclusion, which
is not in conformity with law and facts, thus not sustainable.
11. In view of the above discussion the instant revision petition is hereby accepted.
The judgment dated 31s t January, 2005 of Qazi Turbat, and judgment dated 25th
November, 2006 of Majlis -e-Shoora Mekran at Turbat, are hereby set aside. The suit filed
by the respondents/ plaintiffs stands dismissed being filed beyond the period of
limitation, and also being wit hout merits, thus not maintainable.
There shall be no orders as to costs.
S.A.K.18/Q Revision accepted.
rference by this court. The petition being without merits is hereby dismissed in limine.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.