2018 C L C 1943
[Balochistan]
Before Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ
Mst. SAEEDA BEGUM and 4 others ----Appellants
Versus
Mst. HABIB -U-NISA and others ----Respondents
R.F.A. No.25 of 2008, decided on 21st May, 2018.
Specific Relief Act (I of 1877) ---
----Ss.42 & 39---Transfer of Property Act (IV of 1882), S. 41---Qanun- e-Shahadat (10 of 1984),
Art. 103---Suit for declaration, cancellation of exchange deed and partition---Equitable doctrine --
-Applicability ---Scope ---Contention of plaintiffs was that they were co -sharers of suit property
and exchange deed in favour of defendants was against the law and facts ---Suit was decreed by
the Trial Court ---Validity ---Suit property was in the ownership of father of plaintiffs ---
Documentary evidence woul d prevail over oral evidence ---Plaintiffs being co -sharers were
entitled to have their shares as soon as succession opened ---Every co -sharer would be deemed to
be in possession on every inch of suit land till the partition took place ---Equitable doctrine
contained in S. 41 of Transfer of Property Act, 1882 would protect a subsequent transfer if it was
established that transferee had acted in good faith and taken reasonable care before entering into
the transaction and consideration for such transfer was pai d---Equitable doctrine must be pleaded
clearly with specific fact to be relied upon ---Onus to prove equitable doctrine would be upon the
person who pleaded such protection--- Defendants, in the present case, had never pleaded that
they were bonafide purchas ers through exchange without notice of right of shares of plaintiffs ---
Defendants having not checked /enquired with regard to shares of plaintiffs, had not taken reasonable care with regard to ownership of plaintiffs on the suit land ---Impugned exchange
deed and subsequent transfer of suit land was illegal and void--- Appeal was dismissed in
circumstances.
PLD 1990 SC 1; PLD 2002 SC 823; 1991 SCMR 1369; Allah Bakhsh and others v.
Province of Punjab and others, 2002 SCMR 2003 and Ghulam Rasool and others v. Noor
Muhammad and others 2017 SCMR 81 rel.
Khushnood Ahmed for Appellants.
Abdul Rasheed Awan for Respondents Nos.1 to 12.
Muhammad Wasay Tareen for Respondent No.13.
Khalil- uz-Zaman Ali Zai, Additional Advocate General for Respondents Nos.14 and 15.
Date of hearing: 17th April, 2018.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---An evacuee plot bearing Khasra No.2378,
measuring 1702 sq.ft. at Masjid Road, Quetta was allotted in favour of Abdul Karim (late) by the
Deputy Custodian of Evacuee Property, Quetta vide his allotment order dated 20th June 1953 (the property in dispute), whereon a residential House bearing Municipal No.2- 20/3 Masjid
Road, Quetta and two shops were constructed by late Abdul Kareem during 1953/54, under the approval plan issued by the Muni cipal Engineer, Quetta dated 4th September 1953. Late Abdul
Karim died during the month of December 1959. After the death of late Abdul Karim, one of his sons namely Raja Abdul Qadir rented out the property in dispute to one Abdul Wasay in the year 1962. I n the year 1964, the Custodian Department demanded the cost of the property and
consequently put to auction. The tenant Abdul Wasay purchased the property in dispute in an open auction. Raja Muhammad Sabir (late) (predecessor -in-interest of the appellants Nos.1 to 3)
(defendants) filed an appeal before the learned Additional Settlement and Rehabilitation Commissioner (Custodian Department), which was accepted and the property in dispute was transferred in favour of late Raja Muhammad Sabir vide order dated 18th January 1971, instead of all the legal heirs of late Abdul Kareem. In the year 1992, the sons of late Abdul Kareem i.e. respondents (plaintiffs and predecessor in interest of appellants Nos.1 to 3) demolished the house and two shops and constructed ni ne (9) shops in the basement and 16 shops on the ground floor.
The shops known as "Al -Qudoos Shopping Center", while on upper storey constructed "Raja
Hotel" (property in dispute) as per approval plan of Municipal Committee. In January, 1997, late Raja Muh ammad Sabir son of late Abdul Kareem made a mutual exchange of Raja Hotel and Al -
Qudoos Shopping Center with the house measuring 3911 1/2 sq.ft under Khasra No.77/3 -79,
Khewat No. 171, Khatoni No.262 situated in Ward No.31, Tappa Urban Tehsil and District, Quetta and a shop measuring 157- 2/3 sq.ft. under Khasra No. 471/279 -474/253 situated in Ward
No. 34, Tappa Urban District, Quetta and also received Rs.500,000/ - (exchange in question) with
the appellants Nos.4 and 5 (defendants). The above exchange in que stion was challenged by the
respondents Nos.1 to 12 (plaintiffs) (predecessor -in-interest of late Abdul Kareem) by way of
filing suit on 24th March 2003 for declaration cancellation of exchange in question, partition and mesne profit against the petitioner s (defendants) and respondents Nos.13 to 15 (defendants),
wherein it was averred that the plaintiffs being legal heirs of late Abdul Kareem are co -shares of
the property in dispute and exchange in question arrived at between the predecessor in interest of the appellants Nos.1 to 3 (defendants) with appellants Nos.4 and 5 (defendants) and appellants Nos.4 and 5 further sold the property in dispute to the respondent No.13 (defendant) vide mutation Nos. 399 and 4000 dated 20th January, 2000. It was further contended that the predecessor -in-interest of the appellants Nos.1 to 3 promised to provide share of the respondents
(plaintiffs), but subsequently the claim was denied and claimed sole ownership of the property in dispute.
2. The predecessor in interest of t he appellants Nos.1 to 3 while contesting the suit filed by
the plaintiffs contended that the property in dispute was transferred on his name vide judicial
order dated 18th January 1971 by the Additional Settlement Commissioner and being an exclusive owner made the exchange in question with the appellants Nos.4 and 5, however, he
also raised question that the appellants Nos.4 and 5 (defendants), due to misinterpretation of
registered rectification deed dated 20th October 1997 entered the exchange shop beari ng Khasra
No.471/279/473/283 in the name of the appellant No.4 Abdul Ali and thereafter the said property
was transferred in the name of one Baz Muhammad.
3. The appellants Nos.4 and 5 (defendants) and respondent No.13 also contested the suit by
way of fil ing written statement.
4. Out of pleadings of the parties, following issues were framed:
"i. Whether the suit is hopelessly barred by time?
ii. Whether the suit is not maintainable in view of provisions contained in Displaced
Persons and Rehabilitation Act, 1958?
iii. Whether the suit is not maintainable in view of sections 39, 42 and 56 of the Specific Relief Act?
iv. Whether the plaintiffs are shareholders in the properly in dispute?
v. Whether the exchange deed dated 01 -01-97 is illegal one?
vi. Whether the transaction between defendants Nos.4, 5 and 6 is illegal and void?
vii. Whether the plaintiffs are entitled for the relief claimed for?
viii. Relief?"
5. The parties produced their respective oral and documentary evidence. The learned Senior
Civil Judge -I, Quetta (hereinafter referred to as "the trial Court") vide judgment dated 13th May
2008, decreed the Suit (hereinafter referred to as "the impugned judgment and decree") in favour of the plaintiffs.
6. Learned counsel for the appella nts contended that plaintiffs had failed to prove that
property in dispute was inherited; that the transfer deed was issued in favour of late Raja Sabir, in the year 1969 and entries in revenue record were also recorded in his favour, that neither the transfer deed nor mutations were challenged by the plaintiffs; that suit was hopelessly barred by
time, but the findings of the trial Court are silent in this regard; that plaintiffs being brother were permitted by late Raja Sabir to run business in the proper ty in dispute on his behalf, which
neither vests any right or title in their favour; that Raja Sabir being sole owner of the property in dispute entered into exchange with respondents Nos.4 and 5 (appellants Nos.4 and 5); that plaintiffs had no locus standi to challenge the exchange in question; that the documents related to assessment of Al -Qadoos Shopping Plaza and Raja Hotel pertain to assessment of Income Tax
and had no nexus to the co- ownership of the plaintiffs; that not a single document with regard to
co-ownership was produced by the plaintiffs; that the findings of the trial Court in respect of
issue No.4 are based on misinterpretation, misconstruction of the evidence; that no issue with regard to rendition of account was framed; that property has b een exchanged and it was not in
possession of late Raja Sabir, therefore, the direction without determining as to whether
business/property is in possession of whom, the trial Court to submit the account by the
defendants is unwarranted.
7. Learned counsel for the respondents Nos.1 to 12 contended that late Abdul Kareem
applied for the allotment of the property; that late Raja Sabir being son of Abdul Karim was
pursuing the process of allotment, after death, of Abdul Karim for himself and for the plaintiffs ;
that he through misrepresentation and by committing fraud, entered his name in the PTD; that all the documentary evidence produced by the plaintiffs clearly demonstrate the co- ownership of the
legal heirs of late Abdul Karim; that late Raja Sabir is esto pped from his conduct that in the
concerned department he exhibited co -ownership of the plaintiffs, but in concealment manner
entered into an exchange with respondents Nos.4 and 5 over the right and entitlement of the plaintiffs; that the exchange deed was absolutely void having no legal affect and the trial Court
rightly held so; that the findings rendered by the trial Court neither reflect misreading nor non-reading of evidence.
8. We have heard the learned counsel for the parties and perused the record. The question
related to limitation of the suit has been raised by the defence as the respondents Nos.1 and 2 had challenged the mutations in respect of property in dispute in favour of predecessor -in-interest of
the appellants Nos.1 to 3 and subsequently e xchange deed dated 1st January 1997 between
predecessor -in-interest of appellants Nos.1 to 3 and appellants Nos.4 and 5 and also sought
declaration with regard to their shares in respect of inherited property of their father namely, Raja Abdul Karim. The predecessor -in-interest of appellants Nos. 1 to 3 had claimed that
property in dispute was transferred on his name through judicial order dated 18.01.1971 by the Additional Settlement Commissioner, which attained finality, as the same was not challenged before any competent Court of law, therefore, the suit which was filed on 24.04.2003 for
cancellation of the same, is barred by time, regarding which issue No.1 was framed. The evidence produced by respondents Nos. 1 to 12 (plaintiffs) ascertaining their right through their father, namely, late Raja Abdul Karim that he applied for allotment of the property in dispute and after his death, the predecessor -in-interest of the appellants Nos. 1 to 3 was pursuing the matter.
The perusal of record related to assessment of, properties M/s. Al -Qudoos Shopping Center and
Raja Hotel, Masjid Road, Quetta for the assessment years 1991- 92 to 1993- 94 filed by the
predecessor -in-interest of the appellants Nos.1 to 3 to Assistant Commissioner Income Tax
Circle -B, Quetta indicat es that property in dispute was described as property belong to their
father, namely, Raja Abdul Karim (late), wherein, names of legal heirs of late, Raja Abdul Karim had been described, which includes plaintiffs, Abdul Qadir Muhammad Sadique and predecess or-in-interest of appellants Nos.1 to 3. This documentary evidence has not been refuted
either by the predecessor -in-interest of the appellants Nos.1 to 3 or appellants themselves
through any cogent evidence, therefore, in presence of oral evidence, the documents prevail, as provided under Article 103 of Qanun- e-Shahadat Order, 1984. In the circumstances, it came on
record through evidence that property in dispute was inherited property and plaintiffs being co-sharers become entitled to have their shares as soon as succession opened, therefore, they are
deemed to be in possession of the property of each inch, unless partition taken place. In such like cases, the question of limitation has already been settled by the Hon'ble Supreme Court of Pakistan, in case reported in PLD 1990 SC 1, PLD 2002 SC 823 and 1991 SCMR 1369, thus, the
findings rendered by the trial Court with regard to issues Nos.1 and 2 warrant no interference by this Court.
9. As far as the endings of the trial Court with regard to issue No.4 is concerned, to
substantiate the issue related to question as to whether the respondents Nos. 1 to 12 (plaintiffs)
are shareholders in the property in dispute or otherwise. The plaintiffs had substantiated their case through an affidavit Ex.P/1 produced by PW -1 Malik Sultan Mehmood, Advocate, who
attested the affidavit of Abdul Qadir, Haji Muhammad Sabir (predecessor -in-interest of
appellants Nos. 1 to 3) and Muhammad Sadique, wherein, the parties in the suit including
predecessor -in-interest of the appellan ts Nos. 1 to 3 solemnly affirmed that they have constructed
a Hotel and Shopping Center known as Raja Hotel and Al -Qudoos Shopping Center on inherited
property bearing No.2/20/3 Masjid Road, Quetta and further affirmed that their father Raja
Abdul Karim son of Muhammad Khan had expired during December, 1959, and after his death, the real brothers have become the owners of the said property, which had been demolished and constructed the said shopping center and hotel. In respect of shares it was further affi rmed that
the real brothers have equal shares in inherited property known as Raja Hotel and Al -Qudoos
Shopping Center. The defence had not denied in cross -examination about the fact of affirmation
of Ex.P.1 Ex.P/2 is an, order dated 20th June 1953, issued by the Court of Deputy Rehabilitation Commissioner Cum Deputy Custodian of Evacuees Property Quetta, which was produced by PW-3 Ameer Hamza, representative of Member Board of Revenue, Balochistan, the contents
whereof reveals as under:
"In exercise of the powers conferred upon me under section 14 of the Regulation 1 of 1950 I allot Plot bearing Khasra No.2378 to Abdul Karim with effect from 18.6.1953."
PW-3 has produced Ex.P/1 to Ex.P/7. Ex.P/3 is an application for transfer of an evacuee
property of land over which permanent structure has been made or constructed, which was on the name of Abdul Karim son of Muhammad Khan. Ex.P/4 is detail of evacuee property of Urban
area of Tehsil Quetta, which further indicates the name of Abdul Karim and record of prope rty
bearing Khasra No.2378, measuring 1702 sq.ft. constructed on an area 954 sq.ft. open area 748, sq.ft., wherein, in column No.10, it was provided that site plan has also been approved. Ex.P/5 is Fard-e-Haqiat of Ward No.6, Circle I, Quetta, Tehsil Quett a. indicating the name of Abdul
Karim son of Muhammad Khan, who was in possession of property. Ex.P/6 is an application filed in response to notice under Para 24 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and Para 35 of Settlement Schedule No.1, by the
predecessor -in-interest of the appellants Nos.1 and 2, namely, late Raja Muhammad Sabir, as at
that time the predecessor -in-interest of the plaintiffs including late Raja Muhammad Sabir,
namely, Raja Abdul Karim was died, however, in the application it is clearly mentioned that, 'I respectfully beg to state that the plot in question was transferred to my late father M. Abdul Karim at Rs.3,046/58. No such Notice was ever issued to me for the deposit of this amount. My father left no record behind him. My father had already constructed a 3 type pacca House on the said plot, where we are residing since long. In the circumstances it is requested that the price of the plot previously fixed at Rs.30046/58 may kindly be uphel d, which I am prepared to pay and
the Notice under reference may kindly be withdrawn'. Ex.P/7 is another application filed by the late Raja Muhammad Sabir (predecessor -in-interest of the appellants Nos.1 to 3) before the
Deputy Settlement and Rehabilitatio n Commissioner, Quetta -Kalat Region, Quetta for deletion
of Plot Khasra No.2378, situated at Masjid Road, Quetta from the auction list, wherein too, it was submitted as under:
"It is respectfully submitted that the above mentioned plot is in our possession since 1956
on which our late father Abdul Karim has built a pacca Residential House bearing
Municipal No.2- 20/3 we have been residing there since then. In this connection we
further beg to submit that owing to the death of our father we were not aware of the fact that we were required to pay the price of the said plot. We have now come to know that the said plot (where we have constructed a pacca residential House) has been included in
the Auction list. And that may kindly be deleted from the auction list and two months
time be given to pay the dues".
PW-4 Muhammad Anwar, representative of Income Tax Department, has produced
Ex.P/8 to Ex.P/83. Ex.P/8 is an application filed before the Assistant Commissioner of Income
Tax, Circle- B, Quetta for finalization of assessment of M/s. Al -Qadoos Shopping Center and
Raja Hotel, Masjid Road Quetta for the assessment years 1991/92 to 1993/94 filed by the
predecessor -in-interest of appellants Nos. 1 to 3, the relevant is reproduced hereinbelow:
"That an Evacuee Plot bea ring Khasra No.2378 measuring 1702 sq. Feet situated at
Masjid Road, Quetta was allotted in favour of our father Mr. Abdul Kareem (Late) by the Deputy Custodian of Evacuee Property, Quetta vide his allotment Order dated 20.06.1953, and whereon a Residentia l House bearing Municipal No. 2- 20/3, Masjid
Road, Quetta was constructed by our father during the financial year 1953/54, under the
approved plan by the Municipal Engineer, Quetta dated 4.9.1953, and whereas Mr. Abdul
Kareem had expired during the month of December, 1959 and naturally after his death his real sons namely: -,
(a) Abdul Qadir.
(b) Haji Muhammad Sabir.
(c) Muhammad Sadiq.
have become the owners of the said inherited Property, bearing Khasra No. 2378 measuring 1702 Sq.Feet (House No.2 -20/3), Masjid Road, Quetta, which had been
demolished and constructed a Hotel/Shopping Centre, known as AL -QADUS
SHOPPING CENTER AND RAJA HOTEL, QUETTA. The Ownership rights in shape of Fard of Property in the name of one of the Co- Owner, at which the Building i n
question had been constructed is attached herewith for your Honour's kind consideration".
Ex.P/8 further reveals that after death of real owner of the property in dispute, namely,
Raja Abdul Karim has also been incorporated in the aforesaid document. The contents whereof are reproduced herein below:
"DEATH OF REAL OWNER: -
The real owner of land as well as constructed House bearing Municipal No.2- 20/3,
Masjid Road, Quetta had expired during the month of December 1959, and whereas after the de ath of real owners of Land/house, his real sons namely:
(a) Abdul Qadir.
(b) Haji Muhammad Sabir.
(c) Muhammad Sadiq.
have become the Owners of inherited property in place of their deceased father Mr.
Abdul Kareem and whereas the heirs had demolished th e said inherited property bearing
Municipal No.2- 20/3, Masjid Road, Quetta and constructed thereupon a Shopping
Centre/Hotel."
All the above mentioned documents including assessment of Al -Qadoos Shopping Center
and Raja Hotel, Masjid Road, Quetta clearly demonstrate that the property was inherited
property of Raja Abdul Karim and each legal heir of Raja Abdul Karim had right to the extent of
their respective shares. Besides documentary evidence, oral evidence of PW -5 Mst. Kulsoom,
PW-6 Mirza Bashir Ahmed a nd PW -7 Rehmat Khan supported the issue No.4 in this regard.
10. On the other hand, the appellants (defendants) produced DW -1 Ali Ahmed, who merely
stated that predecessor -in-interest of appellants Nos. 1 to 3 Raja Muhammad Sabir (late) was
owner of the pr operty in dispute.
DW-2 Imam Bakhsh produced National Fax Number (NTN) certificate of Haji
Muhammad Sabir, Abdul Qadir and Muhammad Sadiq as Ex -D/1 to Ex -D/3.
DW-3 William produced utility bills of telephone as Ex -D/4.
DW-4 to DW -6 had produced document s Ex-D/5 to Ex -D/19. Much stress has been made
on Ex -D/19, the order dated 18.01.1971 passed by the Additional Settlement and Commissioner
Khairpur Quetta and Kalat Division at Sukkur, passed in Appeal under Section 19(1)(b) of the
Displaced Persons Act, 1 958 filed by late Muhammad Sabir son of Abdul Karim, whereby, the
appeal was accepted. Since the appeal was in continuation of the proceedings with regard to basic allotment in favour of the predecessor -in-interest of the plaintiffs, namely, Raja Abdul
Karim, on that stance, the appeal was decided, therefore, on the said strength late Muhammad
Sabir in presence of aforesaid documentary evidence produced by plaintiffs, cannot be considered an exclusive owner of the property in dispute and he is stopped from his conduct, which reflects from various documentary evidence as mentioned hereinabove.
11. It is obvious from the record that after death of Abdul Karim, the conduct of male legal
heirs of Abdul Karim has also been noticed, where they instead of providing details of all the
legal heirs of late Abdul Karim before the concerned department including female, in a colorful
manner deprived them from their valuable rights in the inherited property.
12. As far issue No. 5 is concerned, the exchange deed arrived at between late Raja
Muhammad Sabir and appellants Nos. 4 and 5 dated 01.01.1997, though conceded by the appellants, but in view of decision of issue No.4, the predecessor -in-interest of appellants Nos. 1
to 3 had got no authority to enter into impugned exchange deed without having lawful authority
on behalf of other legal heirs. The respondents (plaintiffs) through cogent documentary evidence
sufficiently rebutted the revenue entries in favour of the predecessor in interest of the petitioners Nos.1 to 3 (def endants), therefore, the findings of issue No.4 warrant no interference.
13. Adverting to issue No.5, "whether the exchange deed dated 01- 01-97 is illegal one", and
issue No.6, "whether the transaction between defendants Nos.4, 5 and 6 is illegal and void" .
From the evidence on record, the property in dispute i.e. an Evacuee plot bearing Khasra No.2378, Khatooni No.44, Measuring 1702 sq.ft. new Khewat No. 160, Khatooni No.235, Khasra No.262, Mohal and Mouza Ward No.19, Tappa Urban situated at the Junction of Masjid Road and Roop Chand Road, Quetta was allotted in favour of late Abdul Kareem by the Deputy Custodian of Evacuee Property, Quetta vide allotment order dated 20th June 1953 and the resolution of issue No.4 demonstrates that all the legal heirs of la te Abdul Kareem were co -
sharers according to their respective shares in the aforesaid property. The contention of the learned counsel for the appellants (defendants) that predecessor in interest of the appellants Nos.1 to 3 was recorded owner and the appel lants Nos.4 and 5 as well as 6 were purchasers and
through exchange deed Ex.P/4 and Ex -D/25 for value in good faith and without notice of earlier
allotment in favour of late Abdul Karim, therefore, they are entitled for benefit of section 41 of the Transfer of Property Act, 1882, is not tenable. The equitable doctrine contained in section 41
of the Transfer of Property Act (proviso) which protects a subsequent transfer, it must be
established by them that they had acted in good faith and taken reasonable ca re before entering
into the transaction and that they had given valuable consideration for such transfer. The equitable doctrine is a deduction from the law of estoppel, which must be pleaded clearly with specific fact to be relied upon. The onus of this e quitable doctrine is always upon the person,
who pleads such protection as held by the Hon'ble Supreme Court of Pakistan in Allah Bakhsh and others v. Province of Punjab and others, 2002 SCMR 2003.
14. In the instant case, the appellants Nos.4 and 5 never pleaded that they were bona -tide
purchasers through exchange without notice of right shares of legal heirs of late Abdul Kareem. In fact, had they bothered to check/inquire about the same, they would have discovered but no such effort was taken by them? Ad mittedly, neither they raised such plea of equitable doctrine in
their written statement nor any issue was framed, therefore, the appellants Nos.4 and 5 and respondent No.13 cannot claim the benefit of section 41 of the Transfer of Property Act. Reference in this respect is to be -made to the case titled Ghulam Rasool and others v. Noor
Muhammad and others, 2017 SCMR 81, wherein the Hon'ble Supreme Court of Pakistan observed as under:
The essential ingredients of this, section are, (a) that the transferor w as the ostensible
owner, (b) that the transfer was made by consent express or implied of the real owner; (c) that the transfer was made for consideration; and (d) that the transferee while acting in good faith had taken reasonable care before entering into such transaction. These four imperative/essential
ingredients must co- exist in order for a person to take the benefit of the equitable principle,
however, merely on account of some error committed by the revenue staff in the revenue record unintentional or deliberate or motivated which excludes the name of the lawful owner of the property therefrom and the property, shown to be in the name of some other person who is not the owner of the whole or a part thereof by itself shall not deprive and denude the tr ue and actual
owner from the title of the property and this by no means can be construed that the transfer, to
the person claiming protection of the rule of equity ibid by a person who actually is not the
owner is being made by consent express or implied of the real owner. This even is not the case of the appellants that the transfer to them was with the consent of two brothers whose names have been illegally and unauthorizedly removed from the column of ownership by the revenue authorities, so as to bring the case within the purview of section 41 ibid. In the instant case as it
is an undisputed fact that the property in question was owned by Muhammad Siddique who was
survived by four sons (named above) and they all became the joint owners of the property. T he
entries in the revenue record to that effect were made and are vivid and uncontroverted. How and
why the names of the two brothers from the revenue record were removed is absolutely obscure. It is not the case of the present appellants that the said brothers had transferred their share in the joint property (purchased by them) in favour of the other two brothers by any lawful transaction/means i.e. by exchange, gift, sale, relinquishment etc. Thus if the appellants had taken reasonable care in going into the genesis of the ownership and examining the record in
depth, which they as purchasers were required to do so, they would have found out that the property being an inherited property was originally owned by Muhammad Siddique which devolved upon his lega l heirs i.e. four brothers jointly and that all these jour brothers still
continue to be the co -owners of the property; and that the exclusion of Ghulam Muhammad and
Jewan's name from the revenue record is not on account of any legal or authorized transact ion or
mode, rather for either a human error or because of some tainted reason. Be that as it may, the mere omission of Ghulam Muhammad and Jewan's name in the revenue record in no manner can be construed to mean that they had consented either express or i mplied for the sale in favour of
the appellants and that the appellants took reasonable care in good faith, within the contemplation of condition No. (iv) of section 41 of ibid. Obviously such unauthorized sale to the extent of their share in the sold property was void and that the case of the appellants do not squarely qualify the test of section 41 and, therefore, they could not take up the plea of bona fide
purchaser and their sale could not be protected on that account. Resultantly, this appeal has no merit and is hereby dismissed."
15. In the instant case, white executing exchange deed Fx.P/4 and Ex -D/25, neither the
appellants Nos.4 and 5 nor the respondent No.13 had taken reasonable care about the ownership nor examined the record in depth. Had they done so, they would have found out that the property in dispute was originally owned by late Abdul Kareem, which devolved upon his legal heirs. Besides, the appellants Nos.4 and 5 vide exchange deed F.x.P/4 and D/25, had also given shop constructed on a pie ce of land measuring 157, 2/3 sq.ft. under Khasra No. 471/279- 473/283
situated in Ward No.34, Tappa Urban Tehsil and District, Quetta in lieu of property in dispute, but contrary to that, the said property was entered on the name of appellant Abdul Ali and thereafter said property was transferred in the name of Baz Muhammad son of Ghulam Nabi i.e. the real brother of appellant Abdul Bari, who also filed a suit against the appellants Nos.1 to 3 for cancellation of second rectification deed dated 14th June 1999, which was outcome of exchange deed Ex.P/4. It is also important to mention here that the brother of the appellant Abdul Bari namely Baz Muhammad had also filed an appeal under section 161 of Balochistan Revenue Act before the Revenue Tribunal -I/Land Co mmissioner Balochistan against his brothers
including the appellant Abdul Bari for restoration of mutation entry No. 1080, which was accepted vide order dated 26th November 2008, which was upheld by the Hon'ble Supreme Court of Pakistan in Civil Petition N o. 191- Q of 2012 vide judgment dated 19th March 2014.
After restoration of mutation No. 1080, all the subsequent entries of shop measuring 157.2 sq.ft.,
including mutation entries in favour of the predecessor -in-interest of appellants Nos. 1 to 3 and
appel lants Nos. 4 and 5 were cancelled and both predecessor of the appellants Nos. 1 to 3 and
appellants Nos.4 and 5 had lost title, therefore, in these circumstances too, exchange deed Ex.P/4
dated 1st January 1997 was illegal and subsequent transfer of proper ty in dispute between the
appellants Nos.4 and 5 and defendant No.6 (respondent No.13) was also illegal and void,
therefore, the findings of the trial Court with regard to issues Nos. 5 and 6 warrant no
interference, however, the findings of the trial Cour t in respect of shop constructed under Khasra
No. 471/279/473/283, measuring 157- 2/3 sq.ft. are set aside in view of the judgment of the
Hon'ble Supreme Court of Pakistan dated 19th March 2014. The findings of the trial Court with
regard to rendition of ac count as dealt in issue No.8 are also not sustainable as neither any issue
was framed in this respect nor any evidence came on record, therefore, direction of the trial Court to the appellants Nos.1 to 3 (defendants Nos.1 to 3) to furnish detail of income and expenditure is also set aside.
In view of the above modification, the Regular First Appeal No.25 of 2008 is otherwise
dismissed. Parties are left to bear their own costs.
Decree sheet be drawn accordingly.
ZC/54/Bal. Appeal dismissed.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,
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