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Regular Second Appeal No. 233 of 1957, decided on 25^th April 1966.

S. 41-Inquiry to be made by vendee -Principle stated. With regard to the question of inquiry to be made by the vendees as required under section 41 of the Transfer of Property Act, 1882 the principle is that if there are no circumstances disclosing any reason for going behind the revenue entries, then the vendee is protected if he has bona fide acted on the entries appearing in the revenue records. The question of implied consent of the true owners has to be decided on the facts of each case. Mere entry of the name of the ostensible owner in the revenue record would not by itself amount to implied consent on the part of the true owner, as required by section 41 of the Transfer of Property Act, 1882. The fact that -the true owners had all along been in possession of the land in dispute would be a sufficiently strong circumstance for the vendees to be on their guard and to require them to make further inquiries beyond the entries made in the revenue records. If the vendees in such case fail to do so then the requirement of section 41 of the Act is not fulfilled and they are not entitled to the protection of that, section.

Ram Sarup and another v. Maya Shankar and others 33 P W R 1918, Mst. Rasulan Bibi and others v. Nand Lal and others A I R 1930 All. 521-; Hargovind Prasad and others v. Ambika Dutt Ram A I R 1934 Oudh 165; Perumal Mooppan and others v. Subramania Mudaliar A I R 1939 Mad. 299 and Muhammad Din and another v. Mst. Sardar Bibi and others A I R 1927 Lah. 666 ref.

Aftab Hussain for Appellants.

Abdul Haq Qureshi for Respondents Nos. 1, 2, 3 and 5.

Date of hearing: 25th April 1966.

This second appeal is by the plaintiffs and has arisen out of a suit for declaration regarding the ownership of the land in dispute. Their case was that they were the true owners of the suit land and the names of their ancestors had been entered as the owners in the revenue records right from the year 1872. However, in 1953 they came to know, during partition pro ceedings initiated by the defendant-respondents Hassan and others, that an area measuring 35 kanals 14 marlas bad been sold by Khuda Bakhsh and his two sisters to Hassan and Piran Ditta, along with some other portions of the land. Accordingly they filed the present suit in 1954 praying for a declaration that they were the owners of this land.

2. In the present appeal we are concerned only with 35 kanals and 14 marlas of land which are claimed to have been purchased by Hassan and Piran Ditta under Mutation No. 2262 (Exh. D. 3) entered on the 13th of September 1945 and attested on the 18th of December 1945. In this mutation the vendors are, as already stated, Khuda Bakhsh son of Allah Yar and his two sisters Mst. Sahib and Mst. Gullan. Tra vendees asserted that right from the jamabandi of 1916-17 (Exh. D. 5) up to the time of their purchase, the owner of the land was shown to be Allah Yar in the first instance and after his death his son and two daughters and that they were, therefore, bona fide purchasers for consideration.

3. The learned trial Judge found that from 1872 to 1914 the plaintiff-appellants were shown as the owners of the land but in the jamabandi for 1916-17 a change took place, without any justification, with the result that Allah Yar was shown to be one of the co-sharers and subsequently Allah Yar's children were shown as owners. He further held that possession had all along been with the true owners and not with Allah Yar or his heirs and that even the vendees Hassan and Piran Ditta did not obtain possession of the land in dispute. On this finding he concluded that Khuda Bakhsh and his sisters had no title to sell the land and Hassan and Piran Ditta, therefore, did not acquire any valid title, with the result that the plaintiffs were entitled to the decree prayed for.

4. Only Hassan and Piran Ditta went -up in appeal to the 'learned District Judge of Dera Ghazi Khan, who considered that the case was fully covered by the provisions of section 41 of the, Transfer of Property Act, inasmuch as that from 1916-17 onwards Allah Yar and then his children were shown as the ostensible owners of this land and in the presence of these entries in the jamabandis the vendees had no means to go behind these entries and they were bona fide purchasers for consideration. He accordingly accepted the appeal of Hassan and Piran Ditta and set aside the judgment and decree passed by the learned trial Judge. Although the learned District Judge has not made it clear, yet it is obvious that the effect of his order was not to disturb the judgment and decree of the trial Court with regard to the remaining part of the land in suit.

5. In this second appeal the main contention put forward on behalf of the plaintiff-appellants by their learned counsel, Sh. Aftab Hussain, is that the learned District Judge has erred in holding that the requirements of section 41 of the Transfer of Property Act were satisfied in this case. It is submitted that section 41 contains the following requirements:-

(1) That the transferor is the ostensible owner.

(2) That he is so by the consent, express or implied, of the real owner.

(3) That the transfer is for consideration.

(4) That the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

It is the contention of Sh. Aftab Hussain that, in this case at least two of these 'requirements are not satisfied, namely, that it is not shown that Allah Yar or his descendants were shown as owners by the express or implied consent of the plaintiffs; and that the transferees had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer.

6. On behalf of the defendant-respondents it is contended by Mr. Abdul Haq Qureshi that from 1916-17 upto the date of alienation in favour of the vendees, Allah Yar and his heirs had been shown as the ostensible owners of this property, and that being so, the vendees could obviously not have entertained any suspicion or doubt regarding the genuineness of the title of the vendors and in these circumstances it could not be said that they had to make any further inquiries to satisfy themselves about the power of the transferors to sell this land. The learned counsel for the vendees further submits that the fact that the true owners have been found to be in possession of this land does not mean that they were in possession as owners and it might very well be that they were in possession as tenants. It is finally submitted that the true owners having slept over their title and interest for such a long time it must be presumed that they had impliedly consented to the vendors dealing with this property as owners.

7. The questions raised in this case have been dealt with in several decided cases and it would be helpful to refer to them at this stage. I shall first take up the cases relied upon by Sh. Aftab Hussain, the learned counsel for the appellants. In Ram Sarup and another v. Maya Shankar and others (33 P W R 1918) it was held that:-

"Where the real owner has all along remained in possession and enjoyment of the property, that circumstance is constructive notice of the benami nature of the transaction."

It was further observed that:-

"A person invoking the plea of estoppel must clearly plead precise facts which led him to believe that his transferor was the real owner and must show the precise nature of the enquiries he relied on."

8. In Mst. Rasulan Bibi and others v. Nand Lal and others (A I R 1930 All. 521), it was observed that:-

"Mere inspection of khewat is not sufficiently good inquiry even in the case of auction-purchaser, especially when judgment -debtor is Mahomedan."

The reason for this view was stated to be that:-

"In most cases, coming from Mahomedan families, the names of the sisters and mother, who are also heirs of a deceased Mahomedan, are never entered in the khewat."

9. In Hargovind Prasad and others v. Ambika Dutt Ram (A I R 1934 Oudh 165), it was observed that:-

"The burden of proof is always on the transferee to show that he acted in good faith and that his transferor was the ostensible owner with the express or implied consent of the real owner.

"Where had the transferee made inquiries in village before purchasing the property he would at once have come to know that the property .had long ago been sold by the transferor and that he had no interest left in the property at all which he could transfer, transferee gets no title to the land. Mere inspection of .the revenue papers by the transferee is not enough."

10. In Perumal Mooppan and others v. Subramania Mudaliar (A I R 1939 Mad. 299) it was held that:-

"The mere fact that an entry is made in the survey register in favour of the transferor is not evidence of consent within the meaning of section 41 of the Transfer of Property Act."

11. Mr. Abdul Haq Qureshi, on the other hand, referred me to Muhammad Din and another, v. Mst. Sardar Bibi and others (A I R 1927 Lah, 666) in which it was laid down that:-

"Where the revenue entries show a person as the sole proprietor of certain land and there are no other circumstances leading the purchasers of such land from the proprietor to go behind the revenue records and make any further enquiry the vendees are fully protected by the principle underlying section 41."

12. It will seen that with regard to the question of inquiry to be made by the vendee, the principle which emerges from these authorities is that if there are no circumstances disclosing any reason for going behind the revenue entries, then the vendee is protected if he has bona fide acted on the entries appearing in the revenue records. The authorities cited by the learned counsel do not, however, seem to lay down any principle on the question of implied consent of the true owners; but it is clear that this would be a question to be decided on the facts of each case. It is also clear that the mere entry of the name of the ostensible owner in the revenue record would not by itself amount to implied consent on the part of the true owner, as required by section 41 of the Transfer of Property Act.

13. Now in the instant case, the true owners were entered as such from 1872 to 1914 and the change took place for the first time in 1916-17. Some of the plaintiffs have given evidence that it was for the first time in the year 1953 that they came to know of the change in the revenue entries during partition proceedings initiated by one of the vendees, namely, Hassan. Nothing has been brought on the record to rebut this statement and it is, therefore, clear in the circumstances of this case, that it cannot he held that there was express or implied consent on the part of the true owners to allow Allah Yar or his heirs to describe themselves as ostensible owners of the property by having their names entered in the successive jamabandis from 1917 onwards. The true owners were all along in possession as found by the learned trial Judge, and accordingly they had no reason to suspect that the entries in the jamabandis had been altered to their disadvantage. It seems to me, therefore, that in these circumstances one of the essential requirements laid down in section 41 to the effect that there should be express or implied consent by the true owners has not been fulfilled.

14. For more or less the same reasons I am also inclined to the view that this was a case where it was incumbent on the vendees to make further inquiries by going behind the entries in the revenue records. It has already been stated that the true owners were all along in possession and, therefore, this was a circumstance which called for further inquiry beyond merely looking into the entries appearing in the revenue records. There is no evidence on the part of the vendees to show that the true owners were not in possession throughout the period which we are considering here. The finding of the learned trial Judge on this point was not challenged by the vendees who had gone up in appeal, with the result that the learned District Judge had proceeded on the basis that the true owners were in possession. The learned Judge, however, did not examine the question whether this circumstance had any bearing on the scope of the inquiry which was incumbent upon the vendees in this case. Even in the authority relied upon by the learned counsel for the vendees it is clearly stated that:-

"The purchaser need not go behind the revenue entries if there are no other circumstances creating a doubt with regard to the genuineness of these entries,"

The fact that the true owners had all along been in possession of the land was, in my view, a sufficiently strong circumstance for the vendees to be put on their guard and to require them to make further inquiries beyond the entries made in the revenue records. This they failed to do with the 'result that this requirement of section 41 was also not fulfilled by them.

15. For the foregoing reasons, I have come to the con clusion that the vendees-defendants Hassan and Piran Ditta were not entitled to the protection given by section 41 of the Transfer of Property Act; on the contrary the plaintiff appellants were entitled to have their suit decreed in its entirety. Accordingly I would accept this appeal, set aside the judgment and decree of the learned District Judge and restore that of the trial Court. In view, however, of the circumstances of the 'case and the legal question involved, the parties are left to bear their own costs.

K. B. A. Appeal accepted.

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