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(On appeal from the Judgment and Order, dated 16‑12‑1983 of the Lahore High Court, Rawalpindi Bench, passed in R.S.A. No.24/1983).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Leave to appeal‑‑Concurrent findings of fact by Courts below‑‑Cannot be raised before Supreme Court.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Petition for leave to appeal‑‑Point of contention abandoned before High Court‑‑Held, cannot be allowed to be argued at leave stage.

(c) Transfer of Property Act (IV of 1882)‑‑

‑‑‑S.41‑‑Bona fide purchaser for value‑‑Section 41 invokable only where a person poses to be an ostensible owner but title of real owner is not in dispute.

Kh. Muhammad Farooq, Advocate Supreme Court instructed by Ch. Akhtar All, Advocate‑on‑Record for Petitioner.

Nemo for Respondent

Date of hearing: 28‑1‑1984.

‑‑ One Nawab Allah Rakha and others claiming to be the temporary allottees of agricultural land bearing Khasra Nos. 936, 983, 984, 985 and 989 situate in village Thathi, district Jhelum, sold it to Maula Dad, who in his turn sold it to the petitioner. However, it turned out later that these Khasra numbers were not entered in his R.L‑II, and it was stated at the bar that the relevant R.L‑II which contained these Khasra numbers as belonging to him, was tampered with, but suprisingly enough the petitioner did not produce a certified copy of the tampered R.L‑II register bearing the entries of these Khasra numbers. He, however, filed a suit to establish his ownership but failed as it was dismissed on the 25th of January 1983.

Reliance was placed before the trial Court on the Perchi Taqseem Khatooni showing the Khasra numbers to have been temporarily allotted to Nawab Allah Rakha and others, but no evidence appears to have been led to show that these Khasra numbers were confirmed in his name or entered in R.L‑II register.

The trial Court accepted the testimony of Shaikh Shaukat Ali, Office Qanungo, Tehsil Office, Jhelum who tacitly gave out that these Khasra numbers were not allotted to Nawab Allah Rakha and others. The trial Court preferred his evidence to that of Ghulam Rasool, Patwari , The who supported his case. In the result, the trial Court held that he was not a bona fide purchaser for value as he purchased the property from Maula Dad, who had no title to it.

The appellate Court also rejected the appeal and so did the High Court.

All that was argued before the High Court was that the evidence was misread, and also that it was not acceptable as against the contents of the document showing Maula Dad as the title‑holder. The High Court held that these contentions had no force, and that in the absence of any error of law the second appeal did not merit any consideration.

There is a concurrent finding of fact that these Khasra numbers could not be the subject‑matter of sale as they did not belong either to Nawab Allah Rakha and others or to Maula Dad his vendee.

In view of this conclusion, we see no merit in this petition. The learned counsel attempted to argue that he was a bona fide purchaser for value without notice of the defect in title, but this contention was abandoned before the High Court and we see no justification to allow him to argue this point now at the leave stage. Even otherwise on these facts, section 41 of the Transfer of Property Act will have no application, as this provision is only invoked where a person poses to be an ostensible owner but the title of the real owner is not in dispute.

Accordingly, the petition fails and is hereby dismissed.

S.Q. Petition dismissed.

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