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S. 41‑Purchase of property in good faith‑‑.Protection to such transaction‑Requirements‑Where purchaser of property had acted in good faith by taking all reasonable care to ascertain title of his vendor who was continued to be shown in revenue record to be owner of land‑Such transaction, held, would be protected under S. 41, Transfer of Property Act, 1882.

Abdul Karim v. Fazal Muhammad Shah P L D 1967 S C 411 distingu ished.

Muhammad Sarfraz Khan and another v. Farid Khan and 22 others P L D 1972 Pesh. 109 ref:

(b) Civil Procedure Code (V of 1908)‑

‑‑ S. 115‑Transfer of Property Act (IV of 1882), S. 41‑Revisional jurisdiction, exercise of ‑ Where lower appellate Court had not committed any jurisdictional error of the nature of misreading or non‑reading of evidence in affirming finding of Trial Court, High Court, held, would decline to interfere in its revisional jurisdiction.

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

‑‑ S. 54‑Purchase of property in municipal area‑Effect of non -registration‑Mutation of property for a consideration of more than rupees one hundred being opposed to S. 54, held, could not confer valid title to such purchaser where property under sale was situate in municipal area, provisions of S. 54 having been made applicable to all Municipalities in Punjab since 6‑5‑1935.

Zafarullah Cheema for the State.

AMJAD KHAN, J.‑On 21‑10‑1968, respondents Nos. 1 to 4 filed a suit for possession of land on the basis of their title acquired through the registered sale‑deed dated 15‑9‑1964, executed by its owner Muhammad Hussain who had died in the year 1965 and his legal heirs, respondents 5 to 13 herein, were impleaded as defendants Nos. 1 to 9 in the suit ; whereas t4he present petitioner was joined as defendant No. 10 for the reason that the aforementioned heirs of Muhammad Hussain were stated to have sold the land to him after the sanctioning in their favour of a mutation on 30‑8‑1966 with regard to Muhammad riussain's inheritance. Defendants Nos. 1 to 9 did not contest the suit which was resisted by the. petitioner alone by pleading title in himself since 9‑4‑1954 on account of sale in his favour made by his brother Muhammad Hussain so that thereafter he had not been left with any right to transfer it to the plaintiffs. In the trial Court, only two issues, relating to the rival titles claimed by the plaintiffs and defendant No. 10, on the basis of the sales pleaded by them, were set down for trial. Under the first issue, learned Civil Judge found that Muhammad Hussain had duly executed the sale‑deed Exh. P. 1 in favour of the plaintiffs therefore there had not been left any title for Muhammad Hussain in the land to devolve upon his heirs through inheritance. Under the second issue, he held that defendant No. 10 had not been able to prove the sale in his favour and had not produced even the receipt relating to the alleged payment of consideration. The suit was consequently decreed in favour of the plaintiffs on 4‑12‑1969.

2. Petitioner (defendant No. 10) filed an appeal thereagainst in the Court of District JLdge, Sialkot which was at one stage dismissed in default and the order of refusal to restore it, was assailed in F. A. O. No: 64 of 1.971 which was accepted on 3‑5‑1984 to remit the appeal for being heard and decided on merits. Pursuant thereto, learned District Judge took up the appeal and came to the conclusion that it was a fit case wherein trial Court may have obtained a replication and thereupon he himself obtained the replication from the plaintiffs and by his order dated 24‑7‑1984, framed an additional issue No. 2‑A for determining the question whether the plaintiffs are bona fide purchasers of the disputed land for value and without notice and sent it down to be tried by learned Civil Judge who, by his order dated 10‑9‑1984, answered it in favour of the plaintiffs and defen dant petitioner filed objections there against in his appeal. After hearing the appeal, learned District Judge found that the entries made in Mutation No. 1177 (Exh. D. 1) which was rejected on 29‑4‑1959, showed that defendant No. 10 and his vendor brother Muhammad Hussain had both appeared before the Patwari on 7‑5‑1957 to admit the payment of con sideration of Rs. 600 and held that the sale had in fact been made in favour of defendant No. 10 in thus getting the mutation entered. On the basis of this entry, coupled with the other evidence on the point led by the petitioner, learned District Judge held that the sale in favour of defendant No. 10 (the present petitioner) had been proved. He also concluded that the subsequent Mutation bearing No. 1626 (Exh. D. 2) sanctioned in favour of the petitioner was not a fresh transaction entered into by the heirs of Muhammad Hussain but was in fact only an acknowledgment of the sale made earlier through Mutation bearing No. 1177 (Exh. D. 1). On this basis, learned District Judge held that the petitioner had in fact purchased the disputed land from his brother Muhammad Hussain some time before 7‑5‑1957. However, by affirming the trial Court's findings under issue No. 2‑A, he proceeded to dismiss the appeal on 9‑10‑1984 with the conclusion that the plaintiffs had acted in good faith by taking all reason able care to ascertain the title of their vendor who had continued to be shown in the revenue record to be the owner of the land and hence their transaction was protected under section 41 of the Transfer of Property Act. Trial Court's decree for possession of land in favour of the plaintiffs having thus been upheld by the learned District Judge, defendant No. 10 has now come up to this Court again, on revision against the decrees of the two Courts below.

2. On 7‑1‑1985, learned counsel was provided an opportunity to examine the question as to whether the sale made through a mutation in the revenue estate of Pakka Garha, admittedly situated within the Municipal limits of Sialkot, could confer a valid title in view of section 54 of the Transfer of Property Act. He has today argued merely that this plea was not taken by the plaintiffs in either of the Courts below and, therefore, it may not be considered in this revision as well. He has, however, referred to Abdul Karim v. Fazal Muhammad Shah (1) and Muhammad Sarfraz Khan another v. Farid Khan dnd 22 others (2). The former is a pre‑emption case with regard to a sale made by means of a mutation, contrary to the requirements as to form of sale contained in section 54 of the Transfer of Property Act and was decided on the main consideration that pre‑emption is a right of substitution and a successful pre‑emptor is entitled to claim to be substituted into the transaction, whatever good or bad, as had been secured by the vendee but it was not held that such a transaction by itself, creates a valid title in the property. Hence, the aforecited judgment of the Supreme Court is of no avail to the petitioner. The other case, from Peshawar, rather than helping the petitioner, goes against him on the facts found by the learned District Judge, whose Court is a final Court of facts. In this precedent case, title of a purchaser, who may have entered into the transaction after being vigilant and making diligent, inquiries on the basis of entries appearing in the Jamabandi, was held) protected and learned District Judge has invoked this very rule in favour of the plaintiff/respondents on the basis of facts found by him, whereupon this case really gets concluded because therein learned District Judge is not shown to have committed any jurisdictional error of the nature of misreading or non‑reading, of evidence. Moreover, the mutation of the alleged sale obtained by the petitioner for a consideration of Rs. 6G0 cannot be regarded to have conferred a valid title in him regarding the suit land for its being opposed to the provisions of section 54 of the Transfer of Property Act which has been made applicable to all Municipalities in the Punjab since 6‑5‑1935.

(1) P L D 1967 S C 411

(2) P L D 1972 Pesh. 109

3. Decrees of the two Courts below, in favour of the plaintiff‑' respondents, are unexceptionable and there does not emerge any case at all for exercise of revisional jurisdiction. Hence, dismissed in limine.

A. A. Revision dismissed.

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