NATIONAL BANK OF PAKISTAN Versus MESSRS ORIENTAL FASHIONS LTD.
Barkat Ali respondent filed a suit for possession of land measuring five Kanals out of 29 Kanals 19 Marlas comprised in Square No.63 Killa Nos.7. 14, 18, 25 being 1/6th share thereof through redemption of the mortgage or payment of Rs.500. It was contested. The suit was dismissed by the learned Civil Judge vide judgment dated 7‑11‑1978. On appeal by Barkat Ali respondent the same was reversed by the learned Additional District Judge, Sheikhupura vide judgment, dated 30‑4‑1979. This is the second appeal against the same on behalf of the defendants.
2. The case in the plaint was that the suit land was 1/6th share of the 29 Kanals and 19 Marlas of land comprised in Square No.63 Killa Nos.7, 14, 18 and 25, Khata No.356 of R.L‑II vide registered mortgage deed, dated 12‑8‑1957. It had been mortgaged to Haider Ali Shah defendant who in collusion with the Revenue Staff got it incorporated as sale in his favour on 27‑1‑1958. The mortgage was for definite period. After the time fixed for the mortgage was over, Collector Sheikhupura was moved for redemption who dismissed the petition on 3‑9‑1968 as there was a sale in the Revenue Record. The suit was contested by Haider Ali Shah defendant who pleaded that the and had been sold to him, he had been in possession thereof as such and had further transferred it to Ghulam Ghaus and Ghulam Mohayud Din (who were later on added as defendants) who were in possession as owners, the plaintiff had however knowledge of the subsequent sale in favour of Ghulam Ghaus etc. who had not been impleaded and so the suit was bad. On merits it was pleaded that vide Mutation No.122 appended with the plaint, the land had been sold to him and vide Mutation No.27 dated 12‑4‑1969 he had further sold it to Ghulam Ghaus etc.
3. When Ghulam Ghaus and Ghulam Mohayud Din defendants were impleaded they also adopted the case of Haider Ali Shah defendant and further pleaded that they had purchased the land bona fide for consideration without notice, of the interest, if any, of the plaintiff and so they were protected under section 41 of the Transfer of Property Act.
4. On the pleadings of the parties the following among other issues were settled:
(i) Whether the plaintiff sold the land to defendant No.1?
(iv) Whether defendants Nos.2 and 3 are entitled to the safeguards of section 41 of the Transfer of Property Act?
(v) Whether the plaintiff mortgaged the suit land with defendant No.1?
The learned Civil Judge answered the above issues in favour of the defendants with the result that the suit was dismissed. The learned Additional District Judge reversed the findings on these issues and decreed the suit. The findings recorded by the learned First Appellate Court have been challenged in the present appeal.
5. The question covered by Issues Nos.1 and 5 is whether the land had been sold by Barkat Ali respondent in favour of Haider Ali Shah defendant or it was mortgaged. The description of the land as given in the plaint has been detailed above. No Jama Bandi of any year has been referred to in the plaint nor any R.L‑II brought on the record. Mutation No.122 (Exh.P.3) was attested on 27‑1‑1958. According to it 1/6th share of 29 Kanals and 19 Marlas of Khata R.L‑11 No.18/356 was sold to Haider Ali Shah under a registered sale‑deed, dated 12‑8‑1957. Vide Mutation No.27, dated 12‑4‑1969 (Exh.P.2) whole of Khata No.229/596 measuring 21 Kanals 2 Marlas belonging to Haider Ali Shah defendant was sold to Ghulam Ghaus and Ghulam Mohay‑ud‑Din for Rs.14,000. It is also in this very mutation that Haider Ali Shah had sold the whole of his land vide this mutation. No other revenue document has been produced to connect the suit land as mentioned in the plaint with the land sold by Haider Ali Shah in favour of the present appellants/defendants. In oral evidence Barkat Ali only appeared himself (P.W.1) in the witness‑box. He reiterated his case that he had only mortgaged the suit land with Haider Ali Shah for Rs.500 who got a sale mutation attested in his favour, he had no knowledge of Mutation No.122, after the passage of the mortgage period of five years he moved the Deputy Commissioner for redemption but his petition was dismissed vide order (Exh.P.4). In rebuttal Haider Ali (D.W.1) deposed that he had obtained the suit land from the plaintiff for Rs.500 in sale, the bargain was orally settled and mutation got attested. He denied that the land was obtained by him in mortgage. He also told that he had sold the land now to defendants Nos.2 and 3 (the appellants) including the other land belonging to him. In cross‑examination he told that he had purchased the land vide Mutation No.122. Ghulam Muhammad defendant (D.W.2) stated that his father and brother Ghulam Ghaus had purchased land from Haider Ali Shah for Rs.14,000 vide Mutation No.27 (Exh.D.1). It was ascertained from the Revenue Record that Haider Ali Shah was the owner thereof. Jama Bandi for the year 1958/1959 was also consulted. He told in cross‑examination that at the time of purchase he had not consulted the plaintiff/respondent as hiss name was not there in the Revenue Record. From the pleadings of the parties and evidence though it is not proved that the suit land as mentioned in the plaint was included in the land purchased by the appellants/defendants from Haider Ali Shah defendant but it seems to be admitted that it is so included. Vide Mutation No.122 the suit land had been purchased by Haider Ali Shah from Barkat Ali plaintiff. There is no evidence on the record that the land was mortgaged to Haider Ali Shah except copy of mortgage deed (Exh.P.1).
6. Learned counsel for the appellants contended that it (Exh.P.1) was a copy of registered mortgage deed, its original had not been accounted for nor its scribe or attesting witness produced, so it was secondary evidence, and it was also not properly proved as required under the law. Learned counsel for the opposite side pointed out that when this document was brought on the record, no objection was raised as to its formal proof so none could be raised in second appeal. He tried to fortify his stand by referring to Abdullah and others v. Abdul Kareem and others PLD 1968 SC 140. To meet the argument the learned counsel for the appellants drew the attention of the Court to Muhammad Yousaf Khan Khattak v. S.M. Ayub and others PLD 1973 SC 160, Hasan Ali and another v. Azmalud Din and others PLD 1963 Dacca 486, Muhammad Cherag and others v. Dullav Khan and others and Syed Mansoor Ahmad v. Mst. Maqbool Begum and others 1990 SCMR 1259. In the case of Abdullah and others, the judgment was delivered by Hamoodur Rehman, J., who was also a member of the Full Bench in Yousaf Khan Khattak's case and was contra on the point to the majority judgment. The latter view of the Supreme Court is respectfully to be followed on the point. The preponderance of the judicial opinion including the latest view of the Supreme Court as canvassed by the learned counsel for the appellants, therefore, supports his contention that the objection as to the proof and admissibility of Exh.P.1 could be raised in second appeal. Thus, this document is to be excluded from consideration. With this exclusion the findings recorded on Issues Nos.1 and 5 by the learned Additional District Judge cannot be maintained.
7. Learned counsel for the appellants, further contended that even if for the sake of argument Exh.P.1 is admitted as properly proved and primary evidence of the mortgage, the appellants, according to him were protected under the provisions of section ‑41 of the Transfer of Property Act. As laid down in Hasan Ali's case PLD 1963 Dacca 486 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 for the application of section 41 the conditions necessary are: (i) the transferor is the ostensible owner, (ii) he is so by the consent, express or implied, of the real owner, (iii) transfer is for consideration and, (iv) the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer. The learned Civil Judge concluded all the four elements in favour of the defendants/appellants. The learned Additional District Judge agreed with him as to his findings on elements Nos.1 and 4 above but differed on 2 and 3.
8. The oral as well as documentary evidence produced by the parties has been taken note of above. The admitted position is that in the Revenue Record Haider Ali Shah was recorded as the full owner so much so that the suit land even if mortgaged (vide Exh.P.1) had so merged in the whole of the land of Haider Ali Shah that the whole Khata was sold by him for Rs.14,000 to the appellants/defendants. The sale was for consideration. Ghulam Muhammad D.W. has clearly stated that they had consulted the Revenue Record and after full satisfaction the land was purchased from Haider Ali Shah. There is nothing on the record that when Haider Ali Shah was dealing with the land as full and absolute owner for a long time after the execution of mortgage deed in 1957, Barkat Ali plaintiff/respondent had done anything making it known generally that Haider Ali Shah was not the actual owner. Thus, all the four essential elements of section 41 are available and proved in favour of the appellants/respondents.
9. The finding on Issue No.5 recorded by the learned Civil Judge is, therefore, restored.
10. Learned counsel for the appellants contended that some land had been even mortgaged by Haider Ali Shah to Nazar and Azmat, they (the appellants) had got it redeemed, so Nazar and Azmat were necessary parties to the suit. Even the respondent/plaintiff himself had sought the permission of the Court to implead them and yet later on declined to do so. On this score, according to the learned counsel, the suit must fail. Learned counsel for the respondent/plaintiff argued that the mortgage by Haider Ali in favour of Nazar and Azmat having been redeemed by the appellants, they (Nazar and Azmat) had ceased to be necessary parties and thus his prayer granted by the Court for impleading them was no more required to be implemented. He is correct in this regard. The discussion made by the learned Additional District Judge in this regard is upheld. The contention raised by the learned counsel for the appellants is rejected.
11. The upshot of the above discussion and conclusions is that the appeal succeeds. The decree granted by the learned Additional District Judge stands reversed and that of the learned Civil Judge restored. The suit stands dismissed. However, the parties are left to bear their own costs throughout.
AA./G‑25/L Appeal accepted.