2004 S C M R 1530 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=2004...

2004 S C M R 1530

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

MUHAMMAD MUNIR---Petitioner

Versus

MUHAMMAD SALEEM and others---Respondents

Civil Petition No. 763-L of 1999, decided on 7th May, 2002.

(On appeal from the judgment, dated 7-4-1999 passed by the Lahore High Court, Lahore in R.S.A. No. 483
of 1970).

(a) Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S.41--- Constitution of Pakistan (1973). Art. 185(3)---Suit
for specific performance of agreement to sell---Vendor after entering into agreement to sell with plaintiff
executed sale-deed in favour of defendant in year 1967---Defendant claimed to be bona fide purchaser of
suit-land for valuable consideration without noticed prior agreement---Trial Court dismissed suit, which
decision was upheld by First Appellate Court, but High Court in second appeal decreed the suit---Validity---
Defendant had later on surrendered possession of suit-land in favour of vendor, who had again transferred the
same to other persons in year 1982---Defendant despite registered sale-deed in his favour coupled with
delivery of possession way back in year 1967 had been out of possession throughout, which rendered
transaction in his favour as being shrouded in mystery---Defendant having surrendered vacant possession in
favour of vendor had virtually lost his right, interest and title to suit-land---Defendant had not challenged
before competent Court subsequent transaction of sale in favour of other persons, who were in possession of
suit-land in their own right ---Sale-deed in favour of defendant, thus, would be of no value-- Such conduct of
defendant had disentitled him to exercise of equitable discretion in his favour---Supreme Court dismissed the
petition being misconceived and devoid of merit.

(b) West Pakistan Land Revenue Act (XVII of 1967)-----

----Ss. 39 & 42---Mutation entries in record of rights---Maintained for fiscal purpose---Such entries, neither
decide question of title finally nor confer right of ownership to the property.

(c) West Pakistan Land Revenue Act (XVII of 1967)-----

----S. 42---Mutation entries---Power of Revenue Officer to correct wrong entries---Scope---Revenue

Nemo for Respondents.

Date of hearing: 7th May, 2002.

JUDGMENT

RANA BHAGWANDAS, J.---Leave to appeal is sought against the High Court order. dated 7-4-1999 passed
in R.S.A. No. 483 of 1970 setting aside the findings on Issues Nos.1 and 1A in a suit for Specific
Performance of Contract filed by the respondent No.1 against respondent No.2, (since dead, survived by his
legal heirs) as well as the petitioner.

2. Ilam Din predecessor-in-interest of respondents Nos. (i) to (iv) agreed to sell the suit-land in favour of
respondent No.1 vide agreement, dated 6-6-1965 for a consideration of Rs.3,400 out of which a sum of
Rs.2,900 was received by him on two occasions [lam Din himself contested the suit on the premises that the

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transaction was hit by the provisions of section 19 of the Colonization of Government Lands (Punjab) Act,
1912, (hereinafter referred to as the Act). After the conferment of proprietary rights on him vide Mutation
No.41, dated 17-6-1969 he executed a registered conveyance deed in favour of the petitioner on 15-6-1967
transferring the suit-land for sum of Rs.7,000 duly registered on 1-10-1967 ,

3. Learned counsel states that with the execution of the sale-deed possession of the suit-land was also handed
over to the petitioner but for reasons not known to him, the possession of the land was surrendered in favour
of Ilam Din, who again transferred the land in favour of Farman Ali and Noor Elahi vide registered deed,
dated 21-9-1982. Stance of the petitioner before the trial Court was that he was purchaser for valuable
consideration without notice of prior agreement. Trial Court, however, dismissed the suit on the preliminary
ground that the transaction in favour of the petitioner was hit by the provisions of section 19 of the Act. An
appeal preferred from the judgment and decree of the trial. Court also failed leading to Regular Second
Appeal by the respondent No.1 before the High Court which has been accepted through the judgment
impugned in this petition on the premises that to fact the transaction was not violative of the provisions
contained in section 19 of the Act. It appears from the record and as stated by the learned counsel that
proprietary rights were conferred on the respondent No.2 on 17-6-1967, therefore, we are to the agreement
with the view taken by the High Court that the registered sale-deed executed on 15-7-1967 was free from any
encumbrance or any legal impediment '

4. Learned counsel vehemently contended that the petitioner being bona fide purchaser of the suit-land for
valuable consideration without notice of prior agreement this issue was neither decided by the High Court nor
the case remanded to trial Court for decision on the issue raised by the petitioner. Learned counsel may be
correct to this extent but we find from the record that despite a registered sale-deed for consideration in
favour of the petitioner, coupled with the delivery of A possession in his favour way back in 1967 he has
been out of possession through out which renders the transaction in his favour as being shrouded in mystery.
Learned counsel could not dispute the ground reality that the petitioner has not challenged the subsequent
transaction of sale through the registered sale-deed, dated 21-9-1982 in favour of Noor Elahi and Farman Ali
who are admittedly in possession of the suit-land in their own right.

5. Learned counsel attempted to justify his stance by contending that in fact his client has challenged the
subsequent mutation before the Revenue Authorities but we are of the considered view that mutation entries
in the Record of Rights are maintained for fiscal purposes and do not decide the question of title finally. At
any event, such entries do not confer right of ownership to property. Furthermore, Revenue Authorities might
be able to rescind and revoke the mutation entries wrongly entered, in law they are not empowered to annul
and set aside a C registered sale-deed which has far greater value and weight. Petitioner either did not obtain
possession frown Ilam Din or on counsel's own statement having surrendered vacant possession of the land in
favour of the vendor has virtually lost his right, interest and title to the land for which he owes an explanation
Learned counsel was completely unaware of the background of parting with possession of land allegedly
given to the petitioner at the time of sale. He has been, unable to account for this act of divesting the
petitioner of physical possession of the land which alone tends to show that the conduct of the petitioner has
never been above board. It is rather short of being a bona fide purchaser for valuable consideration
disentitling him to the exercise of equitable discretion in his favour. In our view, even if the order of the High
Court was modified by remanding the case to the trial Court for decision on issue No.4 it would be only of
academic value as right, interest and title to properties acquired by Noor Elahi and Farman Ali has not been
challenged before a competent Court of law and the document of sale in favour of the petitioner would be of
no value higher than a simple piece of paper. The whole transaction in our view appears to be shrouded in
mystery and there appears to be something wrong at the root of the cause.

6. For the foregoing reasons, we find no merit in this petition which is wholly misconceived and without any
merit which is accordingly dismissed.

S.A.K./M-582/S Petition dismissed.

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