IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT
Mr. Justice MaqboOI Baqar
ML Justice Qazi Muhammad Amin Ahmed
Civil 
IN s . 1079 and 1080 of 2015
(Against the judgment doted 22.05.2015 of
the Islamabad High Court, Islamabad
passed in CR Nos. 475 & 552/2001)
Intelligence Bureau Employees Cooperative
Housing Society thr. its Secretary
Versus
Shabbir Hussain & others
Appellant(s)
Respondent(s)
For the Appellate(s)
Syed Noyab Hassan Gardezi, ASC
Mr. Ahmed NawaZ Ch. AOR
Malik Attat Hussain Awan, ASO
Mr. Agha Muhammad All, ASC
Syed Rifaqat Hussain Shah, AOR
Ex-parte
10 .06 .202 1
For Respondent No. 1
For respondent No-6
Others
Date of Hearing
JIJDGMENJ
Maabool BaciaLJ. The instant appeal with leave of the
Court has arisen out of judgment dated 22.05.2015 of the
Islamabad High Court, whereby the learned Judge in Chambers
dismissed the Civil Revisions filed by the appellant and
maintained the judgment and decrees of the fora below.
2. The respondent No. 1, Shabbir Hussain, on 27.06.1990,
brought a suit for declaration, possession and permanent
injunction against Muhammad Aslam, the respondent No. 2, and
Mst. Channo Bibi, the predecessofrmnlnterest of respondent Nos. 3
& 4. He claimed that his maternal grandfather, Niaz All owned
and possessed, 50% of lands, bearing various khasra numbers, as
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CA-L079 10e0115 
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mentioned in the plaint, in the revenue estates of village
Lohibher, village Panwal and village Phokar ("the suit lands"). It
was averred that the only child of Niaz Ali, Mst. Ghori, who was
the mother of respondent No. 1, passed away in the year 1953.
Niaz Ali also expired in the year 1970, and on 14.04.1970,
respondent No. 2, who was the father of respondent No. 1, and
was also the nephew of Niaz Ali, and Mst. Channo Bibi, who was
sister of Niaz AU, got the mutation of succession of the suit lands
recorded in their favour to the exclusion of respondent No. L of
which mutation, respondent No. 1 came to know two months
before filing of the suit, whereupon he requested the said two
respondents to transfer the suit lands to him, as he being the
grandson of Niaz All, was legally entitled to the same. However,
they refused to comply and thus the respondent No. I was
constrained to file the suit.
3.
Muhammad Aslam, the respondent No. 2 filed a
conceding written statement, whereas Mst. Channo Bibi, through
her written statement contested the suit on the ground of its
being barred by limitation. It was contended that the suit was
bad for misjoinder of different causes of action and was mob
fide.
4.
There is no denying the fact that the suit lands were
owned by Niaz Au. It has also not been disputed that Niaz Ali was
the maternal grandfather of Respondent No.1. It is also an
admitted fact that Mst. Ghori, the only child of Niaz Ali and the
mother of respondent No.], died in the year 1953. It is also a
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common ground between the parties that upon demise of Niaz
All in the year 1970, the only persons left behind to succeed to
the estate of the deceased were respondent No.1, 2 and Mst.
Channo Bibi. The respondent No.1 being the son of the pie-
deceased daughter of the deceased, which daughter was his
only child, was, under the relevant law, entitled to inherit 1/2 share
of the estate of the deceased at the time of his succession.
However, through mutations dated 14.4.1970, the succession of
the lands were recorded in favour of respondent No.1 and Mst.
Chanoo Bib!, to the exclusion of respondent No.1.
5. The respondent No.1, even if his age is counted from
the year 1953, when his mother died, was of 17 years when the
impugned mutation entries dated 14.4.1970, were recorded. He
became a major the very next year i.e. in the year 1971. The
lands in dispute, as came to light before the trial Court, during the
testimony of DW-1, the attorney of Mst. Chanoo on 10.3.1996,
were subsequently sold by respondent No.2 to the appellant
society. However it was as late as on 27.06.1990, that the
respondent No.1 filed the suit, and that too just in respect of the
inheritance mutations dated 14.4.1970 and against respondent
No.2 and Mst. Chanoo Bibi only. It was only after the factum of
sale of the lands came to fore as noted above, that the
respondent No.1, on 31.5.1997, filed the amended plaint
challenging the sale mutations in respect of the suit lands in
favour of the appellant, i.e. almost 10 years after the impugned
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sales, the lands, as noted in detail hereunder, having been sold in
the years 1986 and 1987.
6.
The appellant society through their written statement
raised various preliminary objections to the maintainability of the
suit. It was, inter alia, contended that the suit was hopelessly
barred by limitation. They denied the claim as set up by
respondent No.] in the plaint, it was averred that the appellant
had purchased, 11 Kanals and 7 Marlas of the suit lands from
respondent No.2, through registered sale deed dated 01.1.1987,
and from Mst. Chanoo Bibi, land measuring 3 Kanals and 7
Marlas, through registered sale deed dated 03.11.1986,
respectively. The appellant claimed that they had, before
purchasing the Iands,verified the vendor's title from the relevant
revenue record. It was alleged that the suit has been filed just to
blackmail the appellant.
7.
After conclusion of evidence, the Civil Judge,
decreed the suit as prayed. The appeals against the said
judgment and decree were dismissed. Revision filed by the
appellant and the legal heirs of Mst. Chanoo Bibi, were dismissed
through the impugned judgment.
8.
As noted earlier also the respondent No.] was at least
17 years of age when the impugned inheritance mutations were
recorded in favour of his father, the respondent No.2 and his
grandmother, Mst. Chanoo Bibi, the sister of late Niaz Ali. The
address of the respondent No.], in the record throughout is the
same as that of his father, the respondent No.2. Mst. Chanoo Bibi,
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also lived in the some village. The suit lands are situated where
the respondent No.1 has lived throughout. As noted earlier, the
respondent No.] attained majority at the most, a year after the
impugned inheritance mutations were recorded. Even at the
time of impugned mutations, he was, by all accounts, of a
sensible age. In any event if the said respondent was truly and
genuinely aggrieved by the said impugned mutations, he ought
to have challenged the same within three years of his attaining
majority. However he filed the suit as late as on 27.06.1990.
Although in his plaint, the respondent No.] claimed that he came
to know about the inheritance mutations only a month before
filing of the suit. However, neither has he disclosed as to on what
date, how, and through whom he acquired the knowledge as
claimed. He further claimed that having known about the
mutations, he requested the respondent No.2 and Mst. Chanoo
Bibi, to transfer the suit land in his favour, but they refused.
However in that regard also neither has he given any details, nor
produced any evidence or material. In fact the attorney of
respondent No.], namely, lftikhar Ahmed, the PW-1, who
appeared as his sole witness, has not even claimed that the
respondent No.], received any information regarding the
inheritance mutations at all. It has come in the evidence that the
subject lands, after being sold to the appellant society, have,
way back in the year 1988, been developed into a housing
society, and the plots so created have been allotted to the
members of the society, who have built their houses/buildings
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CA 1079 &ESQLLS
thereon. It has also gone unrebutted that roads have been built
and basic amenities have been provided in the housing society
so developed. The respondent No.1 did not even plead that he
remained away from his house/village anytime during the
relevant period.
9. In view of the foregoing, it is difficult to believe that
respondent No.1, throughout the long period of about 20 years,
remained ignorant of the impugned inheritance mutations, and
came to know about them only a month before filing the suit that
he filed on 27.06.1990. In fact there is not even a verbal utterance
by the plaintiff's witness in this regard at all. It is equally difficult to
believe that respondent No.1 remained ignorant of the
impugned sales till the time he filed the amended plaint,
impleading the appellant society as defendant, more so, when
throughout the relevant period he lived in the same village with
his father, and by the time the lands were sold, the respondent
No.1 has attained the age of about 33 years. It is inconceivable
that living in the some village where the lands are situated, the
respondent No.1 would not have noticed the fact that not only
the physical possession of the lands were delivered to the
appellants but the appellants also changed the usage/status of
the land from agricultural to residential/commercial, and
developed them into a housing society, with necessary
infrastructure and amenities, and that the lands were
sold/allotted to the members of the society who raised
construction of their houses/buildings therein.
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10. However the respondent No.] concealed the
impugned sales from the Court and sought amendment in the
plaint with regard thereto only after DW-1, the attorney of Mst.
Chanoo Bibi, deposed about the sale before the trial Court on
10.3.1996, and filed the amended plaint challenging the sale
mutations for the first time on 31.5.1997.
H. It is not the case of the respondent No.] that he was
not aware that Niaz Ali has left behind the suit lands and/or that
he (the respondent No.1) was entitled to 50% share therein,
(although even the plea of ignorance of his entitlement would
not have been of any avail), he however neither objected to the
inheritance mutations dated 14.4.1970, nor made any efforts to
seek amend, and for the entries to be corrected to represent his
50% share in the lands till filing of the suit on 27.6.1990, although
the respondent No.1 attained majority in the year 1971 within
about one year of the date of impugned mutations, and had
become legally capable and competent to seek enforcement of
his legal rights. The respondent No.1 has also not pleaded any
circumstance which may have mislead him into believing that his
title/rights in the land were secure, and were not jeopardized. He
did not claim that he ever remained in possession of the lands,
actual or constructive, and/or he was getting his share in the
produce of the lands. The lands were sold by respondent No.2
and Mst. Chanoo Bibi, for valuable, consideration through
registered sale deeds in the year 1986 and 1987, respectively, it
hardly needs any mention that the registration of a sale deed is a
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notice of the sale embodied therein to the whole world. The
respondent No.1 has also not explained as to how and why he
failed to notice the delivery of physical possession of the lands to
the appellant society and as to how he lost sight of the appellant
society converting the status of the lands from agricultural to
residential/commercial, and its development into a housing
society with necessary infrastructure and amenities, and then of
allotting the plots so created to its members, who raised
construction thereon. It is really difficult, nay impossible to
imagine someone not noticing the above occurrences and
development in his very lands situated in his vicinity over a long
period of about 10 years, the respondent No.1's inaction, 
I
indifference and indolence in the circumstances cannot be
interpreted as anything but his acquiesce in the respondent
No.2's and Mst. Chanoo Bibi's title in the suit lands and
manifestation of waiver of his rights in respect of the suit lands.
The following judgments of this Court may well be referred to in
this regard, At to Muhammad v. Mou!a Bokhsh (2007 SCMR 1446),
Mst. Grano v. Sahib Komala Bibi (RID 2014 SC 167), Dilbor Jan v.
.Sohrab Khan (1992 SCMR 743) and Lai Khan v. Mohammad
Yousaf (RID 2011 SC 657).
12. The appellant society, as noted earlier, purchased the
suit lands from respondent No.2 and Mst. Chanoo Bibi, in the
years 1986 and 1987 respectively. The suit lands were unabatedly
standing in the revenue record in the name of the said vendors.
 The appellant's claim that they purchased the land after verifying
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9
the vendor's Ow
nership from the revenue record has not been
rebutted. In terms of section 52 of the West Pakistan Land
Revenue Act 1967, Presumption of truth is attached to the land
revenue record Judgment of this Court in the cases of
Muhammad Shamim v. Mst. Nisar Fatima 
(2010 SCMR 18), La/
Khan v. Muhammad Yousaf 
(PED 2011 SC 657), Msf
thr.LR5 
Phaphan
V. Muhammad Bakhsh (2005 SCMR 1287), may be referred
to in this regard.
13. 
The learned counsel for the appellant Society
submitted that since section 4 of the Muslim Family 
Ordinance, 1981,
which enabled the children of the Predeceased children of a
Propositus to i
nherit from the propositus like their father or 
mother.
would have received had he/she been alive at the time of 
opening
Of the succession; has been declared 
against the tenants and
inj
unctions of Islam by the Federal Shariat Court in its 
judgment in
the case of Allah Rakha and others v. Federation of Pakistan and
Other (riD 2000 Sc 1), 
the respondent No.1 Was/is not entitled to
any share in the suit lands and Was thus rightly excluded from
succeeding to the same
14. 
No doubt section 4 ibid has been declared repugnant
to Shariah however, since an appeal is Pending against the said
Judgment before the Shoriat Appellate Bench of this Court the
judgment,in t
erms of the provisions of Article 203-0(2) of the
Constitution, cannot be given effect until the 
some is upheld by this
Court and in that eventuality also, it shall, as 
specified in the
judgment itself, take effect from 31.2.2000, [the date, it may be
noted Was so specified in consonance with the provisions of Article
and th
erefore in any event cannot effect the previous
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operation of law or a succession taking place before the said date.
Reliance in this regard is placed on the judgments of this Court in
the cases of Mahmood Shah v. Syed Khalid Hussain Shah (2015
SCMR 869), Mst. Samia Naz v. Sheikh Pervaiz Afia! (2002 SCMR 164)
and Mst. Sawar Jan v. Mukhtar Ahmed (PID 2012 SC 217)
15.
However the contention of Mr. Gardezi, that the suit is
a collusive endeavour of respondent Nos. 1 & 2, the father and
the son, in the facts and circumstances of the case seems to be
plausible. This view gains strength also by the fact that
respondent No. 2, the father, has filed a conceding written
statement in the suit. In almost similar circumstances in the case
of Dilbar Jan (supra), where the sale of a property owned by the
sons of the vendor by virtue of its purchase by the vendor father
in their name, when they were minors, was, after ten years of the
sale, challenged by the sons on the ground that since at the time
of the impugned sale they had attained majority, it was only
them, and not their father, who could have lawfully sold the
property, this Court, whilst observing that since the impugned sale
was affected through a registered sale deed, of which the
plaintiff sons are presumed to have the knowledge, but they
failed to challenge the same for a long period of ten years and
filed the suit ten years after the impugned sale, held the suit to be
collusive.
16.
The learned counsel further submitted that since
respondent No. 1 by his conduct permitted respondent No. 2 and
Mst. Channo Bibi to hold themselves out as the real owners, the
appellant's Society, who has purchased the land for valuable
consideration in good faith, has acquired a good title to the land
CA 1079 & 1080/15 
1
against respondent No. 1, and the transaction cannot be voided
on the ground that respondent No. 1 has not explicitly authorized
to make it. The learned counsel further submitted that the
impugned sales and transfer of the lands in the circumstances is
protected under and in terms of the provisions of section 41 of
the Transfer of Property Act, 1882.
17. Indeed, section 41 of the Transfer of Property Act,
1882, provides an exception to the rule as embodied in the
maxim, he gives not who hath not, and thus, nobody can transfer
to or confer upon another a right or a title better than he himself
possesses. Generally, a purchaser cannot take more than the
vendor has to sell however, section 41 of the Transfer of Property
Act provides an exception to the rule. It underpins the principle of
equity that whenever one of the two innocent person has to
suffer by the act of third person, he who has enabled that person
to occasion the loss, must sustain it, or where one of the two
innocent person suffer from the fraud of thirty party, the loss
should fall on him who has created, or could have prevented the
opportunity for fraud. However in order to invoke the protection
of the provisions of section 41, a transferee is essentially required
to demonstrate that (a) the transferor is the ostensible owner (b)
He was so by consent, express or implied, of the real owner (c)
The transfer is for consideration (d) The transferee has acted in
good faith, taking reasonable care to ascertain that the
transferor had power to transfer. Whereas in the facts and
circumstances of the present case as discussed hereinbefore,
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one can clearly see that all the above ingredients are available
to the appellant to seek protection of the impugned transactions.
18. 
The respondent No.] having acquiesced in the title of
respondent No. 2 and of Mst. Ohanno Bibi, the predecessor-in-
interest of respondent Nos.3 and 4, and having waived his right to
the lands, leading the appellants to believe that the said vendors
were in fact the owners of the lands. The appellant society thus
having purchased the lands for valuable consideration, without
I
knowledge of respondent No. I's purported entitlement were/are
entitled to protection under section 41 of the Transfer of Property
Act. We would therefore allow these appeals, and set aside the
impugned judgment rendered by the High Court No order as to
cost.
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Announced in open Court
at Islamabad on ftO—
"APPROVED FOR REPORTING
(Aemir Sb.)
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