Mst. Farah Abbas & others Vs Syed Nawazish Ali Shah and others

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department)

CR No.173/2010.

Mst. Farah Abbas and three others.

Petitioner(s)

V e r s u s.

Syed Nawazish Ali Shah and others.

Respondent(s)

For Petitioner(s): Qazi Muhammad Arshad, Advocate.

For Respondent(s): Malik Mehmood Akhtar, Advocate.

Date of hearing: 26.05.2025.

JUDGMENT

SYED MUDASSER AMEER, J. Through this civil revision petition filed under section 115 of The Civil Procedure Code, 1908, petitioners have assailed the judgment and decree dated:

15.03.2010 passed by the learned Additional District Judge-IV, Haripur, whereby the appeal filed by the petitioners was dismissed and the Judgment and decree dated: 26.01.2010 passed by the learned Civil Judge-V, Haripur,

dismissing the suit of petitioners/plaintiffs was maintained.

2.Petitioners/plaintiffs filed a suit for declaration and possession to the effect that they alongwith other co-sharers are the owners in possession of immoveable property measuring 8 kanal 3 marlas bearing khasra No. 403/2 situated in Mouza Kahil, Tehsil and District, Haripur and that the respondents/defendants have no concern what so ever with the said property. However, they have started construction over it by trespassing, hence, the suit. The

respondents/defendants were summoned who appeared and submitted their written statement.

From divergent pleadings of the parties learned trial Court framed issues and there after parties led their respective evidence. After completion of evidence and hearing of arguments, learned trial Court/Civil Judge-V, Haripur vide judgment and decree dated: 26.01.2010 dismissed the suit of petitioners/plaintiffs. Being dis-satisfied from the findings of learned trial Court, petitioners/plaintiff preferred appeal before the learned Additional District Judge-IV, Haripur, who also dismissed the same vide judgment

dated: 15.03.2010. Hence, the instant revision petition.

3.Arguments heard and record perused.

4.Petitioners, daughters of Syed Abbas Hussain Shah (late), became the owners in possession, alongwith other co-sharers, of the suit property through inheritance mutation No.

2801 dated: 21.01.2006 upon demise of their father. Whereas, respondents/defendants being strangers started construction of a house on a portion of their property by trespassing which compelled the petitioners to approach the civil Court through the instant suit.

5.On the other hand

respondents/defendants contended in their written statement that respondent/defendant No.

2 vide Iqrarnama (Ex Dw-1/1) dated:

16.05.2003 had purchased the property measuring 1 kanal from the father of petitioners/plaintiffs for consideration of Rs.

50,000/-, out of which Rs. 30,000/- had already been paid to the father of petitioners, while the remaining of amount of Rs. 20,000/- was to be paid at the time of mutation/registry and that they were owners of the said property on the

basis of said sale deed (Ex DW-1/1), therefore, they had every right to construct a house on the same.

6.During trial all out efforts were made by the respondents to prove the execution of the document dated: 16.05.2003. To achieve this they produced five witnesses. The said document written on a stamp paper of the value of Rs. 20/- has allegedly been signed by Syed Abbas Hussain Shah (the alleged vendor), Syed Najaf Ali Shah (the alleged vendee) as well as Syed Zahid Hussain Shah and Raja Naimat Khan as marginal witnesses. It is important to note that the alleged signature of Syed Abbass Hussain Shah on the said document is in Urdu, which was strongly contested by the petitioners, as according to them, he always signed in English and never in Urdu. The contest between the parties primarily remained on the geniuses, truth and validity of this document as this is the sole basis of respondents’/defendant’s claim of ownership of the suit property. In their attempt to prove the said document, respondents produced Saeed Akhtar, petition writer, as DW- 1, the marginal witnesses Syed Zahid Hussain

Shah and Raja Naimat Khan as DW-2 and DW-

5.Defendant/respondent No.2 himself appeared as DW-3. Upon appraisal of evidence both the courts below concluded that the document was established. Resultantly, the trial court out rightly dismissed petitioners’ suit, whereas the appellate court while realizing that even if the said document was established, the sale was not complete, modified the judgment and decree by ordering the respondents to deposit the remaining sale consideration of Rs.20,000/- (Rupees twenty thousand) in Court to be paid to the petitioners and ordered the mutation to be attested in favour of the respondents.

7.Although the findings of fact that the document dated 16.05.2003 was executed between petitioners’ father and respondent No.2 has also been questioned by the petitioners on the strength of many deficiencies and contradictions in respondents’ evidence, this court is not inclined to interfere in such concurrent findings of the two courts. However, the conclusion drawn by the courts below on the strength of the said document is wholly unwarranted and untenable in law. This

substantial error, resulting in grave miscarriage of justice, has occurred due to wrong interpretation of the said document and the law applicable to the subject.

8.The document dated 16.05.2003 is titled “ ”اقرار نامہ سوده بيعwhich translates into “Agreement to Sell”. The text/contents of the said document further establish its such nature.

Admittedly, the said documents provided that the terms of sale of one kanal property have been set between the parties. As per the terms so settled, the sale consideration was set at Rs.

50,000/- out of which Rs.30,000/-(i.e.60%) was paid and the remaining Rs.20,000/- (40%) was to be paid at a future time when the “Sale” will be finalized and the title/ownership in the suit property will be transferred to respondent No.2.

Admittedly, that future transaction resulting in the “Sale” and transfer of ownership/title never happened. Thus the document dated 16.05.2003, was at best an “Agreement to Sell”. Respondent No.2 could seek its enforcement through a suit for specific performance but he could not, by any stretch of imagination, claim ownership of the suit property and start construction over the

same by depriving the petitioners from their lawfully inherited property.

9.It was even more astonishing to

note that respondent No.2, being fully aware of the legal status of the said document, had infact instituted suit No.38/1 on 07.06.2006 against the present petitioners for specific performance of the said Agreement to Sell, which suit was rejected due to his non-appearance in court and non-affixation of court fee. Respondent No.2’s appeal against the order of rejection of his plaint was also dismissed by the appellate court vide order dated 23.05.2007. Thus it is established on record that at the time of submitting their written statement in the present suit on 08.05.2007, respondents had already exhausted their remedy and having failed to get the desired relief in their suit No.38/1, they relied upon the same document here as sale deed and claimed title/ownership on its strength. Why go through the ordeal of suit for specific performance when you can straightaway claim title/ownership and let the title holders/owners go to Court, seems to have been the strategy. And it almost worked.

Almost.

10.It is settled law that mere agreement to sell even if executed between the parties, does not by itself confer ownership or transfer title in immovable property unless it culminates in a registered sale deed as required under Section 54 of the Transfer of Property Act, 1882. Section 54 clearly provides how the sale of immoveable property is to be made, which is reproduced as follows:

Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property. Contract for sale- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled

between the parties. It does not, of itself, create any interest in or charge on such property.

11.An agreement to sell merely signifies an intention to transfer ownership at a future date, subject to fulfillment of certain conditions, as it is a contractual obligation between the parties and as such it does not amount to a conveyance of title or ownership unless followed by execution and registration of a valid sale deed.

Though an unregistered agreement to sell while admissible in evidence under Section 49 of the Registration Act, 1908 for the limited purpose of proving a contract, it does not by itself create any right, title, or interest in the property. This legal position has been repeatedly clarified by courts, in numerous judgments. In the case titled:

Muhammad Iqbal and others-Vs-Vs-Nasrullah reported as 2023 SCMR 273,

It is settled law that an agreement to sell does not create any title or claim over the property. It also does not create ownership in the land and, as such, a person in whose favour such an agreement is made cannot claim a decree of title on the basis of incomplete sale consideration. Even if such an agreement contains an acceptance of

receipt of an earnest or partial payment of the total sale consideration, it does not need to be registered because all it does in lieu of is grant the right to get another document i.e. sale deed. Unless the sale deed is registered and title is transferred, the possibility always exists that the agreement to sell might be terminated in the event of breach of any provision contained therein.

In this view of the matter, it can safely be concluded that on 23.02.2010 when the respondent performed Talb-e-Muwathibat, the sale was not complete, therefore, the subsequent performance of Talb-e-Ishhad and filing of suit for pre-emption was pre- mature. In almost similar circumstances, this Court in the case of Abdul Nasir v. Haji Said Akbar (2010 SCMR 1770) while elaborately discussing the relevant provisions of Khyber Pakhtunkhwa Pre-emption Act, 1987, held as under:-

"From the above statutory

provisions it is clear that the right of pre-emption becomes

enforceable within 120 days

from the four situations noted

above in clauses (a), (b), (c) and

(d)of section 31, ibid. In the present case we have gone

through the agreement to sell

dated 30-7-2001 wherein it has expressly been stipulated that a sale deed shall be executed after payment of the balance

consideration amounting to Rs.6,00,000. The obvious conclusion to be drawn from the contents of the agreement to sell between the vendor and the petitioners-vendees is that a sale as yet has not been concluded. This is so

notwithstanding the fact that possession apparently has been delivered to the petitioners in anticipation of the sale.

2.Clause (c) of section 31 of the N.-W.F.P. Pre-emption Act reproduced above does speak of the period of limitation starting from the date a vendee takes physical possession, but this clause is also posited on the fact that a sale has taken place.

Section 2(d) of the N.-W.F.P.

Pre-emption Act defines sale. It is evident from this definition that it is not different from the usual connotation of the word "sale" which, encompasses the

conveyance of title to the vendee. The agreement referred to above clearly specifies that the title in the property will be conveyed at a subsequent date after the balance consideration has been paid. It follows, therefore, that a sale has not, as yet, taken place.

Similarly, in the case of Rao Abdul Rehman (deceased) through legal heirs-Vs-Muhammad Afzal (deceased) through legal heirs and others (2023 SCMR, 815), this settled legal position was further elaborated as follows:

“6. It is clear from the chronology of the case that in order to effectively implement or execute the agreements dated 30.11.1993 and 17.01.1994, the petitioner filed the suit for declaration and in alternate decree for specific performance on 19.03.2008, at which point Muhammad Feroz (vendor) had already died. Neither any legal proceedings were initiated by the petitioner during the life

time of Muhammad Feroz for properly transferring the title of the property pursuant to the alleged sale agreements, nor did he offer any plausible reason which may justify his act or omission of not approaching a court of law for the

implementation of the

agreements at the relevant time.

According to section 54 of the Transfer of Property Act 1882, "sale" means the transfer of ownership in exchange for a price paid or promised or part paid and part promised which is made in the case of tangible immovable property of the value of one hundred rupees and upwards or in the case of a reversion or other intangible thing, can be made only by a registered instrument with further rider that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the

parties but it does not, of itself, create any interest in or charge on such property. Whereas under Section 42 of the Specific Relief Act, 1877, a person entitled to any legal character or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief, but according to the attached proviso, no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so. The expression "legal character" has been understood to be synonymous with the expression status. A suit for mere declaration is not

permissible except in the circumstances mentioned in

section 42 of the Specific Relief Act. The claim of mere

declaration as to alleged title does not suffice. It is clear that in the present lis, the petitioner was claiming the title merely on the strength of the agreement to sell by one co-owner while the other co-owner never signed any such agreement so it is quite strange that the learned Trial Court, though it dismissed the suit for specific performance on the ground that agreements to sell were not proved, but concomitantly decreed the suit to the extent of declaration which is on the face of it a glaring and patent legal and factual error that was rightly corrected by the learned Appellate Court. On the basis of a sale agreement, no legal character or right can be established to prove the title of the property unless the title is transferred pursuant to such agreement to sell, but in case of

denial or refusal by the vendor to specifically perform the agreement despite the readiness and willingness of the vendee, a suit for specific performance may be instituted in the court, but suit for declaration on the basis of a mere sale agreement is not the solution for appropriate relief. This Court in the case of Muhammad Yousaf v. Munawar Hussain and others (2000 SCMR 204), held that the agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance.”

12.It seems that the learned appellate Court having realized the nature of the document dated: 16.05.2003, got swayed by the assertion of the respondents that they were put in possession of the suit property by the father of petitioners and were thus, owners. The said assertion itself being significantly flawed and also unsubstantiated rather quite contrary to respondent’s stance taken themselves in their suit No. 38/1, as discussed in detail above, could still not make basis for any relief as granted by the appellate Court. A somewhat similar situation came up before the apex Court in the case of Habib ur Rehman and another-Vs- Mst.

Wahdania and others (PLD 1984 Supreme Court

424)wherein it was held as follows:

“...no equitable doctrine can override of the specific provisions of sections 49 of the Registration Act, so as to make an unregistered documents create title, if it requires registration. The view expressed by the learned Judges of the Lahore High Court was based on the high authority of the' Privy Council in Arij v. Jadunath Majumdar Bahadur AI R 1931 PC79. We are also in respectful agreement with the

dictum contained in the aforementioned judgment of the High Court and do hereby endorse it. In this view of the matter, no reliance can be placed on the provisions of section 53-A of the Transfer of Property Act.

However, we consider that the appellants can legitimately claim to have a charge on the property for the amount paid by them as purchase money for the property, namely Rs. 704. In this connection, we would like to point out that the position of a purchaser, who has been let into possession by his vendor under an unregistered document pursuant to an oral agreement to sell under the mistaken belief that the transaction is complete, whereas, in fact it is incomplete, for want of registration of the instrument purporting to effect the transfer, must be regarded to be a purchaser under a contract for sale which has yet to be completed. Consequently, the purchaser cannot, in these circumstances, claim any title as owner in the property, whether as a legal or as an equitable owner but be would, however, have a charge on the property for the amount paid] by him

towards the purchase of the property in question”.

13.In view of above exposition of law, both the Courts below through impugned judgments and decrees have erred while dismissing the suit as well as appeal of the petitioners/plaintiffs, therefore, their judgments and decrees are set- aside and as a result thereof, the suit of the petitioners/plaintiffs is decreed as prayed for.

Announced.

Tahir PS

JUDGE