Muhammad Shoaib VS Muhammad Auyb

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\ oo .rf 2017 Civil Revision ]llo

tri }/ioltliiah N4uharnrnad Slroaib son of lJakht. Il-il"r1r1n' resiCcnt Amir r\bad, Lt4krgrarn '[e'rsil tsabozai i )is'':rict Srgat' (Petitioir:r)

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(1)Muhammad .Aytrb son of t'r4irhro Irieestr 14li;i1' $i1'liqi [t''irr jviir Amir Aabad, Ba.logranr presci'.tir, .rt.:sic'it.'g at l'llclrirllalr Khankhel,, ia Iay ;: tal.r ad, )V1inl';';l' :r, i) i e t ri c I Sr^" zi t' (2)Muhanrmacl Islrlail sot'r of lt'Iahli: l'It'es':r Kir"'rn Sacirqi iilr;

Amirz\e,ba<l,Balogranrpreset-'l'-t'7it:siciirrir,irtFlt-ri-tsi:l"lr:' 387 Street lrlo' 3 Sectot Ii-l8 i;5n5;c l'l1r' 6' lla)';'ti-'r-;;rri' Peslrar,var.

(3)Navced 'son t;[ Nlahro Necsh iSran Saciiqi Rio 1t'ntit

Aabacl, Balogiarn presently re"iCing'aI Crvex'Iechnoloii'v' Office California USA' ( )Ivlst. Bakht Rokr.rana wiclow of lr"lal:ro Nii':sl-' l{l.ra'n 1}'ir1ir1i Babozai Lljstrici tl':. t Wo r\niir Aabacl, Balogram'l'ehsil .

(S)Mst. Nasim Akht;rr wiie of l'li;rl Ur:rtrr llu-c$aii:i Url:rt\ i near Abdali Schoo; Iviatia Tehsil ii4atta Svi'at' (6)Mst'RobiiraSlralrce;rlt,ifeof[vi,.r}tarnrttticlSirtli.irri(lranl?./o T (i1'pcs!te i)iiP Policc Lirtc- Ivlohallah Jail, i\c:r Grcvyalci Saidu ShariI Swat' (7)lr4st. salrrra rvife r:f sher ill :(!r;'n ll/o Molral)ah l'i'::rr' Shah Colon)' Si'r.i:et Nar,r,ab Patosil Flirssau Partr: [l-'']r:iill No. 46 House Nc'' 5l Ghari Sihahs;ar"'ar Lahcrr:' Aabac' (S)ilaklrt Rawan lion of l-Iaii 'l'mir: iiar'r'sn I{/o ^/r'urir Balogram Tehsil ['abozai I)i:;triit Srvai' (9)Mulramrnad Iclbar oi ii;'<> irbl Aftab Ilbai sorts of li;rl<lrir iiorla1l 14';ii':11111; Amil Aabacl, ll::loglatrr r:irsiil iii'i'-r:;"tt' t'"t"r''t1 ''l ;:t'r;ri' (Rcspor':ci':ittli ) r

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PESHAWAR HIGH COU RT, MINGORA BENCH (DAR-UL -QAZA). SWAT

FORM OF ORDE R SHEET

Court of

, Case No.......

.tr t 1- Se.ial No. of orde. Date ol Order or On ler or olher Protteedings with Signaturc ol Judge or roceedin of iralIie,s Proc.edio

06-9-2017 C.R No. 100-,V/2017 ;1 ,..'., with c.M 36.t/2017 Prcsent: ,Wr. Fazal Rabbi Tawas Khel, Atlvocate for the Petitioner.

llotululu4D tBlAHm I(HAN,ft. With the preface of a suit by Muhernmad Shoaib Plaintiff (hereinafter callecl the Petitioner) for obtaining declararion with regard to a house, the boundaries of which are given alongwith a Hr:.ira stating its boundaries to have been purchased by an agreemerrt to sell dated 02.08.2004 from Haji Mehronesh Khan the pledecessor of Defendants (hereinafter called the Respondents) to the exclusion of anyone else. There are other prayers of obtaining permanent inlunction and cancellation of an agreement to sell dated 11.12.1994 and Hiba Nama dated 04.01.2010 by the said Haji Mehronesh Khan in favour of his wife It4st. Bakht Rokhana Bibi. There is added prayer for obtaining of its possession on the basis of

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{.. agreement to sell in his favour.

ATTF, TE .' '[his claim was hotly contested by the l' Ilxlr (l a\1e \ Sench Dr:fendants (hereinafter called the Respondents) who rr.ts rv?L Pes\ra'rr l-il,l;J J

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2 \1, ) -rl submitted th(i ir separate writteq statements. During the course of proceedings issues have been framed on the basis of diversion pleading of the parties. The evidence wiis under way of its conclusion when in the rneanwhile, ,the Defendants (tierbinafter called the Rr:spondents) submitled an ,applicatiron for rejection of

the plaint as suit for declaration is not competent for.

obtaining a decree as the proper form of suit is for ot,taining specific performance on the basis of the c<intract of sale in between the parties.

3 l{aving heard leamed counsel for the a parlies, the earned Senior Civil Judge/AIS Judicial Magistrate fiwat vide his order dated 27.11.2014 accepted the application and rejected the plaint under Older VII I(ule 11 of the Civil procedure Code, allowing tfe plaintiff (hereinafter .ull"d th" petitioner) to,file afresh suit ofspecific perfornrance of contract on th,: basis of lgreement to sell dated 02.08.2004. This or,ler was fu,ther assailed before the Court of learned Additional t,istlict Judge-VI/IZQ Swat in an appeal bearing No. 75113 '"vhich too met the same fate as rvhele there is an agreement to sell, the party is to AT ES TEYl entbrce such an agreement would require to bring a suit xJIll #, 1

Benc fo,: specific p:rformance of the contract and may obtain 1 ;i;1iir C ourl Pe s!'r av i;a. Swat' ,,9.1-irl-C Ulitrct'-r a lavourable rlecree, it is fact.

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\rq, 4 Here is a Civil Revision bearing No. 100-IW2017 against the concument findings of the learned Courts below whereby the grounds being taken, the prayer has been set:

"It is therefore, prayed for on acceptance of the instant revision petition orders/judgments of both the Courts

below as the case may please be decided on merits in the light of evidence of the 'plaintiff and all exhibits documents

according to the law. Any other remedy coupled with cost, which is efficacious and. appropriate, tn peculiar

circumstances of the case, may please be granted prayed for ".

5 I{aving heard leamed counsel for the parties, record with their valuable assistance gone through.

6.1 While dealing with the course to be t adopted for disposal ofthe application under Order VII Rule I I of the Civil Procedure Ccide which has been f- accepted by the leamed Senior Civil Judge/AIQ Swat.

The appeal preferred has also been dismissed. Thereby thb contents ofthe plaint are taken for consideration 7 Indeed there is a prayer for obtaining a :i

t,1 decree for declaration wi th regard to the house and Hujra, the boundaries of which are given in head note of'the plaint which is followed by prayer for obtaining permanent iniunction and cancellation of the agreement dated 11.12.1994 on behalf of Haji Mehronesh Khan in Tavour of his wife Mst. Bakht Rokhana Bibi, besides the gift deerl dated 04.01.2010 in between the same parties. The ,rvailable agreement to sell is Ex pW l/1, through thilr agreement while entering into the transaction of sale pertaining to the house by Haji Mehronesh .(han in favour of Muhammad Shoaib alongwith Hujra. It settled a sale consideration of Rs. 15,00,000/- but at the foornote for the purpose of cornpletion of the agreement contract as it requires registration. The transfer was placed to fulfill his obligation t() get it registered before the Illaqa Registrar. Ir{eaning thereby, that for the above performance of the agreement, still the parties were to get the premises registered in the office of Registrar Srvat. Thus vrhere the sale is not c<rmpleted by way of a its registration when the value is more than hundred rupees. Where in the present transaction, the sale ixT H$T D consideration is fixed for Rs. 15,00,000/-. It requires t: .rlll rler registration vrhere in such scenario for the fulfillment Peshavt;t i 1 1ql:iC.lld Bench r-Qazi!, Swat' Mittgota [.]l['tl of such contract suit for declaration would not be

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c,)'rl competent e(cept that the plai ntiff rs rn possessron ,l

urrder enforcr:able contract of sale.

t 8 indeed, there atp dictu;ns of the Hon,ble superior Courts in plethoral of authbrities cited as

PLD_:!99!_

Nsltul-jihg,4ulta and 3' others". The relevant cltation (aJ :;peaks o[f:- Rejection of plaint

Relinquishmdnt Deed falls wrthin the purview of S.

17tilO)-:ptaint was solety based upon a retinquishmitent deed for cloiming ownership rights in the property €omprisei' in it --- Sttch cloatment, even if assumed to be genuinely executed, required' cotnpulsory registration and its absence was fatal to the eJfective transfer of rights undcr it --- Sait based on sach unregistered deed was barred by law and plaint me rite tl a utr ight rej e cti on.

Likewise 2015 YLR 1845 (Peshawar) lKhalid Khan vs Haii Muhammad Anwar" has

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t been relied upon, wherein the relevant citation (b) oplnes:-

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S. 4?--Registration Act (XVI of Exanri e.r 7908), S. 4g--Suit Ior peShaw,.t I Fir!Jil c'.rn Benbh aza. Swat.

declaration on the bosis oI l$ itrqoiriD::; ti!, unregistered sale deecl--- Maintainability--Plaintiff filed

t suit lor declaration on basis ol two unregistered documents, which had not creoted any titte or right or interest in Iavour of plotntiff in disputed land as envisaged under S, 49 of Registration Act, 7.909-_ Declaratory suit filed under S. 42 of Specific Retief AcC 7A77 on basis of unregistered sale deeds was neither permissible nor maintainable.

Similarly 2077 yLR 8BB (peshawar) "Gohar Rehiman vs Riaz Muhammad,,has been

relied upon. Citation (aJ of the said judgment reads as under:-

---5. 4z--Civil procedure Code (v of 19oB), O. tilr, R.tl--_ Registration Act (XW of t90B), 5,49---Suit |or declaration-- Rejection oI plaint---plaindJf who ftled suit for declaration based his claim upon lqrar Nomo and in oltern te suit lor specific performance ol t agreement to sell regarding suit properA was prayed--Deed of Iqror Nama, was admittedly an Ds- unrelistered document which would neither create any title nor ony right or interest in the suit properql as envisoged /,ITT s7E under 5.49 oJ Rggist -ation Act, 7909--Dectaratiry suit under t-x I)ti crr Pesh.rwr r ll th 0c Lrrl ch 5.42 oI Specific Relte| Act, 7B7Z Mingor.r/D; 'til-Q226,5Ye11. on the basis of lqroi,Namo was

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not permissible; ond suit lor declaration would not be

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maintainable---Even , if said Iqrar Nama was considered as on agreement to sell; and suit was considered to be that oI specilic performance, same would not be maintainable being barred by limitation as said lqrar Nama was scribed on 18-7-7996 and the suit wus brought on 2-4-2009--.

Impugned judgment iqnd decree passed by the Appellate Court were set aside and the judgment and decree passed by the Triat Court wos restored, in circumstances.

It has been held in 2077 SCMR 347 :4u-nsm qnd glheN: in the following manner:- "5, 54. Registration Act (XVI ol 1908), Ss. 17 & 49. tmmovable property, Unregistered ogreement to sell. Such an agreement would not confer any title upon the vendee in the immovable property.', In unreported judgrnent rendered at Peshawar High Court Mingora Bench [Dar-ul- gn Qaza) Swat in C.R. No. 15B of ZO1,l, it has been enunciaterl by the then His Lordship Mr. Abdul Latif Khan as below:-

"Admittedly, deed being

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unregistered document bestows Ex;t 't 1e no title upon the beneficiary. ench Peshavrlr lli ir Coll -u i-Q I za, $,aL Apart from sale consideration, l,lirrgoralDa the other important ingredient

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is the delivery o/ possession under the sale, which is also not proved."

\Vhere the form of suit has been v/rongly presented for its cause of action being accrued ott.er than the required one, it has been held in 2074 SCMR 573 "Noor Din and another vs llitlitipngLDistrict ludge Lahore and others" as rinder: -

"O.VII, R.ll--Reiettion of Ploinr Object und pur4se. Obiect of pov,ers conlerred uPon trial Court under O.VIL F-II CPC was that the courts must put an end to titigotion at the very initial

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stage, wlrcn on account of some legal impediments lull-lledged trial woulil be o fiutile exercise.

in .esPect of the same view 2076 CLC {>-lll-:!lgshswar) " Sher Khan through LRs vs Gul ilar Khan". has been referred to, wherein the relevant citation [b) is reproduced for ready reference:-

c "O. VIL,R,77, Reiection of PlainL Object and scoPe. Obiect oI O'VIL R.77, CPC is PrimorilY to sove parties from rigors of frivolous titigotion ot verY incePtion of

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proceeilings. Il Court on the E ;li li.le basis of overments made in i,,rir'loi' n Be ;rch Pesh:,';,.tt SwSt' plaint are Proveil, Plaintifi will l''linrlcr;t' ;;r-ll'Ooz.:, not be entitled to relief claimed, court would be iustilied in

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reJecaing plaint in exercise of powers availoble under O. Vll R

II CPC,

9 It has been held in other judgments cited as 2000 CLC 1546 "A sreemenl for sale of immovable Dro D er'lv ---n tpht of purchaser of the DroDertv ---Scooe Purchaser of a oroperlv throush an agreem ent of sale has no risht, title or interest in lhe prope rtv proposed to be sold exc Dt lo maintain a suit fo r soecilic ef ormflnce tt followed by 2001 YLR 2789 "Suit for declarati on of litle on Dosis of agr eemenl to sale

Mainla inabilitv --Reiection of' plaint under O WL ,IR I I. C.P.C. t

---Contention of aooellant utas thtrl asreement to sale tlitl create an inleresl inproDert v andtdn its basis, th ev coultl mainla'in 'suit for declaration and D ermonent tnl inclion -Valitlitv-- Ae reemenl to sale did nol credte anv ' tisht litle or interest in the DroDettv antl on ils b asis, s uit for declarati on of title nf,{ Esf

[.x:,t nBe nch would not be mainta inable-- oellants l ?,4 s.r 'l P esha tlr\l$r' :lD shoultl have liled suit for sp ecific

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oerformance under Specific Relief Acl, 1877 md 5.42 thereol'woultl not aoplv to lheir case Appe llants never lhoushl of t

umentlins lhe p lainl and neither in trial Court nor be fore Hi Courl mude even oral request to allow conversion of declarator v suit inlo a suit for so ecilic perfo rmance--Hish Co urt dismissed the aooeal os no inlirmi lv or ill'esalitv was found in order passe tl bv th e lrial Courl" further followed bY 2002 YLR 25 7I "Suil- for declaralion -Maintuinabil itv- -Title on the basis of AP reement to

sell--Validi tv---A greeme nttos ale does not cresle anv risht. lille or inleresl in pro.Def Suit forde clarat lon o n the basis of such a ereemenl is not mainta inable".

10.Where the sale in between the parties has either not been conrpleted, declaration cannot be sought ,,)- regarding plaintiff right to any legal character or in v" suit section 42 respect to property claim by him/her in of the Specitic Relief Act, 1877 rather the only course

available would be to bring a suit for specific AfiE T D performance as to ask for completion of the sale' 1'l r [- x;t 11 a:,'r -l l1 Bench Peshll:r:,' .r' ' l'

,tl -ul:l S$tat' 11. In view of the above observation, the Iirnrlcr

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\tt impugned ortlers assailld -before this Court would not call for any nterference. Flence the plaint has rightly been rejecterl, however, the Petitioner (hereinbefole called the pl'rintiff) has the lawful right to bling any suit if advised for specific pet'formance of contract on thr basis of the agreement dated 02.08.2004.

17,. .n view of what has been discussed above, this revision :etition is hereby dismissed.

Announced Dt:06.9.201i' I ,;-

Mohammad lbrahim Khan

JUDGE

Certified tc 'll: ":i:e t*trY

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