Mumtaz Vs Muhammad Sabir

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 331-A/2010

JUDGMENT

Date of hearing...................02.07.2020.................................

Petitioners (Mumtaz) By Haji Sabir Hussain Tanoli, Advocate. Respondent. (Muhammad Sabir) By Muhammad Ayaz Khan, Advocate.

SHAKEEL AHMAD, J.- Through this revision petition, the petitioner has impugned the judgment and decree dated 20.04.2010, passed by the learned Additional District Judge-II, Abbottabad, whereby appeal filed by the petitioner was dismissed and the judgment and decree dated 30.04.2009, passed by the learned civil judge-VI, Abbottabad decreeing the suit for declaration and permanent injunction filed by the respondent / plaintiff, was maintained.

2.The facts as it appears from the pleadings of the parties are that the respondent instituted a suit against the petitioner / defendant on the averments that he had purchased suit land (fully described in the headnote of the plaint) from the petitioner / defendant vide agreement to sell dated 09.04.1994 on the terms and conditions

mentioned therein out of total sale consideration Rs. 20,000/- was paid as earnest money to the vendor / defendant in pursuance thereof he delivered the possession of the suit property to him on the spot, while the remaining amount was paid to the vendor / defendant in presence of his witnesses and the petitioner promised to transfer the suit property in the name of the respondent through mutation or registered deed. After payment of entire sale consideration respondent / plaintiff left for Karachi to earn his livelihood, and after return he constructed a house on the suit land. It was further asserted in the plaint that the respondent was under legal obligation to transfer the suit property in his name, but, he failed to abide by his commitment, the plaintiff time and again contacted the defendant / petitioner to transfer the suit property in his name by way of mutation, but all his efforts in this respect proved to be a wild goose chase, which necessitated him to file the suit, likewise, the petitioner also brought a suit against the respondent for revocation / cancellation of the agreement dated 09.04.1994 on account of non-payment of the

remaining amount, since the subject matter and parties in both the suits were one and the same, therefore, both the suits were consolidated. Out of divergent pleadings of the parties, the following consolidated issues were framed and parties were directed to produce their evidence:

1.Whether the plaintiff has got a cause of action?

2.Whether suit of the plaintiff is bad in its present form?

3.Whether the suit of the plaintiff is within time?

4.Whether plaintiff performed the contract No. 16152 dated 09.04.1994 on his part?

5.Whether plaintiff has waived his right to sue?

6.Whether constructions made by the plaintiff on disputed land are liable to be demolished?

7.Whether defendant filed the suit No. 16/1 in counterblast to suit No. 15/1?

8.Whether defendant himself handed over the possession of disputed land to plaintiff?

9.Whether the plaintiff is entitled to the decree prayed for?

10.Whether plaintiff in suit No. 16/1 is entitled to the decree as prayed for?

11.Relief?

3.In support of his contention plaintiff produced Halqa Patwari as PW-1 who

tendered Farads for the years 1997-98, 2001- 2002 and Khasra Girdawri as Ex.PW-1/1, Ex.PW-1/2 and Ex.PW-1/3 respectively and Roznamcha Waqiati Ex.PW-1/P-2 and Khasra Girdawri Ex.PW-1/D-1, Khan Gul was examined as PW-2, who produced mutation No. 3033 and 3034 as Ex.PW-1/1 and Ex.PW-1/2, plaintiff Muhammad Sabir, himself appeared as PW-3 and reiterated his stance taken in the plaint, Ghulam Nabi and Duriaman were produced as PW-4 and PW-5 respectively, who deposed about payment of remaining sale consideration and closed his evidence.

4.In rebuttal, petitioner / defendant himself appeared as DW-1 and closed his evidence. At the conclusion of trial, the learned trial court vide consolidated judgment and decree dated 30.04.2009 decreed suit No. 15/1 filed by the respondent / plaintiff and dismissed the suit No. 16/1 instituted by the petitioner with compensatory cost of Rs.15,000/-. Not contented with the judgment and decree of the learned trial court, the petitioner approached the learned appeal court by way of filing appeal, which was

dismissed vide judgment and decree dated 25.04.2010, hence, this revision.

5.It has been argued by the learned counsel for the petitioner that the findings given by the courts below are contrary to the evidence on record. He next contended that both the courts below have over looked the fact that time was the essence of contract and the respondent failed to pay the remaining sale consideration within the stipulated period, therefore, the contract was frustrated and it was not executable. He lastly argued that the suit for declaration seeking ownership of the suit property and permanent injunction was not competent in view of provisions contained by Section 42 and 56 of the Specific Relief Act, at the most, the respondent could have filed a suit for specific performance of contract and prayed for setting aside the judgments and decrees of the learned lower fora and grant of decree in his favour.

6.Conversely, it was contended by the learned counsel for the respondent that as part performance of contract, possession of the suit property was handed over to the respondent, whereon not only house was

constructed by the respondent but he also paid the remaining sale consideration to the petitioner, therefore, he was under legal obligation to have transferred the suit land through mutation or registered deed; that under the provisions of Section 42 Specific Relief Act, one can seek declaration in respect of the right to any property without having title of the same; that any person could seek declaration in respect of his legal character or right to any property. He lastly contended that concurrent findings of facts recorded by the courts below cannot be interfered in exercise of jurisdiction under Section 115 CPC unless it suffers from jurisdictional defect or same is result of misreading or non-reading of the evidence on record and prayed for dismissal of the revision petition.

7.I have heard the learned counsel for the parties at length and have gone through the record with their able assistance.

8.The learned trial judge who tried the case recorded the findings that the form of the suit was proper; and the agreement to sell dated 09.04.1994 was valid. The payment of earnest money (Rs. 20,000/-) and delivery of

possession was evidenced by Ex.PW-3/1 and the payment of remaining amount/sale consideration was held established from the deposition of Ghulam Nabi PW-4 and Duriaman PW-5. It was also held by the learned trial court that execution of agreement to sell dated 09.04.1994 and receipt of earnest money was not denied by the petitioner/defendant. It was merely pleaded by him that the said agreement was frustrated on account of non-payment of remaining sale consideration within the stipulated period, therefore, it stood cancelled and he also denied delivery of possession to plaintiff/respondent. After holding the petitioner to be owner, competent to sell the suit property and the sale in favour of the respondent valid, held that in view of provisions contained in Section 48 of the Registration Act read with Section 53-A of the Transfer of Property Act, rights of the plaintiff / respondent is fully protected, consequently, the suit of the respondent/plaintiff was decreed in his favour.

9.In petitioner’s appeal before the learned Additional District Judge, the findings of the learned trial court on all the issues were

severally criticized. The learned Additional District Judge held that the agreement to sell dated 09.04.1994 Ex.PW-3/1 was proved in accordance with law and in pursuance thereof possession of the suit land was delivered to the respondent/plaintiff and it was established that full payment of the price land had been made and further held respondent/plaintiff to have become owner of the land. In essence the learned appeal court concurred with the findings of the learned trial court and dismissed the appeal filed by the petitioner.

10.The points for consideration in my humble view appear to be:

(i)Whether petitioner was competent to execute agreement to sell Ex.PW-3/1.

(ii)Whether the respondent was put in possession of the suit land.

(iii)Whether suit of the respondent was competent.

(iv)Whether remaining sale consideration was paid to the petitioner and whether rights of the respondent was protected under Section 48 of the Registration Act read with Section 53-A of the Transfer of Property Act.

(v)Whether agreement to sell dated 09.04.1994 was an executed, document or executory.

11.Adverting to the case law on the subject, I may refer to Janakirama Iyer Vs.

Nilakanata Lyer (AIR 1962 SC 633) laying down that considering plaint, the court must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form. In Samar Gul Vs Central Govt: and others (PLD 1986 SC 35), interpreting the provisions of Order VII Rule 7 CPC, the full bench of Honourable Supreme Court authentically held that it is well-settled that a court is empowered to grant such relief as justice of the case may demand. For the purposes of determining the relief asked for, the whole of the plaint must be looked into so that the substance rather than form should be examined. In the case reported as Shabbir Ahmed and others V Khushi Muhammad and others (1993 CLC 2316), it was held that the appellate court should not have dismissed the suit on the ground that the same was not in proper form as the remedy of the plaintiff was to seek decree for specific performance, it was authentically held that the suit should not have been dismissed on this technical ground and rule that the relief of specific performance could be granted to the plaintiff if the evidence on record had established

agreement of sale and performance of his part of agreement and if question of limitation is not involved. This power is vested in an appellate court under Order XLI Rule 33 CPC as well as under section 151 CPC. In this context reference may also be made to the case reported as Province of Punjab V Col.

Abdul Majeed (1997 SCMR 1962), wherein it was expounded as under:

“The powers conferred on the appellate court under Order XLI Rule 33 CPC is of the widest amplitude and in exercise of this power the appellate court is competent to grant relief to a party, notwithstanding the fact that party failed to prefer an appeal or submit any cross-objection. However, in equity, justice and good convenience and the fact that withholding of relief would result in a contradictory or impossible order / decree. Therefore, when the appellate court reaches to a conclusion in a case that by withholding the relief a non- appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be recorded contradictory, it will be a good ground for exercise of power under Order XLI Rule 33 CPC to

grant appropriate relief to a non- appealing respondents or to respondent who omitted to file a cross objection in the appeal.”

12.This view was followed by the August Supreme Court of Pakistan in its subsequent judgment reported as Barkat Ali Vs Muhammad Ihsan (2000 SCMR 556)

wherein it was observed that principle object behind all legal formalities is to safeguard the paramount interest of justice. Legal precepts were devised with a view to impart certainity consistency and uniformally to administer of justice and to secure it against arbitrartyness, errors of individuals judgments and malafides.

In this behalf reference may also be made to the case referred as Kashi Parasad V Bana Shidan (AIR 2001 Madhaya Pardesh 185), in this case, in a suit for declaration and possession by virtue of temporary partition, concurrent findings were recorded by courts on the basis of evidence that plaintiff has 1/7th joint share in the disputed property. This fact, however, was not specifically pleaded in relief clause of the plaint. It was held that appellate court should not have refused the same on the technical ground that it was not specifically sought for in the relief clause of

plaint. Particularly, in order to avoid further vexatious litigation between the parties Division Bench of the High court ruled that first appellate court should have exercised his discretion in the interest of justice.

13.As regards the transfer of possession it took place an execution of agreement of the contract Ex.PW-3/1. As a matter of fact the respondent paid remaining sale consideration to the petitioner within stipulated time in presence of PW-4 and PW-5 and petitioner was bound to transfer the suit land in his name, therefore, the payment was

unequivocally shown to be in furtherance of the contract of sale. This fact is borne out from the recitals of the sale deed and finally from the statements of PW-4 and PW-5. This evidence coupled with transfer of possession fully satisfies the requirement of Section 53-A of Transfer of the Proerpty Act, 1882, continuance “in part performance of contract.”

14.In order to establish his claim plaintiff / respondent produced patwari halqa as PW-1 and SOK as PW-2, who produced fard jamanbandi for the year 1997-98 and khasra girdawari in their statements as PW1/1 to Ex:PW-1/3 respectively. It was pleaded by the

respondent / plaintiff while appearing as PW-3 that the petitioner / defendant firstly had to enter and attest the inheritance mutation of his father in his name and then the sale mutation. SOK PW-2 tendered in his deposition that inheritance mutation of petitioner’s father bearing No.3033 and sale mutation No.3034 as Ex:PW-2/1 and Ex:PW- 2/2. Perusal of these papers reflect that through Ex:PW-2/1 legacy of petitioner’s father was transferred in Khata Nos. 429/613, 435/629 and 428/612, 436/620, 437/621 in the names of his legal heirs on 13.06.1994, however, it was on 28.11.1994, the revenue officer while passing cancellation order of this mutation recorded his reason that it was cancelled due to non-ascertaining / confirmation of legal heirs of the deceased.

Likewise, the sale mutation No.3034 was entered in the revenue record on 13.06.1994, vide which the petitioner had transferred land measuring two kanals to the respondent / plaintiff in khasra No.787/622, 606/622 and 605/619. It is worth mentioning that the sale mutation carries reference of inhertence mutation. However, it was cancelled merely on the ground that transfer of suit property

was to be made by means of registered deed.

From the above discussion it can safely be held that the agreement to sell was an executed document and not executory in nature. It is by now settled that in executed document the liability is outstanding on one side only. In executory document liability is outstanding on both sides. It is in fact a promise for a promise, one promise is bought by the other. The contract is concluded as soon as the promises were exchanged. In the present case as discussed above, the contract was executed in pursuance thereof, not only the remaining sale consideration was paid but possession was also delivered to the plaintiff / respondent and after attestation of inheritance mutation in favour of legal heirs of the deceased sale mutation was attested in favour of the respondent by him, but due to reasons recorded in the said mutation it was cancelled and therefore, again the petitioner was asked the petitioner to transfer the suit property through registered deed, but all the efforts, in this respect made by the respondent proved to be wild goose chase, which compelled him to file the suit for declaration etc. In view of the above

discussion made hereinabove, it is concluded that the courts below rightly held that suit of the respondent / plaintiff to be maintainable in the eye of law.

15.Now adverting to non-registration of agreement to sell / sale deed and its effect.

The Honourable Supreme Court examined this question in Abdul Karim’s case (PLD 1967 SC 411) and held that though a sale in violation of section 54 of the Transfer of Property Act is not altogether void. Yet the interest acquired under such a sale as inchoate and imperfect and even such an imperfect transaction will give raise to equities in favour of the buyer.

16.In the case reported as Inayatullah & others V Shah Muhammad & others (PLD 1961 Lahore 372), the vendee knocked at the door of the court as vendee, sought specific performance of an unregistered contract of sale partly performed. His claim to get the contract specifically performed was resisted on two grounds, the first being that he would if at all, protect his interest under Section 53-A of the Transfer of Property Act as a defendant could not come to the court as plaintiff. Secondly, it was said that in the

absence of registration of agreement to sell notwithstanding its part performance, he acquired no enforceable right. In Support of his contention, he placed reliance on the judgment reported as Probodh Kumar Das & others V Dantmava Tea Co. Ltd and others (AIR 1940 PC-1). Both these contentions were held to be not sustainable by the Division Bench observing as under:

“It would be rather anomalous in the position of the transferee in a suit i.e. whether he has come to the court as plaintiff or as defendant should determine whether he should be ordered recognition of his rights and if he were a plaintiff he should fail but if he raised precisely the same plea if he were a defendant he should succeed. I am of the view that when a transferee by means of a document, which has not been registered, though when the law that document was compulsory registerable, comes to the court as plaintiff and bases his claim part performance, of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the title of anyone else.

The decision of their lordships of Privy Council in Proobah Kunwar Dass V Dantamara Tea Co Ltd was, therefore, of no avail to default No.2 to 9.”

17.In this context reference may also be made to the case reported as Pakistan Employees Co-operative Housing Society Ltd, Karachi Vs Mst. Anwar Sultana (PLD 1969 Karachi 474), wherein another Division Bench affirmed the enforcement of rights under unregistered agreement partly performed by the plaintiff.

18.The gist is that in such a case, on other condition being satisfied the plaintiff can be granted the declaration that he is in possession of the Property under a contract of sale in his favour and the petitioner/ defendant are restrained from interfering in his possession.

19.It is by now settled that concurrent findings of facts recorded by the courts below, which are based on proper appreciation of evidence, oral and documentary produced by the respective parties before the learned trial court, are not liable to be interfered with in revisional jurisdiction under Section 115 CPC.

In this context reliance can be placed on the

judgments reported as “Abdur Rahim and another Vs. Mst. Pervaizi Bibi and others” (2000 SCMR 346), “Muhammad Rashid Ahmad Vs. Muhammad Sadiq” (PLD 2002 SC

293)and “Secretary to Government of the Punjab, Education Department, Lahore and another Vs. Saeed Ahmad Khan” (PLD 1994

SC 219).

20.For what has been discussed hereinabove, I find no illegality or material irregularity of jurisdictional defect in the impugned judgments of the learned courts below calling for interference. Resultantly, this revision petition is hereby dismissed.

Announced:

Arshad Iqbal

JUDGE