Muqarrab Khan etc Vs Haji Gul Shah etc

s Judgment Sheet

IN THE PESHAWAR HIGH COURT PESIAWAR

IUDICIAL DEPARTMENT

Civil Revision No.39 1-PD0 I I

JADGMENT

Date of hearing 19.10.2023

Petitioners (Muqanab Khan etc): By: IWs Muhamamd Muha4om Btdt, & BisamAhmad Siddiqui, advociles.

Resoondents (Haji Guli Shoh etc) By Mr. J an M uh ammad M uhammodzui, Advocale.

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WIOA RAHMAD. J.. Instant revision petition is directed against judgment and decree of learned Additional District JudgeJ, Charsadda, dated 23.12.2017 whereby while dismissing appeal of petitioners, judgment and order of the learned Civil Judge-II, Charsadda, dated

30.1.201 7, was maintained.

2 Resume of facts leading to filing of instant revision petition are that petitioners filed a suit for declaration, (permanent iniunction and recovery in alternative) to the effect that he was owner in possession of suit property measuring 28 Marlas out of 4 Kanals bearing Klwsra No.583/372 on the basis of sale deed dated 18.1.2010 and subsequent LIIshaq Shah, (SB) Hon'ble MiJusllce mqqr Ahmad

mutation No.1BB7 dated 27.4.2010 attested by defendant No.2 infavour of defendant No.l wos wrong, illegal and based on fraud and collusion, hence inffictive upon his rights. It is further averred in the plaint that sale consideration of Rs.5,60,000/- has already been paid to defendant No.2 in presence of marginal witnesses of the deed, therefore, subsequent mutation infavour of defendant No.l is illegal and requires to be cancelled and revenue record be corrected accordingly. Plaintiff further prayed for permanent injunction restraining defendants from interference in ownership of plaintiff, In alternative, plaintiffalso sought recovery of sale consideration of Rs.5,60,000/' along with cost of construction on the suit property. In response to summons, the defendants contested the suit by filing their written statement wherein they refuted the stance ofplaintffi by stating that sale deed relied upon by plaintiff was forged and bogus. On the divergent pleadings of the parties, the learned trial court framed 13 issues where after both parties were directed to produge evidence in support of their respective stances. The learned Civil Court, after going through evidence of the parties and hearing arguments of their counsel, decreed the suit, vide iudgment and decree dated 30.1.2017. Feeling aggrieved, defendants filed appeal before learned Additional District JudgeJ, Charsadda, which was M.Ishaq Shoh, (SB) Eofl'ble Mntustbe l{iqar Ahmod

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dismissed on 23.12.2017. Now, defendants/ petitioners have filed instant revision petition with following prayer:-

"ft is therefore, very humbly prayed that on acceptance of this revision, the judgment passed by the Appellate Court dated 23,12.2017 read with the initial judgment of Civil Judge dated 30.1.2017 may please be set at knot, dismissed and set aside and consequent to thal the suit Jiled by the plaintiffirespondents in appeal and in this revision petition) may be dismissed with cosl

throughout."

3 Arguments heard and record perused,

4.Perusal ofrecord reveals that learned appellate Court had found, on reappraisal of evidence in appeal, that plaintffirespondents had succeeded in proving the sale deed. Through sale deed dated 13.1.2010 respondent No.l had purchased property in dispute from respondent No.2 luhL Janatul Mauq. This was an unregistered deed which was brought in evidence as Ex.PW.1/1. Factum of its execution had been accepted by learned two Courts below for the right reasons. Its legal ffict shall however be discussed later on. Predecessor-in-interest of petitioners had also purchased same property "from respondent No.2 through mutation No.l887, attested on 27.4.2010 in Khasra No.583/372 M.lshqq Shah, (SB) Hon'ble th.Jasttce mqat Ahud

in Moza Gul Abad, charsadda. h had also remained admitted dnring coarse ofevidence that property in dispute have been running in physical possession of respondent No.l. This Court lns got no reason to differ with concuruent findings of two Courts below in this respect. One aspect of the matter requires reconsideration i.e, whether a suit for declaration could be decreed unfur Section 42 of the Specific Relief Act, on the basis of an agreement to sell? Said question shall also be addressed in later part of this judgment. So far as evidence in respect of the above mentionedfindings is concerned, it is also discussed here briefly:- 5 In order to prove his case, plaintiffproduced Haji Murad Ali (PW.1), scribe of the sale deed dated 18.1.2010, (Ex.PW.1/l) who stated that respondent No.2 (Mst. Jannatul Mavta) had herself came to the District Court and thumb impressed the sale deed in his presence. This witness further stated that in his presence, the marginal witnesses had also signed/thumb impressed the sale deed.PW.2 Rahat Shah & PW,3 Nemat Gul are marginal witnesses of the sale deed dated 18.1.2010. Both witnesses had confirmed their signatures on the sale deed and further stated that in their presence, Mst.Jannatul Mowa had receiyed sale consideration of Rs.560000/- and that the possession of suit propertywas with plaintiff. Plaintiff himself appeared as PWl who had given same M.Ishaq ghah, (SB) Eon'ble Mt lantce lflqar Ahuad

narrations as given in the plaint. On defendants' side, DW.I, patwari Halqa, appeared who had brought on record mutation No.1887, dated 27.4.2010 (Ex.DW.l/2). DW.2 is ADK Fakhar ul Hassan who had produced Register relating to Mutation No.1887, dated 27.4.2010 Defendant Jannatul Mawa appeared as DW.3 who had denied to have sold out the suit property to plaintiff through sale deed dated 18.1.2010 and stated that she had sold out same property to defendant/respondent No.l for a sale consideration of Rs.10 lac and confirmed the factum of attestation of mutation No.1887, dated 27.4.2010. DW.4 Muhammad Shaheen is son of luht.Jannatul Mawa who had contradicted the stance of plaintiff qua sqle of property to latter. Muqarrab Khan appeared as DW.S who had stated that despite being owner of suit property on the basis of suit Mutation No.1887, dated 27.4.2010, possession of suit property was with plaintiff. This witness had also admitted construction made by plaintiffover suit property

6.When the two Courts below hove concluded on the basis of such evidence that the agreement to sell En.PW.1/I had been proved on record then this Court was having no reason to differ with such findings of two Courts below and that also while exercising revisional jurisdiction M.Ishaq Shqh, (SB) Hon'ble Mr..lastce Wiqa, Ahmod

of this Court. The mutation had admittedly been executed by Mst. Jannat-ul-Mawa but same was subsequent to the sale deed.

7 The important question that whether a suitfor declaration of title might have been decreed on the basis of the agreement to sell have not been discussed by two Courts below but being question of law this Court may discuss and decide such question as a revisional Court Instead of remanding case to learned Court below, such question is being talren for consideration here. It is correct that a suit for decloration cannot be maintained nor can a decloration of title be given on the basis of an agreement to sell. This aspect of the matter has amply been made clear by Hon'ble Supreme Court of Pakistan in its judgment rendered in case of Muhammad Yousaf Munswar Hussain rted as 2000 s.c.M.R. - 204 But it is equally true that plaintiff has been in possession of the suit property and has constructed his house on the property in dispute where he has been living even before the date of execution of agreement to sell. Learned counsel for respondents also contended that same house has been sold to them by respondent No.2, twice. Courts of law are established for administering justice according to low and therefore technical lenockout should not be given to parties when they qlso succeed in establishing their cqse on merits. Hon'ble M.Ishaq Shah, (SB) Hon'ble MnJustice Wqat Ahmad

supreme court of Pakistan while giving its judgment in case of Javed Iabal Vs Abdul Aziz and another reoorted as PLr 2006 SC-127 has held that a suit for declaration may be converted to one for grant of specific performance and may accordingly be decided on its merits Relevant observations of said judgmenrs are also reproduced herein;

"There cun be no cavil with this proposition that mere agreemenl of sale would not confer any right, title or interest to immovable property on the respondents, Both the Courts, however, miserably failed to realise that the relief asked for by the plaintffi could justifiably be moulded by converling the suit for decluration into a suit for spe cilic p erfo rman c e. "

In the same judgment, the Honourable Supreme Court has also held as under:-

"In this case appellate Court had 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 speciftc performance, his Lordship aathoritatively held thut the suit could not have been dismissed on this technical ground and ruled that the relief of specitic 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 the question of limitation is not involved. "

8 Since respondent No.l has been able to prove execution of the agreement to sell, therefore, the suit may well be conyerted into that M.Ishaq Shqh, (SB) Hon'ble Milagice mqsr Ahmd

of specific performance and relief can accordingly be also moulded. The agreement to sell had been executed on /8.01.2010 and suit in case in hand had been brought by respondent No.l on 17.05.2010. Same was also within prescribed period of limitation and there is no hindrance in converting form of suit from declaration to that of spect/ic performance and moulding the relief from a decree of declaration of title to one for specific performance of agreement to sell,

9 A related argument was also raised by learned counsel for petitioners at the bar that unregistered deed could not be given preference oyer mutation duly attested by concerned revenue fficer. I am afraid, this Court would not be able to agree with learned counselfor petitioners in this respect. Section 27 of Specific Relief Act has provided in this respect as follows;-

"27. Relief apainst narxies and nersons claiminp under them bv subsequent title.- Except as otherwise provided by this Chapter, specitic performance of a contract may be enforced against,* (a) either party theretol

(b)any other person claiming under him by a title arising subsequently lo the conlract, except a transferee for value who has paid his ,iloney in good faith and without nofice of the original contrsct;

M.Ishaq Shah, (SB) Ilon'ble Mr..Iuiice lyiqsr Ahmad

(c)any person claiming under a title which, though prior to the contract and known to the plaintffi might hove been displaced by the defendant;

(d)when a public compan! has entered into a contract and subsequently becomes amalgamated with another public company, the new cornpany which arises oul of the amalgamilion;

(e)when the promoters of a public company hove, before its incorporation, entered into a controct, the company: provided that the company has ratitied and adopted the contract and the contract is waruanted by the terms of the incorporation,,' Clause 'b' of Section 27 is relevant in this respect and same may also be read along with illustration provided under said clause 'B'. In this case it has come in the cross examination of Janatul Mawa while appearing as DW.3 that subsequent pwchaser i.e, Haji Bahadar was brother of her husband ( Zareen l{han ). While appearing in Court as DW.S son of Bahadar Khan nqmely Muqarab Khan had admitted possession of plaintiffs on the property in dispute os well as the fact that they had constructed house thereon. In such circumstances, it can easily be discerned from record that Bahadar Khln had sfficient notice of agreement to sell, earlier entered and executed between respondent No.l and respondent No.2. Such agreement could therefore validly be executed against petitioners who were legal heirs of Bahadar Khan and M.khqq Shah, (SB) Eon'ble Mhlaflbe Wiqu Ahmod

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mere fact of attestation of subsequent mutation could nor be deemed sfficient to defeat the agreement to sell,

10 In light of what has been discussed above, petitioners could not malce out a case of illegality or irregularity sfficient for

setting aside the impugned judgment and decree. Both the impugned judgments and decrees are howeyer, modified to the effect that prayer of plaintiff is converted from declaration ond perpetual injunction to the one for specific performance of contract and resultantly judgments and decrees of both the Courts below shall also be deemed modified to grant of decree for specific performance of contract. Respondent No.I shall be at liberty to file application for execution or fulfilment of rest of formalities of the sale

t1 Instant civil revision petition is accordingly disposed of in the above terms

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Date of hearing & announcement of Judgment... 19.10.2023

Date ofPreparation and Signing of Judgment ...... 31.10.2023

M.lshaq Shah, (SB) Eon'ble MLJuiice Wtqat Ahrnad