Muhammad Yar Khan VS ajab Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-Q AZA), SWAT

(ludicial Department)

C.R. No.511-P/2009 With CMs No.730/2014 & ls& 18/2015

JUDGMENT

Dste of heorins:- 26.1 0.201 7

Pelilioner:- (Muhlmmod Yor Khan) by Mr. Sher Mu h a mmod Kh an, Advocote,

Respondenti (Ajob Khtn) by Muhtmmtd Arif lftikhor, Atlvocate,

M OHAMMAD IBRAHIM KHAN, J.- Muhammad Yar Khan resident of village Belu Khan District Malakand seeking declaration on the basis of receipt bearing its execution on tollolzo)) and on its basis to have become owner and is in possession as purchaser from Syed Hafiz-ur- Rehman. The other document in possession of Ajab Khan be deemed to have been ineffective against his rights on account to be declared ineffective termed to be factitious, frivolous t) f and collusively being executed. Besides introducing a prayer for obtaining permanent injunction alongwith other prayer for obtaining NrsrblS-8.) Ilon'bl. Mr, Juilic.Ilol[mf,rJ lL'11him Xh.r

possession of the premises, the boundaries of which are given in the head-note of the plaint.

2 This claim was hotly resisted by

Ajab Khan by filing his written statement raising various legal and factual objections. The pleading of the parties were reduced into following issues:-

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,a- 3 ln Civil Suit No. 23611 of the Year 2005, the learned lllaqa Qazi Malakand at Batkhela by delivering its findings on each and every issue dismissed the sult of Plaintiff Nnrrb (S.8.) tton'bl. ui Ju!rice [lohxmrid tb.nhnn

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(hereinafter called the Petitioner) vide judgment dated 30.09.2008. An appeal bearing No. 31/13 of the year 2008 was preferred before the Court of learned District JudgelZila Qazi Malakand at Batkhela, which also met failure vide impugned judgment and decree dated 30.03.2009, thereby findings contained in the judgment and decree of the learned Civil Court dated 30.09.2008 were maintained.

4 Here, this is a civil revision describing the facts and the grounds being taken with the following prayer:- "lt is, therefore, respectlully proyed that on occeptonce ol this revision petition, the judgments oJ both the leorned courts be set oside and the suit of plointiff/petitioner be decreed os proyed lor or any other f)- order deemed by this Hon'ble Court g- may be gronted."

5 Having heard arguments of learned counsel for the Petitioner and learned counsel ,,{rw!b(S.8,)tton'bl.NIr. J!slic.ltlohrnntrrdlbrrhnn(hin

for the Respondent, record with their assistance gone through.

6 Learned counsel for the Petitioner referred to PLD 7986 Supreme Court 579 " Muhqmmad Shofi and other vs Allqh Dqd Khan" ond PLD 2077 Peshawar 208 " Dilswqr Khan vs Mst. Bodshoh Zadi qnd qnother" thereby prayed for acceptance of this revision petition. lnversely, learned counsel for the Respondent orally argued the stance of his client i.e. Respondent and prayed for utter dismissal of the petition with heavy costs.

7 Whether on the basis of the receipt of purchase dated 10.10.2000, the Plaintiff (hereinafter the Petitioner) is entitled to the decree for obtaining declaration, permanent injunction and in alternate for possession. The g)-^ttue.ua receipt as referred to while finds

mentioned under the evidence of PW-1 exhibited as Ex. PW-1/1. The sale amount is entered as Rs. 3,37,871 and 25 Poisos, lhe lr:*"0 ii.s.t tIo,'I,t. lt.. .r,t.k. Ilohu, id lbrrtin, Kh,n

vendor is Syed Hafiz-ur-Rehman whereas the plaintiff (hereinafter called the Petitioner) Muhammad Yar Khan is the vendee. Objection with regard to its registration would be deemed to be valid as according to Section 54 of Transfer of Property Act, 1882, the "sole" is q trqnsfer of ownership in exchon qe for o price pqid or promised or part poid and port romised its value must be over and above one hundred rupees and can be made only by a registered instrument. lt is mandatory to enforce a sale transaction, transferee is under legal obligation to establish, firstly that transfer was effected by a person having a title or authority to create a right, it is to be backed by passing of sale consideration and delivery of possession. Even mere registration of the t- e. document in the office of Sub-Registrar by itself will not furnish proof of these elements which must co-exist prior to execution and registration of the deed, these pre-requisites must be fulfilled by the transferee' N.wab (S.B.) llotr'[k nIr. Justic. ntohrmmrd rbn

8.While seeking declaration, it was absolutely the requirement to have brought on the panel of the Defendants Syed Hafiz-ur- Rehman, the vendor without whom this suit would have no forbearance for a valid decree.

lndeed there is a prayer for obtaining a decree for declaration with regard suit property, the boundaries of which are given in head note of the plaint which is followed by prayer for obtaining permanent injunction. The available agreement to sell is Ex PW 1/1, which is executed in between Syed Hafiz-ur-Rehman in favour of the Plaintiff (hereinafter called the Petitioner) Muhammad Yar Khan for sale consideration of Rs. 3,37,871 and 25 Poisas, which is an unregistered document and it would require registration under the law. ,4 Meaning thereby, that for the above performance of the agreement, still the parties were to get the suit premises reglstered in the office of Sub-Registrar. Thus, where the sale is not complete by way of its registration when Nr*rb (s.8.) Ilo 'bl. Mr, Juslir. lllohrnnntrd lbrrhin KhN

the value is more than one hundred rupees.

Whereas in the present transaction, the sale consideration is fixed as Rs. 3,37,871 and 25 Paisos, it requires registration where in such scenario for the fulfillment of such contract suit for declaration would not be competent except that the Plaintiff is in possession under enforceable contract of sale.

9 lndeed, there are dictums of the Hon'ble superior Courts in plethora of authorities cited as PLD 1990 (Lshord 467 "Muhommad Saeed vs Nohitl Shosufls ancl 3 others". The relevant citation (a) speaks of:- Re jection of plilnt Relinquishment Deed falls within the purview of S. l7(l)(b)--Ploint wtts solely bosed upon a relinquishmenl deed for cloiming ownership rights in lhe property f comprised in it --- Such tlocument, even if sssumed to be genuinely execuled, required' comPulsorY registralion and its absence wts falal to the elfeclive tronsfer of rights under it --- Suil bosed on such unregistered deed wos barred rirwnb(S.4.) Ho 'bl. tlr- Ju{iceAlohnn'nld llrnhir (htn

by low md ploint merited oatright rejection.

Likewise 2015 YLR 1845 (Peshuwor) "Khalid Khan vs Haii Muhommtd Anwor" has been relied upon, wherein the relevant citation (b)opines:-

S. 42--Registrotion Act (XVI of 1908), S. 49--Suit for declorotion on lhe basis of unregistered snle rl e e rl-- M a i nt a i n o b i I ity-- P I a i n t iff filed suil for declaralion on bosis of lwo unregislered documents, which had nol creoted any tiile or right or inlerest in favour of pldntiff in disputed lsnd ss envisaged under S, 49 of Registration Act, 1908--- Declaralory suit filetl under S. 42 of Speci/ic Relief Act, 1877 on btsis of unregistered sale deeds wss neither perm issi bl e nor mai ntoin o bl e.

Similarly, 2011 YLR 88I (Peshawor "Gohor Rehmon vs Rinz. Muhammsd" has been relied upon. Citation (a) of the said judgment reads as ,).uno"r'

--5. 42--Civil Procedure Code (V of 1908), O. VII, R.l1---Registration Act (XVI of 1908), 5.49--Suit for declaration---Reiection of plaint-- N!vrbiS.D,) lIotr'bl. ltlr, Ju!lir.nlohnnxDAd Itrrnhin l(nnn

Plointiff who /iled suit for declaration bssed his cldm upon Iqmr Ntma tnd in sltern e suil for speciJic performonce of ogreement to sell regording suit property wos proyed--Deecl of lqror Ntma, wts admiltedly on unregislered tlocumenl which would neither creote ony title nor ony right or interest in the suit property os envisaged under 5.49 of Re gist r ot i o n Act, 1 9 0 8 ---D ec I a rat ory suit under 5.42 of Specific Relief Acl, 1877 on lhe brcis of Iqrar Namo was nol permissible; ond sait for declorotion woultl not be mainl nable---Even if said lqrar Ntma wos considered as on ogrcement to sell; ond suit was considered to be thal of specific performonce, same would not be msintoinoble being borred by limilslion as soitl lqrtr Ntma wts scriberl on 18-7-1996 and lhe suit wos brought on 2-4-2008--- Impagned judgment and decree passed by the Appellote Courl were set asirle mrl tlte judgment and tt'+ rlecree possed by lhe Triil Courl wos {' reslored, in circumslonces.

It has been held in 2017 SCMR 347 "Mttltummul Iqb0l o nd others vs Mst. Boseerat and others" in the following manner:- Nrprb (5.0,) Ho 'bl.Ili Jurli..moh.mmrd ll,rlhiB KhNn

'5. 54. Registrstion Act (XVI of 1908), Ss. 17 & 49. Immovable propert!. Unregislered ogreement to sell. Such on tgreemenl would not confer ony title upon the vendee in lhe immovable properly."

ln unreported judgment rendered

at Peshawar High Court Mingora Bench (Dar-ul- Qaza) Swat in C.R. No. L58 of 2017, it has been enunciated by the then His Lordship Mr. Justice Abdul Latif Khan as below:-

"Admitledly, deed being unregislered document beslows no title upon the beneJicitry, Aporl from s e consideration, the olher importonl ingredient is the delivery of possession under tlte sale, which is rlso nol proved."

Where the form of suit has been wrongly presented for its cause of action being accrued ,4. other than the required one, it has been held in 6' 2OI4 SCMR 513 "Noor Din ond snother vs Additionol District Judse Lthore and others" as u nder:- " O.VII, R.Il--Rejection of plaint. Object ond putpose. Objecl of

N{E,b (s.8,) llo 'Dl. Mr. Jutrir. Nlohr nnnd lbrrl'in Klrtru

powers conkrred upon lritl Court under O.VII, R.II CPC wts that the coutts musl put on end to litigotion ot lhe very initiol stage, when on occount of some legil impediments full-fledged trisl would be a fulile exercise,

ln resp ect of the same view 2016 CLC 663 (Pesltuwar) " Sher Khan throush LRs vs Gul Zar Khon" has been referred to, wherein the relevant citation

(b)is reproduced for ready reference:- "O. VII,R.Il, Rejection of plaint. Object md scope. Object of O.VII, R.l1, CPC is primarily to save ptrlies from rigors of frivolous litigolion ol very inceplion of proceedings, If Court on the basis of avermenls mode in ploint ore proved, plilntiff will not be enlitled lo relief cloimed, court would be justi/ied in rejecting ploinl in exercise of powers ovoiloble under O, VII R.

II CPC.

10.Where the sale in between the g- tA- parties has not been completed, declaration cannot be sought either regarding plaintiff right to any legal character or in respect to property claim by him/her in a suit under section 42 of Nrsnb (S.B.) Ilon bh Nlr. Justi.o llohitrrdrd lb,rl'i'n Kh tr

l2

the Specific Relief Act, 1877 rather the only course available would be to bring a suit for specific performance as to ask for completion of the sale.

11.The other part claimed this property on the basis of purchase by a receipt/agreement dated 01.09.2003, it was followed by an agreement deed dated 03.10.2003 whereby Mr. Shahwal Khan son of Zareef Khan resident of Takht Bahai District Mardan has executed this deed in presence of the witnesses that on account of owing to an amount of Rs. 200,000/- for the provision of visa, which was outstanding against the said Muhammad Yar Khan, which was to be paid to him by Ajab Khan the Defendant (hereinafter called the Respondent). Thereby, no further g- td amount was to be paid by the said Muhammad Yar Khan and at the same time the receipt which has been executed in between Syed Hafiz-ur-Rehman in favour of Muhammad Yar Khan dated 10.10.2000 was given to Nr*.1,(S,8.)Hon'bl.irr.Ju!li..llohis'n,d lbrrhiEKhrn

i3

Ajab Khan the Defendant (hereinafter called the Respondent) for safe custody. Even later vide another receipt Ex. DW-4/L Muhammad Yar Khan the Plaintiff (hereinafter called the Petitioner) has executed another deed that from 01.09.2003 to 13.09.2003 if this amount of Rs. 200,000/- is not paid then the premises as entered in the deed dated 10.10.2000, the said Ajab Khan the Defendant (hereinafter called the Respondent) will have the authority to sell the same. lt is as understood that the amount of Rs. 200,000/- even if paid on behalf of Muhammad Yar Khan the Plaintiff (hereinafter called the Petitioner) to Shahwal Khan son of Zareef Khan no further transaction has taken place that ever the Defendant (hereinafter called the Respondent) Ajab Khan g- a- has ever become owner on the basis of an unregistered deed.

L2, While maintaining the findings given in the judgments of the learned Courts tt*.t (sr,) ttoo'tt. ttt.. .tu,tic. Itohrhn.d Ibrrbim Khrn

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below, the same cannot be interfered for reason that it is still open to the plaintiff (hereinafter called the Petitioner) to bring a fresh suit under the same cause of action being accrued to him on the basis of the agreement executed in his favour on behalf of Syed Hafiz- ur-Rehman dated L0.10.2000 provided the title of the suit and the prayer be altogether different from previous suit for declaration, rather to be for the specific performance of the contract. ln case, the Plaintiff (hereinafter called the Petitioner) is advised and ask for introducing a fresh suit within the legal framework under the ambit of its limitation on the basis of cause of action being accrued to him in the light of the receipt/agreement deed dated 10.10.2000 under the title specific f t a- performance of the said contract, then these findings given in this judgment and the findings delivered by the learned lower Courts in this case, shall not affect the findings to be Nrwrb (S,O.) Hon'bh nrr. Justi.. ilohrntu!d lbrrtim I(hrn

delivered therein by the Courts below including the Hon'ble High Court.

13.ln such terms, this revision petition alongwith CMs stands disposed of accordingly.

Anno unced p)-' Dt:26.10.2017 q-

JUDGE

\so

Nr$rb (S,8.)llon'Dl. nr' Jusft. Itol,rtr nrd ll,rrl'id (hrtr