JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision No.348-P/2009.

JUDGMENT

Date of hearing……………..16.11.2017....………

Date of announcement……….17.11.2017…………

Petitioners: (Latif Ullah and others) by Mr. Abdul

Sattar Khan, Advocate.

Respondents: (Mst. Sakeena and others) by Mr.Sabir

Shah, Advocate.

****

SHAKEEL AHMAD, J.- This civil revision is

directed against the judgment/decree dated

22.11.2008, passed by the learned ADJ-I, Takht

Bhai, whereby the learned ADJ dismissed

petitioner’s appeal against the judgment/decree

dated 26.05.2007 of the learned Civil Judge, Takht

Bhai dismissing the declaratory suit filed by

petitioners.

2. Facts significance for the disposal of instant

revision petition are that Latif Ullah and others

brought a suit for declaration to the effect that they

are owners in possession of the property, detail

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whereof is given in the heading of the plaint on the

strength of two unregistered deed dated 09.04.1974

executed by the defendant No.1 (Mst.Sakeena)

whereby the land measuring 10 kanals and 10

marlas was sold out to them and deed dated

01.03.1986 executed by the defendant No.2

(Mst.Mumtaz Begum) in respect of area measuring

38 kanals and 16 marlas and sought cancellation of

mutation No.8794 attested on 29.03.1989 whereby

the suit property mentioned in deed dated

09.04.1974 was subsequently transferred by the

defendant Mst. Sakeena in favour of defendant Mst.

Mumtaz Begum and cancellation of registered sale

deed No.151 dated 30.08.1994 vide which the

defendant Mst. Mumtaz Begum subsequently

transferred the entire property measuring 49 kanals

and 6 marlas in favour of defendants No.3 to 9,

stating that the impugned mutation and registered

sale deed are illegal and ineffective upon the rights

of the petitioners/plaintiffs. It was contended that the

defendant No.1 Mst. Sakeena had transferred her

share in the suit property measuring 38 kanals and

16 marlas in favour of plaintiffs through

unregistered deed, out of which land measuring 28

kanals and 6 marlas had been transferred in faovur

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of plaintiff and defendant No.1 through registered

sale deed dated 09.04.1974 but the remaining 10

kanals and 10 marlas could not be transferred by

them due to limitation imposed by Martial Law

Regulations enforced at that time, therefore the

vendor Mst. Sakeena on the same date executed the

said unregistered deed in favour of

petitioners/plaintiffs. The rest of the property i.e.

measuring 10 kanals and 10 marlas, after receiving

the entire sale consideration of the whole property

delivered the possession of the same to the

petitioners/plaintiffs.

3. The suit was contested by the defendants by

way of filling written statement wherein legal and

factual objections were raised. It is also pertinent to

mention that the defendants No.3 to 9 jointly

contested the suit and defendant No.10 Gohar Ali

independently while defendants No.1, 2 & 11 did

not appear before the Court, hence proceeded

exparte. The defendants No.3 to 9 though contested

the suit on various grounds asserted in the plaint, but

they did not specifically denied the execution or

validity of deed relied upon by the

petitioners/plaintiffs, showing sale of suit property

in their favour. The learned trial Court keeping in

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view the contested pleadings of the parties framed

the followings issues and directed the parties to

produce their evidence in support of their respective

claim.

Issues:

1. Have the plaintiffs got a cause of action.

2. Is the suit incompetent in its present form.

3. Are the plaintiffs stopped.

4. Is the suit within time.

5. Has not this court got jurisdiction.

6. Have defendants No.1 and 2 sold the suit land

to plaintiffs.

7. Are the sale mutation No.8794 attested on

29.03.99 and registered sale deed No.151

attested on 30.8.94 wrong and liable to be

cancelled.

8. Are the plaintiffs entitled to the decree as

prayed for.

9. Relief.

4. The petitioners produced Patwari Halqa as

PW-1 who produced fard jamabandi for the year

1991/1992, Aks Shajara Kishtwar and Khasra

Gerdawari for the year 1994 to 1996 as EX.PW1/1

to EX.PW1/3, Afridi Khan Registration Moharrir as

PW-2. He produced registered deed No.151 attested

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on 30.08.1994 as EX.PW2/1, Zahir Shah ADK as

PW-3 who produced fard jamabandi for the year

1981/1982 as EX.PW3/1 (consisting of two sheets),

Khasra Gerdawari for the year 1982 to 1990 as

EX.PW3/2, mutation bearing No.8432 attested on

14.04.87, mutation NO.8625 attested on 16.01.89,

mutation No.8794 attested on 29.03.89 as

EX.PW3/3 to EX.PW3/5, Shakoor Khan

Registration Moharrir as PW-4. He produced

registered deed No.266 attested on 09.04.74 as

EX.PW4/1. Latif Ullah plaintiff appeared himself as

PW-5 and as special attorney for the rest of the

petitioners, Said Nawab appeared as PW-6 and

Abdul Qayum as PW-7 marginal witnesses of the

unregistered deed dated 09.04.74, Muhammad Iqbal

Moharrir Sub Registrar, Mardan appeared as PW-8

who registered the special power of attorney

executed by Mst. Mumtaz Begum in favour of

Gohar Ali as EX.PW6/1.

5. On the other hand, the defendant Khurshid

Ahmad appeared as DW-1, who is also special

attorney of the defendants, Umar Dad appeared as

DW-2. In his statement registered deed was

exhibited as EX.DW1/2. The local commissioner

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was appointed who visited the spot. He appeared as

CW-1 and submitted his report EX.CW1/1.

6. On conclusion of the trial the learned trial

Court vide judgment dated 25.05.2007 dismissed the

suit filed by the petitioners. Against the

judgment/decree of the learned trial Court present

petitioners preferred appeal but the same was also

dismissed by learned ADJ-I, Takht Bhai on

22.11.2008, hence this revision petition.

7. It has been argued by the learned counsel for

the petitioners that the petitioners are in possession

of the suit property under agreement to sell,

therefore, entitled to protect their possession, which

he admittedly acquired on the basis of unregistered

deed dated 09.04.74 executed by the previous

owners in their favour before the execution of the

alleged registered sale deed dated 30.08.94 and

attestation of mutation in favour of defendant No.2.

He next argued that mere non registration of deed

which required registration would not deprive the

petitioners of the benefit which he was entitled to

protect by virtue of section 53-A of The Transfer of

Property Act, 1882. He further argued that,

possession of the petitioners over the suit property is

visible, therefore, the subsequent transferee had the

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notice of the earlier sale in favour of the petitioners

as contemplated in section 53-A of The Transfer of

Property Act, 1882. He next argued that protection

under section 27-(b) of the Specific Relief Act, 1877

is not available to the respondent No.3 to 9. He

lastly argued that the learned trial Court admitted

that the agreement to sell executed in favour of

petitioners is prior in time and is genuine but refused

to pass decree in favour of the petitioners without

any cogent reason, thus committed material

irregularity, which resulted in gross miscarriage of

justice, therefore warrants interference. In support of

his contentions the learned counsel for the

petitioners placed reliance on the following case

laws;

1992 SCMR 1265

1997 SCMR 837

PLD 1975 SC 311

93 SCMR 428

2010 CLC 407

2014 YLR 2005

8. Conversely, the learned counsel for the

respondents argued that the petitioners have failed to

discharge his onus of proof of knowledge of the

defendants of the prior agreement to sell, therefore,

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benefit of Section 27 (b) of the Specific Relief Act,

1877 is available to them. He next contended that in

pursuance of the agreement to sell (as alleged) the

petitioners were not put in possession of the suit

property, therefore, they cannot seek benefit of

Section 53-A of the Transfer of Property Act, 1882

and proviso of Section 50 (1) of the Registration

Act, 1908. Therefore, the petitioners/plaintiffs were

rightly non suited by the learned trial Court. He

lastly contended that this Court while sitting in

revisional jurisdiction is not supposed to interfere in

the concurrent findings of the two courts below

unless it is established that the judgments of the two

courts below were without jurisdiction or the two

courts below acted illegally or with material

irregularity resulting into miscarriage of justice.

9. The above mentioned arguments of the

learned counsel for the parties have been considered

with due care and attention and the record available

has also been perused with the assistance of both the

learned counsels.

10. This being a civil revision as argued by the

learned counsel for the respondent and rightly so

that this Court while sitting in revisional jurisdiction

is not supposed to interfere in the concurrent

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findings of the two courts below unless it is

established that the judgments of the two courts

below were without jurisdiction or the two courts

below acted illegally or with material irregularity

resulting into miscarriage of justice. In case of Mst.

Kulsoom Bibi and another..vs..Muhammad Arif and

others (2005 SCMR 135), it was held that revisional

jurisdiction cannot be equated with that of appeal or

equal to appeal and the High Court before exercising

revisional jurisdiction has first to satisfy itself

whether the subordinate courts while passing the

impugned judgments had the jurisdiction vested in

them, or whether it was a fit case where the

revisional jurisdiction ought to be exercised and

whether the impugned judgments of the courts

below suffer from illegality or material irregularity

resulting into miscarriage of justice. It has also been

held in the case of Shah Wali..vs..Muhammad Iqbal

PLD 2005 Lahore 214 that the concurrent findings

of fact returned in consonance with the record are

immune from interference in revisional jurisdiction

of High Court as mandated by Hon’ble Supreme

Court of Pakistan in a chain of consistent judgments.

In this respect reliance can also be placed on cases

of Mst.Shumal Begum..Vs..Mst. Gulzar Begum and

03 others (1994 SCMR 818), Secretary to

Government of the Punjab, Education Department,

Lahore and another..Vs..Saeed Ahmad Khan (PLD

1994 SC 291), Sirbaland..Vs..Allah Loke and others

(1996 SCMR 575), Abdul Hakeem.. Vs..Habibullah

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and 11 others (1997 SCMR 1139), Mst.Ameer

Begum..Vs..Muhammad Naeed Khan and another

(PLD 2000 SC 839) and Mst.Kaniz Fatima through

legal heirs..Vs..Muhammad Saleem and 27 others

(2001 SCMR 1493.

11. In the light of abovementioned dictum of the

superior courts whether the findings of two courts

below in the present case fulfill the above

requirements and that this is a fit case for

interference by this court in the revisional

jurisdiction, the learned counsel for the petitioner

has not been able to point out any misreading or

non-reading of evidence and has tried to persuade

this Court to reappraise the evidence on the question

of unregistered deed executed in favour of the

parties was followed by possession which is visible.

The learned Civil Judge after proper appraisal of

evidence has record the following findings on issues

No.6 & 7.

“Regarding issue No.6 evidence of DW-3

Gohar Ali is of importance it has been

admitted by Gohar Ali who is the special

attorney for defendant No.2 vide registered

special attorney deed which is EX.PW3/1

that vide agreement to sell deed dated

01.03.1986 he sold the disputed property in

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Khasra No.1186 to plaintiffs for amount of

Rs.20,000/- received by him on behalf of

defendant No.2 and delivered the possession

of suit land to the plaintiffs. In the light of

the admission the execution of agreement to

sell deed dated 01.03.86 in between special

attorney for defendant No.2 and plaintiffs is

proved. As for as sale from defendant No.1

in favour of plaintiffs of the rest of the

disputed property comprising 10 kanals 10

m,arlas is concerned i.e. plaintiffs fail to

bring any evidence to prove the sale so issue

No.6 decided accordingly.

Now question comes that whether

plaintiffs are entitled to the disputed

property comprising 38 kanals 16 marlas

vide agreement to sell deed dated 01.03.86

sale mutation N0.8794 attested on 20.03.89

and registered sale deed No.151 attested on

03.08.94 have got no effect on the right of

the plaintiffs in the light of agreement to sell

deed dated 01.03.86, hence liable to be

cancelled. In such like situation when the

property once sold through unregistered

deed and later on sold through registered

deeds which requires compulsory

registration under section 17 of the

Registration Act the following provisions of

law gets importance to decide the issue.

Section 17, 48, 49 of the Registration Act

read with Section 53 (A) of Transfer of

Property Act.

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In the light of these sections, an

unregistered sale deed if in the part

performance of the unregistered sale deed

the transferee has taken possession of the

property or any part thereof or the

transferee, being already in possession

continuous in possession in part

performance of the contract and has done

some act in furtherance of the contract. To

decide this question my predecessor in

office issued repeated commission for to

find out whether the plaintiffs are in the

actual physical possession with agreement to

sell deed dated 01.03.86. To final

commission report conducted by Nisar

Khattak, advocate is placed on file. But I am

not relying the same to decide the issue

NO.7 for the reason the revenue record

placed on file speaks out that the disputed

property comprised in Khasra No.1186 was

the joint ownership of the plaintiffs and

defendants No.1 and 2 and others. At the

time of agreement to sell deed dated

01.03.86 plaintiffs were already in actual

physical possession of the disputed property

as being joint owner in the disputed Khasra

No.1186 while defendant No.2 was not in

actual physical possession of the disputed

property anywhere in khasra No.1186. So

the question whether u/s 53 (A) in part

performance of the agreement to sell deed

physical possession was delivered to the

plaintiffs or not becomes immaterial.

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Defendant No.2 was never in actual physical

possession of the disputed property as is

evident from the Khasra Gardawari which is

EX.PW3/2 (two sheets). So how come

defendant No.2 transfer physical possession

of the disputed property to the plaintiffs. In

this situation section 53(A) Transfer of

Property Act further elaborate that if the

transferee being already in possession

continuous in possession in part

performance of the contract and has done

some act in furtherance of the contract. So in

the light of the section 53(A) plaintiffs are

now burdened to prove same ‘act’ in

furtherance of the pluts and find no such act

in furtherance of the agreement to sell deed

dated 01.03.86. So now the situation

becomes within the ambit of section 17, 48,

49 of Registration Act. According to these

sections the registration sale deed would

have precedence over the unregistered sale

deed. I am of the view that the plaintiffs are

not entitled to the disputed property only by

proving the agreement to sell deed dated

01.03.86. Similarly they are also not entitled

for the cancellation of sale maturation

No.8794 and registered sale deed No.151

attested on 30.08.94. So issue No.7 is

decided in negative.”

12. Similarly the learned Appellate Court has

agreed with the finding of the learned trial Court by

holding that;

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“The most important question now in the case

when sale transactions in favour of both the

parties on contest were made by defendants

No.1 and 2 on different occasions in respect of

the same property, the transactions in favour

of plaintiffs being unregistered sale but prior

in time and transaction in favour of contesting

defendants made through registered sale deed

but latter in time, which of the transactions

have to take legal effect as for the rights of the

parties to the suit property are concerned.

General provision u/s 50 of the Registration

Act, 1908 in this respect is that the document

registered according to law has to take effect

against unregistered document. Learned

counsel for plaintiffs on the basis of Ist to

section 50 of the Registration Act claimed that

the plaintiffs being in possession of the

property under an unregistered document prior

in date were entitled to rights u/s 53-A of the

Transfer of Property Act, 1882, and that under

the second proviso to the same section (50 of

the Registration Act) the plaintiffs are entitled

to enforce the contract under the unregistered

document in a suit for Specific Performance

against the defendants who are claiming under

the subsequent registered document.

Possession of the plaintiffs over the suit

property may be accepted for the purpose

under discussion, but at the same time section

53-A of the Transfer of Property Act as well

as section 27 clause (b) of the Specific Relief

Act protect the rights of contesting defendants

if they are proved transferees of the suit

property for consideration paying the value in

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good faith without notice of the prior contract.

It has already been proved that sale deed

EX.SW1/2 in favour of contesting defendants

was executed and registered according to law

on behalf of vendor Mst. Mumtaz Begum

through attorney Muhammad Shafiq. Contents

of this deed categorically show that amount of

Rs.600,000/- was paid by the defendants as

sale consideration of the suit property attested

in their favour through this document.

Accordingly, it was settled position that

transfer in favour of contesting defendants

was for consideration or value. In such a

situation the deciding factor would be, as to

whether the defendants had notice of the prior

transactions in respect of the suit property

made in favour of the plaintiffs. Learned

counsel for plaintiffs contended that since

possession of the property was delivered to

the plaintiffs at the time of prior sales made in

their favour and this possession was visible

because of the fact that a brick kiln of the

plaintiffs was situated in the suit property and

as such, it was alleged that, though no specific

notice of the sale was given to the defendants

but visible possession of the suit property by

the plaintiffs would be deemed as notice of

prior sale to the subsequent vendees. On the

strength of such contention it was alleged that

defendants were not bona-fide purchasers of

the property through subsequent transaction.

Possession of the parties over the dispute

property is a relevant factor in this behalf, but

it is not all important as was taken by the

plaintiffs and the trial court in earlier

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proceedings, in view of the fact that it was

proved and admitted by the plaintiffs that

defendants the subsequent vendees had no

knowledge of the prior sale in favour of the

plaintiffs. DW.1 namely Khursheed special

attorney for defendants for the purpose of

instant suit, stated in his examination in chief

that the defendants had no knowledge of the

prior sale in favour of the plaintiffs. This part

of the statement of DW.1 was not only left

unchallenged when this witness was cross

examined by the plaintiffs, but the plaintiffs

by putting a suggestion to the witness

confirmed that defendants had no knowledge

of the prior sale in respect of the suit property.

The answer given by DW.1 to the suggestion

put on behalf of the plaintiffs may be plainly

translated as: It is correct that before

institution of this case DW.1 had no

knowledge about any sale agreement executed

by the defendant Mst.Mumtaz Begum in

favour of the plaintiffs”. The referred part of

the statement of DW.1 could not be

interpreted in any other sense but that the

plaintiffs had admitted that the contesting

defendant/subsequent vendees of the suit

property had no knowledge of the prior sale of

the suit property in favour of the plaintiffs at

the time of execution of deed EX.DW2/1 in

their favour. Though proof of possession for

the purpose under consideration was not much

important after examination of DW.1, but

even if this factor is seen, for, the parties as

well as the learned trial court have exhausted

so much energies and consumed three long

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years at the determination of question of

possession of the parties over the suit over the

suit property, Khasra Girdawari, copy

EX.PW1/3 and Fard Jamabandi, extract

EX.PW1/1 in respect of the suit property

show that plaintiffs are in possession of khasra

No.3458 measuring 25 kanals 2 marlas and

khasra No.3463 measuring one kanal four

marlas and it is settled position on record that

brick kiln of the plaintiffs is situated in Khasra

No.3458. But it is also admitted on record that

the plaintiffs are already undisputed co-

owners of the property measuring 28 kanals

and six marlas, more than their possession

shown by the revenue record. As such, the

possession of the plaintiffs over a portion of

the joint property as shown by the revenue

record, though visible as claimed but could

not be called their possession over the

disputed property. Different local

commissions were issued for the purpose of

determination of actual physical possession of

the parties over the disputed property, but

earlier reports and record could not be referred

as those commission reports were set aside by

the courts at different stages except the last

report EX.CW1/1 dated 13.09.2006 submitted

by local commissioner Mr. Nisar Khattak

Advocate, status of which was not determined

by the trial court as it was objected to by the

defendant party. Even if the objections of

defendant party on this report commission are

ignored for the purpose of this discussion, this

report commission shows that disputed

property is mostly occupied by the plaintiffs

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with a smaller portion like 8 kanals in

possession of defendants and some portion

with other co-sharers, but in fact the suit

property mostly falls in khasra Nos.3455 and

3459 shown as Banjar Qadeem mostly not

cultivatable as per revenue record as well as

per report commission EX.CW1/1 dated

13.09.2006. Thus the plaintiffs may be in

possession of maximum portion of this land

but since it is not capable of physical

occupation through cultivation etc. Therefore,

possession of any person over it could not be

taken as visible possession sufficient for the

purpose that the subsequent transferee of the

property could take notice of that possession.

It is, therefore, concluded that though sale

transaction in respect of the suit property

made in favour of defendants was subsequent

transaction, but the vendees thereof were

bona-fide purchasers for consideration of

Rs.6,00,000/- and had no notice of the prior

sale made in favour of the plaintiffs and as

such, their rights are protected under the law.

No doubt fraud was committed by the

vendors-defendants Mst. Sakina and Mst.

Mumtaz Begum in selling the same property

upon different persons through double

transactions but remedy of plaintiffs in the

attending situation only lies in suing these

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defendants for damages in respect of any loss

suffered and recovery of the amount paid as

sale consideration, for, sale agreements made

in their favour are not possible of performance

as they have already exhausted their entire

entitlement in the disputed Khata.

13. Coming to the contention of the petitioners

that he enjoys protection under section 53-A of the

Transfer of Property Act, 1882 and proviso of

section 50(1) of Registration Act, 1908, no doubt it

protects the possession of transferee over the

property, but, subject to fulfillment of two

conditions, first existence of agreement of transfer

and secondly transferee must be put in possession of

the suit property in part performance of the

agreement, but possession under this section is

specific possession. Needless to mention here that

both the learned lower fora had concurrently held

that the possession of the petitioner was not visible,

therefore, the subsequent transferee had no notice of

earlier transaction executed in favour of the

petitioners. The onus to prove that the contesting

respondent had the knowledge of the sale of the suit

property in favour of petitioners but they had

miserably failed to discharge this onus, therefore,

protection of section-27 of the Specific Relief Act,

20

1877 is available to the contesting respondents who

are the subsequent transferee of the suit land for

value in good faith and without notice of any prior

agreement to sell or sale deed. In this respect

reliance can be placed on the case Abdul Haque and

other..Vs..Shaukat Ali and 02 others, 2003 SCMR

74, wherein it was held as under;

“----Sections. 12 & 27(b)---Specific

performance of agreement to sell---Bona fide

purchaser for valuable consideration without

knowledge of prior agreement---Onus to prove-

--Sale in favour of defendant was assailed by

plaintiff on the ground of having prior

agreement to sell in his favour and sought

specific performance of the agreement in his

favour---Plaintiff failed to prove knowledge of

prior agreement, thus First Appellate Court

allowed the appeal filed by the defendant and

judgment and decree passed by Trial Court in

favour of the plaintiff was set aside---Second

appeal was filed by the plaintiff in the High

Court which was allowed and judgment and

decree passed by the First Appellate Court were

reversed---Validity---As the plaintiff had failed

to discharge the onus to prove the knowledge of

defendant of the prior agreement to sell, the

protection of Section.27(b) of Specific Relief

Act, 1877, was available to the defendant who

was transferee of the suit-land for value in good

faith and without notice of any, prior agreement

to sell--- First Appellate Court had rightly

dismissed the suit for specific performance of

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agreement in favour of the plaintiff---Judgment

and decree passed by the High Court were set

aside and that of the First Appellate Court was

restored---Appeal was allowed.”

14. The case laws relied upon by the learned

counsel for the petitioners are out of context because

in all those cases, cited by the leaned counsel for the

petitioner, the unregistered deed was followed by

possession, therefore benefit of section 53-A of the

Transfer of Property Act, 1882 was given to the

prior purchaser, which is lacking in the present case.

15. Perusal of findings of the two Courts below

leave no doubt at all that either the same suffer from

jurisdictional defect or result of misreading and non

reading of evidence on record or the same has been

recorded illegally or with material irregularity

resulting into miscarriage of justice.

16. The upshot of the above discussion is that this

revision petition has no force and the same is

dismissed with no order as to costs.

Announced

17.11.2017 J U D G E

*M.Iqbal*

(SB) Hon’ble Mr. Justice Shakeel Ahmad.