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Judgment Sheet
IN THE PESHAWAR HIGH COURT,
PESHAWAR
JUDICIAL DEPARTMENT
Civil Revision No-07-P/2015 with C.M N0-14-P/2015.
JUDGMENT
Date of hearing……………22.2.2016.……………………………………..
Petitioner’s(Noor Rehman) By Mr. Abdul Sattar Khan Advocate.
Respondent’s (Akram Khan) By Mr. Zia-ur-Rehman Khan, Advocate.
YAHYA AFRIDI, J:- Noor Rehman and Fazal
Hakeem, the petitioners, through the instant revision
petition have challenged the judgment and decree
dated 30.09.2014 passed by Additional District
Judge-II, Takht Bhai, whereby the appeal of the
petitioners was dismissed and the judgment and
decree dated 26.2.2011 passed by Civil Judge-I, Takht
Bhai, was upheld.
2. The brief facts of the present case are that the
petitioners-plaintiffs instituted a suit against
respondents, seeking declaration, permanent
injunction, specific performance and possession, to
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the effect that petitioners are owners in possession of
property measuring 94 kanals 19 marlas situated in
Mahal Shahbat Khel bearing previous khasra Nos-
1398, 1394, 1393, 1399, 1400, 1422 as per fard
jamabandi for the year 1906-1907, and present khasra
Nos.1127, 1129, 1130, 1131, 1132, 1162, 1133, 1134,
1137, 1161, 1138, 1139, 1140, 1143, 1145, 1146,
1151, 1152, 1163, 1159, 1169, 1127/2, 1127/1, 1172,
1134/1, 1160, 1171, 1173, 1174, 1176, 1177, 1178,
1179, 1180, 1184, 1186, 1187, 1185, 1176/1, 1144,
1157, 1158, 1100, 1094/1 and 1099 as per jamabandi
for the year 2005-2006 (“disputed property”); that
the petitioners further prayed for cancellation of
inheritance mutation No.1435 and 1436 attested on
24.6.2008, and averred that their father purchased the
disputed property from predecessor of
defendants/respondents namely Abdul Karim vide
Iqrar Nama/Sale deed dated 24.12.1962 (“Deed”);
that possession of some portion of the disputed
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property was handed over to them by predecessor of
respondents-defendants and that the remaining
property would be handed over to them after
attestation of mutation or registered deed in their
names; that when they got knowledge, they
approached the respondents for attestation of mutation
and handing over possession of the disputed property,
but they refused, hence a suit was instituted.
3. The respondents were summoned by the trial
Court, who appeared and contested the suit by filing
written statement. From the divergent pleadings of the
parties, the trial Court framed the following issues;
1. Whether plaintiffs have got any cause of
action?OP
2. Whether this Court has got jurisdiction to
entertain the present suit? OP
3. Whether suit of the plaintiffs is within time?OP
4. Whether plaintiffs are estopped to sue?OD
5. Whether suit of the plaintiffs is competent in its
present form?OP
6. Whether suit of the plaintiffs is bad due to non-
joinder and mis-joinder of necessary parties?OD
7. Whether plaintiffs have not prescribed Court Fee
and is subject to dismissal?OD
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8. Whether defendants are entitled to special cost
under section 35-A CPC? OD
9. Whether plaintiffs are entitled to specific
performance of deed dated 24.12.1962 from Abdul
Karim (decd) for valuable consideration of suit
land measuring 94 kanals and 19 marlas? OP
10. Whether defendants are owners in possession of
suit land as their ancestral property from Abdul
Karim (decd) and Mst.Tajbaro (decd) and
inheritance mutation No.1435 attested on
24.6.2008 and mutation No.1436 attested on
24.6.2008 were lawful and correct? OD
11. Relief.
4. Both the parties produced pro and contra
evidence before the trial Court. The learned trial Court
after hearing the learned counsel for the parties vide
judgment and decree dated 26.02.2011 dismissed the
suit of the petitioners.
5. The petitioners being aggrieved from the
judgment and decree dated 26.02.2011 passed by the
learned trial Court, challenged the same by filing Civil
Appeal No.35/13 of 2011 before the Appellate Court,
and after hearing the learned counsel for the parties,
who vide judgment and decree dated 16.12.2011 set
aside the impugned judgment and decree of the trial
Court and remanded the case to the trial Court.
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6. Being not satisfied from the judgment and
decree dated 16.12.2011 passed by the learned
Additional District Judge-II, Takht Bhai, the present
respondents challenged the same by filing Civil
Revision Petition No.25 of 2012 before this Court.
After hearing the learned counsel for the parties, this
Court vide judgment dated 7.10.2013 partially
accepted the Revision Petition, set aside the impugned
judgment and decree of the Appellate Court and
remanded the case to the Appellate Court in terms
that;
“Accordingly, for what has been discussed above,
this Court partially allows the present revision
petition and holds;
(1) that the impugned order of the
learned appellate Court is set aside
while the judgment and decree
passed by the learned trial Court is
kept intact;
(2) That the appeal of the respondents
is deemed to be pending before the
appellate Court and it would decide
the same after recording of evidence
of Mr. Amin Gul, marginal witness
of the subject deed.”
7. On receipt of order of this Court, the worthy
Appellate Court, on 27.1.2014 recorded the statement
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of Amin Gul son of Alif Khan, as APW-1. The
Appellate Court, after hearing the arguments of
learned counsel for the parties, vide judgment and
decree dated 30.9.2014 decided the appeal in terms
that;
“33. The above discussion leads us to the
conclusion that suit of the plaintiffs/appellants is
time barred. The plaintiffs/appellants have failed to
establish a valid and legally sound cause of action
and they have failed to prove execution of sale deed
dated 24.12.1962, therefore, they are not entitled to
decree for specific performance, declaration and
consequential reliefs of possession and permanent
injunction, therefore, issues No.1 and 9 are decided
in negative against the plaintiffs/appellants. The
defendants/respondents have established their
ownership and possession over the disputed property
from their predecessor as such both the impugned
inheritance mutations were lawfully attested, hence,
issue No.10 is decided in affirmative, in favour of
defendants/respondents.
34. The trial Court has properly assessed the
evidence and material available on record, and even
after recording evidence of Amin Gul, the
plaintiffs/appellants cannot be held entitled to any
relief. The additional discussion on issues No.1,3,9
and 10 by this Court, further confirm judgment and
decree of trial Court. Resultantly, the judgment and
decree of trial Court is upheld and appeal in hand is
dismissed with application for temporary injunction,
being misconceived and devoid of merit. No order as
to costs of the appeal.”
8. The petitioners being aggrieved of the
judgment and decree dated 30.9.2014 passed by the
learned Appellate Court, filed the instant revision
petition before this Court.
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9. The worthy counsel for the petitioners
vehemently contended that as far as limitation was
concerned, the same was to run from the date when
the performance of the agreement was refused and in
the present case it was to commence from the date
when the notice of the petitioners after attestation of
the inheritance mutation was not adhered by the
respondents and not earlier; that the benefit of Section
53-A of the Transfer of Property Act, 1882 (“Act”),
was to be extended to the petitioners as they were
admittedly in possession of part of the disputed
property, which was handed over to them at the time
of execution of the agreement; that even a single
marginal witness, if confidence inspiring, was
sufficient for proof of the execution of the Deed, as
the same was prior to promulgation of Qanun-e-
Shahadat Order, 1984 (“Order”); and that the Deed
being more than 30 years old document had the
presumption of truth attached to it as provided under
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Article-100 of the Order. The worthy counsel for
petitioners for his submissions sought reliance on
Muhammad Akram’s case (1977 SCMR 433),
Muhammad Younus’s case (1989 CLC 837), Arshad
Khan’s case (2005 SCMR 1859), Mst. Ghulam
Fatima’s case (2006 YLR 1290), Aurangzeb’s case
(2007 SCMR 236), Sheraz Tufail’s case (2007
SCMR 518), Sikandar’s case ( PLJ 2008 SC 131),
Hafiz Tassaduq Hussain’s case (PLD 2011 S.C 296),
and Bashir Ahmad Khan’s case (2012 CLC 699).
10. The worthy counsel for the respondents
vehemently contended that the suit of the petitioners
was badly barred by time, as the reason for filing a
belated suit, as required under Order-7 Rule-6 of Civil
Procedure Code, 1908 (“CPC”), was stated to be that
they were minors at the time of the execution of the
Deed, which was belied by their own statement in the
witness box; that the petitioners were co-owners with
the respondents and were in excess of their due share,
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which was to be corrected in the partition
proceedings, which had been filed by the present
respondents and that the present suit was a
counterblast to the partition proceedings filed by the
respondents. The worthy counsel for respondents
placed reliance on Allah Dad’s case (1989 CLC
1571), Muhammad Noor’s case (1989 CLC 1575),
Muhammad Ismail’s case (2001 CLC 252), Messrs
Syed Tasnim Hussain Naqvi’s case (2001 CLC 256),
Noor Salam’s case (PLD 2002 SC 622), Mehandia’s
case (2011 MLD 1081), Khalil-ur-Rehman’s case
(2011 MLD 1088), Haji Abdul Karim’s case (PLD
2012 SC 247), Pir Wali Khan’s case (2013 MLD
1106), Mazhar’s case (2013 MLD 1115), and Noor-
un-Nisa’s case (2015 SCMR 380).
11. Valuable arguments of learned counsel for the
parties heard and available record perused with their
able assistance.
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12. Canvassing through the pleadings and the
evidence produced by the parties, the admitted
position that emerges, in chronological order, is as
follows;
24.12.1962.
Deed is executed between Abdul
Karim, the predecessor-in-interest of the
respondents and Fazal Akbar, his step brother
and the predecessor-in-interest of the present
two petitioners. (Exh: PW 7/1), which
stipulated the sale of 94 Kanals 19 Marlas by
Abdul Karim in favour of the present
petitioners, who were at that time minors,
petitioner No.1 namely Noor Rehman ten
years old and petitioner No.2 Fazal Hakeem
five years old. It is also stipulated therein that
54 Kanals 5 Marlas was handed over by
Abdul Karim at the time of the execution of
the deed, while the remaining 40 Kanals 14
Marlas of the disputed property was to be
handed over after the finalization of the
allotment by the Federal Government in the
name of Abdul Karim.
The sale consideration was fixed as
Rs.20,000/-, which was paid by Fazal Akbar
to Abdul Karim, who acknowledges receipt
thereof in the Deed.
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The marginal witnesses to the Deed are
Fazl-ur-Rehman (PW-7) brother of the
petitioners and son of Fazal Akbar, and Amin
Gul (APW-1).
1965.
Fazal Akbar passes away.
2.3.1971.
Allotment by Federal Government in favour
of Abdul Karim (Exh:PW 1/4).
7.5.1975.
Attestation of mutation No.2628 for the
transfer of the 24 garibs property in favour of
Abdul Karim (Exh: DW 1/3).
2004.
Abdul Karim, the predecessor-in-interest of
the respondents passes away.
2007.
Mother of the respondents passes away.
24.6.2008.
Inheritance mutations No.1435 and 1436
confirming the transfer of property of Abdul
Karim, and his wife in the name of their
children, the present respondents.
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20.7.2009.
The present two petitioners filed the instant
suit, wherein inter-alia, the present petitioners
assert in their plaint that they were minors at
the time of execution of the Deed and
thereafter had no knowledge thereof and on
acquiring knowledge asserted their rights,
which was refused and thus they have moved
the Court.
The present respondents/defendants
filed their joint written statement, wherein
they denied the assertions made by the
petitioners, inter-alia, the execution of the
deed, however, admitted without any
explanation that 40 Kanals of disputed
property was in possession of the petitioners
without any lawful cause.
13. The petitioners claim declaration of title over
the disputed property on the basis of the Deed, which
is unregistered. The law by now is well settled that,
such declarations are not legally maintainable. In such
cases, the beneficiary of the unregistered agreement
has to first seek the specific performance of the same,
and thereafter, the law protects his propriety interest
in the immovable property. Thus, the suit for
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declaration and consequential relief would follow the
specific performance of the agreement and be legal
competent only thereafter.
14. Moving on to the claim for specific
performance of the Deed, it is noted that there is a
concurrent finding of the two Courts below declaring
the said claim to be barred by time. The applicable
provision relating to specific performance of an
agreement has been provided under Article 113 of the
Limitation Act, 1908 (“Act 1908”), which reads that;
Description of suit. Period of
limitation.
Time from which period
begins to run
113. For specific
performance of a
contract.
Three
years.
The date fixed for the
performance, or, if no such
date is fixed, when the
plaintiff has notice that the
performance is refused.
The bare reading of the aforementioned
provision provides for two situations, for triggering
the period of limitation of three years;
First; in case, the deed stipulates a fixed date
for the performance, then the period of three
years would commence therefrom;
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Second; in case, no fixed date is provided in
the agreement for the performance of the
obligation, then the period of limitation would
start to run from the date when the party to the
agreement has notice of refusal of
performance by the other party under the said
agreement.
15. In the present case, no fixed date has been
provided in the Deed for Abdul Karim to perform his
part of the obligation in transferring the possession of
the entire disputed property to petitioners. And thus
the latter situation referred to in Article 113 of the Act
would apply to the present case.
16. Let us now consider the reason rendered by
the petitioners in their plaint for filing the case at a
belated stage; it has been averred in the plaint that, the
petitioners were minors at the time of the execution of
the Deed, and thus were unaware of their rights
arising therefrom. It is further asserted in the plaint
that, as the petitioners became aware of their rights
under the Deed, they served a notice upon the
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respondents and on their failure to perform their part
of the obligation in the Deed, they approached the
Civil Court to enforce their rights.
17. Surprisingly, the evidence so produced by the
petitioners does not support their pleadings. In this
regard, petitioner No.1 namely Noor Rehman
(PW-10), who at the time of the execution of the Deed
was 10 years old, during his cross examination frankly
conceded that he was then a student, and on his return
from school, his father Fazal Akbar informed him
about the purchase of disputed property in their
names. This clear admission of petitioner No.1, Noor
Rehman (PW-10), who was also the attorney of
petitioner No.2, during his evidence, has belied the
stance so taken by them in their pleadings. However,
the worthy counsel for the petitioners vehemently
urged that the subject suit was within time. He first
argued that the Deed, embodied a contingent contract,
and thus the rights of the petitioners arising therefrom
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matured when the allotment in favour of Fazal Karim
was finally attested. This would stretch the period of
limitation to commence from 7.5.1975, when the
allotment in favour of Fazal Karim was finally
recorded vide mutation No. 2628 vide Exh. DW 1/3
and thus filing a suit in 2009 was still barred by time.
The worthy counsel for the petitioners when
confronted with this aspect of the matter, urged the
Court that, time would not commence from the said
point of attestation of the allotment but in fact from
the moment the respondents refused the demand of
the petitioners vide Notice to perform their obligations
under the Deed and added that the attestation of the
inheritance mutation in favour of the respondents on
the death of their parents was the triggering point for
knowledge of the allotment being matured in favour
of Abdul Karim. No doubt, the attestation of
inheritance mutation is a public information, but so
was the mutation No.2628 dated 07.05.1975
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(Exh.DW 1/3), whereby the property was finally
transferred in the name of Fazal Karim after its
allotment by the Federal Government. Viewed from
another perspective, Fazal Karim having expired in
2004 would surely be the end of his commitment to
transfer the remaining part of the promised disputed
property to the petitioners. More importantly, the
relationship of the parties, is also to be taken into
account. Fazal Rahman (PW-7), who was the
marginal witness of the Deed, is the real brother of the
petitioners and hence the assertion of the petitioners
that they were unaware of the transaction embodied in
the Deed or that they were unaware of the final
allotment in favour of their uncle Fazal Karim is
highly improbable. Moreso, when the petitioner’s
family was also allotted 25 Garib by the Federal
Government and thus, well acquainted with such
transactions.
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Thus, viewed from every angle and stretching
the legal submissions of the worthy counsel for the
petitioners even beyond the pleadings, still the suit
of the petitioners is barred by time, as it is beyond
the three years period provided under Article-113 of
the Act.
18. It would not be legally appropriate for this
Court to conclude the case of the petitioners on the
issue of limitation and not dilate upon the findings of
the two Courts below regarding other issues involved
therein, as valuable rights of the petitioners are
involved.
19. To start with, this Court finds that the two
Courts were not legally correct to apply the
requirement of two witnesses to prove the execution
of the Deed, as is provided under Article-79 of the
Qanun-e-Shahadat Order, 1984 (“Order”). The two
Courts below erred by applying the provisions of the
Order, the Deed was executed on 24.12.1962, well
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before the same was enacted. Thus, the provision of
section-66 of the Evidence Act, 1872, which did not
require the two mandatory witnesses to prove the
execution of the Deed, would be applicable to the
present case. This principle of appreciation of
evidence regarding proof of documents predating the
Order has by now been settled by the Apex Court in
Manzoor Ahmad’s case (2002 SCMR 1391), Noor
Muhammad’s case (2002 SCMR 1301), and finally in
Muhammad Ameen’s case (PLD 2006 SC 318),
wherein it was clearly explained that;
“It is an admitted fact that agreement to sell was
executed between the parties on 16.11.1981 whereas
Qanun-e-Shahadat Order came into force on
26.10.1984 meaning thereby agreement to sell
executed prior to coming into force of the said order
1984 (President’s Order No.10/1984). By virtue of
Article 1(3) of the said Order came into force at
once, there it does not apply retrospectively to
documents already executed and are past and
closed.”
20. Canvassing the record, it is noted that the
petitioners produced sufficient evidence to prove not
only the execution of the Deed, but also the
transaction stipulated therein. Fazal Rahman (PW-7),
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the marginal witness of the Deed, testified to be a
witness to the execution of the Deed by Fazal Karim,
the transfer of the sale consideration of Rs.20,000/-
and being the brother of the beneficiaries, was a
natural witness to the said transaction. No doubt, the
other marginal witness Amin Gul (APW-1) was
declared hostile, but the other evidence produced by
the petitioners was sufficient to substantiate their
claim, as far as the execution of the Deed and the
transaction embodied therein.
21. There is no doubt that a plaintiff, who claims
a fact, has to prove the same himself by producing
cogent and reliable evidence and cannot seek refuge
behind the weaknesses of the other side. However,
when there are contesting claims of the opposite party
backed by supporting evidence, the adjudicating Court
is to weigh the evidence produced by the rival parties
and to see on whose side the “preponderance of
evidence” rests. It is only when the evidence produced
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by the parties are evenly balanced and the Court is
unable to decide the matter on the available evidence,
only then the issue of burden of proof would come
into play. In this regard, the august Supreme Court of
Pakistan in the case title Mst. Qaiser Khatook Vs.
Molvi Khaliq (PLD 1971 S.C- 334) held that;
“In any event, the question of onus of proof has lost
its importance now after all the relevant evidence
has been adduced and placed on the record (vide
Manaka v. Madha Rao) (2). The question of the
burden of proof becomes material only where the
Court finds the evidence so evenly balanced that it
can come to no definite conclusion- (Vide PLD 1948
PC 171). In such an event the rule is that the party
on whom the onus lay must fail. This, however, is
not case here, for, the evidence is, by no means,
evenly balance.”
22. In the present case, the most crucial evidence,
which tilted the balance of probability in favour of the
petitioners was the actual transfer of possession of 54
Kanals 5 Marlas out of the disputed property. This
fact was asserted by petitioner No.1 (PW-10) in his
examination in chief, which went unchallenged by the
respondents during his cross examination and thus
would be deemed legally admitted. This principle of
appreciating such evidence, as proof of a fact is by
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now settled by the Apex Court in Mst. Murad
Begum’s case (PLD 1974 SC 322), Muhammad
Ameen’s case (PLD 2006 SC 318) and Aurangzeb’s
case (2007 SCMR 236).
23. The two Courts below also erred on another
legal aspect regarding the legal presumption of
correctness attached to the Deed being more than 30
years old and having been produced by the proper
party under Article-100 of the Order. This
presumption in favour of the petitioners was not
rebutted by any clear evidence produced by the
respondents-defendants.
24. A very crucial aspect, which has escaped the
worthy attention of the two Courts below is that in the
present case, the petitioners were not only armed with
the unregistered Deed but also admittedly in
possession of the part of the disputed property. No
doubt, an effort was made by the sole respondent
witness, Akram Khan (Dw-1) being the attorney of
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the respondents, to explain the said admission to be
attributable to the private partition, but no evidence to
that effect was produced. Their entire emphasis was
that the revenue record, in particular, the khasra
girdawaries did not reflect the petitioners in
possession of even a part of the disputed property.
The evidentiary value of khasra girdawari has been
negated by the superior Courts to the extent of having
no presumptive values as held in Muhammad
Akram’s case (1977 SCMR 433), and Sikandars case
(PLJ 2008 SC 131). It was also argued that the
jamabandies clearly depicted Fazal Karim to be the
owner in possession of the entire disputed property.
The presumption of correctness attached to
jamabandies is rebut-able, as laid down in Arshad
Khan’s case (2005 SCMR 1859). The crucial fact
remains that the un-equivoble admission made in the
pleadings by the respondents, which was not
explained by any supporting evidence to justify the
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alienation thereof and being in such long and
continuous possession with the petitioners, would
rebut the presumption of correctness reflected in the
said jamabandies and the Khasra Girdawaries. In
fact, the parties are bound by their pleadings and even
evidence produced contrary thereto has to be clearly
discarded.
25. The fact that possession of part of the
disputed property was transferred to the petitioners
under the Deed, appears to be proved from the
available evidence. In the circumstances, the non-
registration of the Deed would not be fatal to all the
rights accruing to the petitioners, at least to the extent
of the property they are in possession. Let us examine
the said rights and privileges. In this regard, it is noted
that the rights of the petitioners to retain
possession over the 54 Kanals 05 Marlas
of the disputed property are protected under the
first proviso to section 50 of the Registration Act,
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1908 (“Act of 1908”), read with section 53-A of the
Act of 1882, which reads as under:-
“50 Certain registered documents relating to land to
take effect against unregistered documents. (1)
Every document of the kinds mentioned in clauses
(a), (b), (c) and (d) of section 17, sub-section (1),
and every document registrable under section 18, in
so far as such document affects immovable property
or acknowledges the receipt or payment of any
consideration in respect of any transaction relating
to immovable property shall, if duly registered; take
effect as regards the property comprised therein;
against every unregistered document relating to the
same property, and not being a decree or order,
whether such unregistered document be of the same
nature as the registered document or not.
Provided that the person in possession of the
property under an unregistered document prior in
date, would be entitled to the rights under section
53-A of the Transfer of Property Act, 1882 (IV of
1882) if the conditions of that section are fulfilled:
Provided further that the person in whose
favour an unregistered document is executed shall
be entitled to enforce the contract under the
unregistered document in a suit for specific
performance against a person claiming under a
subsequent registered document, subject to the
provisions of clause (b) of section 27 of the Specific
Relief Act, 1877 (I of 1877).”
(Emphasis provided)
Faced with similar situation, the apex Court in
Fazla’s case (1997 SCMR 837), has elaborated and
discussed the true purport of section 50 of the Act of
1908 in terms that:-
“These two provisos were added by the Registration
(Amendment) Ordinance, 1962 with effect from the
7th June, 1962. The first proviso clearly indicates
that a person, who is in possession of the property
under an unregistered document prior in date,
would be entitled to claim rights under section 53-A
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of the Transfer of Property Act provided he fulfills
all the conditions laid down in the said section. It,
therefore, applies section 53-A of the Transfer of
Property Act to persons in possession of the property
acquired under an unregistered document………
“From the above observation it is clear that
if any document requiring registration under section
17 of the Registration Act has not been registered, it
cannot bar or deprive a purchaser from claiming
benefit under section 53-A of the Transfer of
Property Act provided he satisfies the requirement
of the said section……………………….
“The only condition is that it should be an
unregistered document by a person in possession of
the property under it and that he fulfills the
conditions laid down in section 53-A of the Transfer
of Property Act. Applying this principle on the facts
of the case, it is clear that the receipt/contract was a
document of sale of the disputed property which was
unregistered. The appellant was, therefore, entitled
to the protection and rights under section 53-A of
the Transfer of Property Act.”
26. Now, this Court has to see whether the present
petitioner fulfills the conditions provided under
section 53-A of the Transfer of Property Act, 1882
(“Act of 1882”), which reads as under:-
“53-A. Part performance. Where any person
contracts to transfer for consideration any
immovable property by writing signed by him or on
his behalf from which the terms necessary to
constitute the transfer can be ascertained with
reasonable certainty and the transferee, has, in part
performance of the contract, taken possession of the
property or any part thereof, or the transferee, being
already in possession, continues in possession in
part performance of the contract and has done some
act in furtherance of the contract, and the transferee
has, performed or is willing to perform his part of
the contract; then, notwithstanding that the
contract, though required to be registered, has not
been registered or where there is an instrument of
transfer, that the transfer has not been completed in
the manner prescribed therefore by the law for the
time being in force, the transferor or any person
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claiming under him shall be debarred from
enforcing against the transferee and persons
claiming under him any right in respect of the
property of which the transferee has taken or
continued in possession, other than a right expressly
provided by the terms of the contract:
Provided that nothing in this section shall
affect the rights of a transferee for consideration,
who has no notice of the contract or of the part
performance thereof.”
27. The conditions precedent for a person to seek
protection under the above section 53- A of the Act of
1882, are essentially as follows:-
i) That written contract of sale of immovable
property for consideration;
ii) Steps taken in pursuance of the said written
contract;
iii) The possession is with the transferee and it
is continuous.
28. In the present case, it is noted that there is
written contract in the form of the Deed, regarding
disputed immoveable property for a consideration of
Rs.20,000/-, and in pursuance thereof possession of
54 Kanals and 05 Marlas has been transferred to the
petitioners and who continuously retains the same.
Thus, the essential ingredients of section 53-A of Act
of 1882 appear to have been fulfilled by the
petitioners. Let us now consider what benefits and
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legal protections would accrue to the petitioners in
fulfilling the said condition precedent. This issue has
been elaborately explained by the Apex Court in
Fazla’s case (1997 SCMR 837), wherein after
discussing the various precedents, the worthy Court
observed that;
“Learned counsel has relied on Naib-Subedar Taj
Muhammad v. Yar Muhammad Khan and 6 others
(1992 SCMR 1265) in which essential ingredients of
applicability of section 53-A of the Transfer of
Property Act have been enumerated, which require a
contract in writing signed by the transferor in
respect of an immovable property; transfer can be
ascertained with reasonable certainty; from the
document the transferee has taken possession of the
property or any part thereof or if he was in
possession, he continues to be in possession in part
performance of the contract and has done some act
in furtherance of the contract; and that the
transferee has performed or is willing to perform his
part of the contract. It is on satisfaction of these
conditions that one can claim the benefit of section
53-A of the Transfer of Property Act. In this
judgment reference was made to Mst. Ghulam
Sakina v. Umar Bakhsh and another (PLD 1964 SC
456), Habibur Rehman and another v. Mst.
Wahadania and others (PLD 1984 SC 424), Mst.
Shankri and others v. Milkha Singh (AIR 1941
Lahore 407) and observed as follows;
“Section 53-A of the Transfer of Property
Act enunciates equitable principle to protect
the rights of such purchasers who have
entered into agreement and in pursuance
thereof obtained the possession of the
immovable property and have further either
performed their part of the agreement or are
agreeable to perform the same. In such
circumstances, mere non-registration of a
deed which requires registration under
section 17 of the Registration Act, will not
deprive him of the benefit which he is
entitled to protect by virtue of section 53-A of
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the Transfer of Property Act. It is true that
section 53-A does not confer or create any
right but it provides a defence to a transferee
to protect his possession. Reference can be
made to the cases of Kalimuddin
Ansari..v..Director, Excise and Taxation,
Karachi, and another (PLD 1971 SC 114)
and Sri Kalulam Subranmanyam and
another v. Kurra Subba Rao (PLD 1948 PC
52). Section 53-A debars a transferor from
enforcing any right other than rights
specifically provided by the contract against
a transferee who in part performance of a
contract has taken possession. Reference tray
be made to the cases of Abdullah Bhai and
others v. Ahmed Din (PLD 1964 SC 106)
and Mst.Ghulam Sakina v. Umar Bakhsh
and another (PLD 1964 SC 456). In the
present case, the agreement itself recites that
the appellant in part performance of the
agreement had been put in possession of the
property. The appellant is, therefore, entitled
to the protection of his possession.”
(emphasis provided)
29. In view of the ratio-decidendi of the
aforementioned decisions of the Apex Court, any
person, who fulfils condition precedents of Section
53-A of Act of 1882, would not be able to claim title
over the possessed property but would surely be able
to shield any challenge made to his possession and to
be legally entitled to retain the possession thereof.
30. To sum up, it is noted that the suit of the
present petitioners was rightly declared to be time
barred by the two Courts below. However, despite the
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petitioners fulfilling the condition precedent of
Section 53-A of the Transfer of Property Act, 1882,
the legal protections arising therefrom, regarding their
retention of possession to the extent of 54 Kanals and
05 Marlas of the disputed property has not been
appreciated by the two Courts, and to which they are
legally entitled under the law. Accordingly, for the
reasons stated hereinabove, the present petition is
dismissed with the observations rendered
hereinabove.
Announced.
Dt.22/02/2016.
J U D G E
(K.Ali)