2004 PLP 791 (CLC)

On 11‑1‑1981 the respondents filed a suit against petitioner No. 1 and Shah Nigah father of petitioners Nos.2 and

3. In the plaint it was stated that the property mentioned in the paint was owned by said Shah Nigah, who agreed to sell the same to the respondents for consideration of Rs.10,

000. He received the entire amount of consideration and delivered the possession vide agreement, dated 13‑10‑1980. However, he proceeded to sell the suit property to petitioner No. 1 vide registered sale -deed dated 26‑11‑1980. A declaration was sought that the respondents are the owners in possession of the suit property and that the sale‑deed is void. In the written statement the said defendants denied having entered into the said agreement and having received any money or to have delivered possession to the respondents. Following issues were framed by, the learned trial Court:‑‑ (1) Whether the suit is not maintainable in its present form? OPD (2) Whether the defendants are entitled to special costs under section 35‑A, C.P.C.? OPD (3) Whether the plaintiffs have purchased suit‑land vide agreement deed dated 13‑10‑1980, if so its effect? OPP (4) Whether the defendant No.1 has purchased suit‑land vide registered sale‑deed dated 26‑11‑1980? If so its effect? OPD (5)Relief. Evidence of the parties was recorded. Vide judgment and decree, dated 29‑3‑1989 learned trial Court dismissed the suit. A first appeal filed by the respondents was allowed by a learned Additional District Judge, Chakwal, on 21‑3‑1996 and their suit was decreed as prayed for.

2. Learned counsel for the petitioners contends that the execution of the agreement had been denied and the same was not proved on record. Further contends that the suit for declaration of title on the basis of agreement was not competent. Relies on section 50 of the Registration Act, 1908 to urge that the registered sale‑deed was to take precedence over the unregistered agreement. Also contends that the delivery of possession has not been proved. Learned counsel for the respondents on the other hand, with reference to Fazla v. Mehr Din and 2 others 1997 SCMR 837 argues that notwithstanding the fact that the agreement was not registered, his clients were entitled to the protection of section 53‑A of the Transfer of Property Act, 1882.

3. I have gone through the records with the assistance of the learned counsel for the parties. So far as the registered sale‑deed dated 26‑11‑1980. Exh.D.1 is concerned there is no dispute that late Shah Nigah did sell the property to petitioner No.1 vide said document for consideration. Now agreement dated 13‑10‑1980 being relied upon by the respondents is Exh.P.1. According to this document, purported to have been executed by Shah Nigah, the said suit property measuring 7 Marlas had been agreed to be sold to the respondents for Rs.10,000 which amount has been received and possession delivered. It was also promised that he will also get the sale‑deed registered. Now this document bears the alleged thumb‑impressions of Shah Nigah. It is attested by Syed Fazal Shah and Raja Gulstan Khan, Lambardar, as witnesses and it also bears the signatures and seal of a Chairman, Union Council, Mangowal, Jhelum. Now the said Fazal Shah appeared as P.W.1. He stated that he, has seen the suit‑land. It belonged to Shah Nigah and he sold it to respondents for Rs.10,

000. A receipt and agreement was scribed. The agreement is Exh.P.1 and receipt is Exh.P.2. Apart from Gulstan he was also, present and both of them have signed the same. He further stated that Rs.10,000 were paid by him on behalf of the respondents. He then stated that the suit property is in possession of the respondents. It will be seen that this witness has not at all stated that Shah Nigah put his thumb impression on the documents Exh.P.1 or P.2 in his presence or acknowledged before him to have thumb‑marked the documents. Now he is maternal‑uncle of the respondents. The second witness produced is Sakhi Muhammad P.W.2. He has stated that he scribed the agreement Exh. P. 1 and Exh. P.2. In his cross‑examination he stated that he cannot identify Shah Nigah and that he had not seen N. I. C. neither he noted the number of N.I.C. on the said documents. P.W.3 is Kafait Hussain Shah respondent No.

1. He has not even referred to the documents Exh.P.1 and P.2. in his statement. Neither he has stated that Shah Nigah executed the same. This is the entire evidence on record regarding the execution of the agreement. To my mind, the execution of Exh.P.1 by Shah Nigah is not, at all proved in the said evidence. Besides there is no reason forthcoming on the record as to why the said Gulstan Khan, Lambardar and said other Chairman have not been produced. Now Shah Nigah appeared as D.W.2. He denied having executed the said document. Now his cross‑examination certainly makes an interesting reading. I have already reproduced above the contents of the said agreement Exh.P.1 and the statements made by the P.Ws. Now according to the said document the land was sold for Rs.10,000 and price was paid. Now following is what was suggested to Shah Nigah D.W.2 and his response. Now the said suggestion completely demolished whatever case the respondents have set up in their plaint and whatever evidence has been led by them.

4. Now so far as the matter of possession is concerned Kafait Shah stated in his cross‑examination that the suit‑land is laying vacant and further admitted that it abuts the house of Jhan Shah (vendee‑defendant) towards north. There is no construction on the land and not even a boundary wall. This hardly makes out the case of delivery of possession and part performance of agreement.

5. Now this leaves testimony of the P. W.4 an expert who reported vide Exh. P.4 that the admitted thumb‑impressions of Shah Nigah are identical with thumb‑impressions on the disputed document. I may state that in the said state of evidence on record referred to by me above, the said report and testimony of the said witness become highly doubtful. Now according to this witness enlargement Exh.P.3 (allegedly admitted thumb‑impressions of Shah Nigah) had not been made by the said witness P.W.4, rather it was made by a colleague namely, Muhammad Idrees. To my mind, even to naked eye there is no similarity between the thumb -impressions on Exh.P.1 and P.2 on the one hand and Exh.P.3 (enlargement) on the other.

6. There is yet mother aspect of the matter. Now the case put to Shah Nigah in the witness‑box is that he took loan of Rs.1,200 and against that loan he wrote down the agreement. As stated by me above the execution of the document has certainly not been proved in the evidence of the marginal witnesses and said scribe or the said respondent No.1 Kafait Hussain Shah, who appeared as P.W.3. The case suggested to Shah Nigah is neither here nor there. I, therefore, do not find it safe at all to place any reliance upon the report of the said expert.

7. There is no cavil with the proposition laid down in the said judgment of the Honourable Supreme Court being relied upon by the learned counsel for the respondents. However, protection of section 53‑A is subject to the condition of a document in writing executed by or on behalf of the transferor and delivery of the possession under the same. It is only such an unregistered document which fulfills the said condition which entitles a transferee to the said protection. In the present case, neither any agreement has been proved nor its performance including payment of consideration or delivery of possession.

8. For all that has been discussed above, the civil revision is allowed. The impugned judgment and decree, dated 21‑3‑1996 of the learned Additional District Judge, Chakwal is set aside while one passed by the learned trial Court on 29‑3‑1989 dismissing the suit of the respondents is restored with costs throughout. H.B.T./R‑8/L Revision allowed.