P L D 1988 Lahore 264 (PLP)

This civil revision arises out of a suit instituted on 5‑11‑1978 by the respondent against the petitioner in the Civil Court at Narowal District Sialkot, for the possession of a plot after the removal of the structure measuring 14 marlas 13 feet (801 x 481) situated on the back of the Railway Bazar in Narowal alleging that the petitioner two years ago wrongfully gained the possession of the plot in question and raised a four‑wall. The petitioner entered into an agreement to purchase the plot in consideration of Rs.500 per marla and on 12‑12‑1974 advanced Rs.200 as earnest money agreeing orally that he would pay the rest of the amount within seven days and get the registered deed executed and have the possession. The petitioner did not perform his part of the agreement despite the repeated requests. A notice was addressed to him by the respondent or, 20‑1‑1977 requiring him to perform his part of the agreement within ten days from the receipt thereof. The petitioner made a reply to that vide notice dated 26‑1‑1977 in which he wrongly stated that he had advanced Rs.400 as earnest money and instead of the price of Rs.500 per marla he stated as Rs.400 per marla and indicated his wish to have the execution of the deed but the petitioner never rose upto the performance of the agreement so on the failure of the petitioner to get the transaction completed within the time as stipulated, the respondent rescinded the agreement and forfeited the earnest money. The petitioner contested the suit by maintaining that the respondent had no cause of action. That the agreement of sale subsisted‑ The respondent had failed to perform his part of the contract. The suit had nut been instituted with an honest mind. The respondent by was and deed was esteemed from filing the suit. In 1974 the attorney of the respondent namely Muhammad Siddique received Rs.400 as earnest money, on whose demarcation the plot was taken 'into possession. The petitioner effected improvements to the extent of Rs.25,000 by filling up the pits and depression and plantation etc. and raising of an Ihata. The suit has not been instituted by & duly authorised person as such the same was not competent. The sale price of the plot was Rs.400 per marla towards which Rs.400 had been paid as an earnest money. At the time of the transaction the respondent was not entitled to transfer the property without obtaining the permission from G.H.Q. therefore, the time was not of the essence of contract. The learned Civil Judge after discussing the case as set up by the respondent found that the petitioner had failed to prove that he got the possession of the suit property with permission and at the instance of Muhammad Siddique, the alleged attorney of the respondent since that had not been proved that Muhammad Siddique was the attorney J the respondent., Neither the power of attorney was produce nor Muhammad Siddique was examined. The respondent proved beyond any shadow of doubt That only a sum of Rs.200 was paid as earnest money as against the stand of' the petitioner that a sum of Rs.400 was paid. The respondent had also proved that the sale price was Rs.500 per marla as against the price of Rs.400 per marla as set up by the petitioner. While relying upon a notice addressed by the respondent requiring the petitioner to perform his part of the transaction within ten days alongwith other facts the learned Civil Judge opined the assuming that the time was not of the essence of contrary even then that was obligatory for the petitioner to ask for the completion our the sale within a period of three years. According ,to the learned Civil Judge the petitioner had failed to perform his part of the agreement. The learned Civil Judge further expressed that the petitioner had not gained the possession of the property pursuant to the agreement so the construction raised by him was illegal, as such he was not entitled to any compensation for the construction. He held that the suit was properly valued. As to the applicability of section 53‑A of the Transfer of Property Act so as to protect the possession of the petitioner the learned Civil Judge gave his finding that the essential ingredients of section 53‑A of the Transfer of Property Act were that there must have been a written contract and the possession should have been obtained in part performance of the same. The performance should have been in furtherance of the contract. Both the pre‑conditions were ' lacking in the case so the protection as claimed was not available to the petitioner. Consequently he decreed the suit vide his judgment dated 3‑4‑1983. The petitioner being aggrieved filed an appeal from the said judgment and decree which came to be decided by the learned Additional District Judge, Narowal. The learned Additional District Judge after discussing the case in his own turn upheld the findings arrived at by the learned Civil Judge and dismissed the appeal with costs being. without any merit. This is vide judgment dated 3‑6‑1987. The learned counsel for the petitioner has contended that the institution of the suit was not competent as the same had been done by a person not legally empowered. The learned Additional District Judge had taken to misreading of the record while holding that no objection as to the competence of the attorney to file the suit was taken up during the trial. The objection was in fact raised within the written statement. It is true that the objection was raised in the written statement as to the competence of Nazir Muhammad Khan to file the suit as attorney yet it appears that the same was not pursued to the hilt as the learned Civil Judge was not asked to frame an issue upon that. The duty no doubt falls upon the Court under Order 14 and the Rules emanating thereunder to frame the issues on the material' propositions of fact and law where the parties are at variance, yet the Court fails in that behalf that does not relieve the part , of its duty to press a point before the Court and ask the Court to frame an issue. The question appears not to have been taken up even during the arguments before the learned Civil Judge as is clear from the text of his judgment. This objection was not raised in the? memorandum of appeal though urged before the learned Additional District Judge who said that the objection appeared to be an after? thought. At the trial stage the objection was not raised. Even the written statement filed by the petitioner before the trial Court did not contain any such objection. It is there that the learned Additional District Judge took to misreading of the written statement which as mentioned above contained the objection. However, the learned Additional District Judge gave his finding as to that by saying that the power of attorney executed in favour of Nazir Muhammad Khan was placed on the record. The respondent was then residing in America. The power of attorney had been executed according to the law at America which contained the authority to bring action, file a suit, appoint a lawyer for securing the possession of the property and thus apparently there was no defect. Nazir Muhammad Khan was duly appointed attorney of the respondent so the suit was lawfully instituted. The objection raised by the petitioner had no force. The learned counsel has been given full hearing as to this point but he has not been able otherwise to point out anything as patently wrong with the power of attorney Ex.P.4 appointing Nazir Muhammad Khan as an attorney. The objection so raised appears to be an objection for the sake of it. The next contention of the learned counsel for the petitioner is that the judgment as delivered by the learned Additional District Judge is violate of the provisions of Order 41, Rule 31, C.P.C. In support of this contention the learned counsel has not specifically pointed out that in which regard he finds the judgment as lacking. The judgment delivered by the learned Additional District Judge is judgment of affirmance, as to the case put before him wherever necessary he has discussed the facts and determined the points as urged and has given his decision with the reasons thereon to which no exception can be taken up on a generalization. The learned counsel for the respondent has urged that there are concurrent findings of fact so on the question of fact the case stands as closed and cannot be agitated within the scope of section 115, C.P.C. The only point upon which the learned counsel for the petitioner has addressed seriously is that the petitioner was entitled to be protected on the facts of the case under section 53‑A of the Transfer of Property Act so the suit could not have been decreed. The learned counsel has relied upon Dammulal Babulal Jain v. Muhammad Bhai Haji Suleman Kacchi (A I R 1935 Nagpur 306). In this it has been held, "(16) Section 53‑A, T.P. Act was inserted partly to set at rest the conflict of views in this country, but principally for the protection of ignorant transferees who take possession or spend money in improvements relying on documents which are ineffective a~7 transfers or on contracts which cannot be 1‑oved for want of registration‑ The effect of this section is to relax the strict provisions J the Transfer of Property Act and the Registration Act in favourr of transferees in order to allow the defense of part performance to be established ?????????????????.

18. Section 53‑A is an exception to the provisions which require a contract to be in writing and registered and which bar proof of such contract by any other evidence. Consequently, the exception must be strictly construed. The protection given by this section to the defendant in possession cannot by analogy be extended to the transferor. That may be inequitable as the learned counsel submits. If so, it is a lacuna in the section. "Mokim Mondal and another, v. Ali Miah Pradhan and others (P L D 1967 Dacca 591), this decision the learned counsel has relied upon for the proposition that where a lower Court fails to consider a party's case on merit then the remand is inevitable otherwise both the decisions cited go against the petitioner as to the conception of section 53‑A of the Transfer of Property Act and its applicability. The learned counsel for the respondent has maintained that section 53‑A of the Transfer of Property Act is not attracted for the reason that there is no agreement in writing from which the terms of the agreement can be sought with certainty. The parties regarding their admission of the agreement are not agreed upon the terms of the agreement. The agreement stood rescinded since the petitioner had failed to perform his part of the agreement.

6. The finding of the learned Civil Judge as to the possession of the petitioner is not correct for the simple reason that when a B transaction in the form of an agreement to sell is admitted by both the parties and a party to the agreement claims that it is in possession of the property under the agreement and is in fact found as in possession thereof then the presumption is that, that the person is, possessing the property under the agreement or in part performance thereof. The presumption in arising has not been displaced by the 'respondent, therefore, it cannot be said that in that sense the petitioner had gained the possession wrongfully but despite that the 7 petitioner cannot reap the benefit of section 53‑A of the Transfer of Property Act since the other requirements of the section are that a6 contract is to be in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has, performed or is willing to perform his part of the contract. Even if the admissions by the parties are taken as a" substitute for an agreement in writing the term as to the consideration? regarding the intended sale and purchase is not ascertainable will reasonable certainty which cannot be ignored since the consideration happens to be a vital term in a contract to transfer, as the parties', are at variant to? the consideration and the amount received in: advance to the petitioner states that he paid Rs.400 and the sale. price was fixed was Rs.400 per marla, as against the case set up by' the respondent that an amount of Rs.200 was received as earnest money and the sale price was Ks.500 per marla therefore, the claim of the petitioner ,G short of one of the essentials this way and secondly the petitioner has failed to prove to the satisfaction of both the Courts below that he was willing to perform his part of the contract. It is sufficient to say in view of the facts arid findings by ,both the Courts below on the questions of fact that the protection as available under section 53‑A of the Transfer of Property Act cannot be accorded to the petitioner. No other point has been raised by the C learned counsel for the petitioner. This civil revision resultantly fails, hence is dismissed. However, there is no order as to costs. A.A. /M‑584/L?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.