P L D 1996 Karachi 202 (PLP)

RANA BHAGWAN DAS, J.‑This Revision application is directed it against the appellate Court's judgment and decree dated 294‑1989 upholding the judgment and decree passed by the trial Court dismissing a suit for declaration and injunction filed by the petitioner against the respondent.

2. Briefly stated facts are that Survey Nos. 314, 315, 316 and 317 Deh Mirzai, Taluka Dokri were granted in favour of the respondent by the Barrage authorities on 27‑11‑1959. It is the case of the petitioner that the lands were jointly purchased by him as well as the respondent who is none else than his real nephew. It is further his case that he had paid his share of instalments for payment to the Government and on 1‑9‑1961 parties privately partitioned the lands with the result that Survey Nos. 314 and 315 fell to the share of the petitioner whereas remaining two survey numbers to the share of the respondent. Simultaneous with the private partition, possession of Survey Nos.314 and 315 was hand over to the petitioner who enjoyed possession as well as the produce of the suit land. On being approached to get the record of rights mutated in favour of the petitioner and declining to do so on the part of the respondent. The petitioner was obliged to file Suit No. 15 of 1975 renumbered as Suit No. 96 of 1982.

3. The suit was resisted by respondent who filed a written statement denying all averments and asserting that the lands were exclusively purchased by him from the barrage authorities; that he had paid all instalments from his resources; that there was no private partition of the suit lands between the parties and consequently possession of the suit lands was never transferred to the petitioner. Various legal issues were also raised which were reflected in the following issues at the trial:‑‑ (1) Whether the plaintiff was partner with the defendants in purchase of Survey Nos. 314, 315, 316 and 317 in suit and has contributed in payment of instalments etc? (2) Whether the agreement of partnership dated 1‑9‑1961 was executed between the parties and plaintiff believed Survey Nos. 314 and 315 in private partition between the parties? (3) Whether plaintiff is in adverse possession of Survey Nos.314 and 315? (4) Whether the plaintiff is in possession and enjoyment of the suit land as its owner or he is lessee of the defendant? (5) Whether the cause of action has arisen to the plaintiff? (6) Whether the Suit is in proper form? (7) Whether the suit is maintainable at law? (8) What should the decree be?.

4. At the trial of the suit petitioner examined himself as PWA, Abdul Razaque P.W.2, Umaruddin P.W.3 and Ghulam Rasool P.W.4 whereas respondent examined himself and Muhammad Ramzan.

5. On assessment of evidence, learned trial Court answered all the issues in negative and dismissed the suit vide judgment and decree dated 18‑4‑1987. Civil Appeal No.40 of 1987 filed by the petitioner met the same fate but the appellate Court held that the petitioner was a partner with the respondent in the purchase of the lands; there was private partition between the parties whereby suit lands went to the share of the petitioner. Issue relating to adverse possession. was found in negative. Petitioner was found to be in possession and enjoyment of the suit land by virtue of the partnership agreement. On issue No.5 Appellate Court held that the plaint disclosed a cause of action. On Issues Nos.6 and 7, he came to the conclusion that in the face of the partnership agreement, suit for declaration and injunction was not maintainable and that the petitioner should have sued for specific performance of the contract. It is as against the judgment and decree that the present Revision Application was preferred.

6. After a short hearing, following points were formulated by this Court for consideration, on the last date of hearing:‑‑ Whether the suit for declaration and injunction without seeking relief of specific performance was maintainable at law? Whether the applicants are entitled to a decree of declaration in consequence of an agreement of partnership in respect of the suit lands as a result of findings recorded by the appellate Court? (3) Whether the applicants are estopped from seeking the relief of specific performance of contract by reason of provisions contained in Order 11, Rule 2, C.P.C.?

7. It is settled proposition of law that in the event of conflict of judgment, view expressed by the appellate Court should ordinarily be preferred unless the same is contrary to evidence on record or in violation of the settled principles for administration of justice. In the present case, it is not shown that the findings of fact recorded by the appellate Court on issues Nos. I and 2 are perverse, arbitrary or capricious. Scrutiny of the oral as well as documentary evidence on record indeed supports the view taken by the appellate Court that the lands were jointly purchased by the parties in the name of respondent who, had entered into an agreement of partnership with the petitioner in 1961.

8. Under the provisions of section 42, Specific Relief Act, any person entitled to any legal character or to any right as to an y property, may institute a suit against any person denying or interested to ‑deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need in such suit ask for any further relief. It would seem that the law, authorises a person to seek enforcement of his right to any property by instituting a suit against a person denying his right or title by way of a suit for declaration. Partnership agreement Exh.184 executed by the respondent in favour of the petitioner however does not per se create any interest charge oil the property. Therefore on principle as well as on authority, this agreement does not create any interest in the property much less any title to it. agreement on the face of it indeed does not create right of ownership in the suit ands in favour of the petitioner and it only creates a right to seek specific performance of the agreement subject to fulfilment of the terms and conditions the agreement. Obvious reason for this proposition is that under the provisions of section 17 read with section 49 of the. Registration Act, every document purporting to create any right, title or interest of the value, of Rs.100 and upwards requires compulsory registration. Likewise section 54 of the transfer of Property Act apart from other things postulates that a contract for he sale of immovable property is a contract that a sale of such property shall take place 011 terms settled between the parties It does not,. for‑itself, create any interest in or charge on such property. It therefore. follows that the agreement between the parties by itself does not confer any right, interest in or charge on he suit lands in favour of the petitioner.

9. In the case reported as Dr. Fakir Muhammad v. Major Ameer Muhammad (1982 SCMR 1178) it was held by the Honourable Supreme Court .at it is well settled that in a‑suit under section 42 of the Specific Relief Act declaration can be sought' either regarding the plaintiff's right to any legal character or with regard to any right as to property claimed by him. It was further held that in a suit under section 42, Specific Relief Act, plaintiff is required to ask for all other reliefs open to him. The relevant prayer of consequential relief i.e specific performance of agreement being not made in plaint, Supreme Court upheld the dismissal of the suit by the High Court.

10. In zafar Ahmed v. Mst. Hajran Bibi PLD 1986 Lahore 390 It was held at where plaint revealed that there was a mere agreement to sell, I plaintiff could not maintain his suit for declaration on basis of such agreement as it did not create any right, title or interest in property. Only proper mode of redress for plaintiff would be suit for specific performance of said agreement. 11. ‑ In Muhammad Afsar Khan v. Custodian of Evacuee Property PLD 1981 SC (Aj&k) 79 the view taken was. that a person who has contracted to buy land Is not owner of. any interest ' in the land and is therefore not entitled to have a decree of title. An agreement to sell does not create any interest in the property Id such an agreement even if presumed to be genuine and proved, lacks to create any interest in the property. Same view was re‑affirmed in Mst. Resham Jan and others v. Muhammad Latif and another PLD 1987 SC (AJ&K) 93,

12. On behalf of the petitioner it was contended with vehemence that even though he may not be entitled to a declaration of title as prayed, by reason of doctrine of part performance,. he was entitled to protect his possessory rights as envisaged by section 53‑A Transfer of Property Act. Reliance was placed on the observation of late Kayani, C J. in the case of Inayatullah v. Shah Muhammad PLD 1961 Lahore 372 in which the late Chief Justice observed that section 53‑A debars a transferor from forcing any right against a transferee in possession, but does not prevent a transferee from seeking relief, which must, in its very nature, be by way of defence. Learned counsel for the petitioner also referred to Muhammad Bux v. Ziaullah and others f983 SCMR 988 in which the view taken was that section 53‑A does not confer a title on vendee and creates no real right except one of defending possession but merely creates right of estoppel between proposed transferee and transferor. To my mind the right to protect possession acquired in pursuance of an agreement of sale can be agitated as a ID shield by way of defence but not by way of claim or assertion adverse to the right of the real owner. In my view both the cases do not advance the case of the petitioner inasmuch as in the absence of any right or title to property petitioner cannot succeed in asking for a decree for permanent injunction against the respondent.

13. Learned counsel for the petitioner ‑ relying on the provisions of Order VII, Rule 7, C.P.C. referred the case of Samar Gul v. Central Government PLD 1986 SC 35 which reaffirms the well known proposition of law that Court is empowered to grant such relief as justice of case may demand and for determining relief asked for, whole of the plaint must be looked into, so, that substance rather than form should be examined, There is absolutely no cavil with the principle of law enunciated by the Supreme Court, facts of the case in hand do not warrant any interference with the findings of fact by the Court below and decree, the suit for permanent injunction simpliciter. 14., As to the doctrine of part performance: as envisaged by section 53‑A transfer of Property Act, I would refer to Habibur Rehman v. Mst. Wahdania PLD 1984 SC 424, laying down that no equitable doctrine such as provided in section 53‑A, Transfer of Property. Act, 1882 could override specific provisions of section 49, Registration Act, so as to make an unregistered document create title, if same required registration under section 49, Registration Act. ‑In the reported case purchaser had been put into possession by vendor under unregistered document pursuant to an oral agreement to sell under mistaken belief that the transaction was complete, whereas, in fact it was incomplete, for want of registration it was held that such purchaser must be regarded to be a purchaser under a contract for sale Which was yet to be completed. It was further laid down that such purchaser though could not claim any title as owner in property, whether as a legal or as a equitable owner, yet would have a charge on property for amount paid by him towards purchase of property in question.

15. In somewhat similar circumstances, Lahore High Court in the case reported as Muhammad Hussain v. Asghar Ali 1991 MLD 732 found, that in a revision Application arising out of a suit for declaration and permanent injunction, plaintiff did not press for declaration sought, for in suit but insisted upon grant of permanent injunction restraining defendant from interfering with his possession, it was observed that prayer for permanent injunction being a consequential relief a declaratory decree was a condition precedent because unless declaration was granted, question of grant of consequential relief would not arise. It was observed that plaintiff's prayer for permanent injunction if allowed, would amount to laying a dangerous precedent authorising one of co- sharers to take forcible possession of any valuable portion of joint property and then. file a suit for permanent injunction restraining other co‑owners from interfering with his possession thus frustrating the law relating to partition of joint property.

16. In the light of facts and circumstances as well as the case‑law on the subject, I am of the view that the petitioner is not entitled to a decree for permanent injunction since he did not ask for relief of specific performance. His suit for declaration essentially based on agreement of partnership was completely misconceived and ' not maintainable at law in the circumstances of the case. Strictly speaking, he may not be estopped from seeking relief of specific performance, it is conceded that this relief has become barred by limitation at the moment. 17'. Moreover grant of declaration, under section 42. and relief of injunction under section 54 of the Specific Relief Act and exercise of revisional jurisdiction under section 115 Civil Procedure Code being purely discretionary in nature, to my mind, the petitioner is not entitled to any relief in the present proceedings. Consequently this Revision Petition is without any merit and is accordingly dismissed with the order as to costs. A.A./M‑2168/K Revision dismissed.