1997 PLP 466 (CLC)

(5)1992 MLD 2515.

5. Choudhary Riaz Alam, the learned counsel for respondent No. 1, defending the impugned judgment, inter alia, contended that; the appellant transferred the rights which he had in the property in the similar manner and terms in which he had the same from the allottee, Mst. Fazeelat Rafique hence the question of violation of provisions of law contained in sections 54, 49 and 35 of the Transfer of Property Act, Registration Act and Stamp Act, respectively, does not arise as the appellant did not have the ownership of the plot to be transferred through the registered sale‑deed; that the plot in dispute was in the ownership of the Mirpur Development Authority who alone is competent to transfer it by way of allotment and later on, by transfer of ownership under section 39 of the Mirpur Development Ordinance and Rules 13 and 14 of M.D.A. Regulations, 1977 (hereianfter shall be called as M.D.A. Ordinance and Regulations, .1974 and 1977, respectively) and allotment of the plot is competently and legally made in the name of the respondent after its cancellation from the name of its afottee, namely, Mst. Fazeelat Rafique and the appellant simply relinquished his rights, whatsoever, he had, through affidavit; that the title of the respondent has become perfect under section 53‑A of Transfer of Property Act, against the appellant on account of execution of the alleged affidavit, transfer of possession and then by transfer of allotment by M.D.A. in favour of the respondent; that the appellant has not called into question the legality of the other part of the plot and built up property transferred in the similar manner and terms in favour of Allah Ditta and his transfer in favour of Aadil Kiyani and others; and that finding on each and every issue is not necessary when the case can be decided by the decision on a single issue. He placed reliance on 1992 MLD 2515.

6. After hearing the learned Advocates for the parties at length, I have gone through the record of the case, the file of M.D.A. from which the reference is made to different documents by the learned counsel for the respondent and the law cited at bar with due care and compassionate consideration.

7. The perusal of the record reveals that the original allottee of the plot was Mst. Fazeelat Rafique respondent No.6 who transferred the plot in favour of the appellant through an unregistered agreement of sale dated August 10, 1972 (Exh. DC on the file of MDA). The appellant transferred half portion of the plot with the built‑up property through an unattested affidavit dated March 14, 1974 in favour of Allah Ditta son of Feroz Khan and the later, transferred the same in favour of Muhammad Aadil Kiyani and others on October 31, 1978 through an unattested affidavit. This part of the plot and the property is not disputed nor is the legality of its transfer challenged. The remaining half of the plot with the built‑up property transferred in the similar manner in favour of respondent No. l is in dispute and the legality of its transfer challenged.

8. The transfer of immovable property amounting to more than rupees one hundred can only be made by a registered sale‑deed under section 54 of the Transfer of Property Act and the document is compulsorily registrrable under section 17 of Registration Act. A document compulsorily registrable, if not registered, cannot be read as evidence of any transaction under section 49 of the Registration Act nor does it affect any immovable property or confer any right upon the transferee thereof. Similarly, an instrument chargeable with duty, cannot be admitted in evidence unless it is duty stamped. To this extent, there can be no difference with the argument canvassed by the learned counsel for the appellant.

9. However, the question for resolution arises as to who can be a transferor in terms of sector 54 of the Transfer of Property Act, with respect to immovable property compulsorily registrable. Section 54 of the Transfer of Property Act is reproduced below;‑‑ "54. 'Sale defined '‑‑'Sale' is a transfer of ownership in exchange for a price paid or promised or part‑paid part‑promised. 'Sale how made'.‑‑Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. , In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of property. ", The primary and essential, elements of sale are the parties, subject‑matter and the price. The parties are buyer and seller. The seller must be a person competent to transfer i.e he must gave title to the property or authority to transfer it if it is not his own. Section 7 of the Transfer of Property Act defines the person competent to Transfer, which is reproduced as follows:‑‑ "7. 'Person competent to transfer.'‑‑Every person competent to contract and entitled to transferable property, or authorized to disputes of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force."

10. The perusal of the provisions of the aforesaid section indicates that a transferor must be "entitled to transferable property." A person who has the ownership rights of the property and is recorded as such in the record of rights or other public document in which the record of the ownership is entered or maintained, can be said to be entitled to the property which is the subject‑matter of the transfer. However, a person, though not owner of the property but authorized by its owner legally to transfer the same, is competent to transfer such property.

11. The appellant in the present case, was not the owner of the plot in dispute in terms of section 7 of Transfer of Property Act, thus not competent to transfer the ownership of the same by sale‑deed visualized by section 54 of the said Act to be compulsorily registrable. The. appellant could only transfer such interests or rights in the plot to the respondent which he had, at the time of execution of the affidavit in favour of respondent. Under section 8 of the Transfer of Property Act, only such interests in the property are transferred to the transferee which the transferor had, at the time of transfer and that interests pass forthwith. The relevant part of the section is reproduced below:‑‑‑ "

8. Operation of transfer.‑‑Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. " Thus shoot of ownership, every interest, that the appellant had in the plot in dispute al ongwith the built‑up property, passed to the respondent; and as the appellant's interest in the property at the time of execution of the affidavit, was to the extent of terms and conditions stated in the agreement for sale obtained from respondent No.6, respondent No.1 entered into the shoes of the appellant for enforcing his rights and interests against the respondent No.6 who was an allottee and transferor of the plot in favour of the appellant. The affidavit was/is not compulsorily registrable under section 54 of the Transfer of Property Act or section 17 of the Registration Act. It simply conveyed all the interests to the respondent which the appellant was capable of conveying.

12. If the affidavit is taken an agreement for sale, the same was also not compulsorily registrable, either under section 54 of the Transfer of Property Act or section 17 of the Registration Act. The affidavit had to be executed on stamp paper worth four rupees under Item No.4 of the Schedule I of the Stamp Act and it is duly stamped, hence admissible under section 35 of the Stamp Act. Thus the contention of the learned counsel for the appellant supported by the case of "Mokeem Mandal and another v. Ali Mian Pradhan and others (PLD 1967 Dacca 591) is of no help to him as the affidavit was neither compulsorily registrable nor is that under stamped and the contents of the same are proved by attesting witnesses and other evidence. The facts of the case and points raised at bar on the basis of that case i.e. AIR 1935 Madras 203; are not relevant to the issue involved in the case in hand.

13. The respondent, on the basis of the affidavit obtained the allotment from the, M.D.A. This was the right/interest which the appellant had obtained from the original allottee, namely, respondent No.6 and then transferred to the respondent through affidavit. The M.D.A. after issuing a proclamation in the newspaper dated February 24, 1984, inviting objections from everyone regarding the transfer of the plot in question in the name of respondent and Aadil Kiyani and others allotted the same in their name on August 20, 1984, when nobody filed any objection to the transfer of the allotment. Objection of the learned counsel for the appellant raised in his right of reply to the submissions of the learned counsel for the respondents is, also repelled that no notice prior to the transfer of allotment was issued to him in view of general notice issued in the newspaper

14. There is a common practice at Mirpur, of which judicial notice is taken that allottees of the plots transfer their interests in the allotment by executing affidavits, agreements or power of attorney in favour of the transferees for consideration and subsequently the MDA after following the process of proclamations or advertisements etc. for transfer of the allotments in the names of document‑holders, the allotments are transferred in their names. The transfer of immovable property in an extra‑legal manner is violation of law but through the practice in vogue, the allottees abandon their rights in allotments and transfer their rights and interests of allotments by agreements to sell or affidavits, both of which are not compulsorily registrable, the rest is left between the transferees and the Development Authority to be accomplished. This matter is left to be regulated by the authorities concerned. The resolution of this point in‑the manner suggested by the learned Advocate for the appellant, would cause more harm to the public at large, than advance the cause of law and justice in an individual case.

15. The allotment of the part of the plot in dispute is transferred in the similar way in favour of the respondent and the allotment of the remaking part of the plot is also made in the similar terms in the name of Aadil Kivani and others. The transfer of allotment and affidavit in favour of Aadil Kiyam is admitted by the appellant in his statement though with another version. However, the fact remains that the appellant has relinquished his rights and interest in the plot in favour of two parties through the documents executed on the similar pattern and got written from the same petition‑writer.

16. The Mirpur Development Authority as discussed above on the basis of the above documents (Exhs. DA and DB on the file of M.D.A.), ordered the allotment of the plot to favour of respondent and Aadil Kiyani and others. The M.D.A. is authorised under section 34 of the Ordinance to sell, exchange, rent- out or otherwise transfer any land vested in it and similarly under Rule 14 of the M. D. A. Regulations, 1977 which is as follows:‑‑ "

14. Transfer of plots/farms.‑‑Sub‑division, sale, transfer or exchange of any plot/farm or any portion thereof will not be affected by the allottee, lessee or vendee except with the permission of the Authority and subject to the transfer being registered by the Authority, on payment of fees to be prescribed by the Authority from time to time." any plot can be transferred with the permission of the Authority.

17. The contention of the learned counsel for the appellant that above Rules apply to the entire land falling in M.D.A. not to a specific plot only, needs simply to say that a plot or a part of the plot, is a part of the whole land falling in the M.D.A. and what applies to the whole, applies to its part, subject to the Rules.

18. The submission of the learned counsel for the appellant that affidavit placed on record being photo copy is inadmissible in evidence and that the same was not confronted to the appellant, is equally devoid of any substance for the reason that it is no doubt the photo copy of the affidavit on record of the Court file but the original being on the file of MDA was duly produced in the Court and exhibited in evidence i.e. Exh. DB. In view of the execution of the document being admitted by the appellant, however, the recitable therein alleged as having been written against the oral arrangement, the proper course for the proof of the document was the production of the document itself or its attesting witness or witnesses or its scribe or a person conversant with the handwriting of the scribe. The petitioner‑writer, namely, Abdullah, being dead, the document being in his handwriting is proved by Ghulam Hussain a petition‑writer produced in the Court on 14‑10‑1992. He has stated the document to be in the handwriting of the dead petition‑writer and has compared the same with his other writings i.e. affidavit executed in favour of Aadil Kiyani etc., Exh. DA Khadim Hussain an attesting witness of the affidavit Exh. DB in his statement before the Court on December 21, 1992 also admitted the execution of the affidavit as:‑‑ (Biyan Halfi Soda ki nisbet tehrer hua tha). Respondent No. l in his statement before the Court has proved the entire case as incorporated in the affidavit. Besides above, the affidavit (Exh. DB), contains the signatures of the appellant at its footnote and at the back of the Stamp Paper. He has admitted the signatures in his statement before the Court. Besides above witnesses Muhammad Aadil Kiyani, one of the transferees of other part of, the plot, has also appeared as a witness in the Court and stated that respondent and he had purchased the plot in equal shares through affidavits and had obtained the allotment of the plot jointly from the Mirpur Development Authority.

19. In view of above, the case titled "Madhlal Sindhu v. Asian Assurance Co. Ltd. and others (AIR 1954 Bombay 305), referred to by the learned counsel for the appellant supports the case of the respondent, as the execution of the document being admitted by the appellant, its contents are proved by the other witnesses produced by the respondents.

20. In the aforesaid view of the matter, the execution of the affidavit having been proved beyond doubt, there remained nothing for the trial Court to explore' or adjudicate upon. The main issue in the case was Issue No.1 on which a detailed finding is recorded by the trial Court which is supported by the evidence on record. The other related issue was Issue No.5 which is also decided in favour of respondent. The finding on other issues was immaterial in view of decision on above issues.

21. Under Order 20, Rule 5 of the Code of Civil Procedure, it is no doubt necessary for the trial Court to give its finding supported by evidence on all issues, but if finding on one issue is sufficient for the disposal of the case, the trial Court may not dilate upon other issues; and in not deciding the other issues, no prejudice is caused, to the appellant. All the issues in the case being inter se related, the consolidated decision by deciding the main issue is not violative‑of Order

20. Rule 5, C.P.C. Reference may be made to case titled "Major (Retd) Syed Baqar Hussain Shah v. Mst. Rashida Begum" (1992 MLD 2515), in this behalf. There could be no other form of issues as suggested by the learned Advocate for the appellant, neither has he pointed out any pleadings which required framing of issues in the form he suggested.

22. The respondent, as stated in his statement before the Court, has reconstructed the house on the disputed plot and has got sanctioned a plan from the committee (Exh. DH). All this having taken place in the city, where the appellant is residing who did not object to it. Had he agreed only for renting out the built up property, he would not have allowed the respondent reconstruct the house by demolishing his rented out construction. This suggests of an afterthought device by the appellant to wriggle out from the bargain. The respondent, having obtained the interest and rights in the property through an affidavit from a person who had also obtained the same in the similar way i.e. by way of an unregistered agreement, having continued in possession of the same, secured its allotment alongwith other transferees from competent authority whose right is not challenged, reconstructed the building etc., are such acts which entitle the respondent to the protection of section 53‑A of the Transfer of Property Act. In the circumstances, I may advantageously place reliance on a case cited at Bar by the learned counsel for the appellant i.e. "Raja and others v. Karam Ali and others" (OLD 1951 Lahore 177), where a land was obtained jointly by two persons contributing equal amount but the transfer effected in favour of one only in view of a prohibition under the law. On the death of the person in whose name the transfer was legally ordered, his descendants denied the arrangement made with the other person and sold the land to a third party. On a suit filed for possession by the third party, the person in possession, namely, co‑transferee who was denied the property, resisted the suit by pleading the actual facts and arrangements between him and the deceased transferee, the High Court was pleased to order dismissal of the suit on appeal holding as follows:‑‑ "It seems to me however that the plaintiffs should have been non‑suited in the present case on another ground. The facts have revealed that both Khuda Bakhsh and Raja Khan were in pari delicto in respect of the a transaction, which was in contravention of section 19 of Punjab Act V of 1915. By an arrangement between them, they agreed to defeat the provisions of that law, and put their illegal agreement into effect, Raja Khan paid Rs.11,000 to Khuda Bakhsh and the latter delivered possession of one square of land to the former. Now that the facts have come to light, neither Raja Khan nor Khuda Bakhsh or his successor‑in -interest could seek the assistance of the Court in getting back their properties as the maxim, in pari delicto porior est conditio possidentis, (where each party is equally in fault the law favours him who is actually in possession) would apply in full force. For a discussion of this maxim reference may be made to Broom's Legal Maxims, page 486 et. seq. This maxim is established not for the benefit of plaintiffs or defendants but is founded on the principles of public policy, which will not assist a plaintiff who has paid over money or handed over property ‑ in pursuance of an illegal or immoral contract to recover it back. The exceptions to the application of this maxim are provided by cases where the illegal contract has not yet been executed and locus poenitentiae still exists, or where one party is the oppressor and the other oppressed. This maxim was resorted to in a case by a Full Bench of this Court in Qadir Bakhsh v. Hakam (AIR 1932 Lah. 503). That was a case of a benamidar who brought a suit to recover possession of property from the beneficiary. It was held that the latter is not precluded from pleading that both parties were in pari delicto and thus showing the real nature of the transaction. The same principle was affirmed in Venkata Subbayya v. Attar Sheikh Mastan AIR 1949 Mad. 252‑D.B), where a plaintiff who sought to recover money paid under an illegal contract, was non‑suited. Another authority taking a similar view is Sundrabai v. Manohar (AIR 1933 Bom. 262‑D.B.). There is no doubt that the general rule is that no one can set up his own fraud, but the maxim given above forms an exception to that general rule. No plea, it is true, was raised in the trial Court or in the grounds of appeal in this Court, based on this maxim but once the facts are established, it would be the duty of the Court to stay its hand and refuse any relief to a party that comes to the fountain of justice with sullied hands. A transferee from such a person could not acquire a better right than his transferor possessed." .

23. As stated elsewhere, the appellant had no title, whatsoever, to the property in dispute, however, he had acquired an interest from the allottee. He transferred the same interest to the respondent, who perfected his title to the property by its transfer from the competent authority and by raising construction thereon. In‑between the two transferees with equal and similar interest one in better position is that who is in actual possession and that is the respondent No. 1.

24. In view‑ of above, the appeal being devoid of any substance is dismissed with costs. A.A./120/AJ&k Appeal dismissed.