1986 PLP 265 (MLD)

(d) costs of the suit; and (e) any other further relief which this Hon'ble Court may deem fit and proper looking to the circumstances of this case. The defendant filed an application (C.M.A. 1253/85) under Order VII, rule 11, Code of Civil Procedure, in the above suit for rejection of the plaint on the following ground that the suit is barred by limitation. The facts leading to the filing of this suit are that on 27‑8‑1964, the defendant No. l agreed to sell plot of land bearing survey No.34/172, Survey Sheet 35/P.1 with a bungalow thereon to plaintiff for a considera tion of Rs.55,000, out of the total sale consideration of Rs.55,000, Rs.12,000 were paid in cash and Rs.25,000 were paid by cheque to the defendant No.1. The said agreement of the sale was subject to the liability of Ra.18,000 taken as loan by the defendant No.1 from the House Building Finance Corporation which amount was subsequently paid up by the plaintiff to the defendant No.1 for the payment to the House Building Finance Corporation. In part performance of the agreement of sale dated 21‑8‑1964 the plaintiff had taken possession of the said property from the defendant No.1 and the defendant No.1 continued in occupation of the said bungalow as tenant of the plaintiff at the rent of Rs.200 per month upto 28‑2‑1965 and, thereafter at the rate of Rs.500 per month. According to clause 5 of the agreement the sale‑deed was to be executed within six months from the date of the execution of the execution of the agreement. It has been averred in the plaint that the defendants Nos.2 and 3 have no right, title or interest in the said bungalow which was the sole property of the defendant No.1. On 30‑12‑1964 and 14‑1‑1965 the defendants No.4 as the receiver of the property of the defendants Nos.2 and 3 served two letters on the plaintiff declaring Ayeshabai as the ostensible owner of the said property. It has been averred that on account of the said letters, a cloud is cast on the title of the plaintiff and the plaintiff is entitled to a declaration to the effect that the, plaintiff is the owner of the said property in all respects, so far as the right, title and interest of defendant No.1 are concerned and defendants Nos.2 and 3 have no right, title or interest in the said property. The plaintiff filed this suit for declaration that the letters are null and void and are of no binding effects against the plaintiff who is the bona fide purchaser of the said property. Mr. Abdul Latif A. Shakoor the learned counsel for the defendants has raised the following contentions:‑‑ (1) That the suit is barred by limitation. (2) That the suit as framed is not maintainable. On the other hand Mr.Mansoorul Arfin the learned counsel for the plaintiff has submitted that the suit is within time and maintainable. The application is liable to be dismissed. Reverting to the first contention of the learned counsel for the defendant that the suit is barred by the limitation. It is an admitted position that the agreement was executed on 27‑8‑1964. It is also an admitted position that the sale‑deed was to be executed within six months. Admittedly the suit was presented on 18‑10‑1969. The Limitation of the suit is governed by Article 113 of the Limitation Act which prescribes a period of three years from the date fixed for the performance or if no date is fixed when the plaintiff has notice that performance is refused. Where the case falls within the first clause, the second clause is not to be resorted to. The case of the defendant is that as the contract was to be completed by 27‑2‑1965, the suit was filed on 18‑10‑1969 was clearly time‑barred. The case of the plaintiff is that he did not file a suit for specific performance but for a declaration that two letters issued by the official Assignee/Receive defendant No.4 are null and void and the suit is within time. According the suit for declaration is governed by Article 120 of Act which prescribes a period of six years. There is ample judicial authority in support of the view that Article 120 of the Limitation Act applies to declaratory suit not falling under any of the Articles 90, 92, 118, 119, 124 and 129 of the Act, which made special provision for certain cases of declaratory suits. Therefore, where the declaration of title is sought in respect of immovable property without any further relief, it will be governed by Article 120 which provides a period of six years from the date of the accrual of cause of action or right to sue. In the instant case the plaintiff has not sought a declaration without any further relief but he has sough for injunction also. In this view of the matter I hold that the suit is barred by limitation. It is significant that the plaintiff has chosen to sue only for a declaration of his rights and certain injunction. No satisfactory explanation was given as to why the plaintiff did not sue for specific performance. According to section 56 clause (i) of the Specific Relief Act, no relief by way of injunction (which is purely discretionary) can be granted, when an equally efficacious relief could be obtained by other usual modes of proceeding. It is well‑established that when it is open to a person to sue for specific performance, he can not be granted any relief in shape of a mere injunction and/or declaration. The plaintiff seems to me to have sued for a mere declaration and injunction owing to his consciousness that a suit for specific performance would be barred by time. But he can not circumvent the law of limitation by merely sueing for a declaration and an injunction, when he could have sued for specific performance. As already stated, all rights of the plaintiff were extinguished long ago. Reverting to the second contention of the learned counsel for the defendant that the suit ‑ for declaration and injunction is not maintainable. The contention of the learned counsel for the defendants is that the suit for declaration of title‑is based on agreement to sell instituted by the plaintiff is not maintainable as it does not create any right, title or interest in the property. Even unregistered sale‑deed creates no title in the property for a clear bar provided under section 54 of the Transfer Property Act. There is a difference between a sale and a contact of sale. For instance, a sale can only be made of specific property which must be in existence, but a contract for sale can also be of future property. In a contract for the sale of immovable property the parties bind themselves to sell and buy property. But such a contract alone does not create any interest in or charge on the property. The right created is only a right in personam and may be enforced. A contract for the sale to be valid must be a completed legal contract. In that case, it is an executory contract, as distinguished from sale, which is an executed contract. A contract for sale creates only an obligation attached to the ownership of property, but a sale passes ownership immediately, when it has been executed. The requirement of a transfer, by way of sale, is a transfer of ownership. Where, therefore, there is nothing in the transaction from which is can be inferred that the parties intended to transfer ownership besides, it is perfectly clear that the parties intended that the sale‑deed should be executed at some future date, the ownership in the property does not pass from the vendor to the vendee, in other words, a transaction in such a sale, continues to remain a mere contract and does not pass into the reclaim of sale. If the vendee is put in possession of the property in pursuance of the contract, for sale, he is entitled to the rights conferred by section 53‑A of the Transfer of Property Act, but that does not make him the owner of the property. Section 54 of the Act states that a contract for sale of immovable property "does not, of itself create any interest in or charge on such property". Section 53‑A of the Transfer of Property Act relied upon by the learned counsel for the plaintiff, cannot invoke against the official Assignee. Section 53‑A does not confer any title on a person who has been put in possession under an agreement of sale. The right, which section 53-A confers, is available only as a defence to protect possession against the transferer. It imposes a bar on the transferer from enforcing any right other than that expressly provided under the contract. The right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield. What the transferee did in this case was to use his right as a sword against the official Assignee by seeking a declaration and permanent injunction against him from interfering in the right of title and interest in any manner. A transferee put in possession pursuant to an agreement of sale even assuming that, in this case, the plaintiff was put in possession under an agreement of sale dated 27‑8‑1964 does not stand in any better position than that of a transferee put in possession under a registered sale‑deed. My conclusion, therefore, is that in the absence of a registered instrument transferring plot of land bearing No.34‑172 the plaintiff has acquired no title to it, and in the absence of title he cannot have the declaration he seeks. He could have sued within three years for specific performance of the agreement of sale; but having failed to do so he cannot sue for declaration and injunction. He has no title and he can not enforce a claim for declaration and injunction. Insolvency Case No.6 of 1964 filed in the erstwhile High Court of West Pakistan, Karachi Bench. The official Assignee was appointed as interim receiver. Order of adjudication was passed on 6‑9‑1965. The O.A. submitted report dated 17‑8‑1977 and in the report, he recommended that the composition as offered by the insolvents he accepted. My learned brother Mr. Naeemuddin, J accepted the composition by his order dated 29‑4‑1978. The order of adjudication stood annulled. In view of this suit is not maintainable. In view of the above I accept the application for rejection of the plaint and I hold that the suit for declaration and injunction is not maintainable and I reject the plaint, however, in the circumstances of the case the parties will bear their own costs. A . A . Plaint rejected.