P L D 1954 Baghdad﷓ul﷓Jadid 51 (PLP)

ABDUL RASHID, J.‑This is a second Civil appeal by Ibrahim and others defendants‑respondents against the decision of the Senior Sub‑Judge of Bahawalpur, affirming the judgment and decree of the Additional Sub‑Judge, Bahawalpur in a suit for declaration. Ghulam Muhammad the original plaintiff had acquired 200 Kanals of agricultural land on Abadkari terms from the State in Chak No. 11/D. B. He subsequently sold this land for Rs. 9,000 by a registered sale deed dated 19th July, 1947 in favour of the appellants Ibrahim and others, but subsequently the possession of the property was not delivered to them and the Assistant Commissioner refused to sanction the mutation of the land in their names on the ground that the vendor had not received the purchase price thereof. On revision, however, Alimartabat the Revenue Minister sanctioned the mutation against which Ghulam Muhammad has lodged the present suit. In his plaint he asserted that the alleged sale deed was fictitious as no price had in fact been paid by the vendees, nor was the possession of the land transferred to them. The defendants contested the suit on various grounds. They stated inter alia that the whole consideration for the property had been paid by them. The trial court framed necessary issues on the pleadings of the parties and after examining their respective witnesses decreed the suit of the plaintiff on the ground that the sale deed although duly registered was without consideration. The finding of the Trial Court was also upheld by the Senior Sub‑Judge who dismissed the appeal with costs. In this appeal I have heard the arguments of counsel for both parties. Mr. Mustafa Khan for the appellants contends that even if consideration has not passed, title in the property has passed and therefore the sale is competent. He has also invited my attention to certain authorities in support of his contention, but these rulings are irrelevant to the case before me. Issue No. 3 was framed with respect to the passing of consideration, but both the Courts have concurrently found that the payment of the consideration has not been proved by the defendants‑appellants. The sale deed Exh. D‑A. recites that Rs. 910 have been paid in advance and that the balance of Rs. 890 is payable before the registering officer at the time of a registration. The Registering Officer has, however, made no such entry regarding the payment in his endorsement at the back of the sale deed. Mir Tafazul Husain, Sub‑Registrar who had registered this document has appeared in evidence and has clearly stated that in fact no such payment was made before him at the time of registration. Moreover Karam Din Lambardar one of the marginal witnesses to the deed clearly states that no payment had been made to the vendor at the time of registration. Thus there is no evidence worth the name to show that balance of the consideration in fact passed for the sale of the land in suit. Of course nothing was paid to the vendor in the registration office. There is also absolutely no evidence to show that there was any actual exercise of the right of ownership on behalf of the appellants over this land after the alleged purchase, which is also suggestive of the non‑payment of the price. Therefore the mere registration of the deed of sale upon which the appellants base their claim does not by itself imply that ownership in the property passed at the time of registration. In 55 Punjab Record 1911 there was a registered deed of sale. It was held that although title can pass without payment of consideration no title will pass when there is proof of an intention in both the parties that ownership should not pass until payment of consideration. Again it was held in 3 Indian Cases 177 that mere registration of a deed of sale does not necessarily pass the title if the parties intend that no title shall pass till the consideration money has passed in full. It was further held that the question whether the intention of the parties was that the title to the land sold should not be transferred till the balance of the purchase money was paid was a question of fact in each case. Now as observed in A I R 1935 Pat. 45 in cases of sale it is very seldom the intention of parties to allow title to pass without receiving the consideration. To gather the intention of the parties one has to look to the deed itself which contains, the terms and conditions of the sale. The relevant portion of the deed in the present case is as follows :‑ " I have recovered the balance of Rs. 8,090/‑ from the vendees in the presence of registering officer and have placed them in possession of the property." Now the fact that possession of the land was not delivered to the vendees after the registration clearly implies that the title had in fact not passed. The transfer of possession and the payment of balance money were to be contemporaneous. The mere fact that the document was registered without being acted upon or without the consideration being paid does not in any way help the appellant in support of their claim. To the same effect was the decision in A I R 1928 Oudh 439 in which it was held inter alia that where there is neither possession of the property alleged to have been sold, nor is there any proof of the payment of consideration money entered in the sale deed, it is clear that mere registration of the sale deed does not operate to pass title to the vendee or to pass any interest in the land purported to have been sold to him. For the reasons given above this appeal fails and is dismissed with costs. Result to be communicated to the parties and their counsel. A. H. Appeal dismissed.