2010 PLP 1116 (SCMR)

KHILJI ARIF HUSSAIN, J.

Leave to appeal is sought by the petitioner from the order dated 29-11-2004 passed by learned Peshawar High Court, Peshawar, whereby his Civil Revision No.474 of 1996 was dismissed thereby confirming concurrent findings of fact recorded by the trial Court and upheld by the Appellate Court.

2. The petitioner / plaintiff filed a suit claiming that respondent / defendant Zarsheda, owner of the suit property comprising 7 Khata agreed to sell 48 Kanals out of the same in his favour against Rs.23,000 per Jeerab. It was alleged in the plaint that the petitioner/plaintiff paid Rs.36,000 as earnest money and ready to pay the balance amount, the said respondent / defendant was under obligation to fulfil the terms which the defendant delayed and the said defendant sold 48 Kanal in favour of defendants Nos.1 to 8, claiming that the said purchase was made with mala fide as the vendees/respondents/defendants were in full knowledge of the earlier sale made in petitioner's/plaintiff's favour.

3. Learned Civil Judge, Charsadda, on the basis of the contest of the respondents/defendants, framed issues and, after recording evidence of the parties, by his judgment and decree dated 22-3-1992, dismissed the suit of the petitioner/plaintiff. There-against, the petitioner/plaintiff filed appeal, which too was dismissed on 17-7-1996 by learned Additional District Judge, Charsadda and the revision preferred by the petitioner/plaintiff also failed by the Peshawar High Court, Peshawar, by the judgment dated 29-11-2004, which judgment has been impugned by the petitioner/plaintiff before this Court.

4. Mr. M. Nasir Mehfooz, Advocate Supreme Court represents the petitioner whereas Mr. S.M. Attique, Advocate Supreme Court appears for the respondents.

5. Learned counsel for the petitioner vehemently argued that the petitioner agreed to purchase the land in question by agreement dated 20-8-1983 and filed the suit on 6-11-1983 for fulfilment of the agreement. Learned counsel also argued that the respondent No.9 by a registered sale deed transferred her title in the property in favour of respondents Nos. l to 8 on 20-8-1983 against a total sale consideration of rupees five lacs. Learned counsel further argued that the petitioner's possession on the land in question is protected under section 53-A of the Transfer of Property Act, 1882, read with section 50 of the Registration Act, 1908.

6. Having heard learned counsel for the parties and gone through the record we find that concurrent findings of fact have been recorded by the all three Courts below that the petitioner has failed to prove execution of the alleged agreement of sale for the performance of which, petitioner filed suit.

7. Admittedly, respondent / defendant Mst. Zarsheda is an illiterate lady and she had no independent advice, and if it is accepted that the alleged agreement of sale hears her thumb impression, even then she could not understand about the nature of the transaction and all the Courts have rightly non-suited the petitioner on this count.

8. So far as the contention of learned counsel that section 53-A of the Transfer of Property Act, 1882, read with section 50 of the Registration Act, 1908 has no force. To appreciate it in the matter said section 53-A is reproduced hereunder:- "53-A. Part Performance.

Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonably certainty, and the transferee, has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof"

9. From the bare reading of the section, it appears that protection under section 53-A is available where possession has been delivered in pursuance of written agreement and where person did not enter into possession of the property under the agreement, he could not claim protection under section 53-A.

10. Neither in the agreement of sale nor in evidence, the petitioner alleged that possession on the land in question was treated as possession in part performance of the agreement of sale. The essential conditions for application of doctrine of part performance of the contract as contained in section 53-A having not been fulfilled, the petitioner is not entitled for the same.

11. The petitioner through the suit sought performance of the agreement of sale to have title of document in his favour through the specific performance of the agreement and the factum of delivery of possession became irrelevant in the matter. Even otherwise, section 53-A, referred above, is enforceable in defence of the transferee and not otherwise.

12. In the given circumstances, the petition has no merit. The same is dismissed and leave refused. S.A.K./M-42/SC Leave refused.