2001 PLP 563 (MLD)

Pir Bakhsh v. Budhoo PLD 1978 BJ 86; Chhappar Khan and another v. The Chief Land Comnussioner, West Pakistan, Lahore and 3 others PLD 1976 Kar. 747; Hafiz Manzoor Ahmed v. Muhammad Azam 1988 MLD '2248; Tasawar Hussain and 3 others v. Walayat Hussain and 2 others 1988 CLC 1608; Mehmood Hassan v. Mst. Sheeran Bano 1990 MLD 1107; Mst. Sahar Begum v. Salahuddin 1991 MLD 1594; Ghulam Haider v. Allah Bakhsh and others 1991 CLC 1622; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and Abdul Aziz and others v. Deputy Commissioner/Collector, Rahimyar Khan and others PLD 1981 Lah. 457 ref. Muhammad Ramzan Ch. for Appellant. M.A. Zafar for Respondents. Date of hearing: 26th April, 2000. Land measuring 36 Kanals, 8 Marlas was owned by one Nizam Din which was sold by him to the respondents herein vide Mutation No.46 attested on 17‑‑7‑1973 for a consideration of Rs.22,

500. On 20‑4‑1974, respondents Nos.2 to 4 sold the disputed land vide agreement Exh.D.I to respondent No.1. The appellant, claiming to be a co‑sharer as well as an owner of the estate pre‑empted the said sale. The suit was decreed by the learned trial Court on 26‑6‑1979 with the finding that appellant and respondent No.1 were owners of the estate, but respondent No.1 having joined in sale respondents Nos.2 to 4, who were strangers, had sunk to their level. Execution of Exh.D.1 was doubted primarily on the ground that no mutation was entered and all the respondents continued to be recorded as owner in the Revenue Record. Respondent No.1 took an appeal before the learned District Court which was allowed vide judgment and decree, dated 12‑3‑1980 with the result that the suit filed by the appellant was dismissed on the basis that on 20‑4‑1974 (Exh.D.1) before the date of the filing of the suit, respondents Nos.2 to 4 had orally sold the land in dispute in favour of respondent No.

1. This appeal is directed against the said judgment and decree.

2. The learned counsel for the appellant contends that Exh.D.1 was only an agreement to sell and it did not create any right, whatsoever, in favour of respondent No. l and, therefore, the suit of the appellant could not have been dismissed on that basis. He contended that the said sale was in violation of the provisions of section 54 of Transfer of Property Act, He further submitted that this document could not be treated as sale for additional reason that proper stamp duty had not been paid. He further contended that respondent No. l had claimed sale in his favour on the basis of a written instrument and, therefore, it was hit by section 17 of the Registration Act. He next contended that none of the said respondents appeared in the witness‑box in support of the so‑called sale. Reliance was placed on Pir Bakhsh v. Budhoo (PLD 1978 B.J. 86), Chhappar Khan and another v. The Chief Land Commissioner, West Pakistan, Lahore and 3 others (PLD 1976 Karachi 747), Hafiz Manzoor Ahmed v. Muhammad Azam (1988 MLD 2248), Tasawar Hussain and 3 others v. Walayat Hussain and 2 others (1988 CLC 1608), Mehmood Hassan v. Mst. Sheeran Bano (1990 MLD 1107) and Mst. Sahar Begum v. Salahuddin (1991 MLD 1594).

3. On the other hand, the learned counsel for, the respondents contends that Exh.D.1 was a perfected oral sale and in the absence of applicability of section 54 of the Transfer of Property Act to the rural areas of the Punjab it was a valid sale and, therefore, no exception could be taken to the finding of the learned first appellate Court. Reliance was placed on Ghulam Haider v. Allah Bakhsh and others (1991 CLC 1622), and Abdul Karim v. Fazal Muhammad Shah (PLD 1967 SC 411).

4. I have considered the submissions trade by the learned counsel for the parties. The contention of the learned counsel for the appellant that it was only an agreement to sell and no right was created in favour of respondent No.1 has no merit. The relevant covenant in Exh.B. is reproduced hereunder:‑‑

5. A perusal of the aforesaid covenant unequivocally establishes that the transaction was a perfected sale and merely because the promised mutation was not entered and attested, it did not dilute its effect as a sale. Reference tray be made to Abdul Aziz and others v. Deputy Commissioner/Collector, Rahimyar Khan and others (PLD 1981 Lahore 457). In the said case part payment had been made and possession delivered in consequence of an agreement, it was held that it amounted to sale. In this case, the entire sale consideration had been paid by respondent No. l who was already in possession of the land is dispute. Nothing` else was required to perfect the sale.

6. The contention of the learned counsel that the document was hit by section 54 of the Transfer of Property Act has no merit. Section 54 of the Transfer of Property Act does not apply to agricultural land in rural areas of the Punjab. The aforesaid agreement only affirmed an oral sale in favour of respondent No.1 which is permissible for alienating agricultural land in the rural areas of the Punjab. For this reason section 17 of the Registration Act was also not attracted.

7. The judgment cited by the learned counsel for the appellant have been examined. In the cases of Pir Bakhsh and Hafiz Manzoor Ahmad (supra) land was situated in Bahawalpur where section 54 of the Transfer of Property Act was applicable. In the cases of Tasawar ‑Hussain, Mehmood Hussain and Mst. Sehar Begum (supra) it was held that an agreement to sell does not itself create any interest in favour of the promise arid, therefore, was not compulsorily registerable.

8. Reference may be made to the case of Ghulam Haider (supra) relied upon by the learned counsel for the respondents, according to which sale of agricultural land situated outside the limits of a Municipal Corporation could be made orally. In the said case the parties had executed a ' Yad' Dasht' described as an agreement evincing an oral sale. The said document. ('Yad‑Dasht') was ordered to be impugned. The said order was challenged before this Court and the order impounding the document was set aside. It was held that such a writing does not attract section 17 of the Registration Act. It is a common ground between the parties that the appellant and respondent No. l were the owners of the estate and, therefore, had equal right.

9. For what has been stated above, this appeal has no merit and is, accordingly, dismissed. Q.M.H./M.A.K./H‑26/L Appeal dismissed.