1992 PLP 1758 (MLD)

This revision is directed against the judgment, dated 17‑8‑1988 passed by the 1Vth Additional District Judge, Karachi East, whereby dismissing the appeal filed by the petitioner and affirming the judgment and decree, dated 28‑9‑1986 passed by the V1th Senior Civil Judge, Karachi. The facts leading to the filing of the above revision petition are that the disputed land bearing No.415/F, situated in Deh Tappa Malir, district and taluka Karachi measuring 4,840 square yards was purchased by respondent No.3 through auction from Settlement Department, Government of Pakistan. The name of the respondent No.1 was also mutated in the Revenue Record and he became the owner of the disputed land. In the plaint, it was alleged that the respondent No.2 purchased the land from the respondent No.3 by virtue of an agreement of sale, dated 17‑3‑1970 and had paid full price of it to the respondent No.3. It is also the case of the respondent No.1 that respondent No.3 in part performance of agreement had put the respondent No.2 in possession of the suit land. The respondent No.1 further stated in the plaint that he purchased the suit land from respondent No.3 for valuable consideration of Rs.48,400 and the sale agreement was executed on 26‑5‑1971 by the respondent No.3 who had declared himself to be the owner of the disputed land by virtue of agreement by respondent No.2. The respondent No.1 further stated in‑ the plaint that the respondent No.2 in pursuance of the agreement had delivered the physical possession of the suit land to him on 20‑6‑1972 and respondent No.3 had never objected to such transaction in favour of the respondent No.1, despite the notice and knowledge thereof. The respondent No.1 further stated in the plaint that respondent No.3 as a precautionary measure has also executed General Power of Attorney in favour of ‑the respondent No.2 as token of his consent and good faith of the respondent No.2 and that Power of Attorney was registered. The respondent No.1 further stated in the plaint that he enjoys the physical possession of the suit land which was transferred to him by respondent No.2. He has purchased the suit land by taking reasonable care to ascertain that the respondent No.2 had power to make such transaction but the respondent No.2 despite the notice, did not execute the proper sale‑deed and even failed to reply notice sent to him by the respondent No.1. Hence the respondent No.1 filed suit for specific performance of contract. During the pendency of the suit, the petitioner was joined as defendant. Further, it is stated by the respondent No.1 that the respondent No.3 during pendency of the suit had transferred the suit land to the petitioner and he had forcibly taken the possession of the suit land from the respondent No.1. The respondent No.2 did not contest the matter. fie was ordered to be proceeded ex parte. The respondent No.3 tiled his written statement in which he denied the sale agreement executed in favour of respondent No.] by the respondent No.2. He has stated that though he had entered into sale agreement in respect of the suit land with the respondent No.2 but subsequently it was cancelled as the respondent No.2 had failed to fulfil certain declaration stipulated in the said agreement and sale‑deed was never completed. He has further denied that the possession of suit land was ever made to the respondent No.2 or that the respondent No.2 had in time delivered the same to the respondent No.1. He further pleaded that the suit land all along remained in his possession and he sold out the same to the petitioner by registered sale‑deed and had handed over the vacant possession of it to the petitioner and his name was even mutated in the record‑of‑rights. He has further submitted that the respondents Nos.1 and 2 with collusion of each other had fraudulently entered into the agreement of sale showing himself to be the owner of the suit land in dispute. The petitioner filed his written statement and pleaded that he had bona fide purchased the suit land by registered sale‑decd from respondent No.3 who was the owner and in possession of the same. He has also disclosed that after getting the sale‑deed executed and receiving the possession of the suit land he had got his name mutated in the record‑of‑rights. On the pleadings of the parties, the trial Court framed appropriate issues. The parties led evidence in support of their respective contentions. The trial Court on assessment of the evidence adduced by the parties, decided issues 2, 3, 4, 5, 6, 7, 8, 9 and 10 in the affirmative. Issue No.1l in the negative. The trial Court found that the respondent No.3 executed the sale agreement and power of attorney in respect of the suit land in favour of respondent No.2. He further found that the respondent No.2 executed not only the sale agreement but executed power of attorney in favour of respondent No.1. He found that the agreement was not cancelled as alleged by the respondent No.3. In this view of the matter, the suit was decreed. The petitioner being aggrieved filed Civil Appeal No.92 of 1986 before the District Judge, Karachi East which was ultimately heard by the IVth Additional District Judge, Karachi East. It is pertinent to note that the judgment of the appellate Court consists of 8 pages. The learned District Judge reproduced the pleadings of the parties on pages 1; 2 and

3. He has reproduced issues framed by the trial Court on page No.4. He has reproduced the contentions raised by the learned counsel appearing for the parties, on page 5 and on rest of the pages the discussion. . Mr. Syed Hamid Hussain contended that mere agreement of sale does not create rights in the parties. 1n support of this contention, he placed reliance on the case of Probodh Kumar Das and others v. Dantmara Tea Company Ltd. and others (AIR 1940 PC 1). Their Lordships of the Privy Council held on page 2 as under:‑ "In their Lordships' opinion, the amendment of the law effected by the enactment of section 53‑A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter J. in the High Court that "the right conferred by section 53‑A is a right available only to the defendant to protect his possession". They note that this was also the view of their late distinguished colleague, Sir Dinshah Mulla, as stated in Edn. 2 of his treatise on the Transfer of Property Act at p.262. The section is so framed as to impose a statutory bat on the transferor; it confers no active title on the transferee:' The above observations were followed by a Division Bench of the High Court of West Pakistan, Karachi Bench in the case of Bachu Bai F.E. Dinshaw v. Commissioner of Income‑tax (PLD 1967 Kar. 372). It was further held at page 382 that "but in none of these cases it was held that under section 53‑A of the Transfer of Property Act any title is conferred on the purchaser or the party in possession of the property agreed to be sold". The contenti6n of Mr. Syed Hamid Hussain before this Court was that the finding of the lower appellate Court that the sale agreement executed by the respondent No.3 in favour of respondent No.2 was not denied by the respondent No.3, was not a finding in the eye of law, the lower appellate Court having given no reason worth the name in support of this finding. The trial Court discussed the evidence and it came to a finding that the sale agreement is executed by the respondent No.3 in favour of respondent No.2 and the respondent No.2 executed sale agreement in favour of respondent No.1. The lower appellate Court did not scrutinize the evidence at all and simply observed that the trial Court elaborately discussed the evidence and he found no reason to disagree with his finding. It is in this connection that Mr. Harnid Hussain made a serious grievance and submitted that in the absence of scrutiny of the evidence either for or against, this bald finding by the lower appellate Court cannot be regarded as a finding recorded in accordance with law and as such the judgment of the lower appellate Court needed to be set aside. Section 107 of the Code of Civil Procedure deals with the powers of appellate Court. Subsection (2) of section 107 states, inter alia, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code in Courts of original jurisdiction in respect of suits instituted therein. Order XX, Rule 5 of the Code of Civil Procedure states that in suits in which issues have been framed, the Courts shall state their finding or decision with reasons therefore upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. The essence of a judgment is that it must be supported by reasons. Importance of reasonings in judgment is all the more necessary before a lower appellate Court whose decision on finding of facts is binding on the High Court. If, therefore a judgment of a lower appellate Court is based on no reason, as submitted by Mr. Hamid Hussain, it cannot be regarded as a judgment recorded in accordance with law. On account of the infirmity occurring in the judgment of the lower appellate Court, as pointed out above, it cannot be regarded as supportable by law. Since the decision of the suit hinges on the question as to whether the agreement of sale creates a right in transferee or not, it would be necessary to set aside the judgment as a whole and remand the case to the lower appellate Court for fresh consideration in accordance with law on the materials available on the record. In the result, the revision is allowed, the judgment and decree of the lower appellate Court is set aside and the case is remanded to the IVth Additional District Judge, Karachi South for fresh decision in accordance with law keeping in view the observations made above on the materials already available on the records. There shall be no order for costs of this revision and the parties shall bear their own costs. H.B.T./W‑72/K Revision allowed.