2018 PLP 1244 (YLR)

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The above titled appeals by leave of the Court arise out of the common judgment of the High Court dated 24.03.2017, whereby the appeal filed by the appellants, Muhammad Ayub and others, has been accepted in the manner indicated hereinafter.

2. Brief facts forming the background of the instant appeals are that the plaintiffs/appellants, Muhammad Ayub and others filed a suit for declaration-cum-perpetual injunction in the Court of learned Sub-Judge, Hattian Bala, on 28.03.1989, stating therein, that the land comprising survey Nos.452 and 557, measuring 19 kanal, 11 marla along with Shamilat Deh land situate in Mozia Dehni Shahdara, Tehsil Hattian Bala, District Muzaffarabad is recorded in the revenue record in the name of one Mst. Nooran. It was alleged that the suit land was purchased by their father from Mst. Nooran through an agreement-to-sell dated 23.08.1957. During the life time of their father the disputed land remained in his possession and after his death, the land in dispute is still in their possession. They further alleged that the suit land is in their possession for more than 12 years thus their adverse possession matured and the defendants have no nexus with the suit land. In alternate they sought the remedy that on the basis of agreement to-sell dated 23.08.1957, the plaintiffs are absolute owners of the suit land and the defendants may perpetually be restrained from interfering into the land in dispute. During the pendency of the said suit, Ali Zaffar, the appellant in the counter appeal, along with another filed a suit for perpetual injunction in the trial Court on 04.07.1989 stating therein that the land bearing survey No.452, measuring 14 kanal was entered in the revenue record in the name of Mst. Nooran as owner. It was averred that Mst. Nooran has passed away and they are the legal heirs of the deceased and the disputed land is in their possession, whereas the rival plaintiffs, Muhammad Ayub and others got recorded the entries on the basis of forged and fabricated agreement-to-sell in the revenue record in their names, which are liable to be cancelled, hence the decree for perpetual injunction may be granted in their favour pertaining to survey No.452 measuring 14 kanal against the rival appellants. After necessary the trial Court decreed the suit filed by Muhammad Ayub and others on the ground that they are in possession of survey No.557, measuring 3 kanal, 11 marla, whereas the rival suit was decreed in favour of Ali Zaffar and others, pertaining to survey No.452, measuring 14 kanal, vide consolidated judgment and decree dated 29.12.1994. The rest of the relief in both the suits was refused for want of proof. Against the said judgment and decree of the trial Court, two separate appeals were filed before the learned Additional District Judge, Muzaffarabad which were partly accepted vide consolidated judgment and decree dated 29.05.1999. Feeling aggrieved from the said judgment and decree, the appellants, Muhammad Ayub and others filed second appeal before the High Court which has been accepted in the following manner:-- "Therefore in the light of what has been stated above by accepting this appeal and setting aside the impugned judgment and decree to the extent of survey No.452, a decree of perpetual injunction is passed in favour of plaintiffs/ appellants against the defendants/ respondents to the effect that plaintiffs/appellants are in possession of the suit land comprising survey Nos. 452 and 557 situated in village Dhanni Shahdara Tehsil Hattian and in pursuance of agreement-to-sell dated 23.08.1957, defendants/ respondents are restrained to interfere or dispossess the plaintiffs/ appellants unlawfully." Feeling aggrieved from the said judgment and decree of the High Court both the parties have filed separate titled appeals. Since both the appeals arise out of the common judgment of the High Court, therefore, the disposal of the same through this single judgment is felt expedient.

3. Raja Muhammad Fayyaz Khan, Advocate, the learned counsel for the appellants, Muhammad Ayub and others, argued the case at some length. With reference to the pleadings, record and evidence produced by the parties, he submitted that through unrebutted primary/ secondary documentary and oral evidence the plaintiff-appellants have proved that the suit land was purchased by them in the year 1957 through a registered agreement-to-sell and since then they are in possession of the same as owners. They have also made improvements in the land in shape of construction of house, plantation etc. The Courts below have fell in error of misreading and non-reading of evidence. The findings have been recorded partially in favour of the respondent without any evidence. It has been proved that both the disputed survey numbers of the suit land are in possession of the plaintiff-appellants, whereas, the counter suit on the face of it was not maintainable. He further submitted that although the plaintiff-appellants filed the suit for grant of declaratory decree of adverse possession but at the same time they have also prayed for alternate remedy of ownership of the land on the basis of agreement-to-sell. They also prayed for any other alternate remedy. In case, in the opinion of the Court the declaratory decree of ownership was not deemed appropriate then it was enjoined upon the Court to grant decree of specific performance in the light of proved facts of the case. So far as the question of limitation is concerned, as in the agreement-to-sell no time was fixed, thus, the limitation started running from the date of denial and not from the date of execution of the deed. As the consideration amount had been paid and the possession of the land was handed over to the purchaser in the light of agreement-to-sell, thus, the only act which has to be performed by the parties was the registration of the document of sale. He submitted that while accepting this appeal and modifying the impugned judgment the declaratory decree of ownership or as an alternate the decree of specific performance of the agreement-to-sell and execution and registration of sale-deed be granted in favour of plaintiff-appellants. While arguing in the counter appeal, he submitted that the counter suit filed by the respondent, Ali Zaffar, on the face of it is not maintainable. Even from the documents relied upon by him the version of plaintiff-appellants is supported, thus, the appeal is liable to be dismissed with costs.

4. Raja Muhammad Hanif Khan, Advocate, appearing on behalf of Ali Zaffar, submitted that the plaintiff-appellants mainly filed suit on the basis of adverse possession. According to their own averments the property was in their possession on the basis of agreement-to-sell, thus, the possession is permissive one and not adverse. On this point the Courts below have recorded concurrent findings of facts. So far as their claim on the basis of agreement-to-sell is concerned, their suit on this ground is not maintainable which has been filed after almost 4 decades' period. Moreover, according to the statutory provisions of law and principle of law enunciated by this Court no one can claim ownership of the property on the basis of agreement-to-sell because it itself does not create any right or interest. He further argued that the plaintiff-appellants have failed to prove their suit and even not a single survey number of the suit property is in their possession. The Courts below have fell in error of law while granting partial decree of perpetual injunction, whereas, the Courts should have granted the decree of possession in favour of respondent in the counter suit. Therefore, while accepting this appeal, the decree as prayed for by the respondent in the counter suit may kindly be granted. He placed reliance on the cases reported as Mst. Resham Jan and others v. M. Latif and another PLD 1987 SC (AJ&K) 93 and Hameedullah and others v. Muhammad Hussain and others [2006 SCR 183].

5. We have heard the learned counsel for the parties and examined the record made available. In the light of the pleadings of the parties, the material propositions involved are regarding execution of agreement-to-sell dated 23.08.1957, the possession of the suit property and counter claim that the property is in possession of the appellants as tenants. The careful examination of the record of trial Court reveals that both the parties produced the documentary as well as the oral evidence. The appellants, Muhammad Ayub and others, in support of their version have tendered in evidence the secondary documentary evidence of agreement-to-sell, Exh.PA, dated 23.08.1957. They have also produced the original agreement-to-sell but being partially torn it has not been exhibited. Be that as it may, the possible comparison of both the documents reveals that the certified copy has been found in accordance with the original deed. The scribe/petition writer also appeared as a witness and deposed that the deed was written by him. In the light of documentary and oral evidence the act of execution of agreement-to- sell dated 23.08.1957 stands proved.

6. The plaintiff-appellants, Muhammad Ayub and others, in support of their version have further tendered in evidence the documentary evidence of revenue record, Exh.PB, PC and PD. According to this documentary evidence it is clearly proved that the suit property is in possession of the plaintiff-appellants on the basis of agreement-to-sell. The oral evidence produced by the parties also supported this version. In the counter suit filed by the respondent on 04.07.1989, the copies of Jamabandi and Khasra Girdawari of the land have been produced, however, the same have not been exhibited, in evidence. The examination of these documents reveals that the respondent, Ali Zaffar, obtained the certified copies on 24.03.1987 but despite this the suit was filed after more than two years' period. Be that as it may, these documents also speak that the suit property is in possession of the plaintiff-appellants on the basis of agreement-to-sell dated 23.08.1957. The counter version of the respondent that the land was handed over to the plaintiff-appellants being tenants neither finds support from the documentary evidence nor proved through any oral evidence. The respondent, Ali Zaffar, in his Court's statement has claimed that the suit land bearing survey No.452 is in his possession but no other documentary or oral evidence in this context has been produced.

7. According to the celebrated principle of law, the Courts have to decide the cases on the basis of pleadings of the parties and the material propositions raised and disputed in the light of proof brought on record. In this case, as observed hereinabove that leaving aside the ancillary and the incidental propositions of the case, the material issue is relating to the execution of the agreement-to-sell, possession of the suit property and delivery of the property to the plaintiff-appellants on tenancy basis. The plaintiff-appellants' version of obtaining the property on the basis of agreement-to-sell stood proved from the unrebutted documentary evidence, Exh.PA, copy of registered agreement-to-sell, which clearly speaks that the owner of the lard Mst. Nooran transferred the land comprising survey No.452 measuring 14 kanal and 557 measuring 5 kanal 11 marla total measuring 19 kanal 11 marla for a consideration of Rs.300/- to Imam Din. The possession of the land was handed over and in this deed no time limit is prescribed for its execution of sale-deed rather it is mentioned that on obtaining the state subject certificate the sale-deed shall be executed. It will be useful to reproduce here the concluding portion of the agreement-to-sell which reads as follows:-- In this state of affairs, according to the statutory provisions of Limitation Act, 1908 the limitation starts from the date when the execution of deed is refused and not from the date of execution of agreement. The plaintiff-appellants in their suit have clearly mentioned that the defendants have refused to accept the claim of the plaintiffs a week ago. This version has not been refuted by the defendants by producing any evidence.

8. The plaintiff-appellants also tendered in evidence the documentary evidence, Exh.PB, PC and PD. These documents clearly prove that the suit pro-perty remained continuously in possession of the plaintiff-appellants on the basis of agreement-to-sell. The copy of Khasra Gardawari, Exh.PB, for the years 1958-63 of both the survey numbers contain the entries ( ) Exh.PC, the copy of Khasra Gardawari for the years 1964-68 and Exh.PD Khasra Gardawari for the years 1968-72 also contain the same entries. Even the copies of revenue record annexed with the plaint of counter suit also contain same entries. As in presence of the documentary evidence produced by both the parties the oral evidence cannot be given legal preference, thus, according to the celebrated principle of law the plaintiff-appellants have proved their claim that the suit property is in their possession on the basis of agreement-to-sell registered on 23.08.1957 and it is further established that the land is in their possession since agreement-to-sell. The careful examination of the documentary evidence reveals that the Courts below have fell in error of law and facts and drawn the misconceived conclusion that according to Exh.PC the land bearing survey No.452 is in possession of the respondent, Ali Zaffar. It appears that this impression is based upon the partial appreciation of the concerned document. The complete entry in Exh.PC, for Khasra No.452 reads as follows:-- It is clear that the entry of Ali Zaffar appears only in relation to Kharif 1981, whereas, subsequently according to the entry incorporated in Rabi 1981, the entry of death of Imam Din is recorded and the land is shown in possession of Muhammad Ayub and others, sons of Imam Din. Thus, the conclusion drawn is not supported from the evidence. Therefore, the findings recorded by the Courts below in relation to possession of survey No.452 being erroneous and against the record are set-aside.

9. In view of the above stated propositions and evidence, the possession of the land based upon agreement-to-sell originated on permission of the landowner. The decree of specific performance is governed under Article 113 of the Limitation Act, 1908 which reads as follows:-- Art.

113. For specific Six years performance of a contract The date fixed for the perfor-mance, or if no such date is fixed, when the plaintiff has notice that per-formance is refused. According to this statutory provision the limitation starts running from the date fixed in the agreement for performance and in absence of such date when the plaintiff has noticed that the party has refused. In this case, no date was fixed in the agreement-to-sell for its execution. According to the averments of the plaint the defendants' refusal has been noticed a week before filing of the suit, thus, the limitation will run from the date of refusal and not from the date of execution of the agreement-to-sell.

10. So far as the claim of the plaintiff-appellants relating to the decree on the basis of adverse possession is concerned, on this proposition, the Courts below have rightly observed that the plaintiffs have failed to prove that their possession is adverse, thus, the decree on this ground has been rightly refused. Same like, the prayer for grant of decree as owner on the basis of agreement-to-sell in the light of the statutory provisions as well as principle of law enunciated by this Court such like decree cannot be granted.

11. We have no cavil with the principle of law enunciated in the judgments referred to by the learned counsel for the respondent. These judgments are based on the statutory provisions of section 54 of the Transfer of Property Act which provides the mode of sale. It will be useful to reproduce the same as under:-- "54. "Sale defined" "Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Sale how made.

Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In case of tangible immovable property, of a value of less than one hundred rupees, such, transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property. Contract of sale.

A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself create any interest in or change on such property." According to these statutory provisions no doubt a contract of sale of immovable property itself does not create any interest or right of such property but it determines and settle the terms between the parties relating to such sale. In this case, the parties have settled the price of the land, delivery of the possession and execution of the sale-deed. So far as the agreed term of payment of compensation and delivery of possession is concerned, it has to be performed by the parties, however the third term execution of sale-deed has to be carried out.

12. So far as the argument of the learned counsel for the respondent that the suit for specific performance has not been filed, it appears to be result of misconception. The plaintiff may claim reliefs as many as possible, however, the Court has to grant the relief which is proved and admissible under law. Under the provisions of Rule 7, Order VII, C.P.C. the Court is also empowered to grant the relief which it thinks just. In case where the facts are fully stated, mere absence of any specific word of specific relief cannot be made basis for refusing the relief. In this case, the execution of agreement-to-sell dated 23.08.1957 and in furtherance thereof the delivery of possession is legally proved fact. The only act required to be performed for completion of the sale of the property is registration of the sale-deed. In view of above stated proposition and proved facts the trial Court should have passed the decree of specific performance of execution of sale-deed in favour of plaintiff-appellants.

13. In this state of affairs, while accepting the appeal filed by Muhammad Ayub and others the judgments of Courts below are modified and the suit filed by Muhammad Ayub and others is decreed in the terms that the defendants-respondent shall execute the sale-deed according to the terms of agreement-to-sell dated 23.08.1957 within a period of two months/ time. In case of failure or refusal, the plaintiff-appellants may approach the trial Court by presenting the draft of sale-deed and the trial Court shall get the same executed and registered through any of its official on behalf of the defendants/ respondent. In view of final conclusion drawn and grant of decree of specific performance in favour of the appellants, the counter appeal of the respondent becomes infructuous which is hereby dismissed. Both the appeals stand disposed of in the above terms with no order as to costs. ZC/7/SC(A&K) Appeal allowed.