1983 PLP 156 (CLC)

‑‑ S. 53‑A‑Protection under S. 53‑A‑Part performance of contract Section 53‑A, held, affords protection only to such contract of transfer as executed for consideration, reduced to writing and signed by transferor‑Unregistered document, basis of suit, evidencing a contract of transfer without consideration‑Such contract, held further, not protec ted by S. 53‑A and unregistered document pertaining to such contract cannot be utilized for purpose of part performance of contract. Khan Yunus Khan for Petitioner. Yusuf Ali Khan, Barrister‑at‑Law for Respondent. Date of hearing : 6th November, 1982. The present petition for Civil Revision is directed against the order dated 6‑5‑1982 passed by the learned District Judge, Faisalabad, whereby he dismissed the appeal filed by the petitioner against the order dated 10‑9‑1981 passed by the learned Senior Civil Judge, Faisalabad, and accepted the cross, objections filed by the respondent against the said order.

2. The petitioner, Umar Din and the respondent Muhatnmad Boota are brothers inter se being sons of Allah Ditta. 'The dispute between the two brothers to agricultural land comprised of Killa No. 17 of square No. 115 and 18 marlas from Killa No. 15 of the said square situate in Chak No. 263/RB (Dijkot), Tehsil and District Faisalabad. Umar Din petitioner filed a declaratory suit in the Court of the learned Senior Civil Judge, Faisalabad, seeking a declaration to the effect that he was owner in posses sion of the aforementioned agricultural land. As a consequential relief, he prayed for a perpetual injunction to the effect that the respondent/defendant be restrained from interfering in any manner in the ‑peaceful enjoyment and possession of the petitioner of the suit land. He contended that this land was transferred and confirmed in the name of the defendant/respondent but since its allotment to him, the petitioner was in possession of this land and on: 94‑1978 the respondent/defendant out of love and affection gave the land in dispute to the petitioner permanently by executing a transfer deed and I the plaintiff/petitioner in turn gave 2 kanals of land from Killa No. 14 to the defendant/respondent by executing separate transfer deed.

3. Alongwith the plaint, the petitioner filed an application for the issuance of temporary injunction in his favour to protect his possession over the suit land. The application for stay order was contested by the defendant/respondent and the learned Civil Judge vide his order dated 10‑9‑1981 observed that the agreement or the transfer deed dated 9-1‑1978 which was an unregistered document was not accepted to have been execu ted by the respondent, therefore, its genuineness and authenticity was yet to be decided. He, therefore, issued a temporary injunction in favour of the petitioner to this effect only that his possession over the suit land be not disturbed during the pendency of the suit but it was directed that he should continue paying share of Batai to the respondent or that the same might be recovered from him by the latter through legal proceedings before the revenue forum.

4. This order passed by the learned Senior Civil Judge was challenged by way of appeal by the petitioner before the learned District Judge while the respondent also submitted cross‑objections against this order. The learned District Judge held that the document dated 9‑1‑1978 being unregis tered one and also being compulsorily registrable could not be availed of by the petitioner for filing the suit to establish title in regard to the land in dispute and that provisions of section 53‑A of the Transfer of Property Act could only be availed of the petitioner if he was used in respect of the suit land and he utilized the document only to show the nature of his possession.

5. It was next held by the learned District Judge that the petitioner according to the revenue record was to possession of the suit land as tenant under the respondent and that the respondent has already filed proceed ings for his ejectment also for recovery of rent before the Revenue Court, the Civil Court, in the circumstances, lacked jurisdiction in the matter. As a result of these findings/observations, the learned District Judge through the impugned order rejected the appeal of the petitioner and accepted the cross‑objections of the respondent. Hence the present petition for Civil Revision.

6. The aforementioned findings recorded by the learned District Judge, Faisalabad, are perhaps not sustainable inasmuch as that protection under section 53‑A of the Transfer of Property Act is available to a person whether he comes to a Court as defendant or plaintiff. An unregistered document which under the law was compulsorily registrable can be used as a shield and not as a sword, for being utilized as part performance of the contract and it is immaterial whether such object is sought to be achieved fey filling a suit or by defending the same. In Inayat Ullah and another v. Shah Muhammad and another (P L D 1961 Lah. 372) it has been observed :‑ "When a transferee by means of 4 document which has not been regis tered, though under the law that document was compulsorily regist rable, comes to a Court as plaintiff and bases his claim on part perfor mance of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the title of any one else."

7. Similarly, the bar contained in section 77 of the Punjab Tenancy Act is applicable only where relationship of landlord and tenant between the parties is admitted to be existing and subsisting on the date of filing a civil suit. The jurisdiction of civil Court is not taken away simply because one of the parties claim subsistence of relationship of landlord and tenant This view has been taken in Allah Ditta and another v. Muhammad Ali and 10 others (P L D 1975 Lah. 429), Fazal Elahi v. Adalat Khan and others (P L D 1974 Azad J & K 49) also it was held so.

8. The matter, however, does not end here. The present suit admittedly is based on an unregistered transfer deed and the benefit is sought to be claimed by virtue of the provisions of section 53‑A of the Transfer of Property Act pertaining to part performance of a contract. Section 53‑A ibid affords protection only to that contract of transfer which is for consider ation, is in writing and signed by the transferee. In the present case, the document being relied upon by the petitioner purports to be in writing and to have been signed by the respondent although he denies its execution and his signatures. There is no mention of consideration in this document. It is simply contained that as the respondent had dispute with his brother in re gard to cultivation of land, therefore, he had given Killa No. 17 of Square No. 115 to his brother in the presence of the members of the Panchayat. There is no mention in regard to 17 marlas of land forming part of Killa No. 15 in this agreement and there is also no mention of the fact that the petitioner has it, turn given any land to the respondent as alleged in the plaint. It thus transpires that the unregistered document, the basis of the suit giving rise to the present petition for Civil Revision evidences a contract of transfer without consideration. Such a contract is not protected under section 53‑A of the Transfer of Property Act and the unregisterd document pertaining to such contract cannot be utilized for the purpose of part performance of the contract.

9. In the light of these observations, no exception can be taken to the orders passed by the learned Courts below refusing the issuance of temporary injunction in favour of the petitioner. The present petition for Civil Revision is, therefore, dismissed leaving the parties to bear their own costs. S. A. H. Petition dismissed.