2001MLD553 (PLP)

(2) Whether the suit is barred by time? OPD. (3) Whether the defendant is entitled to special costs under section 35‑A of C.P.C.? (4) Whether the plaintiff after purchasing the share of the defendant in the alleged house and paying consideration money, is owner of the alleged house, the alleged sale‑deed has been rightly executed? OPD. (5) If issue No.4 is decided against the plaintiff, is the defendant entitled to get a decree in the suit brought by him according to the prayer of the suit? OPD. (6) Relief. Evidence of the parties was recorded. The learned trial Court decreed the suit of the petitioner and dismissed the suit filed by the respondent vide consolidated judgment, dated 13‑7‑1987. The respondent filed two appeals which were heard together by the learned Additional District Judge, Toba Tek Singly who reversed the said judgment and decree on 25‑1‑1988. The result was that the suit filed by the petitioner was dismissed while the preliminary decree was passed in a suit filed by the respondent and the same was sent back to the learned trial Court for proceedings for final decree.

4. Learned counsel for the petitioner argues that the learned Additional District Judge has misread the document (agreement) Exh.P.1 while holding it to be a sale‑deed and thereby declaring it admissible in evidence and thus, dismissed the suit of the petitioner. Learned counsel for the respondent on the other hand has argued that document Exh.P.1, in fact, was a sale‑deed and being unregistered inadmissible in evidence and as such the same had been rightly excluded. According to the learned counsel at the most the petitioner can claim a charge on the property to the extent of the amount paid by him under the said document.

5. I have gone through the certified copies of the documents appended with the civil revisions with the assistance of the learned counsel for the parties. I may state here that both the Courts have concurrently found that the said document/agreement, dated 16‑9‑1972 was, in fact, executed by the respondent in favour of the petitioner and that he had received the C consideration thereof. Both the learned Courts below have also rejected the objection of the respondent that the suit was barred by time. The only point that needs to be resolved is as to whether the document Exh.P.1 was or was not admissible in evidence. A copy of the document Exh.P.1 is available at pages 68‑69 of the paper book. After giving the particulars of the property, the document narrates that "two brothers are the owners of the suit house and, that the respondent has to transfer 1/2 share in favour of the petitioner; that some respectables have intervened and in consultation with the two brothers have fixed the price of the whole house at Rs.11,000; that the petitioner of his own free consent had settled the matter with his brother and in the presence of the witnesses transferred the suit house to the petitioner for Rs.5,500 and he received the entire amount of his share and has delivered the possession of the suit house to the petitioner, that the petitioner has relinquished his share in favour of his brother". This part of the document may be referred to as Part 'A'. Thereafter, the document proceeds as under:‑‑

The portion may be referred to as Part 'B' of the document.

6. A reading of the impugned judgment of the learned Additional District Judge would show that in para. 6 of the judgment, he had recapitulated the said Part‑A of the document and has proceeded to state that the said wording are sufficient to show that it was a simple document of transfer and not an agreement to sell; that nothing was left to be done for the transferee of the property in future. With these observations, he had proceeded to hold it as a sale and then to discard the same on the ground that it was not registered.

7. Now the trite law is that a document is to be read as a whole and if one were to read the document as a whole i.e. Part‑A and Part‑B thereof, as reproduced by me above, one cannot agree with the learned Additional District Judge that nothing more was left to be done to complete the transaction or that the parties intended the document to be a complete transaction of sale. A readnig of said Part‑B would clearly show that the parties were mindful of the fact that the some more proceedings are required for completing the transaction and that is why the further covenants were stated regarding the mutation of the property. The parties also appear to be mindful of the fact that a mutation would not be sufficient and some more proceedings may be required and it was mentioned that respondent shall be entitled to file a suit to get a decree. To my mind this reference to the suit is for all purposes of reference to a suit for specific performance so as to enable the respondent to get a sale‑deed executed and registered in his favour. This is what the petitioner had precisely done by filing the present suit for specific performance.

8. I, therefore, find that the learned Additional District Judge, Toba Tek Singh has misread the document Exh.P.I and has thus, proceeded to non‑suit the petitioner on a mere technicality when the execution of the document and payment thereunder stood proved and when the petitioner had filed the suit for a proper relief. Neither was anything brought on record that he was not entitled to specific performance nor of course is there such a finding of any of the two Courts below. I, therefore, reverse the finding of the learned Additional District Judge on issues Nos. 1, 4 and

5. So far as the issue No. l is concerned, the learned Additional District Judge after reading the said document in the manner he had read the same, forgot as to what was the burden of issue No. l and thus, while recording a finding that the document was not admissible and in the absence of the document, there is no evidence or allegations of the petitioner, also proceeded to answer the said issue No. l in favour of the respondent when the said finding has no nexus with the discussion of the matter in the impugned judgment.

9. There is yet another aspect of the case. So far as the suit for partition is concerned, this suit in its essence is a suit for possession. Even if it were to be held that the document did require compulsory registration, the fact remains that it is a document of transfer whereunder in performance of his part of the contract the petitioner has paid the settled consideration to the respondent and is admittedly continuing in possession of the house i.e. also the share of the respondent in the same. On equitable principle underlying section 53‑A of the Transfer of Property Act, 1882, the petitioner even in the absence of registration of the document would be fully entitled to protect his possession as against the respondent. Thus, the suit for possession by partition was liable to be dismissed in any event.

10. Towards the fag end of his arguments, learned counsel for the respondent with reference to Muhammad Siddique v. Muhammad Akram (2000 SCMR 533) argues that so many years have gone by, the original petitioner is also dead and he had been paid only Rs.5,500 for his share in the house. The said argument loses sight of the fact that in the said judgment only a part of the consideration had been paid and balance was still to be paid and it was in that view of the matter that their Lordships proceeded to direct the plaintiff in the case to pay extra amount. In the present case, the entire consideration was mutually settled in the year 1972 and it was only after payment of the consideration that the agreement was executed. However, Mr. Asmat Kamal, Advocate after consulting some of his clients who are present in Court has made a voluntary offer that his clients are ready to pay a sum of Rs.50,000 to the petitioner.

11. In view of the above discussions, both the Civil Revisions are allowed, the judgment and decree, dated 25‑1‑1988 of learned Additional District Judge, Toba Tek Singh is set aside while that of passed by the learned trial Court on 13‑7‑1987 is restored. The petitioner shall, however, pay a sum of Rs.50,000 to the respondent. This amount shall be deposited by the petitioner in the learned trial Court before whom the petitioners are seeking execution of the decree passed in their favour by the trial Court. No order as to costs. H.B.T./M‑418/L Revision allowed.