P L D 2003 Lahore 204 (PLP)

(6) Whether the Auqaf Department is necessary party? OPD (7) Whether the Court has got no jurisdiction? OPD (8) Whether the defendant is entitled to special costs? OPD (9) If the claim of the plaintiff is proved, whether he is entitled for monthly rent of Rs.100 from January, 1985? OPP (10) Relief.

5. The parties led their evidence. During the pendency of the case, the respondents‑defendants moved an application under Order VII, rule 11, C.P.C., for rejection of the plaint on the ground that rent deed Exh.P.1 being an unregistered document under section 17 of the Registration Act, did not convey any right or title to the plaintiff‑petitioner under section 49 of the Act ibid. This application was resisted by the petitioner by filing a reply.

6. The learned Civil Judge accepted the application of the respondent by concluding that the rent deed in question was compulsorily registrable under section 17 of the Registration Act and since the same was not registered it does not convey any right in favour of the petitioner. Consequently, he proceeded to accept the application and rejected the plaint of the petitioner under Order VII, rule 11, C.P.C., vide order dated 8‑4‑1992.

7. Being aggrieved by the aforesaid order, the petitioner filed an appeal. The learned Additional District Judge, Narowal also endorsed the view of the learned Civil Judge by observing that:‑‑ "Upon plain reading of the plaint itself which is solely based on rent deed dated 3‑9‑1975 I am of the clear opinion that rent deed is more than of one year and its registration was compulsory under section 17(1)(D) of the Registration Act. Section 49 of the Registration Act provided for the effects of non‑registration of documents which required compulsory registration in terms of section 17 of the Act. Non‑registration for a document which is compulsory to be registered under the law does not operate to create declaration, any right, title or interest in immovable property. The rent deed Exh. P1 could not operate to create airy right in favour of plaintiff. "

8. Learned counsel for the petitioner contends that though unregistered lease deed Exh.P.1 under section 49 of the Registration Act, 1908 was not admissible in evidence but the same could have been adduced in evidence for collateral purposes and it was relevant in evidence to explain the nature of possession of the respondent‑defendant. Further contends that since the petitioner has filed the suit under section 8 of the Specific Relief Act being a person entitled to possession of the specific immovable property he was entitled to recover possession in manner prescribed by C. P. C.

9. To resolve the controversy between the parties, reading of section 107, Transfer of Property Act (VI of 1882) is relevant, which is reproduced hereunder:‑‑ "

107. Leases how made.‑‑‑A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the Provincial Government may, from time to time, by notification in the official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."

10. On the touchstone of the above‑stated provisions of the Transfer of Property Act, it is clear that the lease deed Exh.P.1 cannot be relied upon for establishing the relationship of lessor and lessee between the parties. Both the Courts below were correct in observing that the rent deed Exh.P.1 is more than of one year and its registration was compulsory under section 17(1) (d) of the Registration Act. Section 49 of the Registration Act mandates that non‑registration of a document which is compulsory to be registered under section 17 of the Act does not operate to create declaration, any right, title or interest in immovable property. In this view of the matter, the rent deed Exh.P.1 could not operate to create a lease.

11. To my mind, both the Courts below have completely misdirected themselves to reject the plaint of the suit of the petitioner. Document required by law to be registered, but not registered, is not admissible in evidence, but a rent deed which is required to be registered and is executed by a tenant in favour of the landlord, such document can be relied upon to establish relationship of landlord and tenant between the parties. Reference can be made to the case of Roshan Ali and others v. Mst. Abdur Nessa and others (PLD 1963 Dacca 712). In case reported as Ahmad Shah Khan v. Abdul Barkat (PLD 1960 Dacca 107). it was held: "....unregistered lease deed may not go to prove the plaintiff's title but under section 49 of the Registration Act, 1908 it was admissible in evidence to explain the nature of possession of the defendant."

12. Since the petitioner has based his claim on the ownership having title, therefore, under section 8 of the Specific Relief Act the suit could have proceeded. Section 8 referred to above reads as under:‑‑ "

8. Recovery of s2eEific immovable property‑‑A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure." The words "a person entitled to possession" in section 8 of the above said Act came up for consideration in case reported as Ghulam Rasool v. Muhammad Waris Bismil (1994 MLD 527) and it was observed that "All such persons, as were entitled to possession of specific immovable property, could file proceedings for recovery of possession under section 8 of the Act. Suit under section 8 for possession could be filed not only by a person who was a holder of title to property such as an owner, a mortgagor, mortgagee, trustee or a beneficiary in a trust, but even by a person who was merely entitled to possession and in such class would fall tenants or lessees, except those mentioned in category excluded as cognate to concept of settled possession".

13. The plaint could have ‑been rejected under Order VII, rule 11, C.P.C., if the suit was barred under any law. Admittedly the Courts below have not mentioned the law under which the suit of the petitioner was barred. Mere non‑registration of the lease deed Exh.P.1 would not debar the' petitioner to seek remedy of possession under section 8 of the Specific Relief Act. Both the Courts below have committed material irregularity and illegality to allow the petitioner to prove his case under section 8 of the Specific Relief Act to prove title of the property in dispute and his entitlement to recover the possession. For what has been discussed above, this revision petition is allowed. The judgment and decree dated 25‑1‑1996 of the learned Additional District Judge, Narowal and dated 8‑4‑1992 of the learned Civil Judge, Narowal are set aside. The case is remanded to the trial Court to decide the same afresh in accordance with law. Revision petition is allowed. Case remanded. H.B.T./F‑128/L Case remanded.