2001 PLP 2789 (YLR)

‑‑‑‑S.42‑‑‑Declaration can be sought either regarding plaintiff's right to any legal character or with respect to any right as to property claimed by him/her in a suit under S.42, Specific Relief Act, 1877. (d) Transfer of Property Act (IV of 1882)‑‑‑ ‑‑‑‑S.54‑‑‑Registration Act (XVI of 1908), Ss. 17 & 49‑‑‑Unregistered sale‑deed like agreement to sell creates no title in property in view of clear bar provided under S.54 of Transfer of Property Act, 1882. Abdul Aziz Qureshi for Appellants. Mushtaq Mehdi Akhtar for Respondents. This appeal is directed against the order, dated 2‑6‑1991 of the Civil Judge 1st Class, Gujranwala wherein the plaint filed by the appellants was rejected under Order VII, rule 11, C.P.C. The brief facts out of which the present appeal arises are that agreement to sell was allegedly executed by Noor Muhammad father of appellant No. 1 in favour of appellant No. 1 and Sajid Naeem Appellant No. 2, on 22‑3‑1978. The appellants filed suit for declaration on 24‑10‑1987 before the Civil Judge 1st Class, Gujranwala on the basis of the agreement to sell, dated 22‑3‑1978. The Civil Judge rejected the plaint vide impugned order, dated 2‑6‑1991.

2. Learned counsel of the appellant submits that learned trial Court was erred in law to reject the plaint in limine stage. It was the duty and obligation of the trial Court to require the written statement from the respondents, frame issues and conduct trial, and therefore, decide the suit finally. But the learned trial Court adopted a novel procedure in the present case and rejected the plaint vide impugned order. The contents of the plaint clearly reveal cause of action and trial Court was duty bound to peruse the contents of the plaint and if the plaint does not disclose any cause of action then the trial Court was justified to reject the plaint. He further contends that the agreement to sell does create an interest in the subject‑matter of the sale agreement and therefore, on the basis of the same the petitioner could validly maintain action for seeking declaration and permanent injunction.

3. Learned counsel of the respondents submits that learned trial Court was justified to reject the plaint as the agreement to sell does not create any title, right or interest. The appellant could have filed a suit for specific performance instead of the suit for declaration. In support of his contention he relied upon Zafar Ahmad v. Mst. Hajran Bibi (PLD 1986 Lahore 399).

4. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record ourselves. It is better and appropriate to reproduce the prayer clause of the plaint to resolve the controversy between the parties:‑‑ The aforesaid prayer clause reveals that appellants were not justified to file a suit for declaration and they should have filed a suit for specific performance under the provisions of Specific Relief Act. Section 42 of the Specific Relief Act is not applicable in the present case. It is settled principle of law that in a suit under section 42 of the Specific Relief Act declaration can be sought either regarding the plaintiff's right to any legal character or with respect to any right as to property claimed by him. The appellants could not maintain their suit for declaration on the basis of the agreement executed by the appellants and the original owner as it did not create any right, title or interest in the property. Even unregistered sale‑deed like agreement to sell creates no title in the property for a clear bar provided under section 54 of the Transfer of Property Act. The suit for declaration of title based on agreement to sell instituted by the plaintiffs/ appellants was, therefore, not maintainable and the findings of the trial Court are sustainable in the eyes of law. The most important features of the case is that the appellants/plaintiffs never thought of amending the plaint and neither in the trial Court nor before us even an oral request was made to allow conversion of the suit into a suit for specific performance. It is also settled principle of law that agreement to sell does not create any title; right or interest in immovable property. In arriving to this conclusion we are fortified by G. Muhammad v. Custodian of Evacuee Property (PLD 1966 Lahore 953). In view of what has been discussed above we do not find any infirmity or illegality in the impugned order of the trial Court. Resultantly, this appeal is dismissed. S.A.K./M.A.K./M‑734/L Appeal dismissed.