2023 PLP 11 (YLRN)

MUHAMMAD SHAN GUL, J.

Through this judgment the titled civil revision is sought to be decided.

2. The petitioners have filed this civil revision against a judgment and decree dated 01.3.2005 passed by a Civil Judge, Ist Class and upheld in appeal by a learned Additional District Judge on 17.11.2008.

3. Facts in brief are that petitioner No.1 Fateh Muhammad claimed to have purchased a shop situated at main bazar, Qutab pura, Tehsil Duniya Pur and described as: through an agreement to sell dated 26.1.1995 against consideration of Rs.1,12,000/- out of which he paid an amount of Rs.10,000/- as earnest money and the remaining amount of Rs.1,02,000/- was to be paid through a post-dated cheque. According to petitioner No.1, the possession of the property in question was handed over to him by virtue of the said agreement to sell, a fact which has been duly admitted by the respondent during the course of trial.

4. On attaining possession of the property in question, petitioner No.1 instituted a suit for permanent injunction against the respondent on account of interference in his peaceful possession by the respondent. Even in this suit, the possession of petitioner No.1 was admitted by the respondents.

5. During pendency of the suit for permanent injunction, petitioner No.1 was dispossessed from the property in question on 27.9.1995 and which led petitioner No.1 to file a separate suit for recovery of possession under section 9 of The Specific Relief Act, 1877. The said suit was contested by respondent Dilshad Ahmad (deceased and represented by his legal heirs now), however, after recording of evidence on the issues framed by the trial court, the suit of petitioner No.1 was decreed with a direction to respondent Dilshad Ahmad to hand over vacant possession of the property within 15-days vide judgment and decree dated 19.5.1999. Furthermore, a revision petition filed by respondent Dilshad Ahmad against the said judgment and decree dated 19.5.1999 was also dismissed vide judgment and decree dated 19.6.1999 by a learned District and Sessions Judge, Lodhran (this particular aspect of the matter has neither been considered by the trial court nor by the first appellate court).

6. After dismissal of the claim of the respondent, petitioner No.1 sold the property in question to petitioner No.2 Haji Allah Wasaya, who is now the current owner in possession of the property as also petitioner No.2 before this Court.

7. Later on, respondent Dilshad Ahmad claiming himself as owner in possession of the property in question but without producing any title or ownership documents or for that matter any document establishing his entitlement to sue, filed a suit for possession for recovery of specific immoveable property apparently in terms of Section 8 of the Specific Relief Act, 1877 (the respondent claimed to be owner of the property without disclosing how) claiming that despite the agreement to sell in favour of petitioner No.1, the balance consideration amounting to Rs.1,02,000/- which was to be paid through cheque No.029350 had still not been paid, that the cheque had not been encashed and, therefore, agreement between the parties dated 26.1.1995 stood cancelled and the possession of the property in dispute ought to revert to the respondent.

8. The following issues were framed by the trial Court: ISSUES 1). Whether the defendant No.2 is in possession of the shop through defendant No.1?OPP 2). Whether the agreement between the plaintiff and defendant No.1 has ceased to have effect? OPP 3). Whether the plaintiff is entitled to possession of the disputed shop along with permanent injunction as prayed for? OPP 4). Whether the plaintiff has no cause of action and locus standi to file the suit? OPD 5). Whether the suit is not maintainable in its present form? OPD 6). Whether the valuation of the suit property has not been fixed properly for the purpose of court fee and jurisdiction? OPD 7). Relief. 6-A Whether the defendant No.3 is in possession of the suit property as owner through agreement to sell on behalf of the defendant No.1 in his favour and plaintiff precluded from bringing this suit due to his words and conduct? OPD

9. Learned trial Court after examining the file and the available record passed a decree in favour of plaintiff/Dilshad Ahmad vide judgment and decree dated 01.03.2005 in the following terms:- "Keeping in view the detailed discussion made on the foregoing issues, the plaintiff has been able to prove his ownership regarding the disputed property, therefore, he is entitled to receive the possession of the disputed shop, hence, suit of the plaintiff for possession of the disputed property fully detailed in the headnote of the plaint is hereby decreed in favour of plaintiff and against the defendants and plaintiff is directed to make up the deficiency of Court fee that is Rs.8400/- within 15 days from the announcement of this order"

10. The petitioners herein, challenged the judgment and decree dated 01.03.2005 through an appeal ultimately dismissed on 17.11.2008 by a learned Additional District Judge, Dunyapur.

11. Heard. Record perused.

12. The counsel for the parties have been heard in the matter. Besides what has already been noted above, the counsel for the petitioner submits that the agreement to sell in his favour still holds the field because it has not been adjudicated upon by any court of law and refers to Section 35 of the Specific Relief Act, 1877. The counsel has also alluded to the unvarnished and baseless presumption believed by the trial court and approved by the appellate court about the entitlement of the respondent to file a suit under Section 8 of the Specific Relief Act, 1877.

13. On the other hand, the learned counsel for the respondent who was not present in the earlier part of the day but who rushed to the court when once he realized that there was no getting away and that the matter would be heard and decided either way, submits that while he cannot dispute the fact that both courts below did not undertake any inquiry to adjudge the entitlement of the respondent to sue, his only concern is that already a lot of years have gone by and a decision in the matter still hangs in the balance. He has prayed to the court that in the event that this court decides to remand the matter to the civil court, an outside timeline of three months may be added as a rider.

14. It is an admitted fact that the possession of petitioner No.1 is based on the judgment and decree dated 19.5.1999 by virtue of which possession was ordered to be handed over by the respondent to petitioner No.1. This judgment and decree dated 19.5.1999 having been unsuccessfully challenged by the respondent, attained finality but this fact has not been considered at all, either by the learned trial court or by the first appellate court. The dismissal of revision petition against the same judgment and decree dated 19.5.1999, likewise, has simply not weighed with the learned trial court or the first appellate court. This is important and has a bearing on the shape and form of the eventual decision to be passed in civil revision.

15. At the same time, and conversely, it is also an admitted fact that the claim of petitioner No.1 is based on an agreement to sell dated 26.1.1995 which, till date, has not resulted into any registered sale deed or for that matter in any transfer of title in his favour. It is an acknowledged principle of law that a mere agreement to sell does not create any right, title or interest in respect of a property in favour of a buyer. The Hon'ble Supreme Court of Pakistan on more than one occasions has held that even a decree for specific performance does not create any right, title or interest unless and until it is put into execution and a sale deed is executed in pursuance thereof.

16. The reliance of the counsel for the petitioner on the case reported as "Syed Sardar Shah v. Qazi Masood Alam" (2003 CLC 857) is totally misplaced and misconceived because the reported case in question involved transfer of property through a registered sale deed which in turn was reflected in a mutation duly sanctioned by the revenue authorities and, therefore, a valid transfer of title had already taken place despite there being no payment of consideration as agreed between the parties. In the present matter, the agreement to sell has not transformed into a registered sale deed and thus no valid transfer has taken place and this is what sets apart the present case from the reported judgment quoted above.

17. In fact, the present matter is quite different because petitioner No.1 never filed any suit for specific performance of the agreement to sell in his favour and the property in question has not been validly transferred in his favour till date. It is not known at all as to who owns the property in question, is it the petitioner, the respondent, the provincial government or someone else?

18. This is so because the trial court and the first appellate court have not bothered at all to even remotely address this question and have rather been satisfied by believing the unadorned presumption they were so led to believe, that the property in question may be Shamlat Deh. Even this presumption of the property being Shamlat Deh is absolutely without any basis because no evidence whatsoever was brought before the trial court or the first appellate court in this respect. Both courts relied on the presumption that the property in question was Shamlat Deh without either finding out whether it was actually so or not. All that it would have taken was for the trial Court to summon the Deputy District Attorney or the District Attorney and ask him to bring along the necessary revenue record or for that matter some revenue official so as to answer the query which was integral for the decision of this case and which has not been answered or addressed at all.

19. There is, however, another aspect of the case which has not been adverted to at all by the courts below. Petitioner No.2, Allah Wasaya, claims to have purchased the property in question from petitioner No.1 and alleges that he has also obtained his possession under the same agreement to sell dated 26.1.1995. A perusal of this agreement to sell shows that no power has been given or assigned in the agreement to sell to petitioner No.1 to enter into any further agreement to sell. Even when this agreement to sell is silent, the petitioner No.2 claims ownership of the property in question. It is trite that a party cannot transfer a title better than what he himself has in respect of a property. Neither is there any registered sale deed executed by the respondent in favour of the petitioner nor has the petitioner No.1 produced any document issued by the revenue authorities which shows his ownership or some kind of entitlement over the property in question. Likewise, and as has been noted earlier, no document or evidence of any kind revealing either the nature or ownership of the property was ever brought forth before the trial court or first appellate court. Even more interestingly, the agreement to sell dated 26.1.1995 may also have been cancelled, an endorsement in respect of which is also available on the case file.

20. At the same time, the judgment and decree dated 01.3.2005 passed by the trial Court and upheld by the appellate court clearly shows that the petitioners could not bring on record any evidence with regard to payment of balance consideration and which is why no indulgence was shown in their favour. Petitioner No.1 failed to prove payment of sale price and, therefore, there was no sale in law as held in "Muhammad Shaf v. Allah Dad Khan" (PLD 1986 SC 519), according to which, even registration of a sale deed (what to talk of an agreement to sell) does not operate to pass any title or interest in a property where there is no proof of payment of consideration.

21. While concurrent judgments may not warrant interference on this count since these have rightly noted the law on the subject of agreement to sell, both judgments leave a lot to be desired, legally speaking, when considered in the context of the fact that no weight whatsoever was given to the decree of possession in favour of petitioner No.1 dated 19.5.1999 against which a revision filed by the respondent was also dismissed on 19.6.1999. Both courts below failed to note that the respondent, since he had failed to gain possession and whose revision petition aimed at gaining it had been dismissed on 19.6.1999, circuitously and indirectly wanted to avoid repercussions emanating out of the dismissal of his revision petition and, therefore, had filed a suit for possession without having any entitlement whatsoever.

22. Both courts below did not appreciate that the respondent was trying to obtain possession through the mode of a suit under section 8 of Specific Relief Act, 1877 without in any way being entitled to sue in terms of section

8. Therefore, both judgments, since these fail to take into account the fact that the possession of the property in question was being regulated by a judgment and decree which had been upheld stand exposed and are susceptible to revisional interference.

23. Even more importantly, no title document, no ownership document, no ownership record, no record about nature of the property or for that matter in whom the property so vested was ever produced before the trial court so as to demonstrate the actual ownership of the property in question. The trial court did not ask for any document either!

24. The learned trial court at page 6 of its judgment has observed that even if the property was owned by the provincial government there was no evidence in that regard on the record. The learned trial court did not appreciate that it was its duty to require evidence to be brought on record and short of discovering the actual owner, the suit could not have been decided.

25. Of the essence was the question about ownership of the property in question. If the provincial government was the owner then how could the respondent have sold the property in question and how could petitioner No.1 in turn sell it to petitioner No.2. The bald presumption raised by the learned trial court at Page-6 of the judgment about the property in question being Shamlat Deh in nature has also no legs to stand on because even Shamlat Deh land is recorded as such in the revenue record and no effort whatsoever was made to bring on record any such document and, therefore, the presumption about the property in question being Shamlat Deh without any basis and without any evidence again renders the judgments of the courts below susceptible to interference in revisional jurisdiction.

26. Even more alarming is the fact that a suit under section 8 of the Specific Relief Act, 1877 can only be filed by persons who are eligible or qualified under the law to seek possession of the immoveable property in question. This, according to the Hon'ble Supreme Court of Pakistan in "Taj Wali Shah v Bakhti Zaman" (2019 SCMR 84) includes an owner, lessor, lessee, mortgagor or mortgagee, trustee or beneficiary of a trust of the immoveable property in question. The respondent does not enjoy any of the capacities so declared by the Hon'ble Supreme Court of Pakistan. In fact, both courts below proceeded on the presumption that the respondent was somehow the owner of the property in question without trying to even remotely discover his entitlement, his ownership or the basis for his claiming so.

27. In this respect, the findings of the learned trial court recorded in paragraph No.9 of the judgment about the respondent being owner of the disputed shop, 'the plaintiff is entitled for the possession of the disputed shop as the same was in his possession' and observation about 'disputed property may be belonging to the provincial government' are absolutely irreconcilable and come across as an oxymoron. Either the plaintiff was the owner or the property vested in the provincial government!

28. No evidence of any kind having been led to establish either of the aforenoted observations recorded by the trial court and the trial court also not making any effort to discern the actual ownership or title of the property, the present matter cries out loud for being remanded.

29. Even more interesting is the observation of the learned trial court towards the end of paragraph No.9 of its judgment, 'so considering the disputed shop as Shamlat Deh'. This casts further aspersions on the conduct of the trial conducted by the learned trial court. In one single judgment the learned trial court has moved from the observation about the ownership of the property possibly vesting in the provincial government to also stating that it should be considered as Shamlat Deh, while also believing on the way that it was owned by the respondent! The learned trial court has made a mess of the entire case. All that was required was for the learned trial court to summon the revenue record, as also some responsible official from the revenue department so that it could gauge the nature of the property as also the status of ownership thereof. Why it did not do so is only known to the learned trial court. The learned trial court without bothering even remotely to find out as to who was the actual owner of the property in question or for that matter about the nature of the property in question simply based its decision on the rhetoric of the respondent while also considering the property in question as Shamlat Deh.

30. That likewise, the first appellate court also rubberstamped the observations of the learned trial court without much ado.

31. In view of the discourse above, it is crystal that both, the learned trial court and the appellate court without trying to discover the nature of the property or for that matter the ownership of the property in question or even its entitlement simply proceeded on the basis of a bald and baseless presumption and which in the present case indeed comes across as legal anathema.

32. In terms of the test provided by the Hon'ble Supreme Court of Pakistan for remand of cases in "Anwar Ahmad v. Mst. Nafis Bano" (2005 SCMR 152), "Ashiq Ali v. Mst. Zamir Fatima" (PLD 2004 SC 10) and "Mst. Shahida Zareen v. Iqrar Ahmad Siddique" (2010 SCMR 1119), the present matter conspicuously qualifies as one which should be remanded to the trial court. This is absolutely necessary and inevitable in view of the insufficient or inconclusive evidence about ownership or entitlement of the property in dispute. The determination of this question of fact was indeed essential for a just decision of the suit. When this is measured alongside the fact that the possession of the petitioner No.1 which was secured by a judgment and decree and which judgment and decree was upheld in revisional jurisdiction was not taken into account at all, the basis for remanding this matter gains strength.

33. A High Court in exercise of revisional jurisdiction is not bound to enter into the merits of the evidence or for that matter of the case or the controversy involved but in a case where concurrent findings of fact are perverse and result out of a material irregularity inasmuch as jurisdiction vesting in the courts below has not been exercised, a High Court can remand the matter to the courts below and not indulge in a fact finding exercise itself or even in an exercise rooted in discovering facts that have a crucial bearing on the controversy to be so resolved. Guidance may be sought from the judgments reported as (2006 SCMR 1304) "Muhammad Feroz v. Muhammad Jammat Ali" and (2019 CLC Note 3) "Riaz Hussain v. Muhammad Akbar etc.". It is also equally true that a High Court cannot upset a finding of fact and take a different view of evidence because that exercise vests in the trial court.

34. As a result of what has been discussed above, both judgments are set aside and the matter is remanded to the trial Court to be decided afresh, of course, after properly gauging and determining the entitlement of the respondent to file a suit as also the basis thereof. It is hoped and expected that the trial court shall conduct and complete the trial in a prompt and expeditious manner and preferably within a period of three months.

35. This petition is allowed in the above terms. MH/F-5/L Petition allowed.