P L D 1961 (W (PLP)

2. The material facts of the dispute under consideration are these. Inayat Ullah, who was the owner of the land in dispute which measures 6 kanals and 5 marlas, had mortgaged it with possession to one Faqir. On the death of Faqir his interest in the land devolved on his son Shah Muhammad with whom Inayat Ullah entered into a contract on the 7th of July 1949 for the sale of the land. The terms of this contract which were reduced to writing were that Inayat Ullah was selling the property to Shah Muhammad for a sum of Rs. 1,000, out of which he had received Rs. 35, Rs. 565 were to be paid before the Sub‑Registrar and the balance was to be kept by Shah Muhammad on account of the amount due on the mortgage. Attempts of Shah Muhammad to make Inayat Ullah have the document registered failed, and on the 12th of July 1949, i.e., within six days of his contract with Shah Muhammad, Inayat Ullah mortgaged the land in suit to Sardar, son of Hasham, and seven others who were impleaded in the suit as defendants Nos. 2 to 9, for a sum of Rs. 1,

035. On learning of this mortgage Shah Muhammad instituted a suit on the 2nd of August 1949 and as mentioned by the learned Judge in Chambers claimed the following reliefs: ‑ (1) Specific performance of contract of sale against defendant No. 1. (2) A declaration against defendants Nos. 2 to 9 to the effect that the mortgage of land created by defendant No. 1 in their favour was ineffectual as against the plaintiff's right created by the deed of sale dated the 7th July 1949. (3) A declaration to the effect that he is in possession of the land as owner.

3. The trial Court found that there was an agreement of sale by Inayat Ullah in favour of Shah Muhammad and the subsequent mortgage in favour of defendants Nos. 2 to 9 had no effect. In the result the learned trial Judge decreed the suit of the plaintiff on the 9th of June 1950. Defendants Nos. 2 to 9 preferred an appeal in the Court of the District Judge, Sialkot, who accepted it by his order dated the 14th of December 1950 on the ground that the suit was not competent. He further held that defendants Nos. 2 to 9 held a valid mortgage on the land in suit as there was no evidence that they had knowledge of the agreement of sale execut ed by Inayat Ullah in favour of Shah Muhammad. Against this decision of the learned District Judge, Shah Muhammad presented a second appeal to this Court which, as already indicated, was accepted by a learned Single Judge of this Court. His findings are that defendants Nos. 2 to 9 were not bona fide transferees because they had knowledge of the agreement with regard to sale of the land in suit in favour of the plaintiff, that if a sale deed remains unregistered, a suit for specific performance by the vendee on the basis of original contract is competent and that the suit to compel the registration of the document does not lie outside the provisions of section 77 of the Registration Act.

4. The learned counsel for the appellant questioned the decision of the learned Judge in Chambers with regard to the competency of the suit for specific performance in the absence of a registered deed of sale. The effect of part performance of the contract of sale by delivery of possession of the land in suit to the plaintiff under the contract of sale was raised during arguments of learned counsel for the parties and as this point goes to the root of the case, it will be taken up first.

5. The point that emerged from arguments was that even if there had been part performance of the contract of sale, section 53‑A of the Transfer of Property Act could not be availed of by the plaintiff‑respondent for the reason that he happened to have come to Court in the capacity of a plaintiff. This argument was based on some remarks in the decision of their Lordships of the Privy Council in Probodh Kumar Das v. Dantmara Tea Co. (AIR1940 PC1). The words of their Lordships on which reliance was placed by the learned counsel for the appellants are open to the construction which the learned counsel for the appellants would have the Court places upon them, namely, that part performance of a contract which is otherwise incomplete by reason of non‑registration of the document by which it was entered into can be used only as a shield by a defendant to an action and not as a sword by a plaintiff. The point to consider, however, is whether their Lordships intend ed to lay down as a general proposition that the 'doctrine of part performance to which statutory recognition was given by section 5'‑A of the Transfer of Property Act could be availed of only by a defendant and could not be availed of by a plaintiff. It is a cardinal principle of interpretation of judicial decisions that a judgment of a Court is meant to apply to the facts of the parti cular case in which it was given and this has been held in a number of judicial decisions of unquestionable authority of which mention need only be made of the one of the Federal Court of Pakistan in Fazal Elahi and others v. The Crown (PLD 1953 FC 35at,p.58). If this cardinal rule of interpretation is kept in view it becomes clear that the words used by their Lordships of the Privy Council in Probodh Kumar Das v. Dantamara Tea Co. could not by themselves be construed to be of general application to all cases. All that. they mean is that neither a transferor nor anyone who claims under him can take advantage of the n )n‑registration of a deed if he had partly performed the contract which could only be completed by a registered deed. In this connection two decisions are of very great relevancy. The first one of these is Municipal Board, Etah v. Moradhuj (A I R 1940 All. 340) wherein Allsop, J. made the following pertinent remarks :‑ "Learned counsel has suggested that the contract may not be binding but that the Board took possession of the land and that it is liable upon the principle of part performance as set forth in section 53‑A. T. P. Act. Their Lordships of the Privy Council in Probodh Kimar Das v. Dantamara Tea Co., Ltd. 1939 A W R (P C) 186 have held that the right conferred by section 53‑A is a right available to the defendant to protect his position and that the section is so framed as to impose a statutory bar on the transferor but confers no active title on the transferee. It may be that their Lordships were referring when they spoke of a `defendant' to the particular facts of the case before them but there can be no doubt that they intended to hold that the rights arising out of the principle of part performance are those only which are conferred by the section, and a perusal of the section will clearly show that no rights are conferred at all on the transferor but only on the transferee. It may be that the latter could enforce his rights as a plaintiff if the transferor did some wrongful act in contravention of the terms of the section, but it is quite clear that the transferor cannot enforce any rights at all. In the case before me the plaintiff is the trans feror and he cannot base any claim upon the provisions of the section." The other decision is Ewaz Ali v. Firdous Jehan (A I R 1944 Oudh 212) wherein the Division Bench which dealt with the case made the following remarks :‑ "We are unable to consider that their Lordships of the Privy Counsel by the use of the word `defendant' in the above observa tion intended to mean that the right conferred by section 53‑A was not available to a person in the position of Mst. Firdous Jehan and that the mere position of a party in the heading of a suit would determine whether he is or is not entitled to benefits of the section. The subsequent sentence makes this clear. When they use the word `defendant', they use it to describe the position of a person who pleads section 5z‑A, and they say his position must be that of a person who invokes it for defending himself against his transferor. In Municipal Board, Etah v. L. Muradhuj, AIR 1940 All. 340 while dealing with the remarks of their Lord ships of the Privy Council in Probodh Kumar v. Dos Dantamara Tea Co., Ltd. 66 1 A 293, Allsop, J. thought that where their Lordships spoke of a defendant they did so with reference to the particular facts of the case before them. In Mst. Shankri v. Milkha Singh A I R 1941 Lah. 407, a Full Bench of the Lahore High Court pointed out that in the Privy Council case above referred to no question of ousting the transferee from possession had arisen. The plaintiff there wished to be declared the owner' because of certain advantages attaching to the person in whom the legal title vested. Such a declaration could not be granted in view of the provisions of the Transfer of Property Act, which contains an express bar to any transfer of title on the strength of such an instrument. The learned Judges go on to say that there did not appear to be any particular reason why a person, the legality of whose possession has been denied, should wait for an action to be brought against him as a tres passer before seeking to establish the legality of his possession, even though he may have been under some misapprehension as to the full nature of his rights."

6. Section 53‑A of the Transfer of Property Act reads as follows :‑ "Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms‑ necessary to constitute the transfer can be ascertained with reasonable certainty. and the transferee has, in part‑performance of the contract. taken possession of the property or any part thereof, or the transferee, being already in possession continue in possession in part‑performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of tie property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract . Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part‑performance thereof." The plain meaning of the plain language used in the section is that a person who has made a transfer of some property by means of an unregistered deed, when under the law the transfer should have been made by means of a registered deed, is debarred from enforcing any right in respect of the property if the transferee has in part performance of the contract taken possession of it. If this rule is applied to the facts of the present case, it would follow that Inayat Ullah could not. enforce any right in the property in suit against Shah Muhammad to whom he had sold it by means , of a document which he had failed to have registered in spite of his promise to do so. The law does not empower any person to transfer a right which he himself does not posses and it follows therefore that defendants Nos. 2 to .9 in whose favour the transfer of the property in suit was made after the transfer in favour of the plaintiff, could not, enforce any right in the property. The position would, however, have been different if defendants Nos. 2 to 9 had been bona fide transferees for value, but the finding of the learned Judge in Chambers that defendants Nos. 2 to 9 had at the time of the transfer in their favour, knowledge of the title of the plaintiff, is so eminently correct that there is no ground to differ from it, with the result that the position of defendants Nos. 2 to 9 does not alter by the mere fact that they had paid consideration for the contract of mortgage in their favour. Con sequently if defendants Nos. 2 to 9 had come to Court to get possession of the property in suit from Shah Muhammad, the plaintiff in the present suit, their suit would have been thrown out because the principle of law contained in section 5.3‑A of the Transfer of property Act stood in their way. I can think of no reasonable ground why the position should alter in favour of defendants Nos. 2‑to 9 simply because instead of their coming to Court as plaintiffs, defendants Nos. 2 to 9 forced the plaintiff to come to Court in that capacity. It would be rather anomolous if the position of a transferee in a suit, i,e., whether he has come to Court as a plaintiff or as a defendant should determine whether he should be accorded recognition of his rights and if he were a plaintiff he should fail but if he raised precisely the same plea if he were a defendant he should succeed. I am of the view that when a transferee by means of a document which has not been registered, though under the law that document was compulsorily registerable, comes to Court as a plaintiff and bases his claim on part performance 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 anyone else. The decision of their Lordships of the Privy Council in Probodh Kumar Das v. Dantamara Tea Co. was, there fore, of no avail to defendants Nos. 2 to 9.

7. No other point raised by the learned counsel for the appellants merits consideration in view of the finding that the suit was competent. I would, therefore, dismiss the appeal, but would in view of the peculiar circumstances of the case, leave the parties to bear their own costs of the appeal. KAYANI, C. J.‑I agree, and as regards the interpretation to be placed on section 53‑A, Transfer of Property Act, I agree with everything that my brother has said. Section 63‑A debars a transferor from enforcing any right against a transferee in posses sion, but does not prevent a transferee from seeking relief, which must, in its very nature, be by way of defence. It is best to avoid the inconvenient results following from a very literal interpretation of the judgment of the Privy Council in Probodh Kumar Das v. Dantamara Tea Co. by construing the word "defendant" as a person who is defending his right against aggression, not as a person who figures as a defendant in a suit. K. B. A. Appeal dismissed.