1989 PLP 1318 (CLC)

3.???????? The material facts have been stated fully by the learned Single Judge, but must be repeated briefly. On 16‑8‑1978, the respondent claims to have purchased the super‑structure and machinery installed in House NO.WQA/20. situated al Quaid abad, Karachi from its owner Haji Abdul Rehman, for a consideration of Rs.65,000 who executed such agreement in presence of witnesses. The plot over which this construction was raised belonged to the Government, hence the same could not be sold. It is the case of the respondent that possession of this property which included the machinery of grinding mill, etc. was delivered to him by the said Haji Abdul Rehman on the same day. The forcible possession of the premises and the business taken by the appellant led the parties into this litigation. The respondent first filed a suit under section 9 of the Specific Relief Act, 1877, but without any success.

4. The appellant has controverted the issues based on facts. According to him, Haii Abdul Rehman, the owner of this property had gifted the same to his wife 1Llst. Ruqayya through a "Declaration Decd" dated 7‑3‑1978, from whom he had purchased this property. It is also his case that 1/2 share in this property was owned by Hall Ismail, from whom also he purchased his share. 5.???????? The parties went to trial on the following issues:‑ "(l)??????? Whether the plaintiff on 16th August, 1978 had purchased with possession from Haji Abdul Rehman son of Issa, house bearing No.A‑20 situated in Quaidabad, Karachi with constructions thereon consisting of 1 shop, one Flour Mills, one Masala Mills, one godown, one General Store and Dwelling houses? If so, what is its effect.? (2)??????? Whether the aforesaid property was mutated in the name of the plaintiff after its purchase from Haji Abdul Rehman in the Records of Excise Department ? If so, its effect (3)??????? Whether on 20‑9‑1978 when the plaintiff was away from his house the defendant illegally trespassed therein and dispossessed him there from? If so, what is its effect ? (4)??????? Whether in Suit No.528/1979 under section 9 of the Specific Relief Act for possession which was dismissed on 6‑5‑1982 the question of title was not considered and the judgment is confined only to restoration of possession? If so, what is its effect"????????? (5) To what relief the plaintiff is entitled in the present suit? (6) What should the decree be?"

6. The respondent has examined himself (P.W.1), Abdul Qadir (P.W.2) and Miran Shah (P.W.3). The appellant did not step into the witness‑box. He closed his side without examining any witness.

7. On the assessment of the evidence both oral as well as documentary, the learned Single Judge decided all the material issues against the appellant giving rise to this appeal.

8. Mr. M. Abdul Aziz Khan, learned counsel for the appellant, who has appeared before us in this appeal, has referred to several points, but eventually confined his arguments on the main to three contentions, viz:‑ (i) That the learned Single Judge has wrongly relied upon the oral and documentary evidence adduced by the respondent, which was earlier discarded by Saleem Akhtar, J. in Suit No.528 of 1979. (ii) That the sale‑agreement (Exh.5/1), being compulsorily registrable under section 17 of the Registration Act, 1908, was not registered, hence did not affect any immovable property comprised therein. (iii) That the affidavit (Exh.5/5) said to have been sworn by Haji Abdul Rehman, being a foreign document, was not admissible in evidence and should not have been relied upon. 9.???????? Section 9 of the Specific Relief Act, 1877, where under the earlier Suit t No.528 of 1979 was filed, deals with summary procedure for grant of relief to persons dispossessed from immovable properties without their consent. No question of title of the parties can be raised or gone into such suit. The scope of such suit is limited and cannot be enlarged even by the Court. The title deeds and A other documents may be incidentally looked into as evidence in relation to possession, but any, observation about the authenticity thereof will not effect the right of the parties m a suit based on title. The learned Single Judge, who decided the earlier suit vide judgment (Annexure 'J') also took care of this legal position and while disposing of issue No.5, observed as follows:‑ . , This issue relates to title to the house. In a suit tiled under section 9 of the Specific Relief Act, the question of title cannot be determined. On? a decree for possession can be granted if the plaintiff has been wrongfully dispossessed. Although this issue was adopted with the consent of the parties, no finding can be given on this issue in the present proceedings. We, therefore, cannot see how it is possible to find any substance in contention No. 1, raised on behalf of appellant. 10: The agreement to sell is on record (Exh.5/1). 1t is in respect of sale of movable and immovable properties. As regards movable properties, no exception can be taken to this agreement. Under section 54 of the Transfer of Property Act, 1882, a contract for the sale of immovable property is a contract that a sale; of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Unless a document is E brought within the purview of section 17 of the Registration Act, 1908. its non ?registration is no bar to its being admitted in evidence. As observed in Muhammad Saleem v. Muhammad Akram reported in PLD 1971 SC S1V, an agreement for sale of immovable property is not compulsorily registrable. Thel agreement of sale (Exh.5/1) was again admitted in evidence without any objection from the side of appellant. In somewhat similar circumstances this point was examined in Jam Gul Muhammad etc. v. Syed lqbal Samic etc. 1988 MLD 20.17 and a learned Single Judge disposed of the same in the following words:‑ "

13. The objection of the learned counsel? for the respondents that Exh.P?2 being not duly stamped was not admissible in evidence has no basis in law. As already held above, being an agreement to sell it is duly stamped Even if it is held to be a sale‑deed in itself, though not duly stamped, since it was admitted in evidence without any objection, therefore, such objection, cannot be raised subsequently under the law, as also held by the learned trial Court. It has been argued that since objection was raised with regard to its admissibility in the written statement and an issue was also framed in relation thereto, therefore, in the absence of any decision thereon the document in question could not be admitted in evidence. This contention had been repelled by the learned trial Court. At the time when it was admitted into evidence no objection with regard to its admissibility was raised. The record is clear on this point. In the absence thereof it would be deemed to have been properly admitted in evidence and no objection in this behalf can be raised at this stage, as held in Punjab National Bank Ltd. v. Messrs Diwan & Company and others PLD 1954 Lah. 525 and Abdul Hashem v. Sirajul Haq and others PLD 1961 Dacca 59."

11. The execution of agreement for sale (Exh.5/1) is proved through satisfactory evidence. Muhammad (PW.1) has testified about the facts leading to its execution. He has been supported fully by Abdul Qadir (P.W.2), who has acted as attesting witness. Besides this, there is evidence of Miran Shah (P.W.3) who was known to both the parties. He was informed by Haji Abdul Rehman himself about this transaction. Nothing is brought out in cross‑examination of these witnesses to shake their credence. We are, therefore, satisfied that (Exh.5/1) is a genuine document which was executed against a valid consideration,‑‑ ?

12. The appellant has set up a rival claim in paragraph 5 of his written statement, in the following words:‑ "

5. That the contents of para.7 are correct. It is submitted that plaintiff has no right in suit property and is not entitled for decree of chain in prayer of the suit. The correct position is that M/s. Haji Ismail and Haji Abdul Rehman started `Awami Flour Mills on the land adjacent to Qtr. No.20, under a proper partnership deed dated 24‑6‑1967. Haji Abdul Rehman on 7‑3‑1978, transferred his share of mills to his wife M,‑,I, Ruqayya Begum under a declaration deed dated 7‑3‑1978. Mst. Ruqayya Begum was the owner of Quarter No.20, its adjacent land and the share of Awami Flour Mills from Mst. Ruqayya Begum against a sum of Rs.35,00(1 under a proper agreement of sale. The defendant also purchased the remaining half share of Awami Flour Mills from Hail Ismail under a proper sale agreement, dated 23‑9‑1978 and took lawful possession of the suit property from both the owners.

13. The appellant, however, did not enter into the witness‑box. He did not examine any witness, in support of his assertion. In Durga Nath Tarafdar and others v. Debendra Nath Tarafdar and others reported in PLD 1951 Dacca 89, it was held that a case should be decided on evidence and not on a mere pleading in the defence, because the statement in the written statement is no evidence unless it is proved by evidence. This view was followed in Luqman v. Allah Diwava reported in PLD 1967 Pesh 166, in which was observed that decision must be based on evidence, oral and documentary, legally adduced in a case and mere pleadings in written statement cannot be treated as such. The cases of Mst. Khairunnisa and 6 others v. Malik Muhammad Ishaque and 2 others reported in PLD 1972 SC 25, Muhammad Khan v. Mst. Ilajran reported in 198‑1 ('LC 3172, and K.H. Ghouri v. Khan Zafar Masood and another, reported in PLI7 1998 Kar. 460, are again relevant. In Msl. Khairunnisa's case the Supreme Court held that a written statement cannot be an exbibil in a case without the person filing the same being examined in Court.

14. The appellant was a necessary witness to throw light about the transaction pleaded by him. His non‑appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. 1f any authority is needed, reliance may be placed upon the case of Muhammad Sharif Khan v. Mst. Ismat Bibi and 4others reported in.P.LD‑19.82SC (A.J. & K) 76.

15. The learned counsel for, the applicant hay questioned the admissibility of affidavit (Exh.5/4) sent by Haji Abdul Rehman from India, which was duly attested by Chief Judicial Magistrate Nanjeri, for want of supporting evidence. This affidavit can be proved in an ordinary way like any other fact in issue. The respondent as his own witness has produced this affidavit (Exh.5/4) in evidence without any objection from other side. according to him, he had received this F. affidavit from Malbari Jamaat. The appellant did not question this position in cross‑examination to the respondent. In other words after having accepted this position, he cannot question the admissibility of affidavit now. The affidavit (Exh‑5/4) conclusively establishes the claim of the respondent.

16. Reverting back to the agreement (Exh.5/1), we do not think that the .fate of the document can be determined upon an incorrect phraseology used by the scribe. In order to decide whether the instrument is a mere agreement to sell or a conveyance, we have to look to all the terms of the. document and applying this test we have no hesitation that it did not itself create any title in immovable property, but was intended to be a document merely creating a right to obtain another document which would when executed, create a title in the property. With this legal position in view, we are inclined to maintain the judgment and decree recorded by learned Single Judge with modification that the agreement of sale (Exh.5/1) was intended to be a document merely creating a right to obtain another document which would when executed create a title in the property in respect of immovable property. Since the whole consideration had passed to the vendor, we are of the view that the respondent is entitled to possession of movable and immovable properties.

17. In view of the above finding, the appeal fails and is dismissed with the order as to costs. ??????????? A.A./M‑733/K???????????????????????????????????????????????????????????? ??????????? Appeal dismissed.