2017 PLP 93 (CLCN)

RAJA SAEED AKRAM KHAN, J.

This appeal, by leave of the Court, has been addressed against the judgment and decree passed by the High Court on 29.4.2009, whereby while accepting the appeal, the judgment and decree passed by the Additional District Judge, Muzaffarabad, were reversed.

2. The relevant facts culminating into this appeal are that initially Muhammad Ameen Khan, plaintiff-respondent, herein, filed a suit for specific performance of an agreement-to-sell executed in his favour on 28.8.1964 by the predecessor-in -interest of the defendants-appellants, herein, in the Court of Senior Civil Judge, Muzaffarabad on 12.4.1994. It was averred that the land comprising survey Nos. 331 min, 336 min, 339 min, 340 min, 341 min, 342 min, 343 min, 344 min, 345 min, 356 min, 631 min, 422 min, 643 min, 570/421 min, measuring 53 kanals, 19 marlas was in the ownership of Muhammad Zaman, predecessor-in-interest of defendants-appellants, who transferred the same for Rs.3,000/- in favour of plaintiff-respondent through an agreement-to-sell. It may be noted here that the suit was later on amended and a decree was sought for the land measuring 20 kanals, 2 marlas only, comprising survey Nos. 340 min, 1/2 share, 341 min, 1/2 share, 342 min, 1/4 share, 343 min, 1/4 share, 344 min, 1/2 share, 356 min, 1/2 share and 631 min, 1/2 share. It was further claimed that the plaintiff-respondent is in possession of the said land since 1968 and has also effected huge improvements in the shape of construction of houses and plantation etc. It was also claimed that as the revenue record was ablazed, therefore, the agreement-to-sell could not be enforced and it was claimed that Muhammad Zaman, executant of the agreement-to-sell, has died. The defendants-appellants are his legal heirs and they have refused to acknowledge the rights of the plaintiff-respondent and execution of the documents. In alternative, he claimed the title of the suit land on the basis of prescription/adverse possession. He also prayed for the benefit enshrined in section 53-A of the Transfer of Property Act. The defendants-appellants, herein, contested the suit on the ground of limitation. They also sought rejection of plaint under Order VII, Rule 11, C.P.C. It was claimed by them that suit was not maintainable because Hameeda Begum and legal heirs of Khani Zaman were not impleaded as party. The execution of the agreement was also denied. The defendants-appellants denied the whole claim of the plaintiff-respondent. The learned trial Court framed issues in the light of the respective pleadings of the parties. The parties led evidence and ultimately the suit was decreed by the learned Senior Civil Judge, Muzaffarabad on 25.2.2005. Feeling aggrieved from the judgment and decree of the Senior Civil Judge, Muzaffarabad, the defendants appellants preferred an appeal before the learned District Judge, Muzaffarabad which was entrusted to learned Additional District Judge, Muzaffarabad, who vide his judgment and decree dated 1.9.2007 dismissed the suit for want of proof. The plaintiff-respondent assailed the judgment and decree passed by the Additional District Judge, Muzaffarabad by filing second appeal before the High Court. The High Court, after hearing arguments, accepted the appeal and reversed the judgment and decree passed by the Additional District Judge vide judgment and decree dated 29.4.2009 which are the subject-matter of the instant appeal.

3. Mr. Abdul Hamid Khan Shahid, Advocate, the learned counsel for the defendants-appellants, has argued that the judgment and decree passed by the High Court are against law and the facts of the case. The High Court failed to appreciate the evidence in its true perspective while reversing the well reasoned judgment and decree passed by the Additional District Judge which were passed after due application of mind. The High Court erred in law while not taking into consideration that the possession, which is the main ingredient to get a decree of part performance could not be proved by the plaintiff through any cogent evidence. He further urged that the suit was hopelessly time-barred, as is apparent from the record of the case that the agreement-to-sell was executed on 28.8.1964 whereas the suit was filed on 12.4.1994. Initially, the limitation for filing a suit for part performance of a contract/agreement was prescribed as 3 years which was, later on, through an amendment was fixed as six years. No plausible explanation of such an inordinate delay was offered on behalf of the plaintiff-respondent. This important aspect lost sight of the High Court. He further urged that a contradictory stand has been taken by the plaintiff-respondent while filing the suit for adverse possession but the High Court has not considered this aspect of the case. He further contended that the plaintiff-respondent badly failed to prove the execution of the agreement-to-sell which, even otherwise, does not create any right. The trial Court framed the issues in the light of the respective pleadings of the parties. The defendants-appellants deposited the amount of fee for summoning the Patwari but the trial Court did not summon the Patwari. The defendants-appellants moved an application for the appointment of local Commission for spot inspection, which is the part of the record, but the trial Court decreed the suit without hearing the arguments of the parties. The learned counsel for the defendants-appellants further argued that the agreement-to-sell dated 28.8.1964 and the receipt of the consideration of Rs. 3,000/- are neither attested by any Magistrate or a Notary Public nor the same were proved through any marginal witness mentioned in the documents. The thumb impressions affixed on agreement-to-sell were also not got verified from any expert. He further submitted that the plaintiff-respondent while filing the suit before the Senior Civil Judge had annexed only agreement-to-sell and receipt of Rs.3,000/-, the consideration of the land whereas in rebuttal, the defendants-appellants have placed on record the 'Misl-e-Haqiat', Kham parcha', Khatooni' and 'Parcha Bandobasti' and without taking into consideration all these documents, the trial Court decreed the suit which was rightly reversed by the learned Additional District Judge by dismissing the suit. The learned counsel submitted that the High Court was not justified to disturb the well reasoned judgment and decree recorded by the Additional District Judge, Muzaffarabad. He contended that it is celebrated principle of law that no relief can be granted beyond the pleadings, whereas in the case in hand, the judgment and decree passed by the Senior Civil Judge is in violation of the settled principle. He lastly argued that the suit was filed only to the extent of 20 kanals land out of seven survey numbers but the High Court passed the decree of the land measuring 53 kanals 19 marlas, comprising 14 survey numbers.

4. Mir Sharafat Hussain, Advocate, who also appeared on behalf of the defendants-appellants, while supporting the arguments advanced by Mr. Abdul Hamid Khan Shahid, further urged that the High Court failed to record any finding regarding the crucial issue of limitation involved in the case. He argued that no decree can be passed for part performance of an agreement/contract only on the basis of oral evidence. No fair opportunity was provided by the trial Court to the defendants-appellants at the time of hearing as the trial Court failed to summon the Patwari to verify the documents placed on the record by the defendants-appellants. He further contended that in paragraph 3 of the plaint, it was averred by the plaintiff-respondent that the possession was delivered after four years of the execution of the agreement-to-sell whereas in the 'Iqrar nama' it has been alleged that he is in possession of the land for the last 16 years. The plaintiff-respondent has taken contradictory stand regarding possession which important aspect of the case has neither been taken into consideration by the trial Court nor the High Court while passing the impugned judgments and decrees. He further submitted that no description of the property has been mentioned in the agreement-to sell which itself shows that the agreement-to-sell is a forged document. The suit was filed after the death of the executant and no plausible explanation has been given as to why the suit was filed after the death of the executant and the plaintiff-respondent remained silent for a long time which itself creates a serious doubt regarding the authenticity of the agreement-to-sell. The learned counsel for the defendants-appellants have relied upon the cases titled Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others [2001 CLC 946], Jamal Din alias Muhammad Jamal v. Mst. Mahmooda Begum [2002 CLC 361], Hikmat Khan v. Shamsur Rehman [1993 SCMR 428] and Raja Muhammad Yousaf through legal heirs v. Mst. Sharifan Bibi and others [2006 YLR 1084].

5. On the other hand, Syed Azad Hussain Shah, Advocate, the learned counsel for the plaintiff-respondent, strongly supported the judgment and decree of the High Court while arguing that the same is perfect and legal. The High Court has given sufficient reasons for decreeing the suit in favour of the plaintiff-respondent, therefore, no interference is called for by this Court. He strongly argued that no time limit is fixed for filing a suit for specific performance as the executant never refused in his life time to execute the agreement-to-sell, therefore, the question of limitation does not arise. He further contended that the plaintiff-respondent has furnished sufficient explanation regarding the limitation in paragraph 4 of the plaint. He further urged that the agreement-to-sell is a valid document which has been proved as signature of one of the witnesses, i.e., Inayatullah, was verified by his son. However, the learned counsel for the plaintiff-respondent admitted that stamp vendor could not be entered in the witness box because he had died. He lastly argued that the document, i.e., agreement-to-sell is thirty years old document and under Article 100 of the Qanun-e-Shahadat Order, 1984, the presumption of truth is attached with it. He further urged that the copy of 'Khasragirdawari' was produced, however, he was unable to controvert that why the same was not exhibited before the trial Court.

6. We have considered the arguments advanced by the learned counsel for the parties and perused the record. The suit for specific performance was filed by the plaintiff-respondent on the basis of a document which was allegedly executed on 28.8.1964 with the following prayer:-- The suit was contested by the defendants-appellants by filing written statement. The trial Court decreed the suit whereas, the learned Additional District Judge, Muzaffarabad, dismissed the suit for want of proof. On second appeal, a decree for part performance was passed by the High Court while reversing the judgment and decree passed by the Additional District Judge under section 53-A of the Transfer of Property Act, 1882. Before proceeding further, we have to examine that what are the essential requirements for getting the benefit under the provisions of section 53-A which is reproduced below:-- "53-A Part performance.

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, continues 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 shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the 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."

7. After going through the above said provisions, we are of the view that besides other conditions, the possession is pre-requisite condition to get the benefit under above referred provisions. To determine the question of possession, we have to see what evidence has been brought on the record to prove the same. In the plaint filed on 12.4.1994, the plaintiff-respondent has asserted that he is in possession of the land since 1968 whereas in the 'Iqrar Nama' executed on 28.8.1964, Muhammad Zaman, the executant of 'Iqrar Nama' has mentioned that the plaintiff-respondent is in possession of the land for the last 16 years. After going through the above said assertions in the plaint, we are of the view that contradictory stand has been taken by the plaintiff-respondent regarding possession of the land. It seems that he was not sure about the possession. Even otherwise, to prove his version, he failed to bring on record an iota of evidence on the basis of which it could be ascertained that after the execution of agreement-to-sell, the possession was delivered to the plaintiff-respondent. The copy of 'Jamabandi' which was brought on the record before the trial Court was not exhibited, therefore, the same cannot be considered at the appellate stage. As we have observed that the possession is pre-requisite condition to get the benefit under section 53-A of the Transfer of Property Act, and if a person fails to prove his possession, he cannot get the benefit under this section as it is necessary that the transferee must have taken the possession under the contract as has been laid down in a case titled Nila Padhan and others v. Gokulananda Padhi and others [AIR 1952 Orissa 118], wherein it has been observed as under:-- "(7) In order to avail himself of the doctrine of part performance under S. 53-A, T.P. Act, the deft. has to establish not only that there was a transfer but also that there was delivery of possession in pursuance thereto....."

8. The principle of part performance embodied in section 53-A of the Transfer of Property Act can only be pressed into service as a shield by a person to protect his possession of property which has been delivered to him for consideration but of which the legal title has not been vested in him owing to some formal defect like lack of registration of the instrument of transfer etc., a person, in order to entitle himself to get the benefit of the doctrine of part performance, must show that the contract involved has been reduced in writing and signed by the person making the contract and registered. Protection available under section 53-A can be pressed as a shield and not used as sword to maintain a suit for possession and where the contract of transfer was ab initio void, the principle had no application. Reliance can be placed on the following case law enunciated by superior judiciary of subcontinent. In a case titled Azad Government of the State of Jammu and Kashmir, Muzaffarabad v. Haji Abdur Rashid and others [1999 YLR 1001] it has been observed by this Court as under:-- "

10. There is yet another aspect of the matter. As has already been pointed out that the plaintiff-respondent did not sue for the specific performance of the contract, rather he has filed merely a declaratory suit. It is well settled principle of law that the doctrine of part performance of the contract cannot be made as a weapon of offence. It is merely a shield which can be used in defence. In other words, irrespective of the fact that the doctrine of part performance was not pleaded in the suit by the plaintiff-respondent, even otherwise, that could not be made basis for a declaratory decree in favour of the plaintiff." After detailed survey of case law on the point, this Court further observed in the above referred case as under:-- "It is evident from the above case law that even if it is ignored that the doctrine of part performance was not pleaded, the fact remains that no decree could be passed on the basis of the same because the estoppel cannot be used for establishing a title in the immovable property. That can only be used to protect the possession, if at all the same is applicable." In another case titled Mst. Khaki Begum v. Amir Ali Khan [PLD 1982 AJ&K 59], it was observed as under:-- "........ Instrument Exh. D.A. is a mere agreement to sell. It does not create any right or title in favour of defendant-respondent who was to buy the immovable property through a registered sale-deed. It is well settled that an agreement to sell can be rescinded by an owner and who can sue for possession thereto within 12 years unless the person in whose favour the agreement to sell has been executed, has already within the prescribed period of limitation, brought a suit for specific performance of the agreement. Here violation of agreement was committed in the year 1964 when an illegal mutation was got attested by the defendant respondent and the suit was filed in 1967." In the case titled Kashiprasad Sukhiram v. Bedprasad Parmeshwar [AIR 1940 Nagpur 113] it has been held as under:-- "....... It is then urged that the plaintiff can at any rate rely on S. 53A, T.P. Act, and enforce his rights under the doctrine of part performance. What is overlooked is that S. 53A does not entitle a person to sue; it only enables him to defend his rights to possession. ........" In a case titled Muhammad Yousaf v. Munawar Hussain and 5 others [2000 SCMR 204], the Supreme Court of Pakistan observed as under:-- "....... In this view of the matter, the right course for the petitioner would have been to institute a suit for specific performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under section 53-A of the Act........" Similarly in the case titled Fauja v. Mst. Karim Khatoon and 6 others [1993 MLD 1078], following observations have been made:-- "......... And what is more important is that the appellant in his written statement had not specifically taken up vital plea that he was in physical possession of the land in pursuance of the transaction. All these circumstances proved beyond doubt that the oral transaction was never accompanied by delivery of possession to enable the appellant to avail the benefit of section 53-A ........" In the case titled Mst. Zainab v. Muhammad Iqbal and 12 others [2005 YLR 2129] the following observations have been made:-- "

8. As far as the contention of the learned counsel that the plaintiffs/respondents were protected by virtue of section 53-A of the Transfer of Property Act is concerned, it has no merit because the protection available under section 53-A could not be pressed as a shield and not used as sword to maintain a suit for possession." In a case titled Hikmat Khan v. Shamsur Rehman [1993 SCMR 428], it was observed as under:-- "There can be no cavil with the proposition that an unregistered document if it is compulsorily registrable under the Registration Act, cannot create title. However, section 53-A of the Transfer of Property Act, which is an exception, confers right on a person, who is holding possession of the property under an unregistered written document which required compulsory registration, to protect his possession against the vendor and all persons acting through or under him. It is true that section 53-A of the Transfer of Property Act cannot be utilized by a person in possession of immovable property under an unregistered document which is compulsorily registrable under the Registration Act, as an weapon of offence to assert his title over the property but it is undoubtedly a complete defence in answer to a claim of possession by the vendor or any other person claiming through or under him........." In a case titled Jahangir Begum v. Gulam Ali Ahmed [AIR 1955 Hyderabad 101] it has been held as under:-- "

7. To invoke the doctrine of part performance the transferee must take possession of the property and if he be already in possession and continues as such, he must, in furtherance of the contract, do some act which must be such as to constitute an act of part performance. The acts of part performance, if they preceded the contract, could not be evidence of part performance. ........."

9. We failed to find out any such evidence from the record which could prove the possession of the plaintiff-respondent, therefore, we feel no hesitation to hold that the plaintiff-respondent failed to fulfil the pre-requisite condition of possession to get the benefit under section 53-A of the Transfer of Property Act and the findings of the High Court in this regard are not tenable in the eye of law.

10. The next point argued by the learned counsel for the defendants-appellants is that the suit has been filed beyond the limitation prescribed by law. When the learned counsel for the plaintiff-respondent was asked to meet the argument with regard to limitation, he submitted that the point of limitation has been comprehensively explained in paragraph 4 of the plaint. We are afraid we cannot agree with the explanation offered while filing the plaint as the same is not supported by any evidence. Only the verbal assertion cannot be made basis for the condonation of delay under Article 113 of the Limitation Act. The limitation prescribed for filing a suit for part performance initially was three years which was later on amended and increased to six years through an amendment by the Azad Jammu and Kashmir Limitation (Amendment) Act, 1989 with effect from 8.10.1989. Admittedly, the agreement-to-sell was executed on 28.8.1964 and the suit was filed on 12.4.1994. We are not satisfied with the explanation furnished by the plaintiff-respondent and we are of the considered view that the suit was barred by limitation which was liable to be dismissed on this sole ground. This question has not been resolved by the High Court as well as by the trial Court properly, therefore, we are not convinced with the reasons advanced by the High Court in this regard. We, therefore, hold that the suit was required to be filed within the period of three years of the execution of the agreement-to-sell but the same was filed beyond the limitation which was hit by Article 113 of the Limitation Act. Reliance is placed on a case titled Raja Muhammad Yousaf through legal heirs v. Mst. Sharifan Bibi and 3 others [2006 YLR 1084] in which it has been observed as under:-- "

17. The learned counsel for the respondents also submitted that the petitioner had not raised any objection as to limitation either in the written statement filed by him before the learned trial Court or in the grounds of appeal before the learned lower appellate Court. On this basis, it was argued that the objection as to limitation could not be raised at this stage. In response, learned counsel for the petitioner submitted that the question of limitation was to be attended to by the Court itself even where no objection to such effect had been raised by the petitioner. He supported his submission by referring to the case titled Hakeem Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC

153. The argument of learned counsel for the petitioner is well- founded. Learned counsel for the respondents was not in a position to controvert the same or to dispute the position that even if the cause of action is deemed to have arisen on 3.8.1993 and not 1986-87, the suit would be barred by limitation."

11. Even otherwise, the agreement-to-sell on which the plaintiff-respondent has heavily relied does not seem to be a valid document as the same was not attested by any authorised officer and was not a registered document. Admittedly, the suit was filed after the death of the executant and in this regard no sufficient explanation has been brought on the record as to why the plaintiff- respondent remained mum for such a long time.

12. It is also apparent from the record that originally the suit was filed regarding survey numbers 340 min, 341 min, 342 min, 343 min, 344 min, 345 min, 356 min and 631 min, measuring 20 kanals 2 marlas, whereas the High Court has granted the decree of land measuring 53 kanals, 19 marlas, comprising survey Nos. 331 min, 336 min, 339 min, 340 min, 341 min, 342 min, 343 min, 344 min, 345 min, 356 min, 631 min, 422 min, 643 min and 750/421 min. The relief granted by the High Court is beyond the pleadings which is not warranted under law.

13. It is also apparent from the record that the defendants-appellants brought before the trial Court the documents; i.e., 'Misl-e-Haqiat', 'Kham Parcha', 'Khatooni' and 'Parcha Bandobasti' but the trial Court failed to consider the same without assigning any reason in spite of the fact that an application was moved for summoning the Patwari which was also accepted by the trial Court but as to why the Patwari was not summoned, no reason whatsoever has been given by the trial Court. In the light of what has been stated above, this appeal is accepted and while setting aside the judgment and decree passed by the High Court on 29.4.2009, the judgment and decree passed by the Additional District Judge, Muzaffarabad, dated 1.9.2007 are restored. ZC/4/SC(AJ&K) Appeal allowed.