1997 PLP 837 (SCMR)

4. The appellant examined P.W.1 Patwari Halqa, himself as P.W.2 and P.W.3 Gul Said Shah. Respondent No.1 examined D.W.1 his son as Special Attorney and closed the evidence. Significantly, respondents Nos.2 and 3 were not examined. The Court examined Mr. Muhammad Farooq, Advocate, who was appointed as Commission and had submitted his report.

5. Learned trial Court holding that the receipt Exh. PW.2/1, though not registered, can be taken into consideration with reference to section 53‑A of the Transfer of Property Act and the house had been constructed by the appellant 2‑1/2 years before the mutation dated 22‑8‑1985 attested in favour of respondent No.

1. Learned Civil Judge concluded that the appellant had been in possession since 1971 and according to Report of the Commissioner the house was constructed about 20/22 years ago. He held that the receipt was inadmissible for want of registration but the appellant had been in possession since 1971. The appellant's suit was decreed.

6. Mehr Din (respondent No. l) filed an appeal against the judgment of the trial Court but the same was dismissed and the judgment and decree passed by the learned trial Court was maintained. Respondent No.1 then filed Civil Revision before the High Court which was partly allowed observing as follows:‑‑ "In the case in hand, notwithstanding the description in the plaint of the document as. It was out and out a sale‑deed and not a contract of sale so as to attract the provisions or even principles of section 53‑A of the Transfer of Property Act. This being so the learned two Courts below have erred to place reliance on the provisions of section 53‑A of the Transfer of Property Act to hold that notwithstanding the non‑registration of the sale‑deed Exh.P.W.2/1 it can have the effect of creating any interest in the land which could only be created by a registered instrument only." It was further held that as respondent No.1 has purchased only four Marlas of land on 22‑8‑1985, the appellant could have a charge on the aforesaid four Marlas and improvements for construction raised thereon in good faith and concluded that the appellant cannot claim title as owner of four Marlas out of the disputed property but could have a charge on it for the amount paid by him to respondents Nos.2 and 3 and amount of compensation for construction raised on four Marlas. The judgment and decree was thus modified to that extent.

7. Leave was granted to consider "whether the learned High Court was legally justified in setting aside the finding of the two Courts below, holding the petitioner to be the owner in possession of the suit property on the basis of an unregistered sale‑deed, on the ground that such deed did not create any title and that section 53‑A of the Transfer of Property Act was not applicable to the case".

8. Mr.M.H. Lughmani, learned counsel for the appellant contended that in view of the amendment made in section 50 of the Registration Act, the principles of provisions of section 53‑A of the Transfer of Property Act will be attracted with full force to the present case and, therefore, the appellant, in possession of the property in dispute including ,four Marlas, could make claim on the basis of the receipt dated 18‑5‑1971.

9. Hafiz S.A.Rahman, Senior Advocate, learned counsel for respondent No.1 contended that the document relied upon by the appellant is not genuine but assuming that it is so, it being a contract of sale, it is inadmissible for want of registration and no title or interest can be claimed by the appellant on that basis.

10. The final position emerging from the evidence of the parties seems to be that the respondents Nos.2 and 3 did not appear at any stage of the proceedings nor respondent No.1 examined any one of them to prove that the receipt/contract was forged and fictitious. Respondent No.1 also did no produce any authentic evidence in support thereof. Therefore, the finding of all the Courts seems to be that a receipt or contract was executed and the appellant who was in possession thereof continued in possession after the agreement for which sale consideration of Rs.600 had been paid to respondent No.2. In this background and factual position, the contention of the learned counsel for the appellant is to be considered . He has relied on provisos (1) and (2) to subsection (1) of section 50 of the Registration Act. It reads as follows:‑‑ "50 Certain registered documents relating to land to take effect against unregistered documents.‑‑(1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17, subsection (1), and every document registrable under section 18, in so far as such document affects immovable property or acknowledges the receipt or payment of any consideration in respect of any transaction relating to immovable property shall, if duly registered; take effect as regards the property comprised therein; against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not: Provided that the person in possession of the property under an unregistered document prior in date, would be entitled to the rights under section 53‑A of the Transfer of Property Act, 1882 (IV of 1882) if the conditions of that section are fulfilled: Provided further that the person in whose favour an unregistered document is executed shall be entitled to enforce the contract under the unregistered document in a suit for specific performance against a person claiming under a subsequent registered document, subject to the provisions of clause (b) of section 27 of the Specific Relief Act, 1877 (1 of 1877). (2) ...................... ....................................

11. These two provisos were added by the Registration (Amendment) Ordinance, 1962 with effect from the 7th June, 1962. The first proviso clearly indicates that . a person who is in possession of the property under an unregistered document prior in date, would be entitled to claim rights under section 53‑A of the Transfer of Property Act provided he fulfils all the conditions laid down in the said section. It, therefore, applies section 53‑A of the Transfer of Property Act to persons in possession of the property acquired under an unregistered document. Learned counsel for the appellant contended that the receipt/contract is a document of sale requiring registration but has remained unregistered. Therefore, the appellant can claim benefit of section 53‑A of the Transfer of Property Act. Learned counsel has relied on Naib‑Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others (1'992 SCMR 1265) in which essential ingredients of applicability of section 53‑A of the Transfer of Property Act have been enumerated, which require a contract in writing signed by the transferor in respect of an immovable property; transfer can be ascertained with reasonable certainty; from the document the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and that the transferee has performed or is willing to perform his part of the contract. It is on satisfaction of these conditions that one can claim the benefit of section 53‑A of the Transfer of Property Act. In this judgment reference was made to Mst. Ghulam Sakina v Umar Bakhsh and another (PLD 1964 SC 456), Habibur Rehman and another v. Mst. Wahadania and others (PLD 1984 SC 424), Mst. Shankri and others v. Milkha Singh (AIR 1941 Lahore 407) and observed as follows:‑‑ "Section 53‑A of the Transfer of Property Act enunciates equitable principle to protect the rights of such purchasers who have entered into agreement and in pursuance thereof obtained the possession of the immovable property and have further either performed their part of the agreement or are agreeable to perform the same. In such circumstances, mere non‑registration of a deed which requires registration under section 17 of the Registration Act, will not deprive him of the benefit which he is entitled to protect by virtue of section 53‑A of the Transfer of Property Act. It is true that section 53‑A does not confer or create any right but it provides a defence to a transferee to protect his possession. Reference can be made to the cases of Kalimuddin Ansari, v. Director, Excise and Taxation, Karachi and another (PLD 1971 SC 114) and Sri Kalulam Subranmanyam and another v. Kurra Subba Rao (PLD 1948 PC 52). Section 53‑A debars a transferor from enforcing any right other than rights specifically provided by the contract against a transferee who in part performance of a contract has taken possession. Reference tray be made to the cases of Abdullah Bhai and others v. Ahmed Din (PLD 1964 SC 106) and Mst. Ghulam Sakina v. Umar Bakhsh and another (PLD 1964 SC 456). In the present case, the agreement itself recites that the appellant in part performance of the agreement had been put in possession of the property. The appellant is, therefore, entitled to the protection of his possession. " From the above observation it is clear that if any document requiring registration under section 17 of the Registration Act has not been registered, it cannot bar or deprive a purchaser from claiming benefit under section 53‑A of the Transfer of Property Act provided he satisfies the requirement of the said section.

12. Learned counsel for the appellant has rightly contended that words "unregistered document" in section 50 of the Registration Act will include even a contract of sale which though executed has not been registered. In view of the provisos, it is clear that section 53‑A is applicable to cases where there is agreement for sale and will not apply to a document which is a contract of sale. In this regard, reference can be made to Hikmat Khan v. Shamsur Rehman (1993 SCMR 428) wherein Saeeduzzaman Siddiqui, J., has followed the observations made in Naib‑Subedar Taj Muhammad's case (1992 SCMR 1265). At this stage, it would be advantageous to refer to Abdur Razzak Howaldar v. Sh. Muhammad Shafi (PLD 1962 SC 134) wherein B.Z. Kaikaus, J. observed that "this section 53‑A is applicable only to cases where a person contracts to transfer immovable property or executes an instrument of transfer which is not registered". '

13. Hafiz S.A. Rahman, learned counsel for respondent No. l has referred to Habibur Rehamn and another v. Mst. Wahdania and others (PLD 1984 SC 424), Mst. Shankri and others v. Milkha Singh (AIR 1941 Lahore 407) and G. H.C. Ariff v. Jadunath Majumdar Bahadur (AIR 1931 PC 79). In Habibur Rahman's case, the question for consideration was "whether an equitable doctrine, such as the one contained in section 53‑A of Transfer of Property Act can override the specific provisions of section 49 of the Registration Act, with the result that an unregistered document, even though it requires registration, becomes operative and has the effect of nullifying the provisions of the Registration Act?" Nasim Hasan Shah, J., while dealing with this question took into consideration Mst. Shankri and others v. Milkha supra and Ariff v. Jadunath Majumdar Bahadur (supra) and held that it was not possible. All these cases are distinguishable because there section 50 of the Registration Act as amended was not under consideration. It was not even referred. It may be noted that first proviso to section 50(1) of the Registration Act gives protection to person in possession of the property under an unregistered document, be it an agreement for sale or a contract of sale. It does not make any such distinction. The only condition is that it should be an unregistered document by a person in possession of the property under it and that he fulfils the conditions laid down in section 53‑A of the Transfer of Property Act. Applying this principle on the facts of the case, it is clear that the receipt/contract was a document of sale of the disputed property which was unregistered. The appellant was, therefore, entitled to the protection and rights under section 53‑A of the Transfer of , Property Act.

14. The appeal is allowed. The judgment and decree passed by the Trial and Appellate Court is maintained with no order as to costs. A.A./F‑408/S Appeal accepted.