1984 PLP 951 (MLD)

Ahmed Ali Memon for Respondent. Date of hearing: 18th November, 1984. By this revision application the applicants have sought to challenge the judgment of the Additional District Judge Dadu, dated 27th October, 1975 whereby the judgment of Civil Judge Second Class, Mehar, dated 30th May, 1974 was set aside. After hearing the learned counsel for the parties in support of their respective viewpoints and going through the material on record, the revision application was dismissed by short order, dated 18th November, 1984 for reasons to be recorded separately. Following are the reasons in support of the said short order. The applicant's case is that S. No. 436/7-5 Acres in Deh Jakhro belonged to their father Muhammad Yousif and on his death the said land became their property. According to them the respondents are Haris on the disputed land. They used to cultivate the said land and give Zamindari share of produce to applicants. As soon as they refused to give Zamindari share of Batai to them, the applicants filed Suit Nu.15 of 1974 against the respondents. The respondents have denied the allegations of the applicants claiming that the land in dispute was sold by Muhammad Yousif father and predecessor-in--interest of the applicants to Ghulam Hussain and Misri, the predecessors-in-interest of the respondents for consideration of Rs: 7,000 as per agreement of sale executed by him on 14-1-1952. The said Muhammad Yousif promised to have the sale deed registered in favour of the aforesaid vendees Ghulam Hussain and Misri after obtaining sanction from the Collector for the alienation of the land under section 5 of Sind Rural Credit and Land Transfer Act, 1947. However Muhammad Yousif died and sale deed could not be registered as promised by him. Nevertheless the respondents who, in pursuance of the agreement hall been put in possession of the disputed land continued to hold the possession thereof. The learned trial Court framed as many as seven issues and after considering the evidence led by both the parties decreed the suit. Aggrieved by the judgment and decree of the Civil Judge Second Class Mehar, the respondents went in appeal before the learned District Judge who by his judgment, dated 27th October, 1975 allowed the appeal and set aside the judgment of the trial Court. It is against the judgment of the District Judge that the applicants have filed the present revision application. The first contention of the learned counsel for the applicants was that the agreement of sale does not bear the signature of the executant Muhammad Yousif nor is it in his handwriting and as such it cannot be held to have been executed by him. It was further contended by him that in view of the contradictions in the evidence of respondent Muhammad Umar and attesting witness Haji Muhammad Bux vis-a-vis the contents of the agreement, the alleged sale transaction is rendered doubtful. The learned counsel has further submitted that the executant of the agreement having died, his son applicant Ashiq Ali who put himself in the witness-box and gave evidence should have been confronted with the agreement and the fact that he was not so confronted casts a shadow of doubt over the execution of the said document. There is no denying of the fact that the original owner of the land in dispute was Muhammad Yousif Laghari father and predecessor-in- interest of the applicants. Since the respondent's case is that the said Muhammad Yousif sold the disputed land to Ghulam Hussain and Misri: their predecessors-in-interest, the burden was on them to prove the transaction of sale. In support of their case. they have examined Heji Muhammad Bux, one of the attesting witnesses of the sale-agreement, and Ghulam Hussain, the scribe of the said document, besides Muhammad Umar, respondent No.2. They have also produced the sale-agreement (Exh.42). As stated by Haji Muhammad Bux, the suit land originally belonged to Muhammad Yousif Laghari, who had sold it to Ghulam Hussain under a sale document which was signed and attested by him beside Khan Muhammad Gadhi. He has further affirmed that Muhammad Yousif who was his distant relation had also signed the document in his presence and the document bears his signature. He has added that the contents of the agreement read over to him in Court are correct. Another witness Ghulam Muhammad is the scribe who had written the document. After seeing the sale agreement (Exh. 42) he also confirmed that it was written by him and bears his signature. Taking up the contentions of the learned counsel for the applicants, one by one, it may be pointed out, that Haji Muhammad Bux who has admittedly attested the sale agreement has specifically' stated that Muhammad Yousif had signed the document in his presence and the agreement produced by this witness bears the signature of Muhammad Yousif. Despite such categorical. statement, to say that, Muhammad Yousif had not signed the agreement or that the agreement, does not bear his signature does not seem justified. There appears no basis for entertaining such apprehension. The applicants have not produced any evidence to show that the name of Muhammad Yousif appearing in the agreement is not his signature. It is merely a conjecture to say that the space reserved for his signature above his name hash been left blank. Assuming that the executant Muhammad Yousif had not signed the agreement yet the absence of his signature would not have the effect of rendering the agreement as invalid, if the execution thereof is otherwise proved. In this connection reference may be made to Messrs Jamal Jute Baling & Co. Dacca v. Messrs. M.Sarkies & sons Dacca PLD 1971 S C

784. In this case terms of agreement were reduced to writing and were proved to have been accepted and acted upon by both parties. It was held the agreement was proper and valid even if one party had not signed such agreement. Another objection of the learned counsel for the applicants is that evidence of the attesting witness and so also of the scribe is not only contradictory to sale agreement but also to the evidence of respondent Muhammad Umar. According to the respondent Muhammad Umar he was present at the time of execution of the sale agreement. He has stated that entire consideration of Rs.7,000 was paid to Muhammad Yousif in three instalments--the first two being of Rs.1,500 each and the third was of the order of Rs.4,

000. But contrary to his evidence the sums mentioned in the agreement which .are said to have been received by the vendor Muhammad Yousif, on various occasions are totally different. Thus, the evidence of Muhammad Umar stands in .conflict with the agreement particularly with regard to payments that h were made to Muhammad Yousif from time to time. The question arises if the execution of the agreement can be doubted on this account. It is manifest that Muhammad Umar was not a party to the sale transaction nor was he attesting witness nor the scribe of the said, document. As required by sections 67 and 68 of Evidence Act, the evidence of Haji Muhammad Bux, and Ghulam Muhammad who are respectively attesting witness and scribe of the sale agreement can be regarded as the best evidence for proving the execution of the sale document. If their evidence is believed, the contradictions between the evidence of Muhammad Umar and the sale agreement are of no consequence and cannot be showed to adversely affect the execution of the said agreement. As for the evidence of Haji Muhammad Bux, it appears that in reply to questions put to him in cross-examination, he has stated that the agreement was not written in his presence and that he was simply asked to sign it and that the land was sold only to Ghulam Hussain and that no payment was made to Muhammad Yousif in his presence. Similarly when the scribe Ghulam Muhammad was produced in evidence all that he could say was that the agreement was written by him and it bore his signature. He however, could not read the agreement account of his advanced age and, therefore could not say, who the executing parties were nor he remembered the names of the attesting witnesses nor the amount paid by the vendees to the vendor. While assessing the evidentiary value of the evidence of above two witnesses, it may not be forgotten that when they came to give evidence more than 21 years had elapsed since the execution of the agreement. It was, therefore, not possible for them to have remembered all the details. connected with the execution. It appears the scribe Ghulam Muhammad was 98 years of age when he was put in the witness-box. Therefore, he was not to blame if both his eye sight and memory did not co-operate with him at the time of giving evidence. In these circumstances the lapses pointed out in the evidence of above two witnesses are but natural and should not be unnecessarily exaggerated. The third exception taken by the learned counsel for the applicants was that applicant Ashiq Ali was not confronted with the signature of his father Muhammad Yousif and hence it could be argued that genuineness of the sale document was doubted. First of all after having proved the execution of the document through its scribe and attesting witness the respondents were not bound to show the document to the executant's son, for the purpose of verification of the executant's signature. Since the applicant's case is that their father had not executed any such agreement, the applicant Ashiq, Ali was not expected to admit the signature of his father even if he was confronted with the document. If the respondents did not show him the document, nothing prevented the applicants to do the same job themselves. They could have drawn his attention to the said document and verified from him if it carried the signature of his father. Not only such verification was not made from applicant Ashiq Ali but also the latter instead of denying the execution of the sale agreement by his father Muhammad Yousif, has pleaded ignorance about its existence. Moreover, not a single question has been put to the scribe and the attesting witness suggesting that they were not truthful witnesses either on account of being in collusion with the respondent's party or because their evidence was inspired by any ulterior motive. In absence of such indication there is absolutely no justification to reject their evidence as being untrue. In view of above discussion I have come to irresistible conclusion that the sale agreement in question was executed by Muhammad Yousif predecessor-in -interest of the applicants in favour of Ghulam Hussain and Misri predecessors-in-interest of the respondents. After having held the said agreement to have been executed by Muhammad Yousif, the next point to be considered is the terms and conditions which are the basis of the agreement. According to law the document itself is the proof of its contents. Accordingly the agreement has to be looked into to ascertain the details as to the names of beneficiaries, the payments made or promised to be made, the delivery of possession and the conditions, relating , to final execution and registration of the sale-deed. It appears from the agreement that entire consideration had been paid and the possession of the land which had already been delivered to the respondents was allowed to be retained by them. Furthermore the vendor undertook to get the sale-deed executed and registered after obtaining necessary sanction from the collector. 'But before he could obtain the requisite sanction, he died and after his death, even his heirs took no step for finalization of the sale transaction. Nevertheless the respondents continued in possession of the disputed land. Obviously the respondents were not to blame if the sale agreement concluded between the parties could not mature into sale-deed. As provided in section 53-A of Transfer of Property Act the possession of the respondents stood protected and the applicants were debarred from seeking their ouster from the land in dispute. In support of the above, reliance has been placed on the authority reported as Abdullah Bhai and others v. Ahmed Din P L D 1964 S C 106 wherein it was held : "According to this section when the transferee takes possession of or continues in possession of property which has been transferred to him by an unregistered deed the transferor cannot enforce a right against the transferee in respect of that property except a right provided for in the deed. Property means not the physical property but the right in property which is trans ferred and the remedy of the transferor is barred only with respect to the right that stands transferred. The only effect of this section is that when the person in whole favour the un registered deed has been executed is a defendant in the suit the plaintiff cannot enforce against him a right which is inconsis tent with the rights conferred upon the defendant by the deed." Another case touching on the same point is of Mst Ghulam Sakina v. Umar Bakhsh and another P L D 1964 S C 456., wherein it was held "Section 49 of the Registration Act, no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53-A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, s though compulsorily registrable, has not been registered, then neither the person transferring the property nor any one claiming under him shall be entitled' to enforce against the transferee or any person claiming under, him any right in respect of that property." It is obvious from the above authorities that if tire transferee has been put into the possession of the property transferred to him in pursuance of an unregistered document, his possession is protected and he will continue to enjoy possession despite non-registration of the document provided of course the, transferee is not responsible for the said non-registration. In the instant case registration was possible only after the transferor had obtained the requisite sanction from the Collector. Since neither Muhammad Yousif transferor, in his life tine nor his heirs namely the applicants after his death took steps for obtaining sanction from the collector, it is the applicant's side which is to blame for the non-registration of the sale document: Accordingly the respondents are fully protected in enjoyment of the possession of the land in dispute and the applicants cannot enforce-any right excel that provided in the agreement against the respondents in respect the disputed land. In view of above discussion the revision application was dismissed as stated above. M.Y.H Application dismissed