P L D 2002 Supreme Court 702 (PLP)

FAQIR MUHAMMAD KHOKHAR, J.--The petitioner seeks the grant of leave against judgment dated 14-5-1999 passed by the Lahore High Court, Lahore in Civil Revision No. 896 of 1998.

2. Briefly stated, the facts of the case are that ,respondent No., l filed a civil suit against the petitioner and respondent No.2 for the recovery of possession of the disputed house, Rs.900 as mesne profits and Rs.3,000 being the value of household articles. The respondent No.l claimed that he had purchased the disputed house with possession from the petitioner on 4-8-1978 for a consideration of Rs.8,500 which was paid and the petitioner executed a document Exh.P1 in this regard.

3. On the other hand, the petitioner also filed a suit for permanent injunction against the respondent No.1 in that he was the owner in possession of the disputed house. A room thereof was let out to respondent No. 2 who had refused to vacate the same. It was further averred that the respondent No. 1 in collusion with respondent No.2 was bent upon to take the possession of the suit' property illegally.

4. The Civil Judge, Chunian, District Kasur consolidated both the civil suits. The civil suit of the respondent No. l was decreed whereas the one filed by the petitioner was dismissed by the Civil Judge vide judgment and decree dated 8-10-1995. The petitioner did not challenge the dismissal of his civil suit for permanent injunction which attained finality. The appeal of the petitioner against the judgment and .decree dated 8-10-1995 passed by the Civil Judge qua the civil suit of respondent No. l was dismissed by the Additional District Judge, Chunian, District Kasur vide judgment and decree dated 19-3-1998. The Civil Revision No.896 of 1998 filed by the petitioner was also dismissed by the Lahore High Court, Lahore by, the impugned judgment dated 14-5-1999. Hence this petition for leave to appeal.

5. The learned counsel for the petitioner argued that the respondent No. l had filed a civil suit for possession and mesne profits etc., by claiming his title over the suit property on the basis of a sale-deed dated 4-7-1978 Exh.Pl. The same being an unregistered document could not operate to create, declare, limit or extinguish any right, title or interest in the suit property in view of the provisions of section 49 of the Registration Act, 1908. The learned counsel relied on the case of Habibur Rehman and another v. Mst. Wahdania and others (PLD 1984 SC 424) in support of his submissions.

6. We have heard the learned counsel for the petitioner at length. The learned counsel has raised the question of effect of non-registration of a sale -deed for the first time before this Court. Even otherwise, the learned counsel seems to be oblivious that the case of Habibur Rehman (supra) relied upon by him has already been distinguished by this Court in the case of Fazal v. Mehr Din and 2 others (1997 SCMR 837). It was observed that the provisions of the two provisos of section 50 of the Registration Act No.XVI of 1908, as added by Registration (Amendment) Ordinance, 1962, were not considered or referred to in the case of Habibur Rehman (supra). It was further held that provisos to section 50 (1) of the Registration Act, gave protection to a person in possession of property under unregistered document be it an agreement for sale or contract of sale. The only condition was that the requirements of section 53-A of the Transfer of Property Act, 1882, were to be satisfied. In the case of Abdur Razzak Howaldar v. Sh. Muhammad Shafi (PLD 1962 SC 134) this Court had taken the view that section 53-A of the Transfer of Property Act, 1882 was applicable to cases where a person had contracted to transfer immovable property or had executed an instrument of transfer which was not registered. Therefore, there is no substance in the contention of the learned counsel for the petitioner in the facts and circumstances of the present case.

7. We also find that the petitioner failed to file any appeal or revision against the dismissal of his suit for permanent injunction against the petitioner and respondent No.2 regarding the suit property which attained finality. All the Courts recorded their concurrent findings of fact against the petitioner. The respondent No. l produced reliable evidence to prove that he had been put into the physical possession of the suit property pursuant to its sale by the petitioner. The same was subsequently let out by respondent No. l to respondent No.2. It is also in evidence that the petitioner again took over the possession of the remaining part of the suit property illegally in collusion with respondent No.2 alongwith the household articles of the respondent No. l valuing Rs.3,

000. In the circumstances, no exception can be taken to the findings recorded by the Lahore High Court in the impugned judgment. This is not fit case for grant of leave to appeal.

8. We do not find any merit in this petition and the same is dismissed accordingly. M.B.A./K-55/S Petition dismissed.