1987 PLP 347 (SCMR)

MUHAMMAD HALEEM, C.J.‑‑This appeal, by leave, arises from the judgment of the High Court of Baluchistan, Quetta, dated 13th of August, 1977, by which R.S.A. No. 14 of 1973, was allowed and the suit of the appellant was dismissed with costs throughout. Leave to appeal was granted to consider: firstly whether under the provisions of Dastoorul Amal Diwani applicable in the former Kalat State the rule of decision in the Court of the Kazi was Shariat which did not require registration of the sale‑deed; and secondly whether the High Court was in error in denying to the appellant the benefit of section 53‑A of the Transfer of Property Act. The appellant is the uncle of the respondent No.1, herein. In the first round of litigation the respondent No.1 instituted a suit for declaration and possession of her share in the ancestral property viz. agricultural land in the area of Karez Naut, Tehsil Mastung which was decreed in her favour by the Majlis‑e‑Shoora on 21st of June, 1965. Thereupon she allegedly entered into an agreement with the appellant for the sale of her share which was the subject‑matter of the earlier dispute. This agreement was signed on 24th of August, 1965 and was for a sale consideration of Rs.5,000, which amount had to be paid to her in two installments. On 23rd of November, 1967, she executed a receipt acknowledging the amount received by her. However, she sold the land which was the subject‑matter of the agreement of sale to her attorney Khuda‑e‑Dad on 20th September, 1969, through a registered sale‑deed. Thereafter Khuda‑e‑Dad applied to the Court of the Tehsildar for the execution of the decree passed earlier in favour of Mst. Shah Bibi, upon which notices were issued to the appellant who on 16th of April, 1970, filed a suit in the Court of Nazim, Sarawan, at Mastung, laying a claim to the property as an owner as a result of the sale of the same in his favour and for a further relief that the subsequent alienation in favour of Khuda‑e‑Dad was illegal. The Kazi framed several issues on the pleadings of the parties. In the dispute before us it is issue No.7 which is relevant and was decided in favour of the appellant as a result of which the suit was decreed on 10th of August, 1972. The learned Qazi, Sarawan, held that the sale‑deed, dated 24‑8‑1965 according to the Sharia applicable in the areas of former Baluchistan States Union did not require registration, therefore, it prevailed over any other subsequent sale. Therefore the objection as to the non‑registration of agreement of sale was of no avail despite the fact that the Registration Act, 1908, was extended to such areas, and the title of the disputed land stood duly conveyed to the appellant. Alternatively he was of the view that as he was in possession of the disputed land, he could defend his title on the basis of that agreement under section 53‑A of Transfer of Property Act, 1882. An appeal was taken to the Majlis‑e‑Shoora and on a difference of opinion between the Member, Qazi Muhammad Issa and the President, the case was referred to the third Member, Qazi Maulvi Saadullah, who agreed with Qazi Muhammad Issa that under the Sharia no registration was necessary, and, therefore, the appellant had become the owner on the execution of the document. He further agreed with him on the question that the disputed property was in the possession of the appellant‑decree‑holder . Respondent No.1, herein appealed to the High Court and succeeded. The High Court after a detailed discussion on the applicability of Sharia held that the appellant had failed to establish that the provisions of the Registration Act were repugnant to the injunctions of the Qur'an and Sunnah. And further that the Majlis‑e‑Shoora was in error to base its decision on the Islamic Sharia without stating the principle derived, there from which dispensed with the registration of the document. Accordingly, there was no reason not to hold that the Registration Act was applicable and that the registration of the sale‑deed was imperative. In conclusion the High Court held:‑ "As the documents relied upon by the respondent for claiming his title over the property were not registered and as there was no evidence of part performance of the alleged contract, so as to give advantage of section 53‑A of the Transfer of Property Act the suit of the respondent must fail." From the document, dated 24th of August, 1965, it nowhere transpires that the possession of the land was handed over to the appellant in part performance of the agreement of sale nor that if he was in possession he remained in such possession in part performance of the contract of sale. On the factual side it was established that the possession of the disputed property was delivered to Shah Bibi on 9th of May, 1970, as a result of the execution of the decree, dated 21st of June, 1965, through the agency of the Tehsildar who had actually visited the site and delivered the possession. The learned counsel for the appellant, who appeared in the High Court, conceded that the conclusion of the Courts below as to the appellant remaining in possession of the disputed property was not sustainable. However, what was asserted was that after the delivery of the possession to the respondent, the appellant and his son on the next day did not permit the respondent and her son to enter the disputed land. The evidence led on this point was believed by the Qazi and the Majlis‑e‑Shoora and on that basis it was held that the possession remained with the appellant. The High Court, however, did not accept this possession as proper and legal so as to found a claim on it under section 53‑A of the Transfer of Property Act. His counsel in the High Court also did not raise any legal plea on the basis of such possession. We consider the conclusion of the High Court to be unexceptionable as it is a must under this provision that the transferee, in order to protect his possession, should have entered into it in part performance of the contract. As to the objection that there was no delivery of possession to Shah Bibi in accordance with the law so as to justify an inference of her possession of the disputed property, we consider this objection to be irrelevant in view of the conclusive finding of the High Court that the possession was, in fact, delivered to Shah Bibi in execution of the decree. Before the cause of action had arisen in this case, the provisions of the Registration Act, 1908, were extended to Kalat by the Ordinance, No. XXI of 1960 on 9th of June, 1960. Accordingly section 20 of the Dastoorul Amal Diwani stood repealed and re‑enacted by the said Act and others duly extended, as amended by this Ordinance as if such law were a Central Act. Therefore, while the Registration Act was in force, the agreement for sale of the disputed property was executed and the receipt given for the consideration. These documents as such could not convey any title to the appellant unless a sale‑deed was executed and registered. We have been referred to the Fifth Report of the Council of Islamic Ideology contained in the Pakistan Code (Vol. V, 1908‑1910), and we find there from that the Registration Act came under scrutiny of the Council, and it was of the opinion that its provisions were not repugnant to the injunctions of the Qur'an and Sunnah. In this view of the matter, the High Court was correct in holding that the rule of decision could not be Sharia, but the enactment, which occupies the field. For these reasons, we uphold the order of the High Court and dismiss the appeal, but with no order as to costs. S. Q. Appeal dismissed.