1990 PLP 1381 (CLC)

Date of hearing: 14th January, 1990. The facts which constitute the background of this civil revision application filed under section 115, C.P.C. are that Ahmed Mujtuba Khan, predecessors‑in‑interest of applicants owned and possessed agricultural land bearing S. No. 430, situated in Deh Kingri, Taluka Khairpur, ad‑measuring 2‑6 acres, which he got in satisfaction of his claim under Displaced Persons (Land Settlement) Act, 1958. Respondent Iqbal Shah was the hari on this land who gave zamindari share to Ahmed Mujtuba Khan upto Kharif 1967, but stopped thereafter, which necessitated Ahmed Mujtuba Khan to file Suit No. 84 of 1970 for declaration, possession, injunction and mesne profits against him. The respondent contested this suit and pleaded that he has purchased this land from Ahmed Mujtuba Khan through an agreement of sale dated 3‑6‑1964 for a consideration of Rs.4,000 out of which he paid a sum of Rs.310. The suit proceeded before Civil Judge, II‑Class, Khairpur, who vide judgment dated 4‑4 1977 decreed it. The respondent challenged this judgment and decree in Civil Appeal No.13 of 1977, which was heard and decided by I‑Additional District Judge, Khairpur, who vide judgment dated 24‑10‑1978, accepted the appeal holding that the dispute was covered under the Sindh Tenancy Act, 1950, falling within the jurisdiction of Tribunal constituted under the said Act. Accordingly Ahmed Mujtuba Khan submitted an application under Sindh Tenancy Act, 1950, against the respondent and one Hussain Bux, because he had been doing cultivation on his behalf. The respondent again claimed ownership on the basis of said agreement of sale, which was disputed by Ahmed Mujtuba Khan. The Tribunal vide order dated 16‑12‑1978, directed the respondent to pay zamindari share and further held that if it was not done, the tenancy rights will stand terminated. The respondent did not challenge this order, but instead he filed a suit bearing No. 103 of 1979 on 18‑12‑1978, for specific performance of contract and permanent injunction against Ahmed Mujtuba Khan in the Court of Civil Judge, Khairpur. The said Ahmed Mujtuba Khan controverted the allegations based on facts. He also filed a suit bearing No. 16 of 1980 against the respondent seeking declaration that the said agreement of sale dated 3‑6‑1964 was a forged document and be cancelled as such. The learned Civil Judge Khairpur, where both the suits were pending consolidated them and vide judgment dated 18‑12‑1980, dismissed the suit filed by the respondent and held that the agreement dated 3‑6‑1964 was a forged document and decreed the suit filed by Ahmed Mujtuba Khan. The respondent challenged this consolidated judgment by filing Civil Appeals No.2 and 3 of 1981, which were heard by learned I‑Additional District Judge Khairpur, who vide judgment dated 31‑10‑1981, dismissed the suit filed by Ahmed Mujtuba Khan. He also accepted the appeal partly arising out of the suit filed by respondent by declaring that the agreement dated 3‑6‑1964 was genuine, but the same could not be enforced having become time‑barred. The learned I‑Additional District Judge also allowed the respondent to retain possession of the disputed land, in view of the provisions contained in section 53‑A of the Transfer of Property Act, 1882. The said Ahmed Mujtuba Khan challenged this judgment and decree before this Court in Civil Revision No.12 of 1982, which was heard by Ajmal Mian, J (as he then was) who accepted the revision and remanded the case to First Appellate Court with the following direction: "I am inclined to hold that the principle enacted in section 53‑A of the Transfer of Property Act (hereinafter referred to as the Act) is based on equitable principles evolved by the English Courts. It may be pointed out that one of the cardinal principles of jurisprudence is that one who seeks aid of equity should do equity and should come to the Court with clean hands. In other words, if there was any breach of the sale agreement on the part of the respondent, he was not entitled to press into service section 53‑A of the Act. This aspect has not been dealt with by the learned Appellate Court. I would, therefore, allow the present revision application and would remand the case to the learned Appellate Court with the direction to examine the question as to whether, there was any breach on the part of the respondent at the time of filing his above suit in order to disentitle him to invoke the aid of section 53‑A of the Act."

2. On remand the learned I‑Additional District judge examined the question as to whether the respondent was guilty of the breach of contract at the time of filing his suit and answered it in favour of respondent. By this revision presented on 5‑3‑1984, the said Ahmed Mujtuba Khan challenged the judgment dated 14‑11‑1983, recorded by learned I‑Additional District Judge, Khairpur. During the pendency of this revision application the said Ahmed Mujtuba Khan died and consequently his legal heirs were brought on record.

3. I have had the benefit of very careful arguments on both the sides. The question that the agreement of sale dated 3‑6‑1964, was executed by the parties for a valid consideration stands concluded. The concluding paragraph of the judgment in Civil Revision No.12 of 1982 is self‑explanatory and for the sake of convenience is reproduced below: "It was also urged by Mr. Rehman Naqvi that the case may also be remanded to the learned Appellate Court in order to examine whether the sale agreement was a forged document. I am not inclined to remand the case on the above ground as the finding of the learned Appellate Court is supported by the evidence on record."

4. The main controversy between the parties, therefore, centres round the limited point as to whether there was any breach on the part of the respondent to disentitle him to invoke the provisions of section 53‑A of the Transfer of Property Act, 1882. The solemnity of a document ranks higher and forms superior type of evidence than any other form or evidence. The superior type of evidence brought on record in this respect is the agreement of sale itself, which recites as follows:‑ "I; Ahmed Mujtuba s/o Muhammad Mushtaqeem .... make covenant and bind myself that I own 2‑6 acres of land from survey number 430, deh Kingri, taluka Sub‑District Registration Khairpur, by virtue of allotment in lieu of my claim. It is in my use and occupation. It has not been purchased from any non‑Muslim after 1‑3‑1947. It is not under any encumberance. It is mutated in the record of rights in my name and is in my possession. The said land for consideration of Rs. 4,000 is sold to Iqbal Hussain Shah with all rights and privilege attached to it. I have received Rs.310 in advance in presence of witnesses. The balance amount would be taken at the time of final registration of the sale‑deed. The possession of the land has been handed over to the vendee on this date. From this date I and my heirs would have no concern with such land ...."

5. The essential conditions for the applicability of section 53‑A of the Transfer of Property Act, 1882, are the following: (i) That the agreement should be in writing signed by the party or his agent whom it is sought to bind. (ii) That the transferee in part performance of the contract takes possession of the property or, if already in possession, should continue in possession and in the latter case should do some act in furtherance of the contract; (iii) That the transferee seeking to avail himself of the doctrine, should perform or be willing to perform his part of the bargain as contain in the writing; (iv) That when the contract has been partly performed all rights and liabilities under the contract should arise and be enforceable as between the parties to the contract notwithstanding that the transaction has not been completed according to law; and (v) That the application of doctrine should not affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. (See the Transfer of Property Act, 1882, by A.K. Ray.)

6. Bearing these principles in mind, I shall endeavour to construe the agreement. The final clause isolated from the context would naturally be interpreted as doing nothing by the respondent more than making payment of balance at the time of registration of sale‑deed. Even if we read the entire agreement together, I find it to difficult to read into the agreement anything beyond what the learned Additional District Judge has observed. He also resolved the limited point on which the case was remanded by this Court in favour of the respondent for the following reasons:‑‑ (i) The averments made by respondent in para. No.2 of the plaint about his repeated demands for the performance of the part of contract, were replied in evasive manner. (ii) That there was evidence on record to prove that the respondent had approached Ahmed Mujtuba Khan for performing his part of contract, but he was kept on false hopes. (iii) That Yar Muhammad (P.W.3) has testified that the respondent had approached to him in the year 1970 complaining that Ahmed Mujtuba Khan was avoiding to execute registered sale‑deed in his favour.

7. Ordinarily, a finding of fact arrived at by a Court having jurisdiction cannot be questioned in a civil revision. Therefore, the fact that this Court might C have come to a different conclusion on the evidence on record by itself will not be a ground for allowing a revision application. The contention that the respondent approached the Court seeking enforcement of contract after a lapse of 14 years is again not indicative of any breach of obligation on his part. It was Ahmed Mujtuba Khan .who denied the very execution of agreement, although there is satisfactory evidence to establish it. Ahmed Mujtuba Khan also took 16 long years to approach the Court seeking cancellation of agreement executed by him on 3‑6‑1964.

8. Mr. Farkhand Ali, learned counsel for applicants has invited my attention to cases reported as Haji Jan Muhammad v. Ghulam Ghaus and 2 others (1976 S C M R 141), Noordin v. Amar Ali (1980 C L C 1785), and Rashid Ahmed v. Messrs Friend Match Works (P L D 1989 SC 503). The facts of all these cases are, however, distinguishable. The first case relates to proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959, and the agreement of sale which formed the sheet‑anchor of the petitioner's case did not exempt him from payment of rent and, therefore, his continued occupation of the premises in violation of law could hardly be put forth as a defence or a step towards part performance, when admittedly the petitioner had never paid the consideration. In the second citation the acts done before the contract were not taken to be done in pursuance of the contract or treated as acts of part performance. The last case proceeds on quite different premises and in that case the entire consideration was not paid within the stipulated period. The argument of Mr. Farkhand Ali, learned counsel for applicants that the respondent was not entitled to an equitable relief under section 53‑A of the Transfer of Property Act, 1882, is effectively answered by the Supreme Court in the case of Hafiz Muhammad Yameen and another v. Qazi Ghulam Mustafa and another reported in 1976SCMR379.

9. The last contention raised on behalf of applicants that the provisions of section 53‑A of the Transfer of Property Act, 1882, are available only as a defence and could not be invoked for enforcing a right, is again feeble and faint. The D learned counsel for the applicants should have known that a complete answer to this contention is provided by a Division Bench in the case of Inayatullah and others v. Shah Muhammad and others, reported in P L D 1961 Lahore 372, in which it was held that section 53‑A of the Transfer of Property Act, 1882, protects transferee, whether he comes to Court as defendant or plaintiff.

10. For all the above reasons, I see no merits in this revision application which stands dismissed with no order as to costs. A.A./A‑817/K Revision dismissed.