1976 PLP 379 (SCMR)

ANWARUL HAQ, J.‑ This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 13th of January 1975. by which the second appeal filed by the plaintiff‑respondent Qazi Ghulam Mustafa was accepted and his suit was partly decreed for a declaration to the effect that he was entitled to remain in possession of the property in dispute in terms of section 53‑A of the Transfer of Property Act. His prayer for the recovery of Ro. 6,674.37 was refused. The plaintiff's case was that under a registered agreement of sale dated the 9th of January 1963, petitioner No. 1, Hafiz Mohammed Yamin had agreed to sell jointly to the plaintiff and respondent No. 2 Hafiz Abdul Yamin agricultural land true 137 kanals 10 marlas, ate in village Khairpur Dhah In Tehsil Ahmadpur East of the Rahawalpur District; that the agreed sale price was paid in equal sharer, by the plaintiff and his co‑vendee, on various dates, but the vendor did not get the mutation of sale executed in their favour even during the extended period upto the 10th of June 1963; that on the contrary the vendor sold the land to Hafiz Abdul Rahim and Qazi Noor Mohammad, excluding the plaintiff altogether. Thereupon, the plaintiff filed a suit earlier but withdrew it with the permission of the Court to file another suit. In the present suit the plaintiff prayed for a declaration that he was the owner in possession of the land in dispute; in the alternative he prayed for a decree for possession or for refund of the amount paid by him to the vendor. The suit was dismissed by the trial Court on 12‑12‑67 on the finding that the plaintiff had not paid the entire amount of the agreed sale price, and that in fact be was in breach of the contract and not the vendor, and therefore, he was not entitled to any refund. These findings were upheld by the learned District Judge in first appeal by his judgment dated the 6th of November 1971. In the second appeal filed by the plaintiff the High Court has held that the plaintiff was in possession of the disputed property under the agreement of sale, that he had paid Rs. 6, 149.37 as his share of the sale price, but he had not become the owner of the property as full consideration had not been paid. On these findings the High Court has granted the plaintiff the declaration that he is entitled to remain in possession of the property in terms of section 53‑A of Transfer of Property Act. Leave to appeal is sought on the ground that the learned Judge in the High Court has erred in coming to the finding that the plaintiff was in possession of the property under the agreement, as the plaintiff had himself admitted in his pleadings that he was out of possession, and that it was for this reason that he had claimed the relief of possession as well, besides declaration. It is next submitted that in any case the High Court was in error in thinking that the subsequent vendee Qazi Noor Muhammad (petitioner No. 2) was estopped under section 116 of the Evidence Act from repudiating the title of the plaintiff simply for the reason that he had originally entered upon the land as a lessee of the plaintiff. In support of this last submission, the learned counsel has laced reliance on Abdur Rashid v. Salimullah College (P L D 1969 Dacca 319). We regret, we see no merit in these submissions. We find that the learned Judge in the High Court has analysed the evidence in detail before coming to the conclusion that the plaintiff had acquired possession of the property under the agreement of sale, that the subsequent vendee was in fact a lessee under the plaintiff, and, therefore, the plaintiff could not be treated to be out of possession. Nothing has been said at the Bar to persuade us to interfere with this finding of the High Court. As regards the submission that the subsequent vendee could repudiate the title of the plaintiff. we find that the case relied upon by the learned counsel only lays down that section 116 of the Evidence Act does not preclude an erstwhile tenant from raising the plea that he has acquired the landlord's interest himself. This observation does not in any case help the present petitioners. What is necessary in invoking the provisions of section 53‑A a of the Transfer of Property Act is that the plaintiff should have either acquired possession of the property in terms of the agreement of sale o he should have continued in that possession after entering into such a agreement. Now, in the present case it was proved to the satisfaction of the High Court that the plaintiff had indeed acquired possession of the property under the agreement. Such being the cane, an essential ingredient of the relevant section was present in this case. The subsequent repudiation of the plaintiff's title by his erstwhile lessee or tenant would not negative the fact that the plaintiff had acquired possession under the agreement. As a result, we see no merit in this petition which is accordingly hereby dismissed. Petition dismissed.