2019 PLP 505 (YLR)

MOHAMMAD IBRAHIM KHAN, J.

Muhammad Yar Khan resident of village Belu Khan District Malakand seeking declaration on the basis of receipt bearing its execution on 10/10/2000 and on its basis to have become owner and is in possession as purchaser from Syed Hafiz-ur-Rehman. The other document in possession of Ajab Khan be deemed to have been ineffective against his rights on account to be declared ineffective termed to be factitious, frivolous and collusively being executed. Besides introducing a prayer for obtaining permanent injunction along with other prayer for obtaining possession of the premises, the boundaries of which are given in the head-note of the plaint.

2. This claim was hotly resisted by Ajab Khan by filing his written statement raising various legal and factual objections. The pleading of the parties were reduced into following issues:--

3. In Civil Suit No. 236/1 of the year 2005, the learned Illaqa Qazi Malakand at Batkhela by delivering its findings on each and every issue dismissed the suit of Plaintiff (hereinafter called the Petitioner) vide judgment dated 30.09.2008. An appeal bearing No. 31/13 of the year 2008 was preferred before the Court of learned District Judge/Zila Qazi Malakand at Batkhela, which also met failure vide impugned judgment and decree dated 30.03.2009, thereby findings contained in the judgment and decree of the learned Civil Court dated 30.09.2008 were maintained.

4. Here, this is a civil revision describing the facts and the grounds being taken with the following prayer:-- "it is, therefore, respectfully prayed that on acceptance of this revision petition, the judgments of both the learned courts be set aside and the suit of plaintiff/petitioner be decreed as prayed for or any other order deemed by this Hon'ble Court may be granted."

5. Having heard arguments of learned counsel for the Petitioner and learned counsel for the Respondent, record with their assistance gone through.

6. Learned counsel for the Petitioner referred to PLD 1986 Supreme Court 519 "Muhammad Shafi and others v. Allah Dad Khan" and PLD 2011 Peshawar 208 "Dilawar Khan v. Mst. Badshah Zadi and another", thereby prayed for acceptance of this revision petition. Inversely, learned counsel for the Respondent orally argued the stance of his client i.e. Respondent and prayed for utter dismissal of the petition with heavy costs.

7. Whether on the basis of the receipt of purchase dated 10.10.2000, the Plaintiff (hereinafter the Petitioner) is entitled to the decree for obtaining declaration, permanent injunction and in alternate for possession. The alleged receipt as referred to while finds mentioned under the evidence of PW-1 exhibited as Ex. PW-1/1. The sale amount is entered as Rs. 3,37,871 and 25 Paisas, the vendor is Syed Hafiz-ur-Rehman whereas the plaintiff (hereinafter called the Petitioner) Muhammad Yar Khan is the vendee. Objection with regard to its registration would be deemed to be valid as according to Section 54 of Transfer of Property Act, 1882, the "sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised, its value must be over and above one hundred rupees and can be made only by a registered instrument. It is mandatory to enforce a sale transaction, transferee is under legal obligation to establish, firstly that transfer was effected by a person having a title or authority to create a right, it is to be backed by passing of sale consideration and delivery of possession. Even mere registration of the document in the office of Sub-Registrar by itself will not furnish proof of these elements which must co-exist prior to execution and registration of the deed, these pre-requisites must be fulfilled by the transferee.

8. While seeking declaration, it was absolutely the requirement to have brought on the panel of the Defendants Syed Hafiz-ur-Rehman, the vendor without whom this suit would have no for bearance for a valid decree. Indeed there is a prayer for obtaining a decree for declaration with regard suit property, the boundaries of which are given in head note of the plaint which is followed by prayer for obtaining permanent injunction. The available agreement to sell is Ex. PW 1/1, which is executed in between Syed Hafiz-ur-Rehman in favour of the Plaintiff (hereinafter called the Petitioner) Muhammad Yar Khan for sale consideration of Rs. 3,37,871 and 25 Paisas, which is an unregistered document and it would require registration under the law. Meaning thereby, that for the above performance of the agreement, still the parties were to get the suit premises registered in the office of Sub-Registrar. Thus, where the sale is not complete by way of its registration when the value is more than one hundred rupees. Whereas in the present transaction, the sale considera-tion is fixed as Rs. 3,37,871 and 25 Paisas, it requires registration where in such scenario for the fulfillment of such contract suit for declaration would not be competent except that the Plaintiff is in possession under enforceable contract of sale.

9. Indeed, there are dictums of the Hon'ble superior Courts in plethora of authorities cited as PLD 1990 (Lahore) 467 "Muhammad Saeed v. Nahid Shagufta and 3 others". The relevant citation (a) speaks of:-- Rejection of plaint--Relinquishment Deed falls within the purview of S. 17(1)(b)--Plaint was solely based upon a relinquishment deed for claiming ownership rights in the property comprised in it

Such document, even if assumed to be genuinely executed, required' compulsory registration and its absence was fatal to the effective transfer of rights tinder it

Suit based on such unregistered deed was barred by law and plaint merited outright rejection. Likewise 2015 YLR 1845 (Peshawar) "Khalid Khan v. Hall Muhammad Anwar" has been relied upon, wherein the relevant citation (b) opines:-- S. 42

Registration Act (XVI of 1908), S. 49--Suit for declaration on the basis of unregistered sale deed

Maintainability

Plaintiff filed suit for declaration on basis of two unregistered documents, which had not created any title or right or interest in favour of plaintiff in disputed land as envisaged under S. 49 of Registration Act, 1908

Declaratory suit filed under S. 42 of Specific Relief Act, 1877 on basis of unregistered sale deeds was neither permissible nor maintainable. Similarly, 2011 YLR 888 (Peshawar) "Gabor Rehman v. Riaz Muhammad" has been relied upon. Citation (a) of the said judgment reads as under:

S. 42

Civil Procedure Code (V of 1908), O. VII, R.11

Registration Act (XVI of 1908), S.49

Suit for declaration

Rejection of plaint

Plaintiff who filed suit for declaration based his claim upon Iqrar Nama and in alternate suit for specific performance of agreement to sell regarding suit property was prayed--Deed of Iqrar Nama, was admittedly an unregistered document which would neither create any title nor any right or interest in the suit property as envisaged under S.49 of Registration Act, 1908--Declaratory suit under S.42 of Specific Relief Act, 1877 on the basis of Iqrar Nama was not permissible; and suit for declaration would not be maintainable

Even if said Iqrar Nama was considered as an agreement to sell; and suit was considered to be that of specific performance, same would not be maintainable being barred by limitation as said Iqrar Nama was scribed on 18-7-1996 and the suit was brought on 2-4-2008-- Impugned judgment and decree passed by the Appellate Court were set aside and the judgment and decree passed by the Trial Court was restored, in circumstances. It has been held in 2017 SCMR 347 "Muhammad Iqbal and others v. Mst. Baseerat and others" in the following manner:-- "S.

54. Registration Act (XVI of 1908), Ss. 17 &

49. Immovable property. Unregistered agreement to sell. Such an agreement would not confer any title upon the vendee in the immovable property." In unreported judgment rendered at Peshawar High Court Mingora Bench (Dar-ul-Qaza) Swat in C.R. No. 158 of 2011, it has been enunciated by the then His Lordship Mr. Justice Abdul Latif Khan as below:-- "Admittedly, deed being unregistered document bestows no title upon the beneficiary. Apart from sale consideration, the other important ingredient is the delivery of possession under the sale, which is also not proved." Where the form of suit has been wrongly presented for its cause of action being accrued other than the required one, it has been held in 2014 SCMR 513 "Noor Din and another v. Additional District Judge Lahore and others" as under:- "O. VII, R.11

Rejection of plaint. Object and purpose. Object of powers conferred upon trial Court under O. VII, R.11, C.P.C. was that the courts must put an end to litigation at the very initial stage, when on account of some legal impediments full-fledged trial would be a futile exercise. In respect of the same view 2016 CLC 663 (Peshawar) " Sher Khan through LRs v. Gul Zar Khan" has been referred to, wherein the relevant citation (b) is reproduced for ready reference:-- "O. VII,R.11. Rejection of plaint. Object and scope. Object of O.VII, R.11, C.P.C. is primarily to save parties from rigors of frivolous litigation at very inception of proceedings. If Court on the basis of averments made in plaint are proved, plaintiff will not be entitled to relief claimed, court would be justified in rejecting plaint in exercise of powers available under O. VII R. 11 C.P.C.

11. Where the sale in between the parties has not been completed, declaration cannot be sought either regarding plaintiff right to any legal character or in respect to property claim by him/her in a suit under section 42 of the Specific Relief Act, 1877 rather the only course available would be to bring a suit for specific performance as to ask for completion of the sale. 11(sic). The other part claimed this property on the basis of purchase by a receipt/agreement dated 01.09.2003, it was followed by an agreement deed dated 03.10.2003 whereby Mr. Shahwal Khan son of Zareef Khan resident of Takht Bahai District Mardan has executed this deed in presence of the witnesses that on account of owing to an amount of Rs. 200,000/- for the provision of visa, which was outstanding against the said Muhammad Yar Khan, which was to be paid to him by Ajab Khan the Defendant (hereinafter called the Respondent). Thereby, no further amount was to be paid by the said Muhammad Yar Khan and at the same time the receipt which has been executed in between Syed Hafiz-ur-Rehman in favour of Muhammad Yar Khan dated 10.10.2000 was given to Ajab Khan the Defendant (hereinafter called the Respondent) for safe custody. Even later vide another receipt Ex. DW-4/1 Muhammad Yar Khan the Plaintiff (hereinafter called the Petitioner) has executed another deed that from 01.09.2003 to 13.09.2003 if this amount of Rs. 200,000/- is not paid then the premises as entered in the deed dated 10.10.2000, the said Ajab Khan the Defendant (hereinafter called the Respondent) will have the authority to sell the same. It is as understood that the amount of Rs. 200,000/- even if paid on behalf of Muhammad Yar Khan the Plaintiff (hereinafter called the Petitioner) to Shahwal Khan son of Zareef Khan no further transaction has taken place that ever the Defendant (hereinafter called the Respondent) Ajab Khan has ever become owner on the basis of an unregistered deed.

12. While maintaining the findings given in the judgments of the learned Courts below, the same cannot be interfered for reason that it is still open to the Plaintiff (hereinafter called the Petitioner) to bring a fresh suit under the same cause of action being accrued to him on the basis of the agreement executed in his favour on behalf of Syed Hafizur-Rehman dated 10.10.2000 provided the title of the suit and the prayer be altogether different from previous suit for declaration, rather to be for the specific performance of the contract. In case, the Plaintiff (hereinafter called the Petitioner) is advised and ask for introducing a fresh suit within the legal framework under the ambit of its limitation on the basis of cause of action being accrued to him in the light of the receipt/agreement deed dated 10.10.2000 under the title specific performance of the said contract, then these findings given in this judgment and the findings delivered by the learned lower Courts in this case, shall not affect the findings to be delivered therein by the Courts below including the Hon'ble High Court.

13. In such terms, this revision petition along with CMs stands disposed of accordingly. ZC/263/P Revision disposed of.