1988 PLP 1520 (CLC)

others A I R 1956 Pat. 308 ref. Maulvi Siraj‑ul‑Haq for Appellants. Ghulam Habib Rana for Respondent. Dates of hearing: 5th and 6th April, 1988 This appeal by the plaintiff arises out of a suit in ejectment brought by him to recover possession of 10 Marlas of land from the defendant. Court of first instance dismissed the suit on 7‑7‑1969 and the appeal taken to the Court of learned District Judge failed on 12‑2‑1971.10 Kanals, 9 Marlas of land, 7/20th share of Khasra 688/53 situate at Mauza Khatana, Tehsil Jhelum belonged to one Fazal Karim son of Saif Ali. By an oral sale, this piece of land was transferred by him to Fateh Mohammad plaintiff at the sale price of Rs.5,

000. Oral sale was reported to village Patwari on 7‑5‑1965 who, on this report, entered sale mutation 531 and placed it before the. Revenue Officer on 9‑5‑1965 before whom parties‑ to the transaction affirmed the sale on the strength whereof mutation was sanctioned on the same date. Plaintiff alleged that Suba Khan defendant, in his absence took possession of 10 Marlas of land owned by him and constructed a house on it. Since the possession of the defendant was unauthorised, he must remove his 'Malba' and restore vacant possession. of the land to the plaintiff. On these allegations, plaintiff prayed for a decree for recovery of possession and instituted a suit on 8‑1‑1968. Defendant contested the suit. In his defence, he took up the pleas that plaintiff had no cause of action; that the suit was barred by limitation.; that as the constructions on the land were worth Rs .15, 000 plaintiff was obliged to pay ad valorem court‑fee and as regards ownership of the land, pleaded title in himself on the basis of purchase from Fazal Karim at the sale price of Rs.3,

000. It was submitted that after sale of the land, Fazal Karim delivered actual possession of the land to the defendant who constructed a house on it. Sale was supported by deed dated 7‑4‑1964. From the pleadings, Court of first instance raised as many as six issues for determination of the suit, recorded evidence of the parties consisting of oral statements as well as copies of revenue papers and deed dated 7‑4‑1964. On its consideration, learned trial Court concluded that by mutation EXt.P‑1, Fazal Karim had conveyed his ownership rights in respect of 10 Kanals, 9 Marlas of land to plaintiff; that the defendant had already purchased 10 Marlas out of aforesaid land by deed Ext. D‑1 and raised construction on it; that the sale in favour of the defendant was prior in time; that the suit was not barred by limitation; that the plaint was properly assessed for court‑fee and jurisdiction. On these conclusions, plaintiff was non‑suited. These findings were affirmed in appeal. On behalf of the plaintiff, Maulvi Siraj‑ul‑Haq, Advocate contended that Ext.D‑1 did not effectively convey title to the land claimed by the defendant. His argument was that though the Transfer of Property Act 1882 does not apply to Punjab yet document transferring immovable property of value of Rs.100 or upwards must be registered. In this behalf, learned counsel relied on sections 17 and 49 of the Registration Act 1908. Also urged that in case Ext. D‑1 is treated as an agreement to sell and the defendant found in possession of the land in part performance thereof, principle underlying section 53‑A of Transfer of Property Act in view of the expiry of period of limitation prescribed for a suit for specific performance cannot be successfully availed of. On behalf of respondent, his learned counsel argued that the sale in favour of defendant was oral and Ext. D‑1 was its acknowledgement reduced to writing merely for purposes of mutation of names in Revenue records. Also argued that in case Ext. D‑1 is taken as an agreement to sell, defendant being in possession of the property in its part performance, could protect his possession against his transfer or any person claiming under him, expiry of the limitation period notwithstanding. From the above, it is clear that the fundamental question falling for determination in the appeal is about the title of the parties to the land in question. In case sale of land (10 Marlas), in favour of defendant is not proved, this appeal must succeed. Conversely, if it is established that the defendant was put in possession under the sale by Fazal Karim as alleged, then this appeal must fail. Ext.P‑1 shows that land purchased by plaintiff was part of Khata No.lll which comprised an area of 31 Kanals, 7 Marlas. Fazal Karim owned 7120 shares in this Khata. By mutation 531, he transferred his 7/20 shares in the aforesaid Khata to Fateh Mohammad against payment of sale price. Mutation of sale was sanctioned on 9‑5‑1965. Execution of Ext.D‑1 by Fazal Karim is not denied and its execution is otherwise also sufficiently proved on record. Karam Dad, Mohammad Alam D.Ws. 1 and 2 appeared at the trial and gave evidence to prove execution of Ext. D‑

1. Plaintiff, in his own statement, had also conceded to the 'Iqrarnama' by Fazal Karim in favour of defendant. Therefore, execution of Ext.D‑1 is not open to dispute. It is dated 7‑4‑1964. It recites that Fazal Karim who was owner of 20 Kanals of land in village Khatana had sold 10 Marlas of land to Suba Khan against receipt of Rs.300 as its sale price. It also recited delivery of possession to the vendee. Ex. D‑1 was executed a month prior to the date of entry of sale mutation in favour of Fateh Mohammad. KhushiMohammad P.W‑3, a close relation, deposed that, on behalf of the plaintiff, he had purchased the land from Fazal Karim, paid him Rs.5,000 before the Tehsildar and took possession of the land. In cross‑examination, witness deposed that possession was taken a day after the sanctioning of sale mutation. As to constructions by the defendant, he said that he had no knowledge. Khushi Mohammad belonged to Mauza Chabarian. Plaintiff deposed that defendant had constructed the house in his absence from the village and when he returned from Multan after three years, he found it already in existence. In course of cross examination, plaintiff admitted that he had returned to the village in the end of year 1966 but then corrected himself by saying that his son had come to the village in 1966 who had informed him in March, 1967 by writing a letter that defendant had constructed a house on the land. Extracts from register khasra girdawri Ext.P‑3/D‑1 indicated that a house existed on land measuring 10 Marlas in Kharif 1966 and the defendant was shown in its possession as 'Ghair Mustakil' on account of sale. Suit was instituted in January 1968. There are strong indications on record to support the construction of house by defendant in the year 1964 and this has also been accepted as correct by the' learned Judges of the Courts below. This finding is supported by evidence available on record as also the probabilities of the case. Finding being on a question of fact is binding in second appeal and cannot be disturbed. Next comes the question about the nature of Ext.D‑1 whether it was per se a sale‑deed and in default of registration did not create any right in defendant or that it was a case of‑ an oral sale and provides an acknowledgement of an already completed fact. There is yet a third facet and that is whether it could be treated as an agreement to sell and benefit of section 53‑A could be extended to the defendant. Fazal Karim, the original owner, has not appeared. Fair and close reading of Ext. D‑1 manifestly shows that it was a case of an oral sale by which Fazal Karim had conveyed his ownership rights in 10 Marlas to defendant against receipt of Rs.300 as its sale price and wrote out the document as acknowledgement only for purposes of mutation of names in the Revenue records. However, before that event could take place, Fazal Karim transferred his share in the khata to the plaintiff. Since Transfer of Property Act does not apply to rural areas in Punjab, transfer of land by oral I sale is a permissible mode. Definition of sale given in section 54 of. the Transfer of Property Act has been adopted in Punjab as embodying a general principle. Therefore, 'sale' is a transfer of ownership rights against payment of price. Ext. D‑1 contains a clear recital that sale price was paid for the land and possession delivered to the defendant. Therefore, it had all the essentials of a valid complete sale viz. transfer of ownership rights, payment of sale price and transfer of possession. As I have said above, I take Ext. D‑1 as a document preserving the essentials of a completed sale already taken place. Viewed thus, the case presents no difficulty and the rights acquired by the defendant are saved. In case, Ext. D‑1 was taken as a sale‑deed itself, there is no dispute that it required compulsory registration under section 17 of Registration Act. There is also no dispute that in view of amended section 49 Registration Act though its, admissibility is beyond dispute yet by itself it cannot operate to create, declare, assign, limit, or extinguish any right or title or interest in the immovable property though it can be looked into for purposes of proving transfer of possession and payment of sale price. Learned District Judge also examined Ext.D‑1 in light of the principle underlying section 53‑A of Transfer of Property Act and took the view that possession of the defendant was protected thereunder. This reasoning is not open to any serious objection because there was no legal bar for treating Ext. D‑1 as agreement to sell for applying principle of part‑performance. Defendant paid the sale price to the original owner and took possession of the land in question from him. Section 53‑A clearly applied to his case. However, there is a conflict in judicial opinion as to whether for application of section 53‑A, the contract must be enforcible contract. In Bholai Phukan versus Lakhi Kanta Ahom and others A I R (36) 1949 Assam 8, Jehangir Begum v. Ghulam Ali A I R 1955 Hyderabad 101, Nanasaheb Gujaba Bankar versus Appa Ganu Bankar and others A I R 1957 Bombay 138, it has been held that defence raised under section 53‑A is not subject to any rule of limitation and the transferee from person put into possession under agreement to sell is entitled to defend his possession on the principle of part‑performance even though by then the suit for specific performance is barred by limitation. However, in Raju Roy and others versus Kasinath Roy and others A I R 1956 Patna 308, it has been observed that contract contemplated by section 53‑A is a contract which is enforcible at law. In other words, the contract in part‑performance of which possession has been taken is a contract in respect of which right to specific performance of the same still subsisted. When the contract has become incapable of specific per formance by efflux of time, possession taken thereafter cannot be said to be the possession in part‑performance of the contract. In absence of proper and adequate assistance from the bar, I do not propose to examine this question further for giving a determinative opinion. In my view, Fazal Karim had already parted with his ownership rights in 10 marlas in favour of defendant and after having received its sale price and transferred actual possession to the defendant who also constructed his house on the land, it was not open to the original owner to retransfer this piece of land to the plaintiff. Sale in favour of the plaintiff to the extent of land already transferred to defendant was not valid and cannot be held binding on him. In this view, possession of the defendant was not unauthorised and he cannot be asked to remove his construction to vacate the land for to benefit of the plaintiff who had no title to it. To sum up, my conclusions are: ‑ 1) By an oral sale, Fazal Karim had sold out 10 marlas of land to Suba Khan against payment of Rs.300 as its sale price and delivered actual possession under the sale to him. Defendant constructed his house in the year 1964; (2) Ext. D‑1 was an acknowledgement of an already completed sale; (3) Assuming that Ext. D‑1 was a sale‑deed in itself, it required compulsory registration and in default of registration could not operate to create right though it was admissible to show payment of sale price as also transfer of possession; (4) There was no legal bar for treating Ext. D‑1 as an agreement to sell and applying the principle of section 53‑A to protect the possession of the defendant under it. Question as to whether it must be a subsisting agreement is left open. On review of the entire set of circumstances in the light of legal principles applicable thereto, in my opinion, decisions of the Courts below are correct and I see no reason to take a different view. Appeal fails. It is dismissed but with no order as to costs. A.A_/F‑74/L Appeal dismissed.