2015 PLP 1433 (CLC)

AZHAR SALEEM BABAR, J.

Although the above titled appeals have been filed against different decrees while subject-matter and the parties are same, therefore, it is proposed to dispose of these appeals through the same order.

2. Facts of the coupled cases are that Abdul Rehman filed a suit for declaration and perpetual injunction against Abdul Rasheed & others before the Court of Sub-Judge Muzaffarabad on 28-7-1992. Abdul Rehman, ancestor of respondents Muhammad Ehsan and others contended in his plaint that suit land under survey No.898 old new number 1451 measuring 18 kanals, 17 marlas and new number khasra 1451/1 measuring 11 kanals to the extent of 2 kanals is owned by him. It was further contended that agreement to sell dated 21-3-1982 has become ineffective to the extent of his rights on account of having become time-barred. In his prayer clause, Abdul Rehman plaintiff, requested the Court to issue a decree in the tone that land under old survey No.898 new No.1451 and survey No.1451/1 (Shamlat Deh) measuring 11 kanals total measuring 29 kanals 17 marlas situated in Chatter Domail is in his possession and ownership. He further prayed to the Court to restrain the defendants Abdul Rasheed and others to interfere in the land measuring 27 kanals, 17 marlas and further requested for decree for possession to the extent of 2 kanals situated on southern east of the suit land including 3 kacha houses along with 2 verandas and a room constructed therein.

3. On the other hand, Abdul Rasheed and others filed a suit against Abdul Rehman on 3-9-1992 for specific performance of contract dated 21-3-1982 registered on 22-3-1982 regarding land under survey No.898 min measuring 2 kanals situated in Sundgali Chatter Domail Tehsil Muzaffarabad. It was contended by Abdul Rasheed and others plaintiffs that they have purchased the land under agreement and took over the possession of the same. The plaintiffs therein further contended that they have raised developments in the land by constructing house and erecting walls and plantation of trees etc which is a legal bar on the suit-land. Abdul Rasheed and others further contended that Abdul Rehman was bound to execute a sale-deed in furtherance of agreement to sell. He was asked to execute a sale-deed but he delayed the matter on lame excuses and finally refused to execute sale-deed in favour of the plaintiffs. Abdul Rasheed and others prayed to the Court for a decree of specific performance of contract registered on 22-3-1982.

4. In the case titled "Muhammad Ehsan and others v. Abdul Rasheed and others", learned trial Court framed the following issues:

5. After hearing the parties in accordance with law, trial Court dismissed the suit on account of having no cause of action and for want of evidence vide decree and judgment dated 12-8-2009.

6. The other suit titled "Abdul Raheem and others v. Mst. Muhammad Jan and others" was also dismissed for want of evidence vide decree and judgment dated 31-5-2005. It may be mentioned here that learned Civil Judge framed as many as 6 issues in the case but disposed off the case while deciding issue No.1. For convenience, detail of issues framed is reproduced as under:

7. The appeal filed by Abdul Raheem and Abdul Rasheed before the Court of Additional District Judge was dismissed vide judgment and decree dated 4-8-2007, whereas rival appeal titled "Muhammad Ehsan and others v. Abdul Rasheed and others" was also dismissed by the first appellate Court on 10-11-2009. The rival parties have, thus, filed the instant second appeals.

8. I have heard learned counsel for the parties and perused the available record. It may be stated at the outset that record of both the cases is stated to have been destroyed in the earthquake of Oct. 8, 2005 and photocopies of the judgment of the trial Court are available on record. Although, record of the cases had not been reconstructed according to prescribed procedure yet, the parties to the cases have admitted by conduct the claims of their rivals, so, there is sufficient material on record to dispose of the supra-titled appeals.

9. Abdul Raheem and Abdul Rasheed, appellants/plaintiffs claim specific performance of agreement to sell registered on 22-3-1982 regarding land under survey No.898 min measuring 2 kanals. It is interesting to observe that Abdul Rehman original rival plaintiff and his descendants Muhammad Ehsan and others have admitted in their plaint that agreement registered on 22-3-1982 is an agreement to sell, however, they claim that agreement to sell has become ineffective on the point of limitation. In order to evaluate the contents of agreement dated 21-3-1982, it looks appropriate to reproduce the same as under:

10. It is worth mentioning that original agreement is not available on record, however, a photostat copy available shows that this document has not been registered either by Sub Registrar or by Notary Public. Now question arises that whether the agreement fulfils the requirement of an agreement to sell as per the provisions of law? A perusal of agreement dated 21-3-1982 shows that it has been executed by Abdul Rasheed and Abdul Raheem sons of Muhammad Din who have admitted vide this document that land under survey No.898 measuring 2 kanals situated in village Chatter Domail Patti Sundgali is in their possession and they have constructed a house in the land as well. They have further agreed that name of their mother Mst. Maryan has wrongly been entered in land under survey Nos. 633, 635, 849, 814, 824, 812, 827, 877, 878, 898 measuring 68 kanals, 3 marlas. Abdul Rasheed and Abdul Raheem, the executors, further contended that they have no concern with the aforementioned land with the exception of land under survey No.898 measuring 2 kanals. Possession of Abdul Rehman son of Mir Alam on rest of the land has also been admitted. They further abandoned their claim on the suit land by declaring that if name of their mother is included anywhere in the revenue record it is liable to be rectified. It was also stated in the document that Abdul Rehman has already filed an application for correction of khasra girdawari before Tehsildar Muzaffarabad and they hold themselves bound to furnish statement in favour of Abdul Rehman before the Court of Tehsildar. A perusal of whole the agreement dated 21-3-1982 does not transpire that Abdul Rasheed and Abdul Raheem the executors ever promised to sell any land. So, ingredients of a sale or contract for sale are lacking in the document dated 21-3-1982. Section 54 of Transfer of Property Act, 1982 defines 'Sale' as under:

"54. "Sale Defined." "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself create any interest in or charge on such property".

11. Abdul Rasheed and Abdul Raheed had nowhere promised to sell any land nor any price of land has been fixed in the document. It may also be mentioned here that a contract for sale can be made by a competent person. Section 7 of Transfer of Property Act states as under:

"

7. Persons competent to transfer.

Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force."

12. Revenue record available with the file of the trial Court is a photo copy of khasra girdawari for the years 1960 to 1964 which states that Abdul Rehman son and Mst. Mir Jan daughter of Mir Alam are owners of land in equal shares. An unattested photo copy of khasra girdawari cannot be read as evidence according to Qanun-e-Shahadat Order, 1984. Muhammad Ehsan and others, appellants herein, have not bothered to file a copy of Jamabandi in order to establish their claim on the suit land. The rival appellants/plaintiffs have also not filed any kind of revenue record in the original suit. In the absence of any previous revenue record, I am left with no option but to rely on Misl-e-Haqeat for the year 1998-99 which shows that Abdul Rehman son of Mir Alam is owner of the suit land under survey No.1451 measuring 18 kanals 17 marlas and 1451/1 measuring 11 kanals (Shamlat Deh), which has been shown in his possession as well. Another entry vide mutation No.283 in the Misl-e-Haqeat shows that legacy of Abdul Rehman has been transferred to Muhammad Jan and others. It may be mentioned here that Tehsildar Muzaffarabad was appointed as local commissioner by the trial Court who submitted his report on 30-10-2007 and attached an attested copy of Misl-e-Haqeat with his report. The local commissioner was assigned to determine the possession on the suit land who reported that suit land measuring 18 kanals, 17 marlas under survey No.1451 is in the ownership and possession of Suleman and other sons of Abdul Rehman, and Muhammad Suleman and others were also shown in possession of land under survey No.1451/1 measuring 11 kanals which is Shamlat Deh.

13. In view of phraseology of the agreement dated 21-3-1982, I am of the view that this document is not a contract for sale and Abdul Raheem and others were not entitled to file a suit for specific performance of contract on the basis of this document. It is worth mentioning that Muhammad Ehsan and others have admitted by filing a plaint before the trial Court that document dated 21-3-1982 is a contract for sale but even such an admission would not change the nature of document for the aforementioned reasons.

14. Now question arises that what is the effect of possession and developments raised by Abdul Raheem and another on the land under survey No.898 measuring 2 kanals? Execution of the document dated 21-3-1982 is admitted between the parties. So, it can be concluded without any hesitation that Abdul Rehman ancestor of appellants, Muhammad Ehsan and others, in his plaint prayed to the Court to declare the agreement dated 21-3-1982 as ineffective towards his rights, so, execution of document is not doubted between the parties. It may also be mentioned here that in his prayer clause, Abdul Rehman has requested for possession of land to the extent of 2 kanals under survey No.898. As stated earlier, construction of houses in the suit land has also been admitted in the plaint filed by Abdul Rehman, deceased. So, possession of land to the extent of 2 kanals and developments raised therein by Abdul Raheem and others stands admitted. It can, thus, be concluded that developments in the shape of construction of houses etc raised by Abdul Raheem and others are bona-fide. However, in the suit titled Muhammad Ehsan and others v. Abdul Rasheed and others, despite framing of issue regarding developments on land, no evidence has been adduced on behalf of Abdul Rasheed and others. Abdul Rasheed & others have not even applied to the Court to appoint a Local Commissioner to ascertain the value of developments raised in the suit land. So, I am unable to ascertain that what is the value of developments raised by Abdul Raheem and others on the suit land. However, the developments are bona fide, so, they are entitled to costs of improvements. Section 51 of Transfer of Property Act, helps the appellants Abdul Rasheed and others in this regard which states as under:

"

51. Improvements made by bona fide holders under defective titles.

When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them." Upshot of the above discussion is that Muhammad Ehsan and others (descendants) of Abdul Rehman, plaintiffs, are entitled to decree in the tone that they are owners of land under survey No.1451 measuring 18 kanals, 17 marlas situated in Sundgali village Chatter Tehsil Muzaffarabad. It is further held that Muhammad Ehsan and others, appellants, are in possession of Shamlat Deh land under survey No.1451/1 measuring 11 kanals situated in village Chatter and they shall not be ejected, therefrom, without due course of law. A decree for possession of land under survey No.898 measuring 2 kanals in village Chatter is also issued in favour of Muhammad Ehsan and others in the tone that they are entitled to specific possession of the land on payment of costs of improvements made in the suit-land. Value of improvements may be calculated during execution proceedings. Appeal filed by Muhammad Ehsan and others is accepted in the above stated terms whereas rival appeal filed by Abdul Raheem and others stands dismissed. ZC/35/HC(AJ&K) Order accordingly.