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Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision No-07-P/2015 with C.M N0-14-P/2015.

JUDGMENT

Date of hearing……………22.2.2016.……………………………………..

Petitioner’s(Noor Rehman) By Mr. Abdul Sattar Khan Advocate.

Respondent’s (Akram Khan) By Mr. Zia-ur-Rehman Khan, Advocate.

YAHYA AFRIDI, J:- Noor Rehman and Fazal

Hakeem, the petitioners, through the instant revision

petition have challenged the judgment and decree

dated 30.09.2014 passed by Additional District

Judge-II, Takht Bhai, whereby the appeal of the

petitioners was dismissed and the judgment and

decree dated 26.2.2011 passed by Civil Judge-I, Takht

Bhai, was upheld.

2. The brief facts of the present case are that the

petitioners-plaintiffs instituted a suit against

respondents, seeking declaration, permanent

injunction, specific performance and possession, to

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the effect that petitioners are owners in possession of

property measuring 94 kanals 19 marlas situated in

Mahal Shahbat Khel bearing previous khasra Nos-

1398, 1394, 1393, 1399, 1400, 1422 as per fard

jamabandi for the year 1906-1907, and present khasra

Nos.1127, 1129, 1130, 1131, 1132, 1162, 1133, 1134,

1137, 1161, 1138, 1139, 1140, 1143, 1145, 1146,

1151, 1152, 1163, 1159, 1169, 1127/2, 1127/1, 1172,

1134/1, 1160, 1171, 1173, 1174, 1176, 1177, 1178,

1179, 1180, 1184, 1186, 1187, 1185, 1176/1, 1144,

1157, 1158, 1100, 1094/1 and 1099 as per jamabandi

for the year 2005-2006 (“disputed property”); that

the petitioners further prayed for cancellation of

inheritance mutation No.1435 and 1436 attested on

24.6.2008, and averred that their father purchased the

disputed property from predecessor of

defendants/respondents namely Abdul Karim vide

Iqrar Nama/Sale deed dated 24.12.1962 (“Deed”);

that possession of some portion of the disputed

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property was handed over to them by predecessor of

respondents-defendants and that the remaining

property would be handed over to them after

attestation of mutation or registered deed in their

names; that when they got knowledge, they

approached the respondents for attestation of mutation

and handing over possession of the disputed property,

but they refused, hence a suit was instituted.

3. The respondents were summoned by the trial

Court, who appeared and contested the suit by filing

written statement. From the divergent pleadings of the

parties, the trial Court framed the following issues;

1. Whether plaintiffs have got any cause of

action?OP

2. Whether this Court has got jurisdiction to

entertain the present suit? OP

3. Whether suit of the plaintiffs is within time?OP

4. Whether plaintiffs are estopped to sue?OD

5. Whether suit of the plaintiffs is competent in its

present form?OP

6. Whether suit of the plaintiffs is bad due to non-

joinder and mis-joinder of necessary parties?OD

7. Whether plaintiffs have not prescribed Court Fee

and is subject to dismissal?OD

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8. Whether defendants are entitled to special cost

under section 35-A CPC? OD

9. Whether plaintiffs are entitled to specific

performance of deed dated 24.12.1962 from Abdul

Karim (decd) for valuable consideration of suit

land measuring 94 kanals and 19 marlas? OP

10. Whether defendants are owners in possession of

suit land as their ancestral property from Abdul

Karim (decd) and Mst.Tajbaro (decd) and

inheritance mutation No.1435 attested on

24.6.2008 and mutation No.1436 attested on

24.6.2008 were lawful and correct? OD

11. Relief.

4. Both the parties produced pro and contra

evidence before the trial Court. The learned trial Court

after hearing the learned counsel for the parties vide

judgment and decree dated 26.02.2011 dismissed the

suit of the petitioners.

5. The petitioners being aggrieved from the

judgment and decree dated 26.02.2011 passed by the

learned trial Court, challenged the same by filing Civil

Appeal No.35/13 of 2011 before the Appellate Court,

and after hearing the learned counsel for the parties,

who vide judgment and decree dated 16.12.2011 set

aside the impugned judgment and decree of the trial

Court and remanded the case to the trial Court.

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6. Being not satisfied from the judgment and

decree dated 16.12.2011 passed by the learned

Additional District Judge-II, Takht Bhai, the present

respondents challenged the same by filing Civil

Revision Petition No.25 of 2012 before this Court.

After hearing the learned counsel for the parties, this

Court vide judgment dated 7.10.2013 partially

accepted the Revision Petition, set aside the impugned

judgment and decree of the Appellate Court and

remanded the case to the Appellate Court in terms

that;

“Accordingly, for what has been discussed above,

this Court partially allows the present revision

petition and holds;

(1) that the impugned order of the

learned appellate Court is set aside

while the judgment and decree

passed by the learned trial Court is

kept intact;

(2) That the appeal of the respondents

is deemed to be pending before the

appellate Court and it would decide

the same after recording of evidence

of Mr. Amin Gul, marginal witness

of the subject deed.”

7. On receipt of order of this Court, the worthy

Appellate Court, on 27.1.2014 recorded the statement

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of Amin Gul son of Alif Khan, as APW-1. The

Appellate Court, after hearing the arguments of

learned counsel for the parties, vide judgment and

decree dated 30.9.2014 decided the appeal in terms

that;

“33. The above discussion leads us to the

conclusion that suit of the plaintiffs/appellants is

time barred. The plaintiffs/appellants have failed to

establish a valid and legally sound cause of action

and they have failed to prove execution of sale deed

dated 24.12.1962, therefore, they are not entitled to

decree for specific performance, declaration and

consequential reliefs of possession and permanent

injunction, therefore, issues No.1 and 9 are decided

in negative against the plaintiffs/appellants. The

defendants/respondents have established their

ownership and possession over the disputed property

from their predecessor as such both the impugned

inheritance mutations were lawfully attested, hence,

issue No.10 is decided in affirmative, in favour of

defendants/respondents.

34. The trial Court has properly assessed the

evidence and material available on record, and even

after recording evidence of Amin Gul, the

plaintiffs/appellants cannot be held entitled to any

relief. The additional discussion on issues No.1,3,9

and 10 by this Court, further confirm judgment and

decree of trial Court. Resultantly, the judgment and

decree of trial Court is upheld and appeal in hand is

dismissed with application for temporary injunction,

being misconceived and devoid of merit. No order as

to costs of the appeal.”

8. The petitioners being aggrieved of the

judgment and decree dated 30.9.2014 passed by the

learned Appellate Court, filed the instant revision

petition before this Court.

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9. The worthy counsel for the petitioners

vehemently contended that as far as limitation was

concerned, the same was to run from the date when

the performance of the agreement was refused and in

the present case it was to commence from the date

when the notice of the petitioners after attestation of

the inheritance mutation was not adhered by the

respondents and not earlier; that the benefit of Section

53-A of the Transfer of Property Act, 1882 (“Act”),

was to be extended to the petitioners as they were

admittedly in possession of part of the disputed

property, which was handed over to them at the time

of execution of the agreement; that even a single

marginal witness, if confidence inspiring, was

sufficient for proof of the execution of the Deed, as

the same was prior to promulgation of Qanun-e-

Shahadat Order, 1984 (“Order”); and that the Deed

being more than 30 years old document had the

presumption of truth attached to it as provided under

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Article-100 of the Order. The worthy counsel for

petitioners for his submissions sought reliance on

Muhammad Akram’s case (1977 SCMR 433),

Muhammad Younus’s case (1989 CLC 837), Arshad

Khan’s case (2005 SCMR 1859), Mst. Ghulam

Fatima’s case (2006 YLR 1290), Aurangzeb’s case

(2007 SCMR 236), Sheraz Tufail’s case (2007

SCMR 518), Sikandar’s case ( PLJ 2008 SC 131),

Hafiz Tassaduq Hussain’s case (PLD 2011 S.C 296),

and Bashir Ahmad Khan’s case (2012 CLC 699).

10. The worthy counsel for the respondents

vehemently contended that the suit of the petitioners

was badly barred by time, as the reason for filing a

belated suit, as required under Order-7 Rule-6 of Civil

Procedure Code, 1908 (“CPC”), was stated to be that

they were minors at the time of the execution of the

Deed, which was belied by their own statement in the

witness box; that the petitioners were co-owners with

the respondents and were in excess of their due share,

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which was to be corrected in the partition

proceedings, which had been filed by the present

respondents and that the present suit was a

counterblast to the partition proceedings filed by the

respondents. The worthy counsel for respondents

placed reliance on Allah Dad’s case (1989 CLC

1571), Muhammad Noor’s case (1989 CLC 1575),

Muhammad Ismail’s case (2001 CLC 252), Messrs

Syed Tasnim Hussain Naqvi’s case (2001 CLC 256),

Noor Salam’s case (PLD 2002 SC 622), Mehandia’s

case (2011 MLD 1081), Khalil-ur-Rehman’s case

(2011 MLD 1088), Haji Abdul Karim’s case (PLD

2012 SC 247), Pir Wali Khan’s case (2013 MLD

1106), Mazhar’s case (2013 MLD 1115), and Noor-

un-Nisa’s case (2015 SCMR 380).

11. Valuable arguments of learned counsel for the

parties heard and available record perused with their

able assistance.

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12. Canvassing through the pleadings and the

evidence produced by the parties, the admitted

position that emerges, in chronological order, is as

follows;

24.12.1962.

Deed is executed between Abdul

Karim, the predecessor-in-interest of the

respondents and Fazal Akbar, his step brother

and the predecessor-in-interest of the present

two petitioners. (Exh: PW 7/1), which

stipulated the sale of 94 Kanals 19 Marlas by

Abdul Karim in favour of the present

petitioners, who were at that time minors,

petitioner No.1 namely Noor Rehman ten

years old and petitioner No.2 Fazal Hakeem

five years old. It is also stipulated therein that

54 Kanals 5 Marlas was handed over by

Abdul Karim at the time of the execution of

the deed, while the remaining 40 Kanals 14

Marlas of the disputed property was to be

handed over after the finalization of the

allotment by the Federal Government in the

name of Abdul Karim.

The sale consideration was fixed as

Rs.20,000/-, which was paid by Fazal Akbar

to Abdul Karim, who acknowledges receipt

thereof in the Deed.

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The marginal witnesses to the Deed are

Fazl-ur-Rehman (PW-7) brother of the

petitioners and son of Fazal Akbar, and Amin

Gul (APW-1).

1965.

Fazal Akbar passes away.

2.3.1971.

Allotment by Federal Government in favour

of Abdul Karim (Exh:PW 1/4).

7.5.1975.

Attestation of mutation No.2628 for the

transfer of the 24 garibs property in favour of

Abdul Karim (Exh: DW 1/3).

2004.

Abdul Karim, the predecessor-in-interest of

the respondents passes away.

2007.

Mother of the respondents passes away.

24.6.2008.

Inheritance mutations No.1435 and 1436

confirming the transfer of property of Abdul

Karim, and his wife in the name of their

children, the present respondents.

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20.7.2009.

The present two petitioners filed the instant

suit, wherein inter-alia, the present petitioners

assert in their plaint that they were minors at

the time of execution of the Deed and

thereafter had no knowledge thereof and on

acquiring knowledge asserted their rights,

which was refused and thus they have moved

the Court.

The present respondents/defendants

filed their joint written statement, wherein

they denied the assertions made by the

petitioners, inter-alia, the execution of the

deed, however, admitted without any

explanation that 40 Kanals of disputed

property was in possession of the petitioners

without any lawful cause.

13. The petitioners claim declaration of title over

the disputed property on the basis of the Deed, which

is unregistered. The law by now is well settled that,

such declarations are not legally maintainable. In such

cases, the beneficiary of the unregistered agreement

has to first seek the specific performance of the same,

and thereafter, the law protects his propriety interest

in the immovable property. Thus, the suit for

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declaration and consequential relief would follow the

specific performance of the agreement and be legal

competent only thereafter.

14. Moving on to the claim for specific

performance of the Deed, it is noted that there is a

concurrent finding of the two Courts below declaring

the said claim to be barred by time. The applicable

provision relating to specific performance of an

agreement has been provided under Article 113 of the

Limitation Act, 1908 (“Act 1908”), which reads that;

Description of suit. Period of

limitation.

Time from which period

begins to run

113. For specific

performance of a

contract.

Three

years.

The date fixed for the

performance, or, if no such

date is fixed, when the

plaintiff has notice that the

performance is refused.

The bare reading of the aforementioned

provision provides for two situations, for triggering

the period of limitation of three years;

First; in case, the deed stipulates a fixed date

for the performance, then the period of three

years would commence therefrom;

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Second; in case, no fixed date is provided in

the agreement for the performance of the

obligation, then the period of limitation would

start to run from the date when the party to the

agreement has notice of refusal of

performance by the other party under the said

agreement.

15. In the present case, no fixed date has been

provided in the Deed for Abdul Karim to perform his

part of the obligation in transferring the possession of

the entire disputed property to petitioners. And thus

the latter situation referred to in Article 113 of the Act

would apply to the present case.

16. Let us now consider the reason rendered by

the petitioners in their plaint for filing the case at a

belated stage; it has been averred in the plaint that, the

petitioners were minors at the time of the execution of

the Deed, and thus were unaware of their rights

arising therefrom. It is further asserted in the plaint

that, as the petitioners became aware of their rights

under the Deed, they served a notice upon the

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respondents and on their failure to perform their part

of the obligation in the Deed, they approached the

Civil Court to enforce their rights.

17. Surprisingly, the evidence so produced by the

petitioners does not support their pleadings. In this

regard, petitioner No.1 namely Noor Rehman

(PW-10), who at the time of the execution of the Deed

was 10 years old, during his cross examination frankly

conceded that he was then a student, and on his return

from school, his father Fazal Akbar informed him

about the purchase of disputed property in their

names. This clear admission of petitioner No.1, Noor

Rehman (PW-10), who was also the attorney of

petitioner No.2, during his evidence, has belied the

stance so taken by them in their pleadings. However,

the worthy counsel for the petitioners vehemently

urged that the subject suit was within time. He first

argued that the Deed, embodied a contingent contract,

and thus the rights of the petitioners arising therefrom

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matured when the allotment in favour of Fazal Karim

was finally attested. This would stretch the period of

limitation to commence from 7.5.1975, when the

allotment in favour of Fazal Karim was finally

recorded vide mutation No. 2628 vide Exh. DW 1/3

and thus filing a suit in 2009 was still barred by time.

The worthy counsel for the petitioners when

confronted with this aspect of the matter, urged the

Court that, time would not commence from the said

point of attestation of the allotment but in fact from

the moment the respondents refused the demand of

the petitioners vide Notice to perform their obligations

under the Deed and added that the attestation of the

inheritance mutation in favour of the respondents on

the death of their parents was the triggering point for

knowledge of the allotment being matured in favour

of Abdul Karim. No doubt, the attestation of

inheritance mutation is a public information, but so

was the mutation No.2628 dated 07.05.1975

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(Exh.DW 1/3), whereby the property was finally

transferred in the name of Fazal Karim after its

allotment by the Federal Government. Viewed from

another perspective, Fazal Karim having expired in

2004 would surely be the end of his commitment to

transfer the remaining part of the promised disputed

property to the petitioners. More importantly, the

relationship of the parties, is also to be taken into

account. Fazal Rahman (PW-7), who was the

marginal witness of the Deed, is the real brother of the

petitioners and hence the assertion of the petitioners

that they were unaware of the transaction embodied in

the Deed or that they were unaware of the final

allotment in favour of their uncle Fazal Karim is

highly improbable. Moreso, when the petitioner’s

family was also allotted 25 Garib by the Federal

Government and thus, well acquainted with such

transactions.

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Thus, viewed from every angle and stretching

the legal submissions of the worthy counsel for the

petitioners even beyond the pleadings, still the suit

of the petitioners is barred by time, as it is beyond

the three years period provided under Article-113 of

the Act.

18. It would not be legally appropriate for this

Court to conclude the case of the petitioners on the

issue of limitation and not dilate upon the findings of

the two Courts below regarding other issues involved

therein, as valuable rights of the petitioners are

involved.

19. To start with, this Court finds that the two

Courts were not legally correct to apply the

requirement of two witnesses to prove the execution

of the Deed, as is provided under Article-79 of the

Qanun-e-Shahadat Order, 1984 (“Order”). The two

Courts below erred by applying the provisions of the

Order, the Deed was executed on 24.12.1962, well

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before the same was enacted. Thus, the provision of

section-66 of the Evidence Act, 1872, which did not

require the two mandatory witnesses to prove the

execution of the Deed, would be applicable to the

present case. This principle of appreciation of

evidence regarding proof of documents predating the

Order has by now been settled by the Apex Court in

Manzoor Ahmad’s case (2002 SCMR 1391), Noor

Muhammad’s case (2002 SCMR 1301), and finally in

Muhammad Ameen’s case (PLD 2006 SC 318),

wherein it was clearly explained that;

“It is an admitted fact that agreement to sell was

executed between the parties on 16.11.1981 whereas

Qanun-e-Shahadat Order came into force on

26.10.1984 meaning thereby agreement to sell

executed prior to coming into force of the said order

1984 (President’s Order No.10/1984). By virtue of

Article 1(3) of the said Order came into force at

once, there it does not apply retrospectively to

documents already executed and are past and

closed.”

20. Canvassing the record, it is noted that the

petitioners produced sufficient evidence to prove not

only the execution of the Deed, but also the

transaction stipulated therein. Fazal Rahman (PW-7),

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the marginal witness of the Deed, testified to be a

witness to the execution of the Deed by Fazal Karim,

the transfer of the sale consideration of Rs.20,000/-

and being the brother of the beneficiaries, was a

natural witness to the said transaction. No doubt, the

other marginal witness Amin Gul (APW-1) was

declared hostile, but the other evidence produced by

the petitioners was sufficient to substantiate their

claim, as far as the execution of the Deed and the

transaction embodied therein.

21. There is no doubt that a plaintiff, who claims

a fact, has to prove the same himself by producing

cogent and reliable evidence and cannot seek refuge

behind the weaknesses of the other side. However,

when there are contesting claims of the opposite party

backed by supporting evidence, the adjudicating Court

is to weigh the evidence produced by the rival parties

and to see on whose side the “preponderance of

evidence” rests. It is only when the evidence produced

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by the parties are evenly balanced and the Court is

unable to decide the matter on the available evidence,

only then the issue of burden of proof would come

into play. In this regard, the august Supreme Court of

Pakistan in the case title Mst. Qaiser Khatook Vs.

Molvi Khaliq (PLD 1971 S.C- 334) held that;

“In any event, the question of onus of proof has lost

its importance now after all the relevant evidence

has been adduced and placed on the record (vide

Manaka v. Madha Rao) (2). The question of the

burden of proof becomes material only where the

Court finds the evidence so evenly balanced that it

can come to no definite conclusion- (Vide PLD 1948

PC 171). In such an event the rule is that the party

on whom the onus lay must fail. This, however, is

not case here, for, the evidence is, by no means,

evenly balance.”

22. In the present case, the most crucial evidence,

which tilted the balance of probability in favour of the

petitioners was the actual transfer of possession of 54

Kanals 5 Marlas out of the disputed property. This

fact was asserted by petitioner No.1 (PW-10) in his

examination in chief, which went unchallenged by the

respondents during his cross examination and thus

would be deemed legally admitted. This principle of

appreciating such evidence, as proof of a fact is by

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now settled by the Apex Court in Mst. Murad

Begum’s case (PLD 1974 SC 322), Muhammad

Ameen’s case (PLD 2006 SC 318) and Aurangzeb’s

case (2007 SCMR 236).

23. The two Courts below also erred on another

legal aspect regarding the legal presumption of

correctness attached to the Deed being more than 30

years old and having been produced by the proper

party under Article-100 of the Order. This

presumption in favour of the petitioners was not

rebutted by any clear evidence produced by the

respondents-defendants.

24. A very crucial aspect, which has escaped the

worthy attention of the two Courts below is that in the

present case, the petitioners were not only armed with

the unregistered Deed but also admittedly in

possession of the part of the disputed property. No

doubt, an effort was made by the sole respondent

witness, Akram Khan (Dw-1) being the attorney of

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the respondents, to explain the said admission to be

attributable to the private partition, but no evidence to

that effect was produced. Their entire emphasis was

that the revenue record, in particular, the khasra

girdawaries did not reflect the petitioners in

possession of even a part of the disputed property.

The evidentiary value of khasra girdawari has been

negated by the superior Courts to the extent of having

no presumptive values as held in Muhammad

Akram’s case (1977 SCMR 433), and Sikandars case

(PLJ 2008 SC 131). It was also argued that the

jamabandies clearly depicted Fazal Karim to be the

owner in possession of the entire disputed property.

The presumption of correctness attached to

jamabandies is rebut-able, as laid down in Arshad

Khan’s case (2005 SCMR 1859). The crucial fact

remains that the un-equivoble admission made in the

pleadings by the respondents, which was not

explained by any supporting evidence to justify the

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alienation thereof and being in such long and

continuous possession with the petitioners, would

rebut the presumption of correctness reflected in the

said jamabandies and the Khasra Girdawaries. In

fact, the parties are bound by their pleadings and even

evidence produced contrary thereto has to be clearly

discarded.

25. The fact that possession of part of the

disputed property was transferred to the petitioners

under the Deed, appears to be proved from the

available evidence. In the circumstances, the non-

registration of the Deed would not be fatal to all the

rights accruing to the petitioners, at least to the extent

of the property they are in possession. Let us examine

the said rights and privileges. In this regard, it is noted

that the rights of the petitioners to retain

possession over the 54 Kanals 05 Marlas

of the disputed property are protected under the

first proviso to section 50 of the Registration Act,

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1908 (“Act of 1908”), read with section 53-A of the

Act of 1882, which reads as under:-

“50 Certain registered documents relating to land to

take effect against unregistered documents. (1)

Every document of the kinds mentioned in clauses

(a), (b), (c) and (d) of section 17, sub-section (1),

and every document registrable under section 18, in

so far as such document affects immovable property

or acknowledges the receipt or payment of any

consideration in respect of any transaction relating

to immovable property shall, if duly registered; take

effect as regards the property comprised therein;

against every unregistered document relating to the

same property, and not being a decree or order,

whether such unregistered document be of the same

nature as the registered document or not.

Provided that the person in possession of the

property under an unregistered document prior in

date, would be entitled to the rights under section

53-A of the Transfer of Property Act, 1882 (IV of

1882) if the conditions of that section are fulfilled:

Provided further that the person in whose

favour an unregistered document is executed shall

be entitled to enforce the contract under the

unregistered document in a suit for specific

performance against a person claiming under a

subsequent registered document, subject to the

provisions of clause (b) of section 27 of the Specific

Relief Act, 1877 (I of 1877).”

(Emphasis provided)

Faced with similar situation, the apex Court in

Fazla’s case (1997 SCMR 837), has elaborated and

discussed the true purport of section 50 of the Act of

1908 in terms that:-

“These two provisos were added by the Registration

(Amendment) Ordinance, 1962 with effect from the

7th June, 1962. The first proviso clearly indicates

that a person, who is in possession of the property

under an unregistered document prior in date,

would be entitled to claim rights under section 53-A

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of the Transfer of Property Act provided he fulfills

all the conditions laid down in the said section. It,

therefore, applies section 53-A of the Transfer of

Property Act to persons in possession of the property

acquired under an unregistered document………

“From the above observation it is clear that

if any document requiring registration under section

17 of the Registration Act has not been registered, it

cannot bar or deprive a purchaser from claiming

benefit under section 53-A of the Transfer of

Property Act provided he satisfies the requirement

of the said section……………………….

“The only condition is that it should be an

unregistered document by a person in possession of

the property under it and that he fulfills the

conditions laid down in section 53-A of the Transfer

of Property Act. Applying this principle on the facts

of the case, it is clear that the receipt/contract was a

document of sale of the disputed property which was

unregistered. The appellant was, therefore, entitled

to the protection and rights under section 53-A of

the Transfer of Property Act.”

26. Now, this Court has to see whether the present

petitioner fulfills the conditions provided under

section 53-A of the Transfer of Property Act, 1882

(“Act of 1882”), which reads as under:-

“53-A. Part performance. Where any person

contracts to transfer for consideration any

immovable property by writing signed by him or on

his behalf from which the terms necessary to

constitute the transfer can be ascertained with

reasonable certainty and the transferee, has, in part

performance of the contract, taken possession of the

property or any part thereof, or the transferee, being

already in possession, continues in possession in

part performance of the contract and has done some

act in furtherance of the contract, and the transferee

has, performed or is willing to perform his part of

the contract; then, notwithstanding that the

contract, though required to be registered, has not

been registered or where there is an instrument of

transfer, that the transfer has not been completed in

the manner prescribed therefore by the law for the

time being in force, the transferor or any person

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claiming under him shall be debarred from

enforcing against the transferee and persons

claiming under him any right in respect of the

property of which the transferee has taken or

continued in possession, other than a right expressly

provided by the terms of the contract:

Provided that nothing in this section shall

affect the rights of a transferee for consideration,

who has no notice of the contract or of the part

performance thereof.”

27. The conditions precedent for a person to seek

protection under the above section 53- A of the Act of

1882, are essentially as follows:-

i) That written contract of sale of immovable

property for consideration;

ii) Steps taken in pursuance of the said written

contract;

iii) The possession is with the transferee and it

is continuous.

28. In the present case, it is noted that there is

written contract in the form of the Deed, regarding

disputed immoveable property for a consideration of

Rs.20,000/-, and in pursuance thereof possession of

54 Kanals and 05 Marlas has been transferred to the

petitioners and who continuously retains the same.

Thus, the essential ingredients of section 53-A of Act

of 1882 appear to have been fulfilled by the

petitioners. Let us now consider what benefits and

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legal protections would accrue to the petitioners in

fulfilling the said condition precedent. This issue has

been elaborately explained by the Apex Court in

Fazla’s case (1997 SCMR 837), wherein after

discussing the various precedents, the worthy Court

observed that;

“Learned counsel has relied on Naib-Subedar Taj

Muhammad v. Yar Muhammad Khan and 6 others

(1992 SCMR 1265) in which essential ingredients of

applicability of section 53-A of the Transfer of

Property Act have been enumerated, which require a

contract in writing signed by the transferor in

respect of an immovable property; transfer can be

ascertained with reasonable certainty; from the

document the transferee has taken possession of the

property or any part thereof or if he was in

possession, he continues to be in possession in part

performance of the contract and has done some act

in furtherance of the contract; and that the

transferee has performed or is willing to perform his

part of the contract. It is on satisfaction of these

conditions that one can claim the benefit of section

53-A of the Transfer of Property Act. In this

judgment reference was made to Mst. Ghulam

Sakina v. Umar Bakhsh and another (PLD 1964 SC

456), Habibur Rehman and another v. Mst.

Wahadania and others (PLD 1984 SC 424), Mst.

Shankri and others v. Milkha Singh (AIR 1941

Lahore 407) and observed as follows;

“Section 53-A of the Transfer of Property

Act enunciates equitable principle to protect

the rights of such purchasers who have

entered into agreement and in pursuance

thereof obtained the possession of the

immovable property and have further either

performed their part of the agreement or are

agreeable to perform the same. In such

circumstances, mere non-registration of a

deed which requires registration under

section 17 of the Registration Act, will not

deprive him of the benefit which he is

entitled to protect by virtue of section 53-A of

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the Transfer of Property Act. It is true that

section 53-A does not confer or create any

right but it provides a defence to a transferee

to protect his possession. Reference can be

made to the cases of Kalimuddin

Ansari..v..Director, Excise and Taxation,

Karachi, and another (PLD 1971 SC 114)

and Sri Kalulam Subranmanyam and

another v. Kurra Subba Rao (PLD 1948 PC

52). Section 53-A debars a transferor from

enforcing any right other than rights

specifically provided by the contract against

a transferee who in part performance of a

contract has taken possession. Reference tray

be made to the cases of Abdullah Bhai and

others v. Ahmed Din (PLD 1964 SC 106)

and Mst.Ghulam Sakina v. Umar Bakhsh

and another (PLD 1964 SC 456). In the

present case, the agreement itself recites that

the appellant in part performance of the

agreement had been put in possession of the

property. The appellant is, therefore, entitled

to the protection of his possession.”

(emphasis provided)

29. In view of the ratio-decidendi of the

aforementioned decisions of the Apex Court, any

person, who fulfils condition precedents of Section

53-A of Act of 1882, would not be able to claim title

over the possessed property but would surely be able

to shield any challenge made to his possession and to

be legally entitled to retain the possession thereof.

30. To sum up, it is noted that the suit of the

present petitioners was rightly declared to be time

barred by the two Courts below. However, despite the

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petitioners fulfilling the condition precedent of

Section 53-A of the Transfer of Property Act, 1882,

the legal protections arising therefrom, regarding their

retention of possession to the extent of 54 Kanals and

05 Marlas of the disputed property has not been

appreciated by the two Courts, and to which they are

legally entitled under the law. Accordingly, for the

reasons stated hereinabove, the present petition is

dismissed with the observations rendered

hereinabove.

Announced.

Dt.22/02/2016.

J U D G E

(K.Ali)