' This appeal has been directed against the judgment and decree by Additional District Judge, Poonch at Hajira dated 29-4-2000 whereby the finding of Civil Judge, Hajira, dated 29-12-1999 were upheld.
2. Two suits one by Muhammad Sharif (respondent herein) and other by Muzaffar Hussain (appellant No,2 herein) were brought before sub-Judge, Hajira on 13-10-1991 and 14-10-1991 respectively. Both the suits pertain to Survey Nos.2, 5 and 14 measuring 11 Kanals, 5 Marlas in Village Bala Chinair. Respondent Muhammad Sharif based his claim on an agreement to sell, dated 12-8- 1991 about the suit-land whereas Muzaffar Hussain appellant No,2 sought declaration for cancellation of the said contract for sale on the ground of fraud and non-payment of consideration Rs,30,000.
3. The background of this controversy briefly stated is that Muzaffar Hussain after alleged execution of contract for 'sale, dated 12-8-1991 in favour of Muhammad Sharif transferred the suit-land in favour of Said Muhammad (appellant No,1) through a sale-deed dated 21-11-1994. Muhammad Sharif respondent through his suit challenged the validity of sale-deed, dated 21-11-1994 executed in favour of Said Muhammad on the ground that prior to this sale-deed, the vendor had agreed to transfer the suit-land in his favour through the agreement to sell dated 12-8-1991, therefore, the subsequent sale-deed in favour of Said Muhammad was ineffective and inoperative to his rights.
According to him, the suit-land was already under his possession and Muzaffar Hussain appellant No,2 voluntarily executed agreement to sell in his favour wherein he promised to transfer the title of the suit-land in his favour after obtaining proprietary rights. Appellant No,2 Muzaffar Hussain after institution of suit by the respondent Muhammad Sharif also brought a declaratory suit seeking cancellation of agreement to sell, dated 12-8-1991. It was claimed by Muzaffar Hussain that the agreement for sale relied upon by Muhammad Sharif was fake and without consideration for he could not fulfill his promise to make further payment of Rs,30,000 as only Rs,10,000 were paid at the time of execution of the said agreement to sell. Both the suits were consolidated by the trial Court and after due process of law, the suit by respondent Muhammad Sharif was allowed directing Muzaffar Hussain to execute sale-deed in favour of Muhammad Sharif respondent. It was further declared by the trial Court that sale-deed in favour of Said Muhammad was inoperative and ineffective to the rights of respondent Muhammad Sharif, therefore, the same was deemed to be cancelled. Feeling aggrieved by the judgment and decree of the trial Judge, an appeal by the present appellants was brought before learned Additional District Judge however, the same could not find favour by the learned Court.
4. The learned counsel for the appellants raised the following objection to the judgments and decrees recorded by the Courts below:--
(1) Both the judgments of the Courts below were not judgments in the eye of law keeping in view the requirement of a judgment under Order XX, rule 5 of C.P.C.
(2) The trial Court was not seized with the jurisdiction to try the suit for specific performance of contract keeping in view the valuation of suit.
(3) The agreement for sale being unregistered document coupled with the fact that it was not accompanied by delivery of possession could not be given preference over the registered document accompanied by delivery of possession.
(4) The agreement for sale in favour of respondent Muhammad Sharif was unlawful under section 23 of Contract Act for it was executed without prior permission of Custodian Evacuee Property as required by section 19 of Administration of Evacuee Property Act.
5. Conversely, the learned counsel representing the respondent Muhammad Sharif argued that both the judgments and decrees were found quite in accordance with law because the same were recorded keeping in view the requirement of a judgment. It was further submitted that under section 11 of Suit Valuation Act, the objection regarding pecuniary jurisdiction of the trial Court on the basis of suit valuation could not be raised at the appellate stage. As regards registration of agreement for sale, the learned counsel maintained, that the same was not required to be registered under section 17 of Registration Act, 1908 because this document by itself did not create any right, title or interest in the suit but it creates a right to obtain another document which will, when executed, create title to the plaintiff-respondent Muhammad Sharif. The suit-land was already under the possession of respondent, therefore, question of non-delivery of possession did not arise, the learned counsel maintained. The objection regarding validity of agreement of sale in favour of respondent Muhammad Sharif was also without substance because the appellant could not be allowed to turn volte face as they themselves rely on different documents executed by or in their favour about a property which is admittedly an evacuee land, the learned counsel argued.
6. The record of the case has been examined in the light of arguments advanced at Bar. The first objection regarding judgments of the Courts below as pointed out by the learned counsel when examined in the light of relevant provisions of C.P.C. Cannot be allowed to sustain because the facts of the case, the points required for resolution and the judgments with reasons have been pronounced by the Courts below. The next objection regarding jurisdiction of the trial Court on the basis of valuation of the suit was also considered in the light of relevant law. Under section 11 of Suit Valuation Act, no objection regarding wrong valuation of suit for the purpose of jurisdiction can be allowed to be raised before Appellate Court if such objection has not been raised before the trial Court. Reference may be made to Muhammad Ameen's case 1992 SCR 178. As regards validity of agreement for sale in favour of respondent Muhammad Sharif on the ground of nature and character of property, it may be observed that the character of the property even after grant of proprietary rights remains the same as it has been held by the Supreme Court of Azad Jammu and Kashmir in case titled "Fazal Karim and others v. Muhammad Aziz and others decided on 8-12-1987.
The appellants also based their claim on the basis of different agreements for sale and sale-deed executed in favour of Said Muhammad appellant No,
1. Muzaffar Hussain appellant No,2, as observed by the Courts below unanimously, agreed to sell the suit-land in favour of respondent Muhammad Sharif through sale-deed which was to be executed after obtaining proprietary rights.
Appellant No,1 Said Muhammad also relies on sale-deed executed in his favour wherein it is mentioned that prior to this sale-deed he obtained different agreements in his favour from Muzaffar Hussain appellant No,2 about the suit-land, therefore, the principle of approbate and reprobate is fully attracted on their cases. Their conduct suggested to say that they cannot approbate and reprobate and at the same time they cannot blow hot and cold. The party cannot say at one time the transaction is valid and thereby obtained some advantage and at another say it is invalid for the purpose of securing further advantage. Reference may be made to PLD 1987 SC (Pakistan)
107. Therefore, they cannot be allowed to challenge the validity of contract for sale in favour of Muhammad Sharif respondent in presence of their conduct. As stated earlier, the nature and character of the property irrespective of the fact whether or not the proprietary rights are granted remains evacuee and if the transaction by or in favour of appellants are valid then why the transaction in favour of respondent Muhammad Sharif is invalid on the same ground.
7. Coming to the objection regarding registration and non-registration of documents involved in the controversy, it may be observed that under section 17 of Registration Act, 1908, the contract for sale does not require its compulsorily registration because it is a document which by itself does not create a title but it is a document creating a right to obtain another document i.e, sale-deed in favour of respondent Muhammad Sharif.
8. The learned counsel for the appellants contended that the agreement to sell in favour of respondent Muhammad Sharif could only to be used as shield in defence and not as a weapon to assert title over the property. While supporting his contention on this point, he relied upon Mumtaz Hussain Khan's case 2000 SCR 618 wherein the following observation was made:- ' "Section 53-A, is merely a shield which can be used in defence and not as a weapon to assert title over the property. It can only be used as a defence in answer to claim of possession by the vendor or any other person claiming through or under him. The right conferred by this section is only available to defendant to protect his possession. The section does not create a title on defendant.
It merely operates as a bar to the plaintiff asserting his title. It is limited to cases where the transferee had taken the possession and against him the transferor is debarred from enforcing any right other than that expressly provided by the contract."
9. The precedent case when examined carefully, it becomes clear that if an agreement to sell is relied upon by a party asserting title over the property and on the basis of this assertion he wants to protect his possession he could not be allowed to do so. There is no quarrel with proposition settled by the Honourable Supreme Court however, the facts of the instant case are distinguishable from the precedent case. Here in this case, respondent Muhammad Sharif is not asserting his title over the suit-land through the agreement for sale in his favour. He only seeks performance of contract for sale to obtain sale-deed in his favour through specific performance of the contract, therefore, the factum of delivery of possession becomes irrelevant in this case because he does not seek declaration of title on the basis of this document. No doubt the possession after its delivery to a party through an agreement to sell is protected under section 53-A of Transfer of Property Act nevertheless when the party does not assert title over the suit-land but simply requests the Court to direct performance of contract to obtain a further document creating title in favour of person seeking declaration, there is no bar to bring a suit for specific performance on the basis of such agreement as provided under section 12 of "The Specific Relief Act". The effect of an agreement to sell immovable properly is that it gives a privilege to the obligee against obligor to compel latter by a suit for specific performance of contract but the former has no direct right over the land. When the plaintiff-respondent Muhammad Sharif contracted with the defendant- appellant Muzaffar Hussain for the purchase of certain land and paid him purchase money but Muzaffar Hussain appellant failed to execute sale-deed in favour of respondent Muhammad Sharif, the suit for specific performance was competent. The learned counsel while contending that unregistered document could not be given preference to a registered document though it was prior in time relied on Pordil Khan's case PLD 1965 (West Pakistan Peshawar) 259. It was submitted by the learned counsel that the agreement to sell executed in favour of respondent Muhammad Sharif was an unregistered document without the delivery of possession, therefore, it could not be given preference over a registered sale-deed with possession in favour of appellant No,1 because under section 49 of Registration Act, 1908, the agreement for sale was essentially required to be registered. The precedent case after its examination suggested to say that in that case the appellant was relying on a sale-deed which no doubt was required to be registered under law.
Moreover, it was held in that case that the appellant failed to establish his possession over the suit- land, therefore, when he was relying on a sale-deed essentially required its registration and the possession was also not established then the subsequent document being registered one with possession was rightly given preference over the former document. Here in this case, the agreement to sell in favour of respondent Muhammad Sharif, as pointed out earlier, is not essentially required to be registered neither the respondent seeks title on the basis of it rather he prays to direct the executant Muzaffar Hussain to fulfil his promise about the transfer of the suit- land through sale-deed after obtaining proprietary rights. Therefore, the facts of both the cases are easily distinguishable.
10. The result is that both the Courts have arrived at a unanimous conclusion that Muzaffar Hussain appellant No,2 prior to execution of sale-deed in favour of appellant No,1 executed agreement for sale in favour of Muhammad Sharif respondent, therefore, keeping in view the legal position, the appellant No,2 Muzaffar Hussain was under legal obligation to execute sale-deed in favour of respondent Muhammad Sharif per his promise failing which the suit by Muhammad Sharif to obtain sale-deed in his favour through performance of contract has rightly been allowed in his favour by the Courts below. The appeal being without substance is hereby dismissed.