Iftikhar Muhammad Chaudhry, J.--This appeal under Article 185(2)(d) and (e) of the Constitution of Islamic Republic of Pakistan has been filed against the judgment of Lahore High Court, Lahore whereby on accepting RSA No, 100 of 1989, the suit filed by Mst. Mehmooda Begum (deceased) through her legal heirs has been decreed.
2. Precisely stating the facts of the case are that a Plot Bearing No, 55-A/1, Ghalib Market, Gulberg- III, Lahore was allotted by Lahore Improvement Trust (now Lahore Development Authority) to one Ghulam Rasool vide allotment letter dated 8th January 1965 followed by an agreement to sell (Exb.
P-12) dated 8th August 1968 registered on 20th August 1968. Following conditions therefrom being relevant at a subsequent stage are reproduced herein below for convenience:-- That the intended vendee shall not during the period of agreement without obtaining the consent of the Trust in writing sub-divide the said land or part with the transfer or lease the land or any part thereof.....
(h) Nothing in these presents contained shall be considered as a sale at Law of the piece of land hereby agreed to be sold or any part thereof so as to give the said intended vendee any legal interest therein until the said sale-deed shall be executed, but the said vendee shall only have a right to enter upon the said land for the purpose of performing this agreement....
3. In pursuance of above agreement, on the completion of formalities, a sale-deed was registered in favour of said Ghulam Rasool on 21st May 1974. Subsequently Ghulam Rasool sold this property to M/s Muhammad Akram and Azam Mehmood through an agreement to sell dated 10th March 1979. Statedly possession of the property was also delivered to them. These persons later on filed a suit for declaration and injunction against Ghulam Rasool to the effect that they are the owners of the property and the latter had nothing to do with it. The suit was decreed in their favour on 5th November 1979. They vide another registered sale-deed 21st November, 1981 sold this property with possession to Amjad Tanvir, from whom it was purchased by one Ashraf Abbas vide registered sale-deed dated 21st January 1982 alongwith vacant possession of the property. The predecessor- in-interest of appellants namely Subedar Manzoor Hussain purchased the property, subject matter of the proceedings vide registered sale-deed dated 25th May 1984 with its possession from Ashraf Abbas.
4. It is important to note that, in the mean time, Ghulam Rasool executed a power of attorney dated 3rd October 1967 in favour of Zakaullah Kechelo who sold the property to Mst. Safia Begum by means of registered sale-deed dated 20th September 1968. She in turn transferred the property vide registered sale-deed dated 10th June 1974 to Mst. Mehmooda Begum (late) predecessor-in- interest of the respondents and her brother Sadiq Hussain. It is stated that at that time Respondents (2-3) were in possession of the property as tenant of Mst. Mehmooda Begum, as such she filed an ejectment application on 1st September 1977, which was allowed and possession was delivered to her on 19th November 1977. Later on, Sadiq Hussain transferred his share in favour of his sister Mst. Mehmooda Begum (late) vide registered sale-deed dated 30th November 1977. It is alleged that Mst. Tahira Begum and Mehmood Ali forcibly dispossessed Mst. Mehmooda Begum from the premises. In view of such development Mst. Mehmooda Begum filed a suit on 26th June 1980 for possession of the suit property. During the pendency of the suit, predecessor-in-interest of appellants got himself impleaded as defendant by filing an application under Order I Rule 10 CPC, which was allowed on 23rd December 1985. Accordingly the plaint was amended. Written statement was filed by the predecessor-in-interest of the appellants wherein he opposed the suit on the basis of the averments, which have already been noted herein above and claimed that he is owner in possession of the property in his own rights against valid documents, therefore, the suit filed by Mst. Mehmooda Begum is liable to be dismissed. Learned trial Court after framing issues arising out of the pleadings of the parties, recorded evidence and vide judgment dated 5th September 1987 dismissed the suit. On appeal, learned Additional District Judge, reversed the findings on some of the issues but ultimately dismissed the appeal on 15th April 1989. Against the judgment of both the Courts below, Regular Second Appeal (RSA) was filed by Mst. Mehmooda Begum which has been allowed vide impugned judgment. As such instant appeal as of right has been filed.
5. Learned counsel appearing for appellants contended that the conclusion of the High Court that the rights of predecessor-in-interest of appellants in respect of the property in dispute are not protected under Section 41 of the Transfer of Property Act, is based on incorrect appreciation of facts and law on the subject. The suit was filed by Mst. Mehmooda Begum for possession on the basis of fake title deed in her favour, therefore, it was for her to establish that she is owner of the property or not and if she had failed to establish her entitlement to the property she was not entitled for the relief sought for.
6. On the other hand learned counsel appearing for Respondent No, 1 stated that appellants' claim is based on collusive decree dated 5th November 1979 obtained by M/s Muhammad Akram and Azam Mehmood against Ghulam Rasool, whereas predecessor-in-interest of respondents Mst.
Mehmooda Begum alongwith her brother Sadiq Hussain acquired the proprietary rights in the property through a registered sale-deed dated 20th September 1968 therefore, she being owner of the property had a right to dispossess Respondents (2-3) from the house in dispute.
7. It is to be noted that following three issues were important, which have arisen from the pleadings of the parties:--
(1) Whether the plaintiff is owner of the property? OPP
(2) Whether the Defendant No, 3 is a bona fide purchaser of the property in dispute for consideration ? OPD
(3) Whether suit is not maintainable in its present form? OPD
8. We have heard learned counsel for the parties and have also gone through the available record carefully. It may be noted that learned trial Judge while deciding the Issue No, 1 had declared that Mst. Mehmooda Begum (late) is not owner of the property whereas learned. Additional District Judge has reversed this finding and held that she is owner of the property. Similarly learned Appellate Court protected the rights of the appellants' predecessor-in-interest in view of the provisions of Section 41 of the Transfer of Property Act. But the learned High Court in the impugned judgment did not concur with the said findings of the trial Court and on setting aside the same, decreed the suit of the respondents, believing the findings of the First Appellate Court on Issue No, 1 to be correct. In our opinion learned Additional District Judge as well as the High Court before pressing into service the provisions of Section 41 of the Transfer of Property Act should have examined "whether original allottee Ghulam Rasool on the strength of agreement to sell dated 20th August 1968 which contains a prohibitory clause not to transfer/alienate the property until the completion of the sale agreement, had lawfully transferred the title of the property to Mst. Safiq Begum from whom respondents' predecessor-in-interest Mst. Mehmooda Begum (late) and her brother Sadiq Hussain purchased the same vide registered sale-deed dated 20th September 1968?" This question being of fundamental importance is required to be examined in view of the provisions of Section 6(h) read with Sections 54, 56 of the Transfer of Property Act and Section 23 of the Contract Act. Section 54 manifest that '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'. Whereas Section 6(h) while explaining 'what may be transferred' provides that 'no transfer can be made in so far as it is opposed to the nature of the interest affected thereby, or
(1) for an unlawful object or consideration within the meaning of Section 23 of the Contract Act, 1872, or (3) to a person legally disqualified to be transferee'. Reading of both the provisions together expels a question with regard to entitlement of Ghulam Rasool to enter into the transaction of sale by means of registered sale-deed with Mst. Safia Begum knowing well that he himself was not owner of the property and merely on the basis of an agreement to sell in his favour, can be competently transfer absolute proprietary rights in favour of 3rd party i,e, Mst. Safia Begum? To find out its answer reference may be made to important clauses of agreement to sell dated 20th August 1968 wherein Lahore Improvement Trust (now Lahore Development Authority) had placed a clog on him not to transfer the property unless sale was complete and such contract/agreement to sell would itself not create any interest in or charge on such property as per Section 54 of the Transfer of Property Act. His entitlement on the basis of such agreement could be treated to be an intended transaction, conferring no rights of whatsoever nature upon him relating to proprietorship etc. and if, despite of it, he enters into a sale-deed with Mst. Safia Begum, it would be fictitious and fake because till then he had nothing in his possession to sell and as per the provisions of Section 6(h) his act of entering sale-deed with A Mst. Safia Begum cannot be treated lawful under the provisions of Section 23 of the Contract Act which provides that 'a consideration or object of agreement is lawful unless it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law'. Thus the sale-deed executed by Ghulam Rasool qua Mst. Safia Begum essentially defeats the provisions of Section 54 of the Transfer of Property Act, which manifests that on the basis of a contract of sale, no interest or charge will be created on the property. The outcome of this discussion is that sale-deed executed in favour of Mst. Safiq Begum from whom respondent Mst. Mehmooda Begum had purchased the property in dispute was invalid and she cannot base her entitlement over the property on it. In forming this conclusion we are fortified by the judgments in the cases of M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others (PLD 1966 (WP) Lahore 954), Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg (PLD 1978 Lahore 421), Mehr Hag Nawaz and another v. Muhammad Yagoob and three others (1988 CLC 1383) and Ganesa Naicken v. Arumugah Naicken (AIR 1954 Madras 811).
9. Learned counsel appearing for respondents with a view to defend the title deed in favour of respondents Mst. Mehmooda Begum referred to Section 18 of the Specific Relief Act 1877 and stated that if it is assumed that the title of Ghulam Rasool was imperfect because till the date of execution of sale-deed between him and Mst. Safia Begum, proprietary rights had not been given to him by the Lahore Improvement Trust (now Lahore Development Authority) and later on when these rights had been conferred upon him, any defect in the title shall be deemed to have been removed and the transaction done by him during this period shall stand rectified.
10. We fail to persuade ourselves to subscribe to this view point because by means of an agreement to sell no title, imperfect or otherwise, exists in his favour when he entered into an agreement to sell with Mst. Safia Begum, therefore, question of rectification of the sale-deed in favour of Mst. Safia Begum by Ghulam Rasool does not arise and the argument in this behalf being fallacious and baseless is repelled.
11. No other point was argued by the learned counsel for the parties.
Thus for the foregoing reasons, appeal is allowed with costs, as a result whereof, suit filed by Mst.
Mehmooda Begum is dismissed.