1. ' This appeal is filed against the judgment and decree of the District Judge, Muzaffarabad, passed on 19-8-2003 whereby the judgment and decree of the Senior Civil Judge, Muzaffarabad, dated 26- 11-2001, has been maintained.
2. ' The precise facts of the base are that the respondents herein brought a suit for declaration and cancellation of an ex parte decree passed on 22-4-1976 in respect of the land comprising Khasra No,109, measuring 18 Kanals, 16 Marlas, situated in village Badhara, Tehsil Muzaffarabad in the Court of Sub-Judge Mizaffarabad on 17-5-1979. It was alleged that the suit-land was in the ownership of Feroze Din who mortgaged the same to defendant/appellant herein for the sum of Rs,470. It was claimed that defendant is in possession of the said land as mortgagee since then. It was further averred that the defendant/appellant obtained an ex parte decree by fraud and misrepresentation in connivance with process server in respect of the suit-land on 22-4-1976. The case of the plaintiffs/respondents herein; in short, is that the land was mortgaged; and document Exh. `P.A.' has wrongly been garbed as agreement to sell. It was claimed that plaintiffs are entitled to possession of the suit-land.
3. ' The defendant, resisted the suit by filing written statement. It was stated in the written statement that the suit-land was transferred to the defendant/appellant through an agreement to sell executed on October 11, 1960 and the defendant is in possession of the same as an owner. It was claimed that hostile, continuous possession of defendant/appellant has ripened into ownership. It was further stated that decree under challenge has been ,passed by the Court after refusal on beha{f .Of respondent to accept the service, and allegations of fraud and deception are baseless.
4. ' The learned trial Court framed the issues in light of the pleadings of the parties. After providing an opportunity of leading evidence, to the parties, the learned Senior Civil Judge granted a decree of possession in favour of respondents on 25-10-1986. The judgment and decree dated 25-10-1986 was appealed against and the same was upheld by the learned Additional District Judge, Muzaffarabad vide his order dated 20-11-1994. On appeal, the case was remanded by this Court to the learned Senior Civil Judge on 20-3-2000, for fresh decision on the grounds listed in the order.
5. The learned trial Judge again vide his judgment and decree dated 26-11-2001 decreed the suit of the respondents/ plaintiffs. The appellant herein, feeling aggrieved by the judgment and decree dated 26-11-2001 went in appeal before the District Judge on 5-3-2002 who dismissed the same vide judgment and decree dated 19-8-2003.
6. ' Raja Muhammad Hanif Khan, the learned Advocate appearing for the appellant, contended that both the. Subordinate Courts failed to appreciate the document Exh. "P.A." in a legal fashion and came to an erroneous conclusion. The learned Advocate maintained that a perusal of the document as a whole reveals that it was out and out an "agreement to sell", and it has illegally been declared by the subordinate Courts as a "mortgage-deed". The learned Advocate submitted that appellant remained in continuous possession of the suit-land on the basis of this document, which is further supported by the entries of the Revenue Record. This continuous, hostile possession, according to the learned Advocate, has ripened into ownership and the decree to the effect was liable to be passed. The learned Advocate submitted that the appellant is even otherwise entitled to the protection visualized by section 53-A of the Transfer of Property Act, on the basis of part performance of the contract. According to the learned Advocate possession was transferred to the appellant on the basis of "Exh.P.A." and the consideration money was also paid. Thus all the conditions of section 53-A of the Transfer of Property Act, are fulfilled.
7. The learned Advocate in support of his submission placed reliance on the following cases:--
(i) "Hikmat Khan v. Shamsur Rehman" 1993 SCM R 428;
(ii) "Azad Government v. Haji Abdur Rashid and 3 others" 1999 YLR 1001;
(iii) "Habibullah v. Mahmood" 1984 CLC 309.
8. ' Mr. Muhammad Yaqoob Mughal, the learned counsel representing the other side, controverted the arguments advanced on behalf of the appellant. It was submitted by the learned counsel that the document was in fact a mortgage-deed and has rightly been held so by the subordinate Courts.
9. The conclusion being concurrently reached cannot be interfered with, that too in second appeal.
10. The learned counsel submitted that it was proved through the cogent evidence that the appellant obtained an ex parte decree by playing fraud and deception, therefore, the same was rightly vacated by the learned Courts. The learned counsel maintained that the onus was on the appellant to prove that the agreement "Exh.P.A." was in fact an "agreement to sell" who has not been able to discharge the same. It was submitted that the present case is neither a case of misreading or non-reading of the evidence nor any other procedural illegality or irregularity on the basis of which interference in second appeal is possible, is pointed out, hence his second appeal merits dismissal.
11. ' I have considered the respective arguments of the learned Advocates for the parties and perused the record.
12. ' The moot point in the case is as to whether the document dated 11-10-1960 is "agreement to sell" or "mortgage-deed". For proper appreciation of the matter, the agreement is reproduced as under:-- {{URDU TEXT}} ' For determination of this question it is necessary to refer some of the authorities of the superior Courts. In Ganu Mia's case PLD 1959 Dacca 293, it was opined that the question whether a document is a mortgage or an out and out sale, has to be determined mainly with reference to the terms of the documents itself and the intention of the parties as to the character of the document must be gathered from the terms thereof considered as a whole and not from any isolated expression. It was further opined that a document purporting to be one of the sale, though it is accompanied by a contract reserving to the vendor a right to repurchase the property sold on repaying the purchase money within a certain time, is not on that account to be construed as if it were a mortgage. In this authority, a Honourable Judge Mr. Justice Khan, of Dacca High Court, laid down the following test for determination of the character of the document:-- "In order to determine that a document is a mortgage by conditional sale, the following tests, though not exhaustive, should be applied:---
(1) The existence of a debt;
(2) The period of repayment a short period being indicative of a sale and a long period of a mortgage;
(3) The continuance of the granter in possession indicates a mortgage;
(4) A stipulation for interest on repayment indicates a mortgage;
(5) A price below the true value indicates a mortgage;
(6) A contemporaneous deed stipulated for conveyance indicates a mortgage, but one executed after a lapse of time points to a sale."
13. ' In Enayat Hossain Chowdhury's case PLD 1960 Dacca 998, a similar question was argued and Mr. Justice Ispahani, Judge (as his lordship then was), resolved the controversy reiterating the same view and by applying the tests laid down in the earlier report reproduced hereinabove. In Hamid Bakshu's case PLD 1956 Dacca 132, it was opined that in order to construe a document the Court has got the right to look into the document itself and take into consideration the terms of the instrument along with the extrinsic evidence in order to find out the intention of the parties. In Safiuddin Kazi's case PLD 1960 Dacca 555, a learned Judge in the similar circumstances made the following observation:-- "There is no specific rule so far as ' I am aware, of the nature referred to by the learned Subordinate Judge. The whole purpose of the interpretation of a document is to ascertain the true intent and purpose of the parties creating the document. For this purpose it is well established that the entire document must be taken into account. It is not possible to give any particular importance or weight to any particular portion or words in a document, unless and until it appears from the context of the words used in the other parts of the document as well that the particular word or that particular phrase was intended to be of such vital importance."
14. ' In Sardar Menhajuddin Ahmed's case PLD 1959 Dacca 316, it was held that when the execution of a document is admitted and it contains a statement that the document was read over, the burden lies on the defendants to prove that the document intended was different from the document executed and it was not read over and that there was fraud and misrepresentation to render the document void. In Rahim Baksh's case 1992 CLC 2433, a learned Judge held "that written documents which had been executed without tinge of fraud and compulsion were entitled to great respect, in order to confer security on human dealings. It was further held that where on mere allegation of persons interested in destroying a transaction, same was destroyed, faith of people in the sanctity of written agreements would be shaken and there would be no assurance to the parties to the agreement that it would survive baseless attacks and would remain effective and it would be tyranny to the people if they were made to live in a state of affairs under which solemn human dealings were deprived of security of survival." Chitty on the contract, in the first Volume at page 526, observed as follows:-- "Where the different parts of an instrument are inconsistent, effect must be given to that part which is calculated to carry into effect the real intention of the parties as gathered from the instrument as a whole, and that part which would defeat it must be rejected. The old rule was in such a case, that the earlier clause was to be received and the later rejected, but this rule was a mere rule of thumb, totally unscientific and out of keeping with the modern construction or documents. To be inconsistent a term must contradict another term or be in conflict with it such that effect cannot fairly be given to both clauses. A term may also be rejected, if it is repugnant to the intention of the parties as it appears from the document. However, an effort would be made to give effect to every clause in the agreement and not to reject a clause unless it is manifestly inconsistent with or repugnant to the rest of the agreement."
15. ' Viewing the agreement reproduced in the earlier part of the judgment in light of the rules of law laid down in the above referred cases, sections 54 and 58 of the Transfer of Property Act, 1882, as has been adopted in Azad Jammu and Kashmir, I am of the opinion that both the subordinate Courts have not appreciated and interpreted the document in a legal manner. For interpretation, a document, is to be construed and judged as a whole. The intention of the parties at the time of the execution of the document can be ascertained from their conduct. Mere stipulation in the agreement that in case the agreement is not executed, the vendor will repurchase the property will not be sufficient to hold the agreement to sell as mortgage-deed. Stamp Paper, of " Exh.P.A . " , has been purchased by the predecessor of the defendant/appellant for execution of an agreement to sell. Similarly the price mentioned has been duly paid and received as per certificate of the Sub- Registrar. The execution of the document in the present case is not denied by the respondents rather their case is that in fact a mortgage-deed was executed by their predecessor and the present appellant collusively got executed an agreement to sell by practicing fraud and misrepresentation. Thus, it was enjoined upon the respondents to prove that the document was executed as per their claim. The evidence of petition writer and other witnesses clearly shows that an agreement to sell was executed and the surrounding circumstances also do not reveal any different intention of the parties. Now the question is as to whether the ex parte decree was rightly set aside? Both the subordinate Courts are unanimous on the point that ex parte decree passed on 22-4-1976 in respect of the suit-land was obtained collusively. A perusal of the record and evidence reveals that the conclusion reached by the subordinate Courts to this extent does not suffer from any legal infirmity. The defendant/appellant has proved that the document "Exh.P.A." was an agreement to sell and he is in continuous possession of the land on the basis of this document, which fact has not been controverted by the other side. Issue No,8 was framed in respect of adverse possession which stood proved in light of the evidence, hence, is decided in favour of the appellant in terms that appellant is in adverse possession of the suit-land. A reference can be made to Ahmad Khan's case PLD 1975 SC 311 and Ch. Muhammad Bashir's case 2001 YLR 1299. Assuming for the sake of argument that the appellant could not be declared in adverse possession of the suit-land, even then he is entitled to the protection visualized by section 53-A of the Transfer of Property Act in view of the law declared by the apex Court of Azad Jammu and Kashir in Muhammad Bashir's case PLD 1998 SC (AJ&K)
36. The apex Court of Azad Jammu and Kashmir in aforementioned case discussed the scope of section 53-A in the following manner:-- "12. In the light of what has been stated above, we are of the opinion that apart from passing of title to respondent No,1 in view of the document Exh. D.E., the certificate of title, and Exh.D.B. Respondent No,1 is even otherwise entitled to the protection of section 53-A of Transfer of Property Act. A reference may be made to a case reported as Kalim-ud-Din Ansari v. Director, Excise and Taxation, Karachi PLD 1971 SC 114, wherein it was held that doctrine of part performance is valid defence in the proceedings of ejectment of the party in possession."
16. ' This view is further supported by the dictum of Supreme Court of Pakistan laid down in Hikmat Khan's case 1993 SCM R 428. Facts of the case were that one Gul Muhammad sold a house to the petitioner therein for consideration of Rs,6,000 through an unregistered sale-deed on 13-3-1975. The possession of the house was also delivered to him. Gul Muhammad subsequently sold the same house on 6-6-1979 for a consideration of Rs,20,000 to respondent therein. The second sale was made through a registered sale-deed. A suit was filed by second transferee on the ground that he is owner of the house on the basis of a registered sale-deed hence, is entitled to decree for possession of the disputed house.
17. The suit on contest was decreed in favour of the subsequent transferee and appeal against the said judgment was dismissed by the first Appellate Court. A revision was also dismissed by Peshawar High Court. The question arose for consideration before the High Court, was as to whether section 53-A of the Transfer of Property Act, could override the mandatory provisions of sections 17/49 of the Registration Act. The High Court came to the conclusion that no right whatsoever can be claimed on the basis of an unregistered sale-deed. On appeal the apex Court of Pakistan following its earlier view laid down in Mst. Gulam Sakina v. Umar Bakhsh PLD 1964 SC 456 and Taj Muhammad's case 1992 SCM R 1265 opined that if a document, which is compulsory to be registered, is not registered, then such a document does not effect any rights in the property dealt with under such a document. But section 53-A of the Transfer of Property Act, makes an exception to this and provides that "where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, is not registered, then neither a person transferring the property nor anyone claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property". The view is further supported by view taken in Habib-ur-Rehman's case PLD 1984 SC 424, the apex Court of Pakistan by vacating the orders of the subordinate Courts extended the benefit of section 53-A of the Transfer of Property Act, to the appellant therein and resultantly the subsequently sale-deed was discarded. In view of this settled position of law, I am of the opinion that this contention of Raja Muhammad Hanif Khan merits acceptance, as all the ingredients of section 53-A of the Transfer of Property Act have been fulfilled especially so when the document "Exh.P.A." has been declared as an agreement to sell.
18. ' The upshot of the above discussion is that the appeal is accepted and the impugned judgments and decrees of the subordinate Courts are hereby set aside. Consequently, the suit filed on behalf of respondents/plaintiffs is hereby dismissed.