' JAWWAD S. KHAWAJA, J.---The L.Rs, of Maryam Bibi (respondent No,9) have been served through their father as per report of the process serving agency. None has appeared on behalf of the L.Rs, of deceased Maryam Bibi despite service. They are, therefore, proceeded against ex parte.
2. The dispute between the parties relates to land measuring 2 Kanals in Mauza Yaro Khair Pakka, Tehsil and District Mianwali. The predecessor-ininterest of the petitioners, namely, Ghulam Hassan and the predecessor-in-interest of the respondents also of the same name entered into an agreement dated 15-4-1976 (Exh.P.1) whereby the predecessor of the respondents agreed to sell the land to the predecessor of the petitioners.
3. The case of the petitioners is that they had paid the entire consideration and possession of the suit-land had been delivered to them on which they had raised houses and were residing therein since 1976. It is also the case of the petitioners that during the lifetime of the predecessorin-interest of the respondents he did not initiate any legal action against the petitioners or their predecessor- in-interest. However, after his death the respondents as L.Rs, obtained Mutation No,5422 which was sanctioned on 31-7-1989. It is in these circumstances that the petitioners/plaintiffs filed a suit seeking declaration of title in the suit-land.
4. Before me arguments of both sides have been confined to issues Nos.1, 7 and 8 which were framed by the learned trial Court in the following terms:-- ' Whether the suit is not maintainable in its present form? OPD ' Whether the plaintiffs are ownersin-possession of the suit property? OPP ' Whether Mutation No,4522 dated 31-7-1989 is against law and facts, based on mala fide, void, liable to cancellation and ineffective on the rights of the plaintiffs? OPP
5. The learned trial Court after considering evidence led by the parties proceeded to hold that the petitioners had been able to prove the agreement (Exh.P.1) and had also succeeded in proving that they were in possession of the suit-land and were residing in the houses built thereon. The suit for declaration filed by the petitioners was, therefore, decreed by the learned trial Court on 19-6-1996.
6. The respondents preferred an appeal which was allowed by the learned Additional District Judge on 29-9-1998. The learned Appellate Court proceeded on a law point alone. It was held that Exh.P.1 was a mere unregistered agreement and, therefore, did not convey any title to the predecessor-in- interest of the petitioners. This legal position is not seriously disputed by the learned counsel for the petitioners/ plaintiffs. He merely contends that the petitioners are entitled to retain possession of the suit-land on the basis of part performance as set out in section 53-A of the Transfer of Property Act.
7. The learned appellate Court held that the declaration sought by the petitioners that they were owners of the suit property, could not be granted to them because of a lack of proper registered conveyance required by section 17 of the Registration Act. As a consequence, the suit of the petitioners/plaintiffs was dismissed. The law point noted above has been correctly decided by the learned Appellate Court.
8. However, in view of the fact that the petitioner/plaintiffs have the valid and subsisting right envisaged under section 53-A of the Transfer of Property Act, which protects the possession obtained by them in part performance of the agreement (Exh.P.1), the appellate decree is modified to the extent that the right of the petitioners to retain possession of the suit-land is protected. They shall not be disposed of the suit-land without due process of law.
9. This revision petition is, therefore, disposed of in the above terms.