1. ' NADEEM AZHAR SIDDIQI, J.---The applicants have challenged the judgment and decree dated 1-9- 1988 and 10-9-1988 passed by District Judge Shikarpur in Appeal No,21 of 1987 setting aside the judgment and decree passed by Joint Civil Judge Shikarpur in S.No,19 of 1978 filed by the applicants.
2. ' The facts in short are that applicants filed S.No,69 of 1970 renumbered as 1987 in respect of premises bearing C.S.No,A/80 situated at Bagerji, Taluka Sukkur which was purchased by him from Settlement authorities in open Katchahri. The applicants served notice upon the respondents claiming arrears of rent and vacation of premises.
3. ' The respondents filed written statement claiming that the property belongs to respondents, no notice under section 106 of Transfer of Property Act was served and all the legal heirs of deceased were not made party to the proceedings.
4. ' The respondents have filed amended written statement and have set up a new defence by pleading that the property was originally belonged to Hindu Panjan Mal and the deceased Muhammad Azim purchased the same from above named Hindu through sale deed dated 3-11- 1946 which was confirmed on 20-4-1965 by Deputy Custodian Evacuee Property Sukkur and since then the deceased was in possession as its owner.
5. ' The trial Court has decreed the suit vide judgment dated 2-6-1987 which was challenged by the respondents in Appeal No,21 of 1987 which was allowed vide judgment dated 1-9-1988 hence the revision.
6. ' The learned counsel for the applicants has contended that the learned Appellate Court has allowed the appeal only on the point of non-serving of notice under section 106 of Transfer of Property Act, which findings are contrary to the evidence available on record. The learned counsel has pointed out from the judgment of the trial Court dated 18-10-1981 regarding serving of notice under section 106 of Transfer of Property Act which reads as under:-- "The plaintiffs have produced copy of the notice and so also acknowledgment receipts and postal receipts. It is correctly addressed and properly posted. All these documents prove beyond doubt, that the notice was served upon the defendants. Moreover the assertions made by the plaintiffs in this respect in their examination-in-chiefs, stand unchallenged, as such these facts stand proved and admitted. There is nothing in rebuttal. The contents of this notice clearly proves that, it was for delivery of possession and recovery of rental dues. I hold that, the notice was served upon the defendants."
7. ' The above judgment was set aside by the High Court in C.P. No,D-21/85 and the case was remanded to the trial Court. I have perused the judgment of the appellate Court and found that the learned appellate Court has not touched the merits of the case and has only taken into consideration non-service of notice under section 106 of the Transfer of Property Act. I have gone through the R&P of Suit No,19 of 1978. In his evidence the applicant has not produced, the postal receipt and acknowledgment receipt however he has produced the copy'of the notice which was produced under objection as the same was not signed by the advocate or his client. However, while going thorough the R&P I have found that original postal receipt and original acknowledgments were available on record of lower Court at page Nos.383 to 387. The applicants have also filed the certified copy of such receipts which are A available in the file of this Court. The learned appellate Court has committed an error by not considering the documents which are available on record in original. No doubt the documents have not been produced in Court as provided under Order XIII, Rule 4, C.P.C. There is nothing in law to prevent the court from looking into the documents even if they are not exhibited, provided they have been placed on record by the parties concerned. Non-production of documents according to provisions of C.P.C. Is merely an irregularity. In the reproduced case of Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (W.P.) BJ
96. It was held that documents are not exhibited but having placed on record by the plaintiff herself, are admissible in evidence and can be looked into. Further more the learned appellate Court has also failed to take into consideration that service of the notice of the suit upon the respondents may be treated as notice for vacation of the premises. The notice under section 106 is B necessary when the respondents claim themselves to be the tenants. The respondents are not admitting themselves to be tenants but they also claim title of the property on the basis of alleged agreement to sale and confirmation of sale by Deputy Custodian Evacuee. Properties Sukkur.
8. Section 16(a) of Pakistan (Administration of Evacuee Property) Act (XII of 1957) provides as under-- "16. (1)...................................................
9. (2)............................................................
10. (3)............................................................
(a) prevent a civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee property where such agreement has been approved by the Custodian, or a Registering Officer from registering a deed of sale or exchange relating to such property where a certificate under section 20 has been granted by the Custodian."
11. From the above provisions it is clear that the decree of a civil Court is necessary to seek protection.
12. In this regard it is pertinent to point out that the respondents are claiming title of the property on the basis of an un-registered agreement. It is well-established principle of law that the sale agreement do not create any title or vested right in favour of the vendee. Further more this ground was not taken in the earlier written statement and was taken in the amended written statement without the permission of the Court. The respondents cannot change or alter the plea raised in the original written statement and if without permission of the Court some new pleas were raised the same cannot be considered and the same has to be ignored. In case the plea raised by the respondents is discarded they have no other defence and have also no justification to remain in possession of the property. The up shot of the above discussion is that the learned appellate Court has failed to exercise the jurisdiction vested under him properly and has committed an error of law by setting aside the judgment of the trial Court only on the basis of non-service of notice under section 106 of the Transfer of Property Act. The judgment of the appellate Court is therefore, set aside and the revision application is allowed and the judgment and decree passed by the trial Court is upheld.