AZIZULLAH M. MEMON, J.--Plaintiff/applicant Syed Iftikhar Hussain filed Suit bearing No.621 of 1991.
In this Court with the following prayers:- "(a) Direct the defendant to specifically - perform his obligation under the sale agreement dated 8-9-1982 and to do all acts necessary in that respect and to execute the sale- deed and/or other documents for the transfer of the title of the said property in favour of the . Plaintiff.
(b) On failure of the defendant to execute the sale-deed and/or other necessary documents, to direct the Nazir of this Honourable Court to execute the documents for the transfer of the title of the property in favour of the plaintiff and to present for registration before the concerned Sub-Registrar and/or any other authority/authorities concerned.
(c) Declare that the plaintiff is in lawful and rightful possession of House No.R-1422, Block-2, Azizabad, Federal B, Area, Karachi.
(d) To restrain the defendant, his agents, attorneys, assigns and/or any other person or persons and/or any one else claiming or acting through or under him directly or indirectly from selling/transferring and/or mortgaging the property and/or interfering with the possession of the plaintiff of the said property being House No. R-1422, Block-2, Azizabad, Federal B, Area, Karachi.
(d) Cost of the; suit may be awarded.
(e) Any other relief or reliefs which this Honourable Court may deem fit and proper under the circumstances of the case."
2. He asserted that the plot under House bearing No. R-1422, Block-2, Azizabad, Federal B, Area* Karachi, admeasuring 120 Sq. Yards was leased out by the then Karachi Development Authority in favour of one Abdul Rehman, who sold out the plot to one Mst. Amna Bibi through a registered sale-deed, and the plot was again sold out by her to one Mst. Zulekha Begum, through another registered sale- deed, from whom defendant/respondent Shaikh Abdul Aziz purchased the plot through registered deed dated 12th May, 1980; on 8th September, 1982, the defendant entered, into an agreement of sale of the suit house in favour of plaintiff/ applicant Syed Iftikhar Hussain for total consideration of Rs.2,10,000 and received a sum of Rs.70,000 from the plaintiff/ applicant . On the said date towards consideration amount and executed a separate receipt for the same.
3. It is the case of the plaintiff that thereafter he repeatedly approached the defendant/respondent on several dates/times for the purpose of execution and registration of the sale/conveyance deed for the suit property, but the respondent demanded more money towards' the consideration of the suit property; hence plaintiff paid further sum of Rs.45,000 to him on 14th March, 1983, who acknowledged the same by executing a separate receipt; further amount of Rs.45,000 was received on 21st May, 1983, further amount of Rs.20,000 on24th August, 1983 for which also he acknowledged receipts for having received the said amounts towards consideration of the suit property and in all, amount #of Rs. 1,80,000 stood paid to the defendant/ respondent till 24th August, 1983, whereas a balance of Rs.30,000 remained to be paid towards sale consideration of the suit property. Defendant has agreed that remaining balance amount of Rs.30,000 was payable to him at the time of execution and registration of the sale/conveyance deed for which he went on delaying such execution; however, when he was pressed for the same, he handed over vacant possession of the suit property to the plaintiff/applicant towards part performance of the said contract; telephone connection bearing No.682629 was previously installed in the suit property in the name of the defendant/respondent who got it shifted from the same, on delivery of the possession by him to the plaintiff/applicant.
4. It is further case of the plaintiff that he repeatedly approached the defendant on several occasions to get the sale-deed registered but to no avail. Hence on or about 2nd March, 1991 a notice was served upon him by the plaintiff, and another notice dated 4th April, 1991 was also served by the plaintiff upon the defendant, thereby calling upon him to receive the balance amount of Rs.30,000 from him towards consideration of the suit property and to execute the sale- deed for the same, which notices were duly served upon him but were not replied to by the defendant, whereas the plaintiff has all along been ready and willing to specifically perform his part of agreement/contract.
5. The plaintiff after acquiring the possession of the suit property from the defendant, started living therein along with his family, and all along paid towards electricity and gas consumption bills and water charges to the concerned departments. Some time before filing of the suit, plaintiff came to know that the defendant was negotiating with various persons to sell out the suit property; hence he filed the suit with the above quoted prayers.
6. During the pendency of the suit in this Court, it was transferred to the learned District Court due to the amendment in the relevant provisions of law regarding pecuniary jurisdiction of this Court.
7. The defendant filed his written statement in the Court of leanfed Ill-Senior Civil Judge Karachi Central denying the contentions of the plaintiff/applicant for having agreed to sell out the suit property to him or having received the amounts towards part consideration of the property. He raised a plea that the property was got mortgaged by him with Habib Bank Limited/respondent No.2 since 1st . December, 1980 and that he was not empowered to sell out the same. He asserted that the sale agreement relied upon by the plaintiff is a forged document. He further took a plea that the plaintiff was his tenant in the suit property since the month of September, 1989 and failed to pay the rental amount since January,' 1991 and therefore ejectment'application was filed by the defendant against the plaintiff before the concerned Rent Controller (which now ' admittedly stand decided against the defendant).,
8. On the pleadings of the parties, learned trial Court framed the following issues:- "(1) Whether the suit is not maintainable?
(2) Whether the plaintiff has no cause of action?
(3) Whether the suit is undervalued?
(4) Whether this Court has no jurisdiction to try the suit?
(5) Whether the plaintiff is tenant of the defendant in respect of House No. 1422, Block No.2, Azizabad, Federal B Area, Karachi?
(6) Whether the suit is infructuous in view of registered mortgage deed. No.5118 and in view of judgment and decree in Suit No.96/84 passed on 13-5-1985 by the Special Court of Banking Sindh?
(7) Whether the defendant entered into an agreement of sale of the suit property with the plaintiff in consideration of Rs.2,10,000 on 8-9-1982?
(8) Whether the plaintiff paid an amount of Rs.70,000 at the time of signing of agreement and subsequently Rs. 45,000 on 14-3-1983, Rs.45,000 on 21-5-1983 Rs. 20,000 on 24-8-1983 and consequently defendant received Rs. 1,80,000?
(9) Whether the plaintiff served two legal notices dated 2-3-1991 and 4-4-1991 calling upon the defendant for due performance of contract after acceptance of Rs.30,000 as per sale agreement?
(10) What should the decree be?"
9. Plaintiff examined himself in support of the suit and produced the copies of the sale agreement and the receipts for payment of different amounts towards consideration of the suit property to the defendant; he also produced some copies of the notices, postal receipts, gas and electricity consumption paid bills and four water charges. He also examined two witnesses namely' Syed Shafique Hussain and Shahid Abrar in support of his case.
10. Defendant/respondent did not appear to prove the contents of the written statement filed by him.
11. Vide judgment dated 24th September, 2001 Ill-Senior Civil Judge Central Karachi dismissed the said Suit bearing No.621 of 1991 holding that the suit was "not maintainable, is badly time- barred and plaintiff has no cause of action to file the suit". Issues Nos.3, 4, 5, 6, 7, 8, 9 and 10 were replied to by the learned trial Court in terms that suit being not maintainable and barred by the law of limitation, "there is no necessity to discuss above issues". Decree followed the said judgment.
12. Plaintiff/applicant filed Civil Appeal bearing No.l25'of 2001, which was heard by II-Additional District Judge Central Karachi, who vide judgment dated 13th September 2002 dismissed the same holding that no date of execution of the disputed sale agreement was mentioned therein^ excepting that the month of September, 1992 stood mentioned therein, while the date of 8th September, 1982 appeared under the signature of vendee of the suit property and the first notice was sent by the plaintiff to the defendant/respondent on 2nd March, 1991 which was so issued after the lapse of a period of 9 years and, therefore, the suit was "hopelessly time-barred".
13. Hence, the applicant has filed this Civil Revision Application against the said two concurrent findings of the Courts below.
14. Even if a property is mortgaged with some bank or some other person/authority, then also the sale of such a property would not be illegal and at the most such a sale could not be finalized until and unless such a property is got redeemed;
15. As stated above, the defendant did not examine himself in the learned trial Court after filing the written statement in the suit and, therefore, he failed to prove the contents of the written statement, which have thereby gone unproved. In Abdul Karim Kureshi v. Abdul Khaliq (1984 CLC 259 Karachi) it was held that where written statement was neither verified on oath nor respondent/defendant examined himself in the suit, such a written statement could not be treated as evidence.
16. In Mst. Khairunnisa and others v. Malik Muhammad Ishaque and others (PLD 1972 SC 25) following observations were recorded by Honourable Supreme Court:- "It was further observed as under: - "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross- examination. His non-appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case."
The principles of law enunciated in these decisions appear to me to be quite correct. It seems to me that under section 27(b) of the Specific Relief Act negative is to be proved by the subsequent transferee. If he appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden arid the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original'contract.
In the present case, unfortunately, Muhammad Hussain Shah died during the pendency of the suit before his evidence was recorded. He, therefore, could not appear in person to state whether he had notice of the original contract or not. There is, therefore, no negative evidence on behalf of the appellants to discharge the burden which lay so heavily on them. Raja Muhammad Anwar, learned counsel for the appellant, has contended that the deceased had denied the factum of the notice in the written statement and this should be considered as evidence in the case under section 32 of the Evidence Act. The contention of the learned counsel is not well founded.. Written statements cannot be the exhibits in the-case without the person who filed the same being examined in the Court. The statements made in the written statement are not on oath. They are only verified and therefore they cannot be treated as evidence in the case. This view finds support from the case of J.B. Ross and Co. v. C.R. Seriven and others (1) and Muhammad Siddique v. Bhupendra Narayan Roy Chowdhry (2). It was held in the former case as under:- "A verification is required with a view to discourage; if not to prevent, the institution of false suits; the Legislature never contemplated . That verified statements should be treated as evidence on behalf of a plaintiff against a defendant. The inference may legitimately be drawn from the language used in section, 191 read with section 193, I.P.C., that a verified statement would not be "evidence" but for the special provision of section 191 which has been enacted for 'a special purpose."
In the latter case it was held that written statement cannot be an exhibit if defendant dies without being examined. The learned counsel for the appellants was unable to cite any authority in support of his contention that the written statement is an evidence in the case. In view of this the denial by deceased Muhammad Hussain Shah in the written statement is of no avail and cannot be of any assistance in the discharge of the onus which lay on the appellants to prove that the deceased was a transferee for valuable consideration in good faith and without notice."'
17. In Abdul Karim v. Safia Mirza and 5 others (1986 MLD 1333 Karachi) following observations were recorded at page 1334:- "The defendants who are the legal heirs of the deceased have filed their written statement and this application under Order VII, rule 11, C.P.C. The first contention of the learned counsel for the " defendant that the agreement is for construction and not for sale of the property, therefore, it cannot be specifically performed, and the plaintiff is not entitled to any relief. It is well-settled that for the purpose of Order VII, rule 11, C.P.C. One has to take the averments made in the plaint as briefly stated above, the agreement was not for construction only. From clauses 5 and 6 of. The agreement as reproduced above, it is clear that on failure to pay Rs. 1,78,000 the plaintiff was to become the owner of the property and the defendant was to execute conveyance deed in his favour. The contention has no merits.
The second contention of the learned counsel is that as the agreement was not registered, it confers no right on the plaintiff to get it specifically performed. In this regard the learned counsel has referred to PLD 1967 'Kar. 372, but in my view, this judgment is of no helps to the plaintiff because it was also held there that under section 53-A of the Transfer of Property Act transferees right of possession is protected against the transferor or persons claiming through him. In the present case it has been pleaded that the plaintiff has been put in possession in part performance of the agreement, and therefore, even if the agreement was not registered, his right cannot be challenged. Reference can also be made to another judgment in the same book, PLD 1967 Kar. 508 which has taken into\ consideration the amendment made in the Registration Act in the year 1962.
The learned counsel also referred to AIR 1931 PC 79, but on facts this authority is completely distinguishable.
The learned counsel lastly contended that the suit is barred by time. In the plaint the plaintiff has stated that merely by not attending the proceedings before the Registrar there was not refusal and ultimately the final refusal came on 16-1-1977. The question for determination would be whether the defendant's absence on 6-1-1974 would amount to a refusal to register the sale-deed or it came on 16-1-1977 which should be taken as the final date of refusal. This can only be decided after evidence has been led by the parties. On the pleading as it stands, it is not possible to reject the plaint on the ground that the suit is barred by time. The application is therefore, dismissed."
18. In Muhammad Ishaq v. Erose Theatre and others (PLD 1977 SC 109) following observations were recorded at page 113:- "The question is whether, in the facts stated, the provisions of section 17 of the Registration Act were at all attracted to clause (9) of the partnership deed.
Section 17 of the Registration Act, requires compulsory registration on documents which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title, or interest, whether vested or contingents, of the value of one hundred rupees and upwards, to or in immovable property. It will be seen that an essential prerequisite for the application of this section is that the person transferring the rights must be in possession of such rights before he can convey them to the second party. The words "whether in present or in future" occurring in clause (b) of sub section (I) of section 17 have reference not to the title or interest of the transferor, but to the right to be created in favour of the transferee, thus clearly- showing that -as far as the transferor is concerned, he should be in possession of the rights in the present and not in the future. (See Imam Bakhsh Khan v. Karim Shah (16 P.R. 1895), Bhan Singh v. Thakur Das (89 P.R. 1908) and Ramdas v.
Nadir Shah (AIR 1919 Lah. 60).
The only other words requiring to be noticed are that compulsory registration applies not only in the case of transfer or declaration fete, of vested rights but also of contingent . Rights in immovable property. These* terms have not been defined in the Registration Act itself, but according to section 19 of the Transfer of Property Act a vested interest accrues .On a transfer of property when it is created in favour of a person without specifying the time when it is to take effect or in -terms specifying that it is to take effect forthwith or on the happening of an event which must happen; whereas a contingent interest, as defined in section 21 of the same Act, is an interest in property which is to take effect only on the happening of a specified uncertain events or if specified uncertain event shall not happen. Such contingent interest can, however, ripen into a vested interest on the happening of the event or, in the second case, when the happening of the event becomes, impossible.
Now, none of these concepts has any relevance to the facts we are considering. Rizvi had not acquired any interest in the immovable property comprising the Erose Theatre on the date he entered into the partnership deed with Parekh and the females. He had only entered into an agreement to purchase the property from Sitlani and Waswani. It is well-settled that an agreement to sell or purchase immovable property does not, by itself create any present right in the property in question; on the contrary it is a document falling within the ambit of Exception: 5 as enumerated in subsection (2) of section 17 of the Registration Act, namely, a document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, etc. Such a right. In Kanti Chandra v.
Projendru Mohan (AIR 1929 Cal. 186), Hukamchand v. Radha Kishen (AIR 1930 P.C. 76) and Naba Kishore Lai Singh Deo v. Panchanan Matho (AIR 1930 Pat. 601), such agreements were held not to create or declare any present rights to or in immovable property."
19. So also in Mst. Rasheed Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089)
Honourable Supreme Court was pleased to record the following observations at page 1095 which read as under "11. An agreement to sell immovable property is a contract enforceable by law. Section 54 of the Transfer of Property Act expressly provides that a contract of sale does not, of itself, create any interest in or charge on the immovable property which constitutes its subject- matter. As a matter of fact an agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property, mentioned therein and for that very reason it does not require registration. There is also no legal provision to the effect, that an agreement to sell should only be in writing. Be that as it may, while determining the question whether an. Agreement to sell is required by law to be attested by witnesses a line of demarcation must be drawn between the agreements of sell executed before and after promulgation of Qanun-e-Shahadat Order, 1984.
Unquestionably, an agreement to sell involves future obligations, therefore, if reduced to writing and executed after coming into force of Qanun-e-Shahadat Order, 1984, it is required by sub- Article (2)(a) of Article 17 thereof to be attested by two male or one male and two female witnesses, as the case may be. The said sub- Article is worded thus:- "(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law-
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly."
The execution of Such an agreement to sell is to be proved in accordance with the provisions of Article 79 of Qanun-e-Shahadat Order, 1984 ' which read as under: - "If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
12. It is true that before promulgation of Qanun-e-Shahadat Order, 1984 an agreement to sell was not required by any law to be attested by witnesses. It is, however, a matter of common knowledge that , during that period also the agreements to sell were by and large reduced to writing and attested by witnesses in spite of absence of a legislative provision and the mode attained the status of an established practice by efflux of time. This mode, in all probability, was adopted by way of abundant caution and to procure documentary evidence inasmuch as in a suit for specific performance of contract based on an agreement to sell the onus is on the plaintiff to prove the contract unless its existence is admitted by the defendant. The interest of justice, therefore, demands that the form of proof should be in line with the format of the document executed by the parties to the contract. It would thus follow that where an agreement to sell executed prior to promulgation of Qanun-e-Shahadat Order, 1984 has been reduced into writing and attested by witnesses its execution must be proved in accordance with the provisions of section 68 of the erstwhile Evidence Act notwithstanding the fact that the: same apply only to that document which is required by law to be attested. Prop of aforementioned , legal vacuum cannot be taken to offset the effect of failure to prove the execution of an agreement to sell in accordance with the said mode. However, where an agreement to sell has been reduced to writing but not attested by witnesses its execution and the contract embodied therein can be proved by other strong evidence and attending circumstances which may vary from case to case. Needless to mention that such evidence can also be produced in the first category of cases as supporting evidence."
20. Thus, the evidence produced by the plaintiff before the learned trial Court has not been rebutted by the defendant, even to the least, and the said evidence has proved that the possession of the suit property was delivered to the plaintiff by the defendant in part performance of the disputed contract of sale; not only that the possession of the plaintiff of the suit property stands protected, but the law of limitation ordinarily is not to run against the plaintiff until and unless the evidence, so produced by him, could satisfactorily be rebutted by the defendant to say that the suit of the plaintiff was hit by the law of limitation.
21. So also, admittedly the disputed agreement of sale does not bear the names/signatures of any attesting witness. It is a settled principle of law that where no attesting witness of such a document is available, the plaintiff would still be entitled to prove execution of such agreement in his favour by the defendant for the purpose of sale of the property by means of producing other strong evidence.
22. Under the circumstances, the learned two Courts below failed to properly appreciate the settled principles of law involved on the controversial points in between the parties, and thereby failed to properly exercise the jurisdiction vested in them, respectively. Hence, this civil revision application was allowed by short order dated 15-3-2007 and impugned judgments/decree passed by the two Courts below were set aside, with the direction that the said is remanded to the learned trial Court to hear, the parties afresh, and to decide the suit by means of replying to all the issues in accordance with the settled principles of law. Above are the reasons for the said short order.
Revision Application stands disposed of along with pending application.