' KHAWAJA SHAHAD AHMED, J.--- The instant appeal has been addressed against the judgment and decree recorded by a learned Judge of the High Court on 28-2-2006, whereby the plaintiff- respondent, Haji Muhammad Rafique, has been extended the benefit under section 53-A of the Transfer of Property Act and it has been ordered that he shall not be dispossessed from suit-land on the basis of gift-deed exectited by appleant Nos.1to 3 Kalid...Hussain, Muhammad Ameen and Muhammad Yaseen in favour of Mehboob Alam, appellant No,4.
2. The important facts which need mention to dispose of the instant appeal are that by an agreement-to-sell/affidavit executed on 6-3-1990 land measuring 11 Kanals, 2 Marlas, from Survey No,398, situate in village Thothal, Tehsil Mirpur, was alienated by respondent No,1 in favour of respondent No,2, Roshan Din against a consideration of Rs,4,00,000. The possession of suit-land was also allegedly, transferred to respondent No,2. Respondent No,2 executed an agreement-to- sell in favour of respondent No,1, Haji Muhammad Rafique, on 26-6-1992 against consideration of Rs,4,00,000 and possession was also transferred to respondent No,2. The same land was transferred by appellants Nos.1 to 3 to appellant No,4 on 4-10-1993.
3. A suit for specific performance was filed by respondent No,2, Haji Muhammad Rafique, against the appellants and respondent No,2. The defendants Khalid Hussain, Muhammad Ameen, Muhammad Yaseen, Mehoob Alam and Roshin Din were summoned. They filed written statement with specific stand that Khalid Hussain, appellant No,1 herein, alienated only some Marlas of land through sale-deed and that execution of affidavit was false, fabricated and based on fraud.
Through judgment, dated 23-10-2004 the learned Additional District Judge dismissed the suit. An appeal was filed in the High Court by respondent No,1 on 15-1-2005 and it was pleaded that after admitting the execution of affidavit, the trial Court/Additional District Judge was bound under law to pass a decree for specific performance or protect the possession of plaintiff as postulated by section 53-A of the Transfer of Property Act. The finding of the trial Court was defended by present appellants who were respondents in the High Court by submitting that the execution of affidavit has not been proved in accordance with law. The Court below was justified to dismiss the suit. It was also submitted that the affidavit was procured through fraud and deception as Khalid Hussain sold a piece of land only to Roshin Din who secretly obtained the affidavit on which subsequently, disputed affidavit was procured. On facts it was submitted that the trial Court has properly appreciated the evidence led by parties, therefore, there being no justification, the judgment and decree recorded by the trial Court deserved to be maintained. A learned Judge of the High Court accepted the appeal of respondent No,1 on the ground that Khalid Hussain and others, respondents before the High Court, have not specifically denied the execution of affidavit. While relying on Order VIII, rule 5 of the Code of Civil Procedure, it was held that in absence of specific denial by Khalid Hussain and others, it was an admission on the part of appellants. To substantiate the finding, the learned Judge of the High Court mainly placed reliance upon.The cases reported las Ghulam sarwar and another v. The State PLD 1984 SC (AJ&K) 181 and Muhammad Lal v. Mohko and 2 others PLD 1979 SC (AJ&K)
15. As far the other issues raised by the parties before the High Court are concerned, the learned Judge in the High Court held that after the admission of execution of affidavit, it was enjoined upon the learned Additional District Judge to grant decree or extend relief as visualized by section 53-A of Transfer of Property Act to respondent No,
1. While holding that finding of trial Court on Issues Nos.1 and 2 is not legally sustainable and that in presence of affidavit executed first in time, subsequent transfer through gift-deed was without lawful authority and possession, the learned Judge extended the benefit of section 53-A of Transfer of Property Act. In this respect the learned Judge relied upon a case of this Court reported as Muhammad Bashir v. Haji Muhammad Siddique and 5 others PLD 1998 SC (AJ&K) 36.
4. Ch. Munsif Dad, Advocate, while arguing the case on behalf of appellants, Khalid Hussain and others, submitted that the judgment recorded by the High Court is illegal, bad in law and perverse, consequently not sustainable. The High Court has not considered the pleadings of parties, therefore, the impugned judgment needs to be recalled under law by this Court. Similarly the documents placed and relied upon by the parties were not considered under the provisions of Evidence Act. As the affidavit was fake on the face of it and possession of land being still with appellant, Mehboob Alam and others, the High Court erred in law to extend the benefit under section 53-A of Transfer of Property Act to respondent No,
1. As the trial Court has recorded its judgment after considering the merits of the case, in the light of produced evidence, the High Court was not justified to accept the appeal of respondents on the ground of evasive denial which was not agitated before it when respondent No,1 filed appeal in the High Court. The judgment recorded by the High Court is clearly based on non-reading of evidence of parties, the appeal filed before this Court needs to be accepted under law. To support his arguments, points of law agitated before this Court and pressed into service and documentary evidence produced on behalf of Khalid Hussain and others could be proved through secondary evidence, he has relied upon a case titled Mahmood Akhtar Kiani v. AJ&K Government and 3 others 1998 SCR 310 and Article 74 of Qanun- eShahadat Order, 1984, which is verbatim reproduction of section 63 of Evidence Act, 1872.
5. It has been contended by Raja Hassan Akhter on behalf of respondents that the suit-land is Shamlat, the ownership and transfer of which is regulated by Shamlat Deh Act, 1966. Under section 42(11)(d) of Interim Constitution Act direct appeal to this Court is not competent. On facts he submitted that the Court below has appreciated the evidence properly therefore, no case of misreading or non-reading of evidence can be pressed into service in this Court. As the contract was proved, appellant was duty bound under law to act according to agreement and transfer the suit-land to answering respondents by executing the sale-deed in their favour.
6. It appears from available record that the judicial file of the case was consumed by fire and after an order of re-construction the trial Court decided the case; we, therefore, have, in the interest of justice and correct appreciation of evidence, re-considered the record of the trial Court. In the suit filed by respondent, Haji Muhammad Rafique, he has prayed for a decree for specific performance on the basis of affidavit/agreement-to-sell dated 26-6-1992. The other relief prayed for by him was that the gift-deed registered on 4-10-1993 by appellants Nos.1 to 3 in favour of appellant No,4 being without possession and having been executed fraudulently was ineffective and inoperative against his rights in the suit-land. When the defendants-appellants filed written statement on 22-2-1993, they disputed the correctness of para. 1 of the suit filed by the plaintiff-respondent, herein, by submitted that paragraph 1 of the suit is not correct. Defendant No,1 has transferred only 18 Marlas of land to Roshan Din, defendant. As far the remaining contents of the affidavit are concerned, they are incorrect. They have validly transferred the suit-land to defendant/appellant, Mahboob Alam, through gift-deed.
7. The affidavit executed by Khalid Hussain in favour of Roshan Din, respondent No,2, herein, finds place at page 19 of the trial Courts' file and is a photocopy of the original but admittedly reveals that land measuring 11 Kanals, 2 Marlas has been transferred to respondent, Roshan Din. A detailed perusal of copy of affidavit makes it crystal clear that the suit-land is `Shamlat' and has been transferred by Khalid Hussain, appellant No,1, only. It also reveals that Khalid Hussain transferred this land in favour of Roshan Din through affidavit recorded on 6-3-1990 by specifically providing that when mutation of the `Shamlat' land is ordered after partition in his favour, he will execute the sale-deed in favour of Roshan Din. It has however also been mentioned in the affidavit that otherwise affidavit shall be considered as sale-deed and Roshan Din shall have all those rights to which transferee is entitled to through a registered sale-deed. The agreement-to-sell executed by Roshan Din in favour of Muhammad Rafique, respondent, a facsimile of which is at page 21 of the file of the trial Court, reveals that respondent, herein, has purchased the suit-land for Rs,4,00,000 and the possession of the land is already with the respondent. A copy of the gift-deed executed by appellants Nos.1 to 3, which has been registered by Sub-Registrar, Mirpur, on 4-10-1993, land under Survey Nos.393 and 398 has been transferred to appellant No,4 and the price of the land for the purpose of registration has been fixed as Rs,500. Through a sale-deed, attested copy of which finds place at page 56 of the trial Court's filed, Khalid Hussain has transferred land measuring 18 Marlas against a consideration of Rs,1,00,000 in favour of Roshan Din, respondentNo,2, herein.
8. On 17-3-1996, Ch. Shan Muhammad, Patwari Chakswari, got his statement recorded as a witness for respondent No,1 and stated that the land under Survey No,398, according to entries in the Khasra Girdawari, stood alienated to Muhammad Rafique, respondent/plaintiff, on account of sale against a consideration of Rs,2,00,000. This entry in the Khasra Girdawari, according to him, is based on Mutation No,22. In cross-examination he has stated that land out of Survey Nos.393 and 398 measuring 51 Kanals, 6 Marlas, according to Mutation No,25, has been transferred by Muhammad Ameen, Muhammad Yaseen and Khalid Hussain in favour of Mahboob Alam son of Ghulam Nabi through a gift-deed executed on 2-12-1993. He has, however, stated that he did not know that Roshan Din has purchased any land from Khalid Hussain. In his cross-examination, he has admitted that at the time of recording of Mutation No,22, appellant Khalid Hussain was not present.
9. Syed Ebad Hussain Shah, Petition-writer, in his statement before the trial Court, has stated that affidavit, Exh.P.D./1, was signed in his presence by Khalid Hussain, appellant. Similarly, he has stated that agreement-to-sell, Exh.P.E/1 was scribed by him and it was signed by Roshan Din. In his cross- examination, he has accepted that affidavit Exh.P.D. Was recorded on 6-3-1990. He has, however, categorically stated that affidavit, Exh.P.D., has not been recorded in his register maintained for the purpose. As for Exh.P.E. Is concerned, he has admitted that this document is entered in his register.
10. Defendant, Roshan Din, got his statement recorded on 7-6-1993 and stated that he purchased land measuring 11 Kanals, 2 Marlas from Khalid Hussain through affidavit, Exh.P.D., and subsequently same land was transferred to plaintiff-respondent, Haji Muhammad Rafique. He also stated that he got the possession of the suit-land from Khalid Hussain and when he himself alienated it to respondent. Haji Muhammad Rafique, he transferred the possession to him, He also admitted that at the time of execution of Exh.P.D., Shamlat Deh land could not be alienated under law. So far as the land measuring 18 Marlas is concerned, he also accepted that sale-deed was scribed by Ebad Hussain Shah, Petition-writer. This witness was subjected to lengthy cross-examination by the defendant-appellants but he denied the allegation that affidavit dated 6-3-1990 was fraudulently procured and was a concocted and fabricated document.
11. The statement of one Fazal Hussain son of Said Muhammad who appeared as a witness for respondent No,1, was recorded on 7-6-1997. He admitted that he signed Exh.P.D. Through his signatures Exh.P.D./3. Muhammad Najeeb, attorney for respondent No,1, got his statement recorded on 24-9-1993, and supported the case of respondent No,
1. So far as transfer of land measuring 18 Marlas is concerned, he categorically stated that the said land was transferred by Khalid Hussain to Roshan Din out of his own land and not from Shamilat Deh land. He also stated that in the year 1993 land was purchased by respondent, Haji Muhammad Rafique, through two different deeds.
However, he denied the fact that Shamlat Deh land was not transferred by Roshan Din and that the affidavit/agreement-to-sell was not executed and that it was a false and fabricated document.
12. Muhammad Farooq who appeared as a witness on behalf of appellants, herein, got his statement recorded on 24-3-2004 and stated before the Court that land measuring about 50 Kanals was transferred to appellant, Mahboob, by appellants Nos.1 to 3. He denied that respondent, Muhammad Rafique, was in possession of the land. This witness appears to be hardly 15 years old when the above referred documents were executed. He even submitted that he did not know what Shamlat land means. He admitted that he is illiterate and denied signing of any document. So far as the possession is concerned, he also categorically stated that he did not know which of the parties was in possession of the suit-land. In the cross-examination he, however, stated that the suit-land measuring 11 Kanals, 2 Marlas was alienated by Khalid Hussain to Roshan Din and Roshan Din transferred the same to respondent, Muhammad Rafique along with possession. He, however, admitted that he is brother-in-law of respondent No,3.
13. At page 55 of the trial Courts' file an application for permission to place attested copies of sale- deed and the judgment whereby suit of one Muhammad Yunus on the basis of a fabricated or false affidavit was dismissed. Attested copy of the final judgment passed in the case of Muhammad Yunus is placed at pages 58 to 62 of the trial Court's file wherein a Division Bench of the High Court accepted the appeal filed by Khalid Hussain, Muhammad Ameer and Mahboob Alam and dismissed the suit of Muhammad Yunus, Muhammad Azam and Punoo. Appellant No,1, in his statement recorded by the trial Court on 22-10-2004, stated that he has transferred only 18 Marlas of land to Roshan Din on 6-3-1990 but categorically denied that he has transferred Shamlat Deh land to respondent, Roshan Din, herein. He also stated that the suit-land is in possession of Mahboob Alam. In his examination-in-chief, he has categorically stated that affidavits/agreements-to-sell in respect of Shamlat land are false and fabricated. So far as transfer of Shamlat land to Roshan Din through affidavit dated 6-3-1990 is concerned, he totally rejected the executed and transfer in favour of Roshan Din. He also stated that boundary wall has been erected on 18 Marlas of land and a single room has also been constructed. He, however, admitted that the suit-land is Shamlat. So far as affidavit dated 6-3-1990 in favour of Roshan Din is concerned, he denied the execution 'categorically.
14. It may be stated here that the above made exercise was undertaken and the trial Court's file was thoroughly examined mainly on the ground that the original file of this case was consumed by fire as per record.
15. The learned trial Court by judgment and decree, dated 23-10-2004 dismissed the suit of respondent, Muhammad Rafique, mainly on the ground that when the document affidavit dated 6- 3-1990 was executed the suit-land being Shamlat had not been partitioned as provided by law and that in view of section 54 of the Transfer of Property Act, the suit-land could not be transferred through an affidavit. The trial Court after holding that respondent No,1 is in possession of some part of the suit-land dismissed his suit.
16. The High Court through impugned judgment, while rejecting the plea of present appellants that affidavit dated 6-3-1990 being false and fabricated and having not been proved in accordance with the provisions of Qanun-e-Shahadat Order, 1984, reversed the judgment and decree of the trial Court on the ground that as it is admitted that appellant No,1, herein, has only alienated 18 Marlas of land to Roshan Din through another sale-deed has not specifically denied the transfer of suit-land measuring 11 Kanals, 2 Marlas, therefore, in view of Order VIII, rule 5, C.P.C., the written statement amounts to admission and in presence of affidavit, subsequent transfer through gift- deed was without lawful authority and possession, extended the benefit as visualised by section 53-A of the Transfer of Property Act, accepted the appeal filed by respondent No, 1.
17. The above narrated evidence led by the parties, in our view, does not prove that respondentNo,1 is in possession of the suit-land measuring 11 Kanals, 2 Marlas. Even if the finding recorded by the High Court that he is in possession of a part of the suit-land, benefit under section 53-A could not be extended to him under law as a person cannot confer better title than he has. The affidavit/agreement-to-sell recorded on 6-3-1990 clearly reveals that at the time of execution of the deed by appellant No,1, the suit-land had not been partitioned by metes and bounds and Khalid Hussain, appellant, agreed and promised to transfer after partition and permission for transfer which means that agreement-to-sell/affidavit was conditional. Respondent, Roshan Din, could, therefore, transfer to Haji Muhammad Rafique, respondent, the rights in the property he had got under the affidavit executed by Khalid Hussain in his favour. Other part of the claim that if the Shamlat is not partitioned and the required permission is not granted, affidavit shall be considered as sale-deed, is devoid of any force and is illegal. The trial Court, therefore, rightly dismissed the suit of the respondent No,1 by holding that transfer through affidavit cannot be considered as a sale-deed in view of the codal provisions laid down in section 54 of the Transfer of Property Act read with restriction imposed by the provisions of Shamlat Deh Act, 1966.
18. Similarly the High Court erred in holding that the respondent is entitled to benefit as visualized by section 53-A. Altnough section 53-A protects, to the extent of possession, the rights of a person/transferee, some of the essential conditions are that there should be an agreement in writing, transferor has violated the terms of agreement-to-sell, possession of the land should be with transferee and the agreement-tosell has not been frustrated.
19. Khalid Hussain, appellant, transferred the land to Roshan Din which was transferred by Roshan Din to respondent No,1, Muhammad Rafique. Respondent, Muhammad Rafique, could claim only those rights in the suit-land which Roshan Din had acquired from Khalid Hussain. The affidavit executed by Khalid Hussain clearly reveals that the suit-land is a part of Shamlat Deh which has not been partitioned. Therefore, respondent Muhammad Rafique, could not claim more than what Roshan Din possessed. Even otherwise, the Courts cannot extend the benefit of section 53-A of the Transfer of Property Act to a party in respect of Shamlat land which has not been partitioned. The law and different directions issued by the Board of Revenue from time to time and different reports recorded by the superior judiciary reveal that share in Shamlat Deh cannot be transferred without permission of the concerned Revenue Authorities and the possession cannot be regulated unless the share of a party stands determined through partition by metes and bounds. From the whole record it does not clearly reveal as to how much share Khalid Hussain or the appellants had in the Shamlat Deh land. As against it, it is clearly established that the parties are actively involved in occupying Shamlat Deh land without determination of their share. The finding of the learned Judge of the High Court that Khalid Hussain and others have not specifically denied para.1 of the suit, therefore, the same is to be considered as admission on the part of Khalid Hussain and others, furnishes further support to our finding that the whole proceedings initiated before the District Judge were collusive and the District Judge, therefore, rightly dismissed the suit filed by respondent No, 1.
20. Not only that, even otherwise the legal position time and again approved by this Court is that Shamlat Deh land cannot be alienated through affidavit, agreement-to-sell or through a compromise-decree nor can a declaration be made in respect of an owner for share in the Shamlat Deh by the Civil Court. The proposition was settled, among others, in Civil Appeal No,79 of 1998 titled Muhammad Bostan v. Ghulam Hussain and 3 others wherein a Division Bench of this Court clearly held so. The facts which culminated into filing of that appeal were that a declaratory suit in respect of Shamlat Deh land was filed in the Court of Additional Sub-Judge, Mirpur challenging the compromise-decree dated 12-5-1987. Among others it was contended that the compromise-decree was collusive, fictitious and obtained without impleading necessary parties and was in excess of share of Muhammad Iqbal in the Shamlat Deh. The suit was dismissed by the trial Court. On appeal by Ghulam Hussain and others, findings of the trial Court were set aside and the compromise-decree was declared illegal mainly on the ground that other co-sharers were not impleaded as party when the suit was filed. When the matter came before this Court judgment of the High Court was approved by holding in para.5 of the judgment as under:-- "(5) It may be stated at the very outset that according to Muhammad Bostan, appellant, he had purchased the land through an oral agreement-to-sell. Under section 54 of the Transfer of Property Act, a contract to sell does not transfer title in the immovable property; it does not create even charge on the property muchless any title. Thus, even if it is assumed for the sake of argument that the share of Muhammad Iqbal, the defendant in the original suit, was to the tune of 8 Kanals or more, the decree prayed for could not be passed in. Favour of the appellant because it is well- settled principle of law that the compromise decree cannot be passed if it is violative of a statutory provision. Besides, Muhammad Iqbal, judgment-debtor, was at the most a co-sharer in the `Shamlat' and he could not be regarded the sole owner of a particular piece of land without regular partition, especially so when his exclusive possession was also not proved."
21. The proposition was again considered by a learned Judge of this Court who subsequently rose to the prestigious office of Chief Justice of Azad Jammu and Kashmir in PLA No,68 of 2007 decided on 23-6-2006 and reported as Walayat Khan v. Abdul Khaliq and 15 others 2006 SCR 92. In para.5 while holding that no declaration of title can be made on the basis of agreement-to-sell nor can a decree of title be granted in respect of Shamlat Deh without providing opportunity of hearing to other co-owners. It was held in para.5 of the judgment as below:--- "(5) No doubt that the learned District Judge while deciding the appeal of petitioner has not recorded his findings on each issue as is postulated under Order XX, rule 5 of the Code of Civil Procedure but in this case without seeking amendment in the first suit, two more suits were filed.
The total acreage of Shamlat Deh land is 316 Kanals, out of which only 7 Kanals of land is in dispute but its boundaries were not mentioned in any suit so that the same may become ascertainable as was the purpose of law. On imaginary grounds the declaration was sought. In these circumstances no error was committed by the learned Judge in the High Court while ignoring this objection, raised by the learned counsel for the petitioner as that would not make any difference even if the case would have been remanded to the District Judge. This practice would have just dragged the parties to further litigation without any useful purpose. No declaration of title can be made on the basis of agreement-to-sell nor a decree of title can be granted in respect of Shamlat Deh land unless all the co-owners are given chance to contest on merit the suit of the plaintiff claiming rights exclusively or himself."
22. On the basis of above detailed factual discussion and repeated reports recorded by this Court we are of the considered view that the High Court has decided the controversy keeping in view the respective contentions of the parties and has not attended to the points going to the root of the case. This is correct that ordinarily the Courts cannot travel beyond the pleadings of the parties and enter into the controversy of jurisdiction of Civil Court to hear a cause brought before them as section 9 of the Civil Procedure Code confers jurisdiction on Civil Courts to have exclusive jurisdiction in respect of civil matters unless jurisdiction is barred expressly or by necessary implication, the Civil Courts are bound to dive deep into and be careful while deciding such-like cases in which the parties by compromise, evasive denials and through unregistered deeds and documents attempt to get declaration of title or ownership, through a judgment or decree of the Civil Court to the detriment of other owners or parties having a legal right or claim. Similarly the Courts should avoid to grant a declaration in respect of possession of Crown land and Shamlat Deh without first determining the title of the owner to transfer and the exclusive possession.
23. Look from another angle it is a legal duty of the Presiding Officer to see that codal provisions are strictly applied. The provisions of the Transfer of Property Act read with relevant provisions of the Registration Act, property of a value of more than Rs,100 has to be transferred through a registered sale-deed which in the present case is missing. We, therefore, on this account as well, are of the view that transfer through affidavits and agreement-to-sell are not attended to by the High Court and the trial Court. We do not dismiss the suit filed by the respondent, Haji Muhammad Rafique, rather propose to remand the same in the interest of justice to the trial Court to decide the controversy between the parties afresh in the light of the above reflected points and judgments recorded by this Court, referred to and relied upon by us in the above-captioned appeal. Our this view shall not in any way be considered as generating or justifying declaration in favour of any party claiming under and on the basis of an affidavit, agreement-to-sell or gift-deeds, if any. No other point raised by the learned counsel for the parties needs consideration.
' Nutshell of the above is that the appeal is accepted and the case is remanded to the trial Court.
No order as to costs.