' FAISAL ARAB, J.--- The case of the applicant, Muhammad Nawaz Magsi is that under an agreement to sell dated 4-3-1982 Aftab Ahmed Sheikh alias Khan Sahab Mithal Khan Sheikh acting as attorney of his sisters under a registered power of attorney entered into an agreement to sell with him in respect of Survey numbers 694, 695, 696, 708, 707, 706, 709, 710, 691, 711, 726, 725 and 724 comprising of 44 Acres of barren uncultivated saline land in Deh Acha, Taluka Kamber at a rate of Rs.1,000 per acre and in part performance of the agreement a sum of Rs.20,000 was paid in advance and possession of entire 44 Acres was handed over to the applicant. The balance sale consideration was payable at the time of execution of sale-deed. It is also the case of the applicant that time and again he called upon Aftab Ahmed Sheikh to complete the transaction but he failed to do so though the applicant was always ready and willing to complete his part of the transaction. The applicant also claims that over the years he made the barren and saline land cultivable by incurring expenditure. It is also the case of the applicant that in 193 one Illahi Bux Mugheri claiming to be owner of Survey number 694 called upon the applicant to hand over its possession to him and threatened that in case the applicant fails to do so then he would forcibly dispossess the applicant.
2. The applicant then obtained certified copies from the Revenue Record and Sub-Registrar which revealed that on the basis of power of attorney from his three sisters. Aftab Ahmed Sheikh sold 50 Paisa shares in Survey numbers 564, 568, 665, 693 and 694, through registered sale-deed dated 10-3-1984 to one Akbar Arain and the remaining 50 paisa share in the said Survey numbers to Illahi Bux Mugheri vide registered sale-deed dated 29-9-1986. Akbar Arain then sold his 50 paisa share to Illahi Bux Mugheri thereby the entire 100 Paisa share in Survey numbers 564, 568, 665, 693 and 694 stood transferred to Illahi Bux Mugheri. It has also come on record that in 1990 Aftab Ahmed Sheikh also sold Survey numbers 686, 692 and 695 to one Nisar Ahmed through a registered sale- deed. When the transaction of 1982 claimed by the applicant is compared with the above stated sale transactions of 1984, 1986 and 1990 in favour of Illahi Bux Mugheri, Akbar Arian and Nisar Ahmed, two Survey numbers 694 and 695 comprising of 07 Acres and 38 Ghuntas become disputed between the applicant on one hand and Illahi Bux Mugheri, Akbar Arian and Nisar Ahmed on the other.
3. Threatened with dispossession the applicant then filed Suit No.132 of 1993 for specific performance of contract and permanent injunction against all the subsequent purchasers of Survey numbers 694 and 695 as well as the original owners with whom he entered into agreement to sell dated 4-3-1982.
4. Soon after the applicant filed suit in 1993, Illahi Bux Mugheri also filed Suit No.139 of 1993 seeking permanent injunction in relation to Survey number 694 on the strength of the sale-deeds executed in his favour by Aftab Ahmed Sheikh in 1984 and Akbar Arian in 1990. The case of Illahi Bux Mugheri in his suit was that the boundaries of Survey number 694 overlapped with the survey numbers of the applicant and therefore, he first sought demarcation from the Mukhtiarkar but the applicant prevented the Revenue functionary from doing so then the matter was referred to notables of the area, who held that Illahi Bux Mugheri was entitled to occupy Survey number 694 but as the applicant did not honour the decision of the notables he was constrained to file his suit.
5. Aftab Ahmed Sheikh, who is said to have entered into multiple deals with two parties of the same Survey numbers i.e. 694 and 695 Which gave birth to controversies involved in both the suits, in his written statement filed in Suit No.132 of 1993 described the agreement to sell dated 4-3-1982 to be a forged document and denied applicant's possession. Aftab Ahmed Sheikh maintained that he had sold 50 Paisa share in Survey number 694 to Illahi Bux Mugheri in 1984 and the remaining 50 Paisa share to Akbar Arian in 1986 and Survey number 695 was sold by him to Nisar Ahmed in 1990.
6. In their depositions, the applicant and his witnesses have stated that the applicant is in possession of Survey numbers 694, 695, 696, 708, 707, 706, 709,710, 691, 711, 726, 725 and 724 on the basis of agreement to sell dated 4-3-1982 and has been paying land revenue for the same. On the other hand Illahi Bux Mugheri who claims to be owner of Survey number 694 has neither claimed that he has been paying land revenue for Survey number 694 nor he has taken the plea that applicant has forcibly dispossessed him from Survey number 694 at any particular point in time.
His case only was that there was overlapping of the boundaries of Survey number 694 with the applicant's land and the same should be demarcated. Aftab Ahmed Sheikh who executed sale- deeds in favour of Illahi Bux Mugheri, Akbar Arain and Nisar Ahmed, though has disputed the agreement to sell dated 4-3-1982 as forged but he too has not taken any plea in his written statement to demonstrate as to how, when and in what manner the Survey numbers 694 and 695 along with remaining eleven Survey numbers i.e. Survey numbers 696, 708, 707, 706, 709, 710, 691, 711, 726, 725 and 724 came in possession of the applicant. Absence of such a plea at least show that disputed Survey numbers 694 and 695 came under the occupation of the applicant along with other eleven Survey numbers which are part of the 1982 sale transaction said to be entered into by Aftab Ahmed Sheikh with the applicant.
7. Aftab Ahmed Sheikh in his capacity as attorney of his three sisters or evctl the sisters directly have also not initiated any legal proceedings of their own to seek back possession of the other eleven Survey numbers i.e. 696, 708, 707, 706, 709, 710, 691, 711, 726, 725, which the applicant claimed to have also sold to him under agreement to sell dated 4-3-1982 and are in his possession since 1982.
8. The Courts have to confine their decisions to the real controversy involved in a case. The applicant has categorically and unequivocally claimed the possession of 44 Acres comprising of Survey numbers 696, 708, 707, 706, 709, 710, 691, 711, 726, 725 and 724 on the basis of agreement to sell dated 4-3-1982 of which two Survey numbers i.e. 694 and 695 are being claimed by Illahi Bux Mugheri and Nisar Ahmed and it was the dispute of these two Survey numbers only which triggered the legal battle between the parties. Like Aftab Ahmed Sheikh, Nisar Ahmed in whose name Survey number 695 was registered has also not initiated any legal proceedings of his own against the applicant with regard to Survey number 695. Only Illahi Bux Mugheri has filed Suit No.139 of 1993 claiming that Survey number 694 was purchased by, him in 1984 and 1986 and he is its owner.
Furthermore, Aftab Ahmed Sheikh, Illahi Bux Mugheri and Nisar Ahmed have nowhere in their pleadings taken the plea that applicant has forcibly occupied the disputed lands at any particular point in time. Whereas the applicant has established in evidence that he has been cultivating the disputed land since 1982 and paying land revenue for the same. Mere general and vague pleas denying possession of the applicant on the disputed land is not sufficient to brush aside applicant's claim that he is in possession of the land since 1982. Had Illahi Bux Mugheri, Akbar Arain and Nisar Ahmed been physically put in possession of Survey number 694 and 695 in the years 1984, 1986 and 1990, when the sale-deeds were executed by Aftab Ahmed Sheikh in their favour then why they have not pleaded dispossession at the hands of the applicant at any given point in time thereafter. If the physical possession was not given to them then this in itself means that possession of these two numbers was already with the applicant when sale-deeds were executed by Aftab Ahmed in 1984, 1986 and 1990 in favour of illahi Bux Mugheri, Akbar Arain and Nisar Ahmed.
Hence this leaves no other alternative with this Court but to believe that applicant came in possession of 44 Acres of land in 1982 and till the filing of the suits in 1993 no one had challenged applicant's possession.
9. The questions that need to be answered in the light of above discussed facts are (i) whether the agreement to sell dated 4-3-1982 is a forged document and if not then who is to be declared to be the lawful owner of the disputed land. One of the reasons which prevailed with the appellate Court for not believing the authenticity of agreement to sell dated 4-3-1982 was that the attesting witnesses were not examined by the applicant to prove genuineness of the transaction. Such a finding of the appellate. Court is contrary to the evidence on record. It has come on record that one of the two attesting witnesses namely Ali Haider Khan was examined and his 'deposition is marked as Exhibit 107 and the other could not be produced as he was in Saudi Arabia. The examining of one attesting witness in such circumstances was sufficient to establish execution of the .Sale agreement dated 4-3-1982. No credence could be lent to Aftab Ahmed Sheikh's plea that the agreement to sell dated 4-3-1982 is forged when he neither got the document referred to a handwriting expert for his opinion nor he took the plea as to how, in what manner and at what point in time the applicant came in possession of 44 Acres of land. With regard to applicant's claim that he is in possession of 44 Acres since 1982, no question was put to him in his cross-examination to the effect that the applicant at particular point in time had forcibly occupied the 44 Acres of land.
Thus applicant's possession of 44 Acres of land since 1982 stood established as his plea that he is cultivating the disputed land since 1982 and paying land revenue for the same remained unshaken in evidence. The following statements of the applicant in his examination-in-chief are relevant:---- From the Examination-in-chief of the applicant in Suit No.135 of 1993 that was held on 21-11-2002.
"---Since the date of agreement I continue in the possession and enjoyment of the suit-land on the site. I pay its land revenue assessm ents. My Haris Khuda Dost, Abdul Razak, Deedar, Muhammad Hassan, and others are my Haris on suit-land. Today I have brought my Hari Khuda Dost; he is my Hari in Serial Nos.694 and 695. The suit-land in situated in Deh Aacha Taluka Kambar. I have not brought the attesting witness Gul Hassan because at present he is in Saudi Arabia, but I have brought the attesting witness Ali Hyder. The ascribe Abdul Sattar have died since about last five years. I have examined P.W. Abdul Waheed who is son of ascribe Abdul Sattar. Subsequently Aftab has sold suit-land to Illahi Bux and Akbar, and also to the Nisar Ahmed".
From the examination-in-Chief of the applicant that was held on 28-11-2002 "I came to know about the impugned sale of Serial No.694 and 695, made by Aftab Ahmed in favour of plaintiff Haji Illahi Bux in Suit No.139 of 1993, and defendants Nisar Ahmed and Akbar Khan in Suit No.132 of 1993. About two months prior to the filing of the F.C. Suit No.132 of 1993 they also threatened me to hand over possession of the above-referred S. Nos. To them otherwise I would be forcibly dispossessed there-from. The defendant No.3 Akbar Khan in F.0 Suit No.132 of 1993, had sold away his share in the above referred (Survey number) to Nisar Ahmed and Haji Illahi Bux under the above referred impugn sale-deed. Thereafter, I obtained the true copies of impugn registered sale-deed produced as Ex.102 to 105, and filed the F.0 Suit No.132 of 1993, against them. The impugned sale made through the above referred registered sale-deed to the above named vandees are illegal and mala fide. They were in the full knowledge of my agreement as Exh.98, and also about my possession on the site of the above referred land. The Suit No.139/1993, filed by them with regard aforesaid Survey numbers is based upon false facts because the plaintiff in that suit is not in possession of the said land. I still apprehend of my forcibly dispossession from the land in question by Nisar Ahmed, Haji Illahi Bux and Akbar Khan through the official defendants in my suit, I therefore, pray to decree my suit as prayed for and dismiss the suit of the plaintiff. I have always been ready and willing to pay the balance of price of the suit-land and have been approaching Aftab Ahmed to receive the balance and execute the registered sale-deed but he used to place me on false hopes. I am still prepared to pay the balance under the agreement as Ex.98. I had also asked the defendants who are subsequent purchasers to execute me sale-deed but they also refused. I have brought Ali Hyder the attesting witness of Exh.98, and Khuda Dost one of the Haris in the suit-land and Ali Gul the neighboring Khatedar of Deh in which the suit-land is situated."
10 The above quoted statements of the applicant under oath that he made in his examination-in- chief were not shaken in his cross-examination hence are to be accepted as true.
11. The claim of the subsequent purchasers i.e. Illahi Bux Mugheri, Akbar Arain and Nisar Ahmed that they were put in possession of Survey numbers 694 and 695 by Aftab Ahmed Sheikh at the time of sale transactions with him in 1984, 1986 and 1990 has not been established. When they claim that they were put in possession of Survey numbers 694 and 695 but total absence of any plea on their part that the applicant has forcibly dispossessed them at any stage after execution of sale-deeds in their favour belie their claim that they were put in possession of Survey numbers 694 and 695.
This further strengthens applicant's claim that he was in possession of the said Survey numbers since 1982 and this could only be on the basis of agreement to sell dated 4-3-1982 as Aftab Ahmed Sheikh has also not pleaded dispossession against the applicant.
12. Next question that needs to be examined is what is the legal status of applicant's possession under an agreement to sell section 53-A of the Transfer of Property Act grants statutory recognition to transferee's possession which he acquires under an agreement to sell in part performance of a contract. Therefore, when a purchaser of a land under an agreement to sell is put in possession in part performance of the contract, then he becomes entitled to the protection of section 53-A of Transfer of Property Act. It is nobody's case that possession of 44 Acres was forcibly taken over by the applicant. The applicant has established that he was put in possession pursuant to agreement to sell dated 4-3-1982 and Illahi Bax Mugheri just used the tool of getting Survey number 694 demarcated in order to get its possession on the strength of the sale-deed that was executed in his favour. This relief which Illahi Bux Mugheri was seeking in relation to Survey number 694 when it was already part of the sale transaction dated 4-3-1982 entered into by Aftab Ahmed Sheikh with the applicant. Thus second transfer of Survey number 694 in 1984/1986 by Aftab Ahmed Sheikh when it was already agreed to be sold by him to the applicant under agreement to sell dated 4-3- 1982 was of no legal consequence. No doubt that applicant holds only an agreement to sell for Survey numbers 694 and 695 but the possession of these Survey numbers along with eleven other Survey numbers was also handed over to him in 1982 under the agreement to sell dated 4-3-1982 whereas transfer of Survey numbers 694 and 695 through registered sale-deed in favour of Illahi Bux Mugheri, Akbar Arain and Nisar Ahmed in the years 1984, 1986 and 1990 are all subsequent to the execution of agreement to sell dated 4-3-1982. After execution of agreement to sell dated 4-3- 1982 and handing over of possession of disputed land pursuant thereto to the applicant made Aftab Ahmed Shaikh legally incompetent to sell or transfer in any manner Survey numbers 694 and 695 to any one.
13. The law does not entitle a person to transfer a right in a property which he himself does not possess though the property may be in his name. As Survey numbers 694 and 695 had already been agreed to be sold under an agreement to sell dated 4-3-1982 which was coupled with transfer of possession, the subsequent transferees cannot be conferred with any lawful title in the disputed land. The subsequent transferees cannot even claim to be bona fide purchasers for value without notice for the simple reason that when Survey numbers 694 and 695 were transferred in their favour, the applicant was already in possession of the same and the subsequent transferees did not approach the applicant to ask him about the nature or basis of his possession. Hence subsequent transfers being not bona fide are not legally valid transfers.
14. Section 53-A of Transfer of Property Act in itself creates a right in favour of a transferee to retain possession. Such right comes into existence when transferor puts the transferee in possession in part performance of the contract. The right created by section 53-A in favour of the transferee in possession could be termed as an equitable title which he holds in the property. Hence where a transferee is enjoying possession of a property pursuant to an agreement to sell and such right is threatened by the transferor or a person claiming under him or even by a stranger then the transferee becomes entitled to defend his existing right in a Court of law. While defending so, it matters not whether he goes to the Court as a plaintiff or is sued as a defendant. Normally suit is filed against the transferee in possession either by the transferor or a person claiming under him which threatens the transferee his enjoyment of possession. Faced with such a situation, the transferee in possession defends his possession by virtue of section 53-A of the Transfer of Property Act. However, there can be a situation, where instead of transferor or a person claiming under him files a suit against the transferee in possession, the transferor or a person claiming under him creates such a situation which threatens the transferee his possession and compels him to seek protection of the Court. In such a situation, the transferee brings his own suit against the transferor or the person claiming under the transferor in order to defend his right to retain his possession.
Even as a plaintiff, the relief that is sought by a transferee in possession from the Court under section 53-A of the Transfer of Property Act is perseverance of his possession of the property. Thus in both the positions i.e. Plaintiff or defendant, the transferee in possession is defending his equitable title that he has already acquired in the property under his possession by virtue of section 53-A of Transfer of Property Act. Why a transferee in possession should wait for an action to be brought against him by the transferor or any person claiming under the tranSferor or a stranger to exercise his right to retain possession under section 53-A of Transfer of Property Act. Why not the transferee in possession when threatened should himself establish in a Court of law the legality of his possession by filing his own suit. If the right to seek protection under section 53-A of the Transfer of Property Act is construed to be only available to a transferee, if he is sued as a defendant in a suit then it would create an anomalous situation. It would then mean that it is the capacity in which a transferee in possession finds himself in a suit i.e. As a plaintiff or a defendant, which would determine whether the protection under section 53-A of the Transfer of Property Act is to be extended to him. This does not appeal to reason. The right conferred upon a transferee in possession under section 53-A should not depend upon how he is described in a suit i.e. Plaintiff or a defendant. This cannot be the object of the lawmakers. Statutory protection granted under section 53-A of the Transfer of Property Act is available to a transferee in possession and it matters not whether he is a plaintiff or a defendant in a suit. His status as a plaintiff or defendant in a suit will be of no legal consequence while deciding his entitlement under section 53-A of Transfer of Property Act. In any of the two capacities, the transferee in possession is defending his right to retain possession, which he is already enjoying. When the transferee files his suit, he is doing nothing but defending his existing right of possession, which he is already enjoying by virtue of section 53-A of the Transfer of Property Act. The right of a transferee in possession granted under section 53-A of Transfer of Property Act can be availed by him whether he files his own suit or is sued as defendant. Therefore, a transferee in possession can always file suit of his own seeking the relief of permanent injunction in order to preserve his equitable title i.e. The right to enjoy possession of the property in the wake of any threat either from the transferor or any person claiming under him or even a stranger. Reliance is placed on the case of Ahmed Mujtaba Khan versus Iqbal Shah reported in 1990 CLC 1381 and a Division Bench case of Inayat Ullah v. Shah Muhammad reported in PLD 1961 Lah. 372 where it has been held that a transferee of immovable property can defend his right guaranteed to him under Section 53-A of Transfer of Property Act, whether he defends this right in his capacity as a plaintiff or a defendant.
15. It may also be mentioned here that though for filing a suit for specific performance of a contract, the prescribed period of limitation is three years but as the applicant has filed his suit on the basis of agreement to sell which is coupled with transfer of possession and has also sought the relief of permanent injunction, the statute of limitation would not come in his way. Where a plaintiff continue to enjoy a right then the statute of limitation cannot take away such a right as the law of limitation is not meant to take away an existing right. It only bars remedy to gain one's lost right.
The right created under section 53-A of Transfer of Property Act is an existing right and is not extinguished by any length of time. There cannot be any expiry date for enjoyment of a right conferred upon a transferee in possession under section 53-A of the Transfer of Property Act.
Therefore, the law of limitation does not come in the way of a transferee in possession when he as a plaintiff, files his own suit to preserve his right to retain possession that is granted to him under Section 53-A of the Transfer of Property Act.
16. It may also be added here that while granting the relief of permanent injunction to transferee in possession under Section 53-A of the Transfer of Property Act, the Court may also direct the parties to complete the transaction under the agreement to sell. This would certainly close doors to future litigation and would also perfect the equitable title of the transferee in possession. There is no reason to deny this to the transferee in possession when it was the transferor who in the first place failed to discharge his obligation under the contract. It may be made clear that in case the transferee in possession does not perform his remaining obligation under the contract even after getting decree from the Court, then he would loose the protection and the relief granted to him under the decree shall stand recalled as he would come out of the ambit of the protection which section 53-A of the Transfer of Property Act extends to a transferee in possession. On the other hand in case the transferor fails to perform his remaining obligation then the Court would get it done through its functionary, which is the normal course adopted by Courts to take the contractual obligation to its logical conclusion.
17. From the above discussion it is evident that both the Courts below committed error of misreading and non-reading of evidence on record and also did not appreciate the implication of Section 53-A of the Transfer of Property Act. The civil controversies are decided on the D basis of preponderance, of probabilities. Overwhelming evidence has come on record to believe the case of the applicant as his pleas with regard to his possession under the agreement to sell dated 4-3- 1982 and his readiness and willingness to perform his obligation thereunder remained unshaken in evidence. Hence the impugned judgments are set aside, the Suit No.132 of 1993 filed by the applicant is decreed and the Suit No.139 of 1993 filed by Illahi Bux Mugheri is dismissed. The sale- deeds executed by Aftab Ahmed Sheikh in relation to Survey numbers 694 and 695 being based on transactions subsequent to the transaction with the applicant have no legal validity.
18. In view of the above findings, the applicant is directed to deposit the balance sale consideration payable under the agreement to sell dated 4-3-1982 with the trial Court within 30 days and upon such deposit, the applicant shall become entitled to get Survey numbers 694, 695, 696, 708, 707, 709, 710, 691, 711,726, 725 and 724 comprising of about 44 Acres of agricultural lands in Deh Acha, Taluka Kamber transferred in his name either directly from the owners or in case they fail to do so within 30 days of the deposit of balance sale consideration by the applicant then the Nazir or any other officer nominated by the trial Court shall execute the sale-deed in favour of the applicant.
19. Both these Civil Revision Applications are allowed in the above terms.