1. ' MUHAMMAD ALI MAZHAR, J.---This is a suit for specific performance, declaration, injunction and damages with the following prayer:--
(1) A decree for specific performance of the agreement to sell dated 19-3-2004 may be passed against defendants Nos. 1 and 3 directing them to execute Conveyance Deed in respect of 19.35 acres of land situated in Survey No,304, Deh Shah Mureed, Tapo Songal, Gadap Town, Karachi and on his failure to do so, the Nazir of this Hon'ble Court may be directed to executed the said documents effectually transferring the ownership of the suit property and delivering the vacant and peaceful possession to the plaintiff.
(2) Declare that the defendants Nos.1 and 3 are not entitled to ' transfer, sell and alienate the suit property to any person excepting the plaintiff.
(3) Declare that the alleged Agreement of Sale between the defendant No,1 and defendant No,4 for sale of the suit property is illegal and the same has no legal effect and be cancelled.
(4) Restrain the defendants Nos. 1 and 3, their agents, servants, or any person acting for and/or on their behalf from alienating, transferring the suit property viz. 19.35 acres situated in Survey No,304, Deh Shah Mureed, Tapo Songal, Gadap Town, Karachi, to any other person or persons excepting the plaintiff.
(5) Decree for Rs,2 crors in respect of damages caused to the plaintiff against the defendants Nos.1 and 3 due to illegal transaction with defendant No,4 and also a decree for the return of Rs,10,000 and charges/expenses of Rs,2 lacs.
(6) Cost of the suit.
(7) Any other relief which this Honble Court may deem fit and proper under the circumstances the case may be awarded.
2. ' The defendants Nos.1 and 3 have moved an application under Order VII Rule 11 read with section 151, C.P.C. In which it has been stated that the present suit is barred by section 17 of the Registration Act, 1908. In the supporting affidavit the defendant No,1 has stated that the only document to which the plaintiff is claiming any right whatsoever on the suit property is the so called preliminary sale agreement annexed with the plaint as annexure "A". The same is not a registered document and A the same ought to be mandatorily registered under section 17 of the Registration Act, 1908, thus the plaint suffers a defect which cannot be cured and the same has to be rejected. It was further submitted that the suit property is still in the possession of the defendants Nos. 1 and 3 both being real brothers and joint owners of the same. In the written statement, the defendant No,1 has vehemently denied execution of such preliminary agreement and has unequivocally declared the same to be forged. The document at the most can be termed as a receipt. It is further submitted in the application that the plaint also suffers another incurable defect. The same is putting a clot on the suit property which is jointly owned by the defendant No,3 who is not at all anywhere in the picture as to a promissor and or executor of any document favouring the plaintiff. The multiplicity of litigation I imminent and the same would be in violation of the golden principle interest republicae ut sit finis litigum i.e, it is in the interest of state to minimize litigation. Thus through this legal proposition too, the plaint is liable to be rejected.
3. ' In response to the application, the plaintiff filed his counte affidavit in which it has been stated that the sale agreement does not require registration as such plaint cannot be rejected. The fact is that the property is in exclusive possession of defendant No,1. The defendants Nos. 1 and 3 are liable to perform the agreement. It is pertinent to mention that after filing of the suit there was a negotiation between the parties and defendant No,3 asked the plaintiff to pay an amount of Rs,10 lacs in addition to the actual agreed amount between the parties in respect of the suit property and assured that the defendants Nos.1 and 3 shall execute sale-deed in favour of plaintiff.
4. Accordingly on the assurance of defendant No,3 the plaintiff paid a sum of Rs,10 Lacs to him through cross cheque dated 2-5-2006 which was duly acknowledged by defendant No,3. The defendant No,3 has received part payment of Rs,10 lacs as such he is also bound to perform the agreement of sale.
5. ' In the application moved under Order VII Rule 11, C.P.C., the learned counsel for the defendant Nos.1 and 3 only raised a single ground that the suit is barred under section 17 of the Registration Act and the alleged agreement to sell attached with plaint marked as annexure "A" is not a registered document and the same was mandatorily to be registered under section 17 of the Registration Act, 1908, thus, suffers a defect which cannot be cured hence, it is liable to be rejected. He further argued that the document in question is inadmissible in evidence. In support of his arguments, he relied upon following judgments:--
(1) 2005 M LD 1533 (Abdul Aziz and others v. Lal Khan). This matter pertains to section 54 of the Transfer of Property Act and section 17 of the Registration Act, 1908, in which it was held that sale of immovable property within the area where property was situated, could only be effected through registered document in terms of section 17 of Registration Act, 1908 and in the manner provided by section 54 of Transfer of Property Act, 1882. In this matter revision was preferred against the decree and this judgment is not relevant for the purposes of deciding application under Order VII Rule 11, C.P.C. In the present matter the plaintiff has claimed specific performance on the basis of annexure "A" which is allegedly an agreement and not a sale deed.
(2) 2007 YLR 2440 (Mst. Salaman v. Bashir Ahmad). This judgment pertains to the Hiba Nama and nothing to do with the agreement to sell and even in this judgment it was no where held that agreement to sell is compulsorily a registerable document.
(3) 2006 YLR 1219 (Muhammad Iqbal and another v. Ghulam Sakeena and 6 others). The facts of this case are also highly. Distinguishable. No question of registration or non-registration of agreement was involved and the matter was related to deed of relinquishment on the basis of which plaintiffs sought declaration of title.
(4) 2007 YLR 1352 (Fateh Khan and others v. Zulfiqar Khan). In this matter, plaintiff filed Suit for possession. Plea taken in defence was that said 1/5th share of property had been sold by the predecessor of plaintiffs to defendant. No documentary evidence was produced in proof of alleged sale. Admittedly, disputed share of the property was of a value of above one hundred rupees hence, sale of said property was invalid on account of the provisions of section 54 of Transfer of Property Act and section 17 of Registration Act, 1908. Again in this case there was no question involved regarding agreement to sell but the judgment relates to title in 1/5th share of joint property, which was not registered on the basis of which the plaintiffs claimed partition. This judgment hardly applies to present circumstances of the case.
(5) 2005 YLR 2224 (Major Pervez Iqbal v. Barrister Muhammad Amin Bagri through legal heirs). This matter pertains to Order VII Rule 11, C.P.C. In which it was held that for the purpose of rejection of plaint only plaint was to be looked into. Document pleaded showed that it was written to settle the matter of sale but the matter of sale was not settled. No agreement came into existence. In the same judgment the alleged agreement was also reproduced in Urdu Language, contents of which prima facie show that it was only a memorandum and no consideration was paid by virtue of that memorandum reduced in writing between the parties, therefore, learned Lahore High Court has rightly held that no terms of sale were settled between the parties. The situation in this case is altogether different as annexure "A" attached to the plaint not only showing terms and conditions of sale but consideration is also mentioned along with payments of earnest money and the annexure "A" is duly witnessed by two persons.
(6) 1987 SCM R 1206 (Muhammad Masood Khan Bhati v. Mst. Ghulam Fatima). In this case, the Hon'ble Supreme Court held that if the sale could not be completed without registration, possession obtained before registration of the sale could not be under the "sale". In this judgment also there was no question involved regarding the non-registration of agreement to sell under Section 17 of the Registration Act.
(7) 2007 CLC 1372 (Mst. Rashida Abdul Rehman v. Zahoor Hussain and 5 others). In this judgment Lahore High Court has held that oral agreement of sale, if not specifying terms and conditions of agreement would not be valid in the eye of law. This judgment hardly provides any assistance, as there was no question of oral agreement involved in this matter.
6. ' Learned counsel for the defendants Nos.1 and 3 prayed in conclusion that Annexure "A" is not a registered document under the section 17 of the Registration Act, hence, plaint is liable to be rejected.
7. ' In rebuttal learned counsel for the plaintiff argued that the annexure "A" is validly executed receipt witnessed by two persons and it is merely an agreement and not a sale-deed, therefore, the same is not compulsorily registerable. He also argued that the present Suit is not barred by section 17 of the Registration Act and for the rejection of plaint only the averments of the plaint should be looked into. The controversy involved in the suit requires factual inquiry and investigation and this can only be done when the issues are settled and the matter is posted for recording evidence of the parties..
8. In support of his arguments, he relied upon following judgments:--
(1) PLD 2008 SC 650 (Saleem Malik v. Pakistan Cricket Board) (PCB). In this judgment, the Hon'ble Supreme Court has held that subject to certain exception to the general principle, the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII Rule 11, C.P.C. Cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. The rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his legitimate right, therefore, the Court, may in exceptional cases, consider legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order VII Rule 11, C.P.C.
(2) 2002 SCM R 1089 (Mst. Rasheeda Begum and others v. Muhammad Yousaf and others). In this matter, the Hon'ble Supreme Court has held that an agreement to sell for 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, rather same only creates a right to obtain another document conferring title in respect of immovable property mentioned therein, and for that reason, the same does not require registration. There is no legal provision existed to the effect that 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, line of demarcation must be drawn between the agreement to sell executed before and after promulgation of Qanun-e-Shahadat Order, 1984. An agreement to sell involves future .Obligation, therefore, if reduced in writing executed after coming into force of Qanun-e-Shahadat Order, 1984 it is required by Sub-Article 2(a) of Article 17, thereto, to be attested by two male or 1 male and two female. Witnesses as the case ay be.
9. ' Learned counsel for the plaintiff further argued that there are many triable issues and unless issues are settled, controversy cannot be resolved between the parties.
10. ' After hearing pros and cons of the matter, I have reached to the conclusion that the bone of contention between the parties is annexure "A" to the plaint which according to the defendant should have been registered under section 17 of the Registration Act. Learned counsel for the defendant Nos.1 and 3 before filing this application has over looked the explanation attached to section 17 of the Registration Act which is very material and clear answer to the application moved under Order VII Rule 11, C.P.C. By the defendants Nos.1 and 3. Section 17 of the Registration Act is the core section which deals with various types of documents which are compulsorily registerable under the aforesaid Act. There is an explanation attached to subsection (2) of section 17 which reads as under:-- "Explanation. A document purporting or operating to effect a contact for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest-money or of the whole or any part of the purchase money."
11. ' The aforesaid "Explanation" made it clear that contract for the sale of immovable property is not registerable document by reason only of the fact that such document contains a recital of payment any earnest money or of the whole or any part of the purchase money. Section 54 of the Transfer of Property Act is very clear in this regard, which provides that the sale is a transfer of ownership in exchange for a price paid or promised or part-paid part promised, but it is further envisaged that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not of itself, create ay interest in or charge on such property, therefore, a contract for sale would not require its compulsory registration because it is a document, which by itself does not create a title, it only recites an agreement arrived at between the parties that the vendor will transfer the property to the vendee by registration of documents. The order sheet dated 10-4-2006 shows that this court has already observed that the controversy between the parties with regard to the execution of annexure "A" cannot be decided without recording evidence of the parties and the plaintiff was directed to deposit balance sale consideration before the Nazir of this court within three weeks and with this order the interim injunction granted on 14-2-2005 was confirmed subject to depositing the balance amount by the plaintiff. The Nazir's endorsements on this very Order shows that the plaintiff had deposited three pay orders with the Nazir of this court. The judgment relied ,upon by the learned counsel for the plaintiff 2002 SCM R 1089 is fully attracted to the facts and circumstances of this case, in which Hon'ble Supreme Court has held that there is no legal provision to the effect that an agreement to sell should only be in writing and as a matter of fact agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property mentioned therein, and for that reason it does not require registration.
12. Similarly, another judgment reported in PLD 2008 ?? 615, which relates to the guiding principle for rejection of plaint under Order VII, Rule 11, C.P.C. Is also applicable in which Hon'ble Supreme Court has held that in case of controversial question of fact or law the provision of Order VII Rule 11, C.P.C.
13. Cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. All judgment cited by the learned counsel for the defendants Nos.1 and 3 are distinguishable and not attracted to the facts and circumstances of the case, particularly, in view of explanation attached to subsection (2) of section 17 of the Registration Act and judgment reported in 2002 SCM R 1089 in which, it is clearly held that agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property mentioned therein, and for that reason it does not required registration.
14. ' The whys and where forces lead me to a conclusion that there is no rational or substance in the application. The ground urged is not sufficient or sustainable to reject the plaint under Order VII Rule 11, C.P.C. .