' MUHAMMAD AZAM KHAN, C.J.--- The above titled appeal with the leave of the Court arises out of the judgment of the High Court dated 15-5-2009 whereby an appeal filed by Fazal Dad, predecessor-in-interest of the appellants herein, has been dismissed.
2. Precise facts of the case are that the plaintiffs-respondents filed a suit against Sultan Muhammad, predecessor-in-interest of pro forma-respondents Nos.5 to 7 in the Court of Civil Judge Mirpur on 29-10-1995 seeking declaration in their favour on the basis of an agreement-to- sell dated 22-11-1993 to the effect that they are owners of the land on the basis of this agreement- to-sell. The predecessor-in-interest of the appellants was not a party in the suit. He filed an application for becoming a party on the ground that he is in possession of the suit-land. He was impleaded as defendant No,6. After necessary proceedings, the Civil Judge Mirpur dismissed the suit. The plaintiffs-respondents filed an appeal before the District Judge Mirpur. The learned District Judge decreed the suit and granted moulded relief to the plaintiffs that they are entitled to a decree of specific performance on the basis of agreement-to-sell. Dissatisfied from the said judgment and decree the predecessor-in-interest of the appellants filed an appeal in the High Court which was dismissed through the impugned judgment dated 15-5-2009,
3. Mr. Muhammad Rafique Dar, Advocate, counsel for the appellants, argued that the judgment and decree of the High Court is against law and the record. He argued that the District Judge has passed the decree on the basis of, agreement-to-sell, which is an unregistered document. Such a document confers no right and cannot be acted upon. He contended that under section 17 of the Registration Act, a document which creates a right in the property and is above the value of one hundred rupees, requires compulsory registration and if the document is not registered, then under section 49 of the Registration Act, no right can be claimed on the basis of said document in the property. The learned counsel referred to and relied upon a case reported as Azad Government and 2 ethers v. Syed Muhammad Afzal Shah and another 2002 CLC 1165. The learned counsel forcefully argued that the agreement-to-sell on the basis of which decree has been passed in favour of the respondents, is ab initio void agreement. The land, though, was in the ownership of Sultan Muhammad who executed the agreement-to-sell but later on it was acquired for the purpose of construction of Mangla Dam and in the body of the agreement-to-sell it is stated that the land is owned by the Government. When the land is owned by the Government, how Sultan Muhammad had a right to transfer the same through agreement-to-sell, therefore, the document is ab initio void., which cannot be acted upon. The learned counsel further argued that the suit was filed for declaration to the effect that the plaintiffs are owner in the land on the basis of agreement-to-sell. The suit for declaration was not competent, only a suit for specific performance of contract could be filed. The plaintiffs neither filed the suit for specific performance of contract nor the plea of specific performance was raised in the plaint, therefore, the judgment is against the pleadings. He argued that moulded relief can be granted if it flows from the pleadings. The suit was simply a suit for declaration and not for specific performance of contract, therefore, moulded relief cannot be granted. The District Judge illegally passed the decree for specific performance of contract.
' In the case reported as Azad Government and 2 others v. Syed Muhammad Afzal Shah and another 2002 CLC 1165 it was observed by this Court that under section 17 of the Registration Act the documents mentioned in subsection (1) clause (b), which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees or upwards, are compulsorily registrable and if they are not registered, then section 49 of the said Act comes into operation.
4. While controverting the arguments of the ccmnsel for the appellants, Sardar Muhammad Azarn Khan, Advocate, counsel for the respondents, argued that the judgment of the High Court as well as the District Judge is perfectly legal. Sultan Muhammad was the' owner of the land which was acquired for construction of Mangla Dam. Sultan Muhammad refused to accept the compensation and the land was subsequently de-awarded. The predecessor of appellants was not an owner of the land. He had no right to file any appeal. His appeal before the High Court and this Court is. Not competent and liable to be dismissed. He referred to the record of rights pertaining to year 1991-92, yearly record Exh.P.C., pertaining to year 1995, kharif and the record of right pertaining to year 1957- 1958 and argued that Fazal Dad is not entered as owner in the said record of right while Sultan Muhanunad is entered as the owner of the land. He referred to the certification issued by the Collector Mangla Dam Affairs where Sultan Muhammad is entered as the owner of the land in Survey Nos.260, 261 and 311, which was acquired for the purpose of construction of Mangla Dam.
Fazal Dad has no concern with the land and he couldn't file the appeal. He also referred to the statement of one Abdul Qadeer Qureshi, Record-Keeper, Office of the Collector Mangla Dam Affairs, in support of his contentions. The learned counsel further argued that the award has been cancelled and Sultan Muhammad has been declared as owner of the land. He filed a cognovit and admitted the clalin of the plaintiffs, respondents herein. It was only Sultan Muhammad, who can challenge the agreement-to-sell. Fazal Dad has no right to challenge the same. The learned counsel also argued that the agreement-to-sell was a contingent contract and under section 32 of the Contract Act, the plaintiffs were entitled to the decree after the land was de-awarded. Lastly, the learned counsel argued that in the circumstances of the case under Order VII. Rule 7 of the Code of Civil Procedure, moulded relief is permissible if it flows from the pleadings of the parties.
The agreement-to-sell is admitted by the executant, therefore, moulded relief was correctly granted by the District Judge. He referred to the following case-law:---
(i) Muhammad Yaqoob v. Muhammad lshaque [1980 CLC 2056],
(ii) Feroz-ud-Din v. Muhammad Aziz and 22 others [PLD 2005 HC (AJ&K 9],
(iii) Muhammad Nazar and 3 others v. Mst. Nasira Sultana and 5 others [1995 CLC 1745]; and
(iv) Mardan Ali and others v. Rab Nawaz and others [1991 CLC 82 (Lahore)].
' In the case reported as Muhammad Yakoob v. Muhammad Ishaque [1980 CLC 2056], it was observed by a bench of the Karachi High Court that under Order VII, rule 7, C.P.C., the Court is empowered to grant such relief as justice of the case may demand. The Court may always grant general or other relief which it considers just to the same extent as if it had been asked for. The altered relief may be granted if the plaintiff is found entitled. The general rule is that no relief can be granted upon facts and documents not disclosed in the pleadings nor dealt with by the issues or evidence and which other side was not called upon or had no opportunity to meet.
' In the case reported as Mardan Ali and others v. Rab Nawaz and others [1991 CLC 82 (Lahore)], the prayer at the end of the plaint was missing. The objection was taken at the time of hearing of arguments in the revision petition. It was observed by the Lahore High Court that the Court was empowered to grant such relief as justice of the case demanded and for purpose of determining relief asked for, whole of the plaint must be looked into so that substance rather than form should be examined. The relief granted by the lower Courts was found not inconsistent with the plaint.
' In the case reported as Muhammad Nazar and 3 others v. Mst. Nasira Sultana and 5 others [1995 CLC ]745], the Lahore High Court while relying upon the case reported as Samar Gul v. Central Government and others [PLD 1986 SC 35], held that the Court is empowered to grant such relief as justice of case may demand and for determining relief asked for whole of the plaint must be looked into, so that substance rather than form should be examined.
' In the case reported as Feroz-ud-Din v. Muhammad Aziz and 22 others [PLD 2005 AJ&K 9], it was observed that under Order VII, Rule 7, C.P.C., the Court is competent to grant such relief which was not specifically pleaded but was just and equitable in view of the facts of the case.
5. We have heard the learned counsel for the parties and perused the record.
6. The record reveals that the land bearing Survey No,587 measuring one kanal and Survey No,317, measuring 11 marlas, old Survey Nos.260, 261 and 311, situate in village Ghellay was in the ownership of one Sultan Muhammad, which was acquired for construction of Mangla Dam and later on it was de-awarded. On 22-12-1993. Sultan Muhammad, predecessor in interest of pro forma respondents Nos.5 to 7, executed an agreement-to-sell in favour of the plaintiffs respondents herein, whereby he sold the land measuring 1 kanal, 11 marlas out of survey numbers referred to above after receiving an amount of Rs,100,000/- as price. On 3-4-1996, the plaintiffs, respondents herein, filed a suit for declaration that they are owners of the land on the basis of said agreement-to-sell in equal shares and proceedings in the case titled Sultan Muhammad v. Fazal Dad are illegal and inoperative on the rights of the plaintiffs and liable to be cancelled. They also prayed for cancellation of the report submitted by the village officer ( L54 ). Consequential relief for possession of the land was also prayed. The trial Court dismissed the suit. The District Judge accepted the appeal, decreed the suit but instead of declaring them owners. The. District Judge passed a decree of specific performance in favour of plaintiffs, respondents Nos.2 to 4 herein and against defendants, pro forma respondents Nos.5 to 7 herein, that they shall execute the sale-deed in favour of the plaintiffs-respondents herein. The present appellants filed an appeal in the High Court which has been dismissed through the impugned judgment.
7. From perusal of the record it appears that Sultan Muhammad, defendant No,1 deceased, now survived by pro forma respondents Nos.5 to 7, who had executed the agreement-to-sell, admitted the claim of the plaintiffs and filed a cognovit. He admitted the execution of agreement-to-sell and receipt of an amount of Rs,100,000/- as price of the land. He also admitted the contents of agreement-to-sell. From perusal of the cognovit/written statement it appears that he had no objection in execution of the sale-deed. We have also considered Exh.3A. a certification by the Office of Collector Mangla Dam Affairs issued on 30-10-1995 which was proved by Abdul Qadeer Qureshi, Record-Keeper of the office of Collector Mangla Dam Affairs. He also proved in evidence the copy of the Register Aasami war. Vide Register Aasami war at serial Nos.19 to 25 the land measuring 7 kanals, 9 marlas and 3 sarsahi, situate in village Ghellay, is entered at serial No,24 in the ownership of Sultan Muhammad son of Allah Ditta, which has been acquired for construction of Mangla Dam and compensation has been assessed as Rs,4297/72. It has also been mentioned in the copy that compensation assessed has not been received by Sultan Muhammad because process of cancellation of award is in progress. Fazal Dad is not owner of these survey numbers. It is worth-mentioning that the application for certification was submitted by Ch. Ali Shan; father of plaintiffs, in respect of survey numbers which are subject of the present appeal: It is also admitted by Abdul Qadeer Qureshi, Record- Keeper office of the Collector Mangla Dam Affairs that the award has been cancelled vide Notification No,514654, dated 9-12-1997 by the Board of Revenue. It is crystal clear from the record of rights, certification issued by the Collector Mangla Dam Affairs and the statement of Abdul Qadeer Qureshi, Record-Keeper that Sultan Muhammad was the owner' of the land and Fazal Dad, appellant herein, had nothing to do with the land.
8. We have reached to the conclusion that Sultan Muhammad was the owner of the land which was acquired for construction of Mangla Dam and later on de-awarded. He admitted the agreement-to-sell and on his admission a decree for specific performance has been passed against A him. No decree has been passed against Fazal Dad. Whether Fazal Dad had a right to challenge the said decree on the ground that the agreement-to-sell was void or being unregistered creates no right in the plaintiffs. We may observe here that the question of legality or validity of an agreement-to-sell can be raised only by the executant or a person having B a right in the property. A third person has no right to challenge the same on the ground that he is in possession of the property. This is a settled law and this Court has in a number of cases observed that any' person who is aggrieved from the judgment or decree and an adverse decree has been passed against him, can file an appeal although he was not a party before the lower forum but a person who has no legal right in the property, cannot maintain an appeal only on the ground that he is in possession of the land. The proposition has since long been resolved by the superior, Courts that a person who has no interest in the property cannot maintain appeal. We are fortified in our view from the following case-law. In the case reported as Chandrika Bakhsh Singh v. Indar Bikram Singh [AIR 1916 PC 14] it was observed as under:--- ".... On the contrary, it is a suit for a declaration of title by a plaintiff who was and is in possession.
The subordinate Judge had found that Raja Indar Bikram Singh had no 'title, and when the correctness of that finding was not disputed in the Court of the Judicial Commissioner of Oudh, it should have been apparent to the Judges of that Court, who were hearing the appeal that as Raja. Indar Bikram Singh had failed to prove that he was even remotely, concerned in the title to Maghawan and in the right to the proprietary possession of that Taluqa, he had no title to protect and no interest which could give him a right to contest the declaration of title which Babu Chandrika Singh had obtained, and that the appeal to that Court should be dismissed. Raja Indar Bikram Singh was a mere impertinent intervener in another person's affair."
' In the case reported as Mst. Rasheeda Begum through her L.Rs, v. Mst. Saeeda and others [1993 CLC 1263], while dealing with the question of maintainability of appeal the Court reached to the conclusion that the respondent in the case had no legal right to occupy the suit property.
Admittedly neither he had any interest in the title thereof nor had any tenancy rights in respect of a portion of the property which was in his occupation and his possession at best was that of a trespasser. It was observed as under:--- "7. It is thus clear that respondent No,5 was neither a party to any agreement of sale nor he had any legal character in respect thereof. The observation made by the learned trial Court that he had executed agreement of sale in respect of a portion of the property in his possession is also factually incorrect as has been conceded by Mr. Niazi Abdul Khaliq, himself the findings of the learned Judge that the appellant had locus standi to file an appeal are therefore, ex fade erroneous. The mere fact that the said respondent was in possession of a portion of the property without proof of any legal character was note sufficient to give him locus standi to file the said appeal...."
' In the case reported as Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13 while dealing with the question of maintainability ofappeal, it was observed as under:- ".... A right of appeal is given to an aggrieved party and here in this case the Government, being an aggrieved party, could present an appeal personally or through its Advocate duly appointed of course, leave to appeal can be granted to a person who is not a party to a suit if his interest is involved in the case which interest is being adversely affected by the judgment, decree or sentence. But a person not aggrieved by an order (Sardar Aftab Ahmed Khan, who executed the power of attorney in this case in favour of Sardar Rafique Mehmood, not being affected by the order cannot be said to be an aggrieved party) cannot file a petition for leave to appeal".
Thus, we have come to the conclusion that Fazal Dad had no right or title in the property. The property was in the ownership of Sultan Muhammad and after being de-awarded, it again vested in the legal heirs of Sultan Muhammad. The claim of Fazal Dad is based only on the ground of possession. The decree of specific performance was passed against the legal heirs of Sultan Muhammad by the District Judge. No decree was passed against Fazal Dad. The legal heirs of Sultan Muhammad have not preferred any appeal. The decree has attained finality. The appeal filed by Fazal Dad before the High Court was not maintainable.
9. Although the High Court has not resolved the question of maintainability of appeal filed by Fazal Dad but the remand of the case will amount to further dragging the parties into unnecessary litigation, it is such a question which can easily be resolved by this Court after perusing the record, therefore, instead of remand of the case, we are deciding the appeal ourselves.
10. Since we have come to the conclusion that no decree was passed against Fazal Dad, he had no right to maintain the appeal. It will be an exercise in futility to look into the validity of agreement- to-sell. Since it was admitted by Sultan Muhammad in his written statement, there is no need to determine the question of validity of agreement-to-sell or effect of sections 17 and 49 of the Registration Act.
' The result of the above discussion is that the appeal filed by Fazal Dad before the High Court and this Court was not competent, therefore, this appeal as well as the appeal before the High Court is dismissed with no order as to the costs.