' MRS. IRSHAD QAISER, J.---This revision petition is directed against the judgment and decree dated 23-2-2006 passed by the Additional District Judge-V, Mansehra, whereby, the appeal of the petitioner against the judgment and decree dated 31-1-2005 of Civil Judge-III, Mansehra was dismissed.
2. The brief and essential facts leading to the instant petition are that the respondent No.1 instituted a suit against the present petitioner and respondents Nos. 2 and 3 on 2-10-2000 seeking declaration to the effect that he was owner in possession of land 'Khasra' Nos.456 and 457 measuring 26 'Kanals' 4 'Marlas', to the extent of 8 Warlas, situated in 'Mauza Oghi' , Tehsil Oghi District Mansehra, on the basis of agreement dated 18-1-1999 on payment of sale consideration to respondent No.2 Waqar Ahmad Sultan son of Sultan Muhammad Khan. The registered sale-deed No.8 dated 26-1-2000 in respect of disputed property on behalf of respondent No.2 in favour of petitioner was wrong, against law and facts, based on fraud and collusion, and in this regard report of Sub-Registrar Oghi submitted on the direction of Registrar, Mansehra support the claim of respondent No.
1. The entries in the Revenue Record in the name of petitioner regarding disputed property also being wrong, against law and facts were ineffective upon the rights of respondent No.1/plaintiff. In prayer 'B' of the plaint, respondent No.1 sought possession through ejectment of the petitioner, in case the possession of respondent No.1 over the disputed property was not proved. The respondent No.1 also prayed for permanent injunction restraining the petitioner from alienating the disputed property or changing its nature or making construction therein in any manner, whatsoever.
' It was averred in the plaint that the property was owned and possessed by Waqar Ahmad Sultan, respondent No.2, who sold the same along with other property to respondent No.1 on the basis of agreement to sell dated 18-1-1999 and respondent No.1 had paid Rs.230,000 and in this regard, respondent No.2 also executed general power of attorney in favour of respondent No.l. On the basis of said general power of attorney, respondent No.1 got transferred 8 'Marlas' land out of 16 'Marlas' in the name of his wife through Mutation No.6280 dated 8-12-1999, whereas, the disputed property measuring 8 'Maths' could not be transferred in the name of respondent No.
1. Thereafter, respondent No.2 collusively and illegally transferred the disputed property in the name of petitioner through registered Deed No.8 dated 26-1-2000, while he had already sold the disputed property to respondent No.1 on the basis of said agreement to sell. Respondent No.1 had moved an application to the District Registrar, Mansehra, whereupon, an inquiry was conducted by Sub- Registrar, Oghi, wherein, respondent No.2 had admitted the illegal transfer of disputed property. The District Registrar, Mansehra was not competent to cancel the registered deed and respondent No.2 refused to accept the claim of respondent No.l. Hence, the suit.
2. The petitioner contested the claim of respondent No.1 by filing written statement. This contest of pleadings led to framing of following issues:--
(1) Whether the plaintiff has cause of action?
(2) Whether the plaintiff is barred to his own conduct?
(3) Whether the case of the plaintiff negates the principle of fair play, justice, equity and good conscience?
(4) Whether the plaintiff has locus standi?
(5) Whether the plaintiff suit is struk by Order VII, Rule 11?
(6) Whether defendant No.2 is bona fide purchaser of the disputed property?
(7) Whether the suit has been instituted with mala fide intention?
(8) Whether the Court has jurisdiction?
(9) Whether the court-fee need to be deposited?
(10) Whether in case of dismissal special cost need to be imposed?
(11) Whether the disputed property has been alienated to the plaintiff by defendant No. 1?
(12) Whether half of the property as per the concerned sale-deed dated 18-1-1999 stands transferred to the plaintiff?
(13) Whether registered deed in name of defendant No.2 is illegal?
(14) Relief.
3. The trial Court after considering the pro and contra evidence produced by the parties to substantiate their respective claims, decreed the suit of respondent No.1 vide judgment and decree dated 31-1-2005. Aggrieved thereof, the present petitioner impugned the same in appeal, which too was dismissed vide judgment and decree dated 23-2-2006. Hence, the present petition.
4. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
5. The most crucial legal issues involved in the present case are that whether agreement to sell does create any right, title or interest in favour of respondent No.1 in the disputed property; whether the suit under section 42 of the Specific Relief Act (I of 1877) instituted by the respondent on the strength of agreement to sell property praying for declaration of title would be maintainable; and whether the protection of section 53-A of the Transfer of Property Act (IV of 1882) was available to respondent No.1 in peculiar facts of the case.
6. The claim of the respondent No.1 of hinges on agreement to sell the property dated 18-1-1999.
The respondent could not establish that the possession of the disputed property was handed over to him by respondent No.2 at the time of execution of the said agreement to sell, as is obvious from the prayers in the suit. No finding about possession of respondent No.1 over the disputed property was rendered by the Courts below. Respondent No.1 sought declaration of title on the basis of agreement to sell the property under section 42 of the Specific Relief Act, 1877. Since, agreement to sell does not create any right, interest or title in favour of respondent No.1, therefore, suit for declaration on the strength thereof is not maintainable and respondent No.1 was required to have filed suit for specific performance of agreement to sell. In this regard, this Court seeks guidance from the judgment of this Court in the case titled Gohar Rehman v. Riaz Muhammad (2011 YLR 888), wherein, it has been held that:- "The deed of lqrar Nama is admittedly an unregistered document which would neither create any title nor any right or interest in the suit property, as envisaged under section 49 of Registration Act and, as such, declaratory suit under section 42 of Specific Relief Act, 1877 on the basis of this document is not permissible and therefore, suit for declaration would not be maintainable."
' Similar view has been rendered by Lahore High Court in Khuda Bakhsh v. Mst. Zainab Mai and another (2002 YLR 2571), wherein, it was observed that:- "It is worth to be noticed that the appellant has sought a decree for declaration of title on the basis of an agreement to sell that too oral one but it is well-settled that "an agreement to sell does not create any right, title or interest in the property. On this score too suit for declaration on the face of it was not maintainable."
' Since the possession of respondent No.1 over the disputed property could not be established, therefore, the only protection provided in section 53-A of the Transfer of Property Act, 1882, is also not available to respondent No.1 in the peculiar facts and circumstances of the present case.
' In this regard, the apex Court in SCMR 204) has unequivocally laid down the principle that:- "Before proceeding further it would be necessary to examine in brief the scope of section 53-A of the Act, The said provision of law enables the transferee to protect his possession provided the conditions laid down therein are fulfilled. The said Conditions are the existence of the case of Muhammad Yousaf v. Munawar Hussain and 5 others (2000 the agreement and the transferee having been put in possession in part performance of the said agreement. In other words as rightly observed by the learned Judge of the Lahore High Court, the aforesaid provision of law is a shield and cannot be used as a sword. Judged in this background, it is obvious that the petitioner/plaintiff seeks a declaratory decree on the basis of an agreement to sell and in the same breath further declaration is sought that the sale of the disputed shop by respondents Nos. 1 to 5 in favour of the respondents Nos. 6 to 10 was against his rights. In this view of the matter; the right course for the petitioner would have been to institute a suit for specific performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under section 53-A of the Act."
' The petitioner has failed to prove the conditions provided in section 53-A of the Transfer of Property Act, 1882. The respondent had not sought the relief for specific performance of the agreement in the suit. Both the Courts below have ignored the aforementioned important legal aspects of the case. Thus, the findings of both the Courts below being based on erroneous consideration could not be legally prevailed in the circumstances of the present case and are liable to be set aside by this Court in its revisional jurisdiction.
7. On the other hand, the present petitioner has been shown in possession of the disputed property prior to the attestation of registered deed in his favour, as is evident from Fard Jamabandi Exh.P.W.4/1 and Exh.P.W.4/2 pertaining to the year, 2001 and 2002 in respect of Khasra' Nos.456 and
457. A valid registered deed has been attested in favour of the petitioner, as respondent No.1 has failed to prove through production of any sort of evidence that the deed was got attested on the basis of coercion, influence or ulterior motive.
8. Accordingly, for the reasons stated hereinabove, the present revision petition is allowed, the judgments and decrees of both the Courts below are set aside and the suit of respondent No.1 is dismissed.
' No order as to costs.