' IKRAMULLAH KHAN, J.---The petitioners have challenged the impugned judgment passed by the learned Additional District Judge, Mardan, dated 28-5-2010 whereby the appeal filed against the judgment of the learned Civil Judge, Mardan dated 24-4-2005, was dismissed..
2. In essence petitioners herein had instituted a suit alleging that respondent No. 2, had sold the disputed land measuring 2 kanals and 7 marlas, comprised therein Khasra No. 1178, Khata No. 1218 Moza Mardan to their predecessor-in-interest for a sum of Rs.15,000 and executed a contract dated 5-7-1993. The possession was also delivered to their predecessor-in-interest namely Mukaram Khan. On his death, the ownership and the possession thereof had devolved upon the petitioners, which are still in their possession. It was pleaded that respondent No. 2, without lawful authority has sold the suit property to respondent No.1 on the basis of Mutation No. 282 sanctioned on 20-12-1997. The petitioners had also challenged in their suit the two Mutations No. 282 and 199 sanction on 20-12-1997 and 26-9-1997, respectively, being ineffective upon their right insofar as the transfer of the suit property in the name of respondent No. 2 is concerned.
3. That respondent No.1 thereafter had also filed a declaratory suit in regard to the same disputed property on the basis of sale Mutation No. 282 attested on 20-12-1997.
4. Both the parties submitted their written statements in counter-suits, and the learned trial Court thereafter consolidation of both the counter-suits, casted the required consolidated issues, arising thereout from divergent pleadings of both the parties.
5. At conclusion of trial, the learned Civil Judge, Mardan passed the consolidated judgment dated 24-4-2005, whereby the suit filed by petitioners was dismissed while that of respondent No. 1 was decreed in his favour against the petitioners.
6. An appeal was filed by petitioners against the judgment of the learned Civil Judge, but the same was also dismissed by the learned Additional District Judge, Mardan through the impugned judgment, hence the instant revision petition.
7. The learned counsel for petitioners contended that in view of the provisions contained in section 50 of the Registration Act, 1908 and principles of equity contained in section 53-A of the Transfer of Property Act, 1882 attract to the facts and circumstances of the present case and, therefore, petitioners being in possession of the suit property, could make claim over the suit property on the basis of the sale contract dated 5-7-1993, while the impugned judgment is based on erroneous assumption of jurisdiction, result ' of misconstruction of law and evidence on record, rendered by the learned Additional District Judge, against the established principle of law.
8. As against that the learned counsel for the respondent No. 1 supported the impugned judgment and contended that the document relied upon the petitioners is a forged, fictitious, fabricated and unregistered sale-deed which is inadmissible for want of Registration and no valid title or interest could be claimed by the petitioners on the basis of such inadmissible and unproved document.
9. I have heard, both the learned counsel for the parties and considered their argument in view of law and evidence available on record.
10. The contention of the learned counsel for the petitioners agitated here in view of the provisions contained in section 50 of the Registration Act, 1908 is to be considered. He has placed his reliance on provisos 1 and 2 of subsection (1) of section 50 of the Registration Act which reads as under:-- "Section 50. Certain registered documents relating to land to take effect against unregistered documents.---(1) Every document of kinds mentioned in clauses (a), (b), (c) and (d) of section 17, sub section (1), [and every document registrable under section 18, insofar as such document affects Immovable property or acknowledges the receipt or payment of any consideration in respect of any transaction relating to immovable property], shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not; [Provided that the person in possession of the property under an unregistered document prior in date, would be entitled to the rights under section 53-A of the Transfer of Property Act, 1882 if the conditions of that section are fulfilled: ' Provided further that the person in whose favour an unregistered document is executed shall be entitled to enforce the contract under the unregistered document in suit for specific performance against a person claiming under as subsequent registered document, subject to the provisions of clause (b) of section 27 of the Specific Relief Act, 1877].
(2) Nothing in subsection (1) applies to lease exempted under the proviso to subsection (1) of section 17 or to any document mentioned in subsection (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.
Explanation.---In cases where Act No. XVI of 1864 or the Indian Registration Act, 1908, 1866, was in force in the place and at the time in and at which such unregistered document was executed, "unregistered" means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1908, 1871, or the Indian Registration Act, 1908 1877, or this Act.
11. The above mentioned first proviso clearly enumerate that a person who is in possession of the property under an unregistered document prior in date, would be entitled to claim rights under section 53-A of the Transfer of Property Act, 1882 provided that he fulfils all the conditions laid down in the said section.
12. Though the provisions contained in section 49 of the Registration Act, 1908 which is general in character, exclude all kind of unregistered documents therefrom consideration, so far the title or interest in any immovable property is concerned but the proviso annexed thereto section 50 of the same Act, had made an exception and had saved such unregistered sale-deed in pursuance of which,. As part performance of contract, the possession of the property or part thereof is delivered.
13. The provisions contained in section 53-A of the Transfer of Property Act, 1882, which reads as; 'Section 53-A. Part Performance. --Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee, has in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: ' Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part of performance thereof.
14. The above provisions in unequivocal terms confer right upon any vendee who has in possession of the property, in pursuance of contract for sale for consideration which has been reduced into writing and signed by the vendor or any person on his behalf which could be ascertained with reasonable certainty and the transferee is ready to perform or willing to perform his part of the contract, to retain possession over the immovable property, came into his shoes, through covenant of sale as mentioned hereinabove, 'under the established principle of equity.
15. However, right of a subsequent transferee for consideration who has no notice of the contract or of the part performance thereof shall not be effected.
16. On the subject mentioned hereinabove, the apex Court in case of "Fazla versus Mehr Din and 2 others" (1997 SCM R 837) has observed as follows:-- "If any document requiring registration under section 17 of the Registration Act has not been registered, it cannot bar or deprive a purchaser from claiming benefit under section 53-A of the Transfer of Property Act provided he satisfies the require ement of the said section".
' At page 842 of the same judgment, the Hon'ble apex Court has also observed as:-- "It may be noted that first proviso to section 50(1) of the Registration Act gives protection to person in possession of the property under an unregistered document, be it an agreement to sale or a contract of sale. It does not make any such distinction.
'Therefore, in view of the judgment of the apex Court ibid, the contention of the learned counsel for the respondent that the document on which petitioners had relied is a sale-deed/contract which is unregistered, inadmissible in evidence, has no force at all.
17. In view of the proviso to sub section 1 of section 50 of the Registration Act, 1908 all kind of documents but not registered in accordance with the provision of section 17 of the same Act, are exempted therefrom the operation of section 49 of the Registration Act, 1908 when in furtherance of the part performance of the contract, possession of the property or part thereof is delivered to the vendee for valuable consideration.
18. The 2nd proviso thereto subsection (1) of section 50 of the Registration Act, 1908 provide mode for enforcement of such an unregistered contract, to institute a suit for specific performance against a person claiming under subsequent registered document, subject to the provisions of clause (b) of section 27 of the Specific Relief Act, 1877, while petitioners have prayed for specific performance of the contract dated 5-7-1993 well in their pleadings.
19. The 2nd contention of the learned counsel for respondents that the contract of sale relied upon by petitioners was not genuine, as this document was not produced during course of a previous suit for possession through enforcement of right of preemption instituted by petitioner No. 7 against respondent No. 1, has no force and even such kind of admission in cross examination could not deprive, the petitioners therefrom their accrued right as the said sale-deed was duly produced and was exhibited in proceedings under section 145, Criminal Procedure Code, 1898 before a competent Court of law, which was given consideration and the complaint filed by the respondent No. 1 against petitioner No. 7 and his tenant over the suit property was dismissed, which proceeding was challenged by respondent No. 1 in its present suit.
20. The 3rd contention of the respondents counsel that the sale-deed is not proved in accordance with the provisions contained in Article 79 of the Qanune-Shahadat Order, 1984, and the same view is also held by both the learned Courts below is erroneous one as the petitioners have not only produced the scribe and the two attesting witnesses of the sale document dated 5-7-1993, but also this document was admitted by respondent No.2, who was owners at the time of execution of the said deed, that he had signed the sale-deed and had delivered the possession of the suit land, for receiving sale consideration thereof.
21. Respondent No. 2 had delivered the possession of the suit-land in pursuance of the contract of sale, executed by him, which fact has also been confirmed by the local Commission appointed by the learned trial Court for the purpose which was made rule of the Court and was confirmed by the learned trial Court vide its judgment dated 24-4-2005.
22. The respondents No. 1 had also purchased the shares of respondent No. 2, comprised therein Khata No. 218 through a registered sale-deed No. 578 dated 26-9-1996 duly incorporated in record of right through Mutation No. 199 dated 26-9-1997 which has also been made disputed by the petitioners.
23. As, for the reasons given hereinabove, once it was held that petitioners could claim ownership and also could protect their possession over the suit-land, in view of the provisions contained in sections 50(1) of the Registration Act read together with section 53A of the Transfer of Property Act, 1882, and when the sale contract dated 7-5-1993 had been successfully proved thereunder the provision contained in Article 79 of the Qanun-e-Shahadat Order, 1984, the instant revision petition is partially allowed and the impugned judgment of both the, learned Courts below are accordingly set aside, resultantly the suit filed by the petitioners is decreed to the extent of 2 kanals and 7 marlas land comprised in Khata No. 1218, while the suit filed by respondent No. 2, being infructuous and without cause of action is accordingly rejected as respondent No. 1 had already incorporated in Revenue Record as owners in Khata No. 1218 whereas Khasras Nos. 1178, 1233, 1261, 1286, 1228, 1229, 1230, 1281, 1283, and 1261/1 were completely entered in his name, but as mentioned above, respondent No 2 was not legally authorised to sale out, land 2 kanals & 7 marlas comprise in Khata No 1218, already sold out to predecessorin-interest of the petitioners, both the Mutations bearing No 199 and 282 sanctioned on 20-12-1997 and 26-9-1997, respectively to the extent of land measuring 2 kanals & 7 marlas in all the above mentioned Khasra numbers comprised in Khata No 1218 is declared illegal and ineffective upon the right of ownership of the petitioners to the extent as mentioned hereinabove. The case is remanded back to the trial Court with direction to both the parties to appear before the learned trial Court for further proceeding thereunder the provisions contained in Rule 18 of Order XX, Civil Procedure Code, 1908, for final decree.