' YAHYA AFRIDI, J.---Petitioner through the instant revision petition has questioned the judgment and decree dated 11-2-2012 of the learned Additional District Judge-VI, Peshawar, whereby he dismissed the appeal of the present petitioner and maintained the judgment and decree dated 21- 5-2011 of the learned Civil Judge-XI, Peshawar.
2. The brief and essential facts leading to the institution of this revision petition are narrated hereinafter in chronological order:-- ' 20-6-1993 An unregistered deed was executed between Sher All son of Hidayat Ali (seller) and the petitioner (buyer) for sale of House No.2710, Mohallah Marveehaw Kochi Bazar, Peshawar City, ( 'disputed house') for a sale consideration of Rs.230,000 ("Deed of 1993").
'31-7-1995 A registered sale-deed No.1997 was executed between Sher Ali son of Hidayat Ali (Seller) and the respondent Agha Seemab Ali (buyer) for the sale of the disputed house for a sale consideration of Rs.60,000 ("Deed of 1995").
'30-7-1999 The present respondent Agha Seemab Ali, instituted a suit for possession of the disputed house and recovery of rent of three years at the rate of Rs.2000 per month from e present petitioner; 2001 Sher All son of Hidayat Ali, the uncle of Agha Seemab Ali, respondent, and the admitted original owner of the disputed house had expired; ' 30-12-2010 The trial Court passed a decree in favour of the present respondent, Agha Seemba Ali, for the possession of the disputed house. However, the prayer for the recovery of rent was denied.
'16-3-2011 The appeal of the present petitioner is partially accepted, the judgment and decree of the trial Court is set aside and the case is remanded back to the trial Court with certain direction relating to additional issues.
'21-5-2011 The trial Court again passed decree in favour of the present respondent, Agha Seemba Ali, for the possession of the disputed house. However, relief of the recovery of rent was again denied.
'11-2-2012 The appeal of the present petitioner is dismissed by the appellate Court.
' Hence, the present revision petition.
3. For clarity, it would be important to note, the original and additional issues framed in arriving at the impugned decisions, which are as under:-
(1) "Whether the plaintiff has got cause of action?
(2) Whether the suit is time-barred?
(3) Whether the plaintiff is owner of the suit property through purchase vide registered deed No.1997 dated 31-7-2001?
(4) Whether the defendant occupies the suit house as tenant of the previous landlord?
(5) Whether the plaintiff is entitled to recovery of rent at the rate of Rs.2000 P.M.?
(6) Whether the suit has not been valued properly?
(7) Whether the plaintiff has estopped to sue due to his conduct?
(8) Whether the rights of defendant are protected under section 553-A TPA?
(9) Whether plaintiff is entitled to the decree as prayed for possession & recovery as prayed for?
OPP
(10) Relief.
'Additional Issues:-
(I) Whether the defendant is the owner of the suit on basis of sale-deed dated 20-6-1993?
(2) Whether the defendant was handed over the possession of suit house on the basis of sale- deed dated 20-6-1993?
(3) Whether the defendant is occupying the suit house as full and lawful owner of the suit house?"
4. Valuable arguments of the learned counsel for the parties heard and the record perused.
5. What prevailed over the two Courts below in accepting the claim of the present respondent was that his claim of ownership of the disputed house was based on a registered deed; while the contesting stand of the petitioner was repelled for the reason that the same was only supported by an unregistered deed.
6. No doubt, a registered deed relating to an immovable property would not only have a legal presumption of truth regarding its execution but would also have a legal preference over any unregistered deed regarding the same property. However, the most crucial aspect, which has escaped the worthy attention of the two Courts below is that in the present case, the petitioner was not only armed with the prior unregistered deed regarding the disputed house in his favour but was also admittedly in possession thereof, and thus his rights over the disputed house were protected under the first proviso to section 50 of the Registration Act, 1908 ("Act of 1908"), which reads as under:-- "50 Certain registered documents relating to land to take effect against unregistered documents.---(1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17, subsection (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 (IV of 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 a suit for specific performance against a person claiming under a subsequent registered document, subject to the provisions of clause (b) of section 27 of the Specific Relief Act, 1877 (I of 1877)." (Emphasis provided)
7. Faced with similar situation, the apex Court in Fazla's case (1997 SCM R 837), has elaborated and discussed the true purport of section 50 of the Act of 1908 in terms that:-- "These two provisos were added by the Registration (Amendment) Ordinance, 1962 with effect from the 7th June, 1962. The first proviso clearly indicates 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 provided he fulfils all the conditions laid down in the said section. It, therefore, applies section 53-A of the Transfer of Property Act to persons in possession of the property acquired under an unregistered document..
"From the above observation it is clear that 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 requirement of the said section.
"The only condition is that it should be an unregistered document by a person in possession of the property under it and that he fulfils the conditions laid down in section 53-A of the Transfer of Property Act. Applying this principle on the facts of the case, it is clear that the receipt/contract was a document of sale of the disputed property which was unregistered. The appellant was, therefore, entitled to the protection and rights under section 53-A of the Transfer of Property Act."
8. Now, this Court has to see whether the present petitioner fulfils the conditions provided under section 53-A of the Transfer of Property Act, 1882 ("Act of 1882"), which reads as under:-- "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 persons 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 performance thereof."
9. The conditions precedent for a person to seek protection under the above section 53A of the Act of 1882, which are relevant to the present case are essentially as follows:-
(i) That written contract of sale of immovable property for consideration;
(ii) Steps taken in pursuance of the said written contract;
(iii) The possession is with the transferee and it is continuous.
' In the present case, the petitioner has produced both marginal witnesses and the scribe of the Deed of 1993. Thus, the written contract of sale, though an unregistered, in favour of the petitioner has been proved, while the possession of the disputed house prior to the Deed of 1995 has been admitted by the respondent in his very plaint and would not require any further evidence.
10. What has to be also taken into consideration is whether the respondent Agha Seemab Ali, had no notice of Deed of 1993 or any part performance thereof to seek protection of a 'bona fide purchaser', as provided under the 'proviso' to section 53-A of the Act of I 882. In this regard, the averments in the plaint filed by the present respondent would not only be relevant but in fact, suffice to answer the aforementioned factual query. The respondent himself admits the possession of the disputed house to be with the petitioner but claims that he was occupying the same as a tenant but with no rent deed or any receipt of the rent allegedly received from the petitioner. In fact, no evidence, whatsoever, was produced by the respondent to prove the said assertions. What has also irked this Court is that the contention of the present respondent-plaintiff could have been easily resolved had he produced his uncle, Sher Ali, the admitted owner of the disputed house, who is recorded as a seller in both the deeds; Deed of 1993 and Deed of 1995. Strangely enough. The present respondent/plaintiff did not even list Sher Ali son of Haydayat Ali, the undisputed owner of the disputed house, his uncle and at that relevant time alive, as a witness in the calendar of witnesses to support his claim. This non-listing and non-production of Sher Ali as a witness would surely have an adverse inference against the claim of the respondent, as is clearly provided under Article 129(g) of Qanun-eShahadat Order, 1984 ("Order").
'In view of the above, it is hard to believe that respondent did not have notice of at least the performance of the Deed of 1993, so as to seek the protection of a 'bona fide purchaser', as provided under the proviso to section 53-A of the Act of 1882.
11. As far as the argument raised by the learned counsel for the respondent that Misal Khan (DW5), witness of the present petitioner, had admitted that the petitioner was a tenant in the disputed house, suffice it to state that this admission was made during cross examination and the same was not only evasive but was duly corrected by the said witness and thus cannot be taken to dislodge the entire claim of the present petitioner on the said evasive admission. In this regard, the apex Court has clearly dilated :in the issue of admissions by a pat in the case titled Ahmad Khan v.
Rasool Khan (PLD 1975 SC 311), wherein the august Supreme Court has held that:-- "As ruled by their Lordships of the Judicial Committee in Aaulat Singh Ji v. Khachar Mansoor, admissions of facts are only relevant, and are not conclusive and therefore, may be shown to be wrong. Their Lordships observed in that case: "Evidence Act expressly provides that admissions are not conclusive proof of the matters admitted. Even if it amounts to clear admissions, it will not bar a suit."
Therefore, an admission which is wrong in point of fact or is made in ignorance of legal right, has no binding effect on the person making it. This is however, subject to two well-recognized exceptions. First: such admissions become conclusive and are binding on a party making them only if it amounts to a representation on a matter of fact made to the other party, who in consequence of such representation has altered its position. When admission is thus acted upon by the party to whom it is made, it operates as estoppel and becomes in a way conclusive, inasmuch as the party making it is not then permitted to show that the admission was wrong.
Such admission is really hit by rule of estoppel in section 115 of the Evidence Act, 1872. Here, in this case, it is not the appellant's case that he was misled into purchasing the suit-land by reason of the application dated 19-2-1959 (Exh.D.W.1/1) made by Rasul Shah: Second: apart from the representation which operates as estoppel, admissions in pleadings are also made conclusive under section 58 of the Evidence Act, 1872." (Emphasis provided)
'In view of the dicta of the apex Court in the aforementioned judgment, it can safely be stated that the admission of Misal Khan (DW5), can neither be conclusive proof of the tenancy of the petitioner nor can it be categorized in the two exceptions highlighted therein. In fact, the admission of Misal Khan required further proof, which has not been provided by the respondent in the present case.
Hence, the argument of the learned counsel would be of no avail to the case of the respondent.
12. It is an established principle of civil dispensation of justice that generally, the initial burden to prove a claim, is on the party seeking the aid of the Court, and moreso, when it is regarding title of a property, which is in possession of another, as is provided under Articles 118, 119 and 126 of the Order. It may also be noted that the said 'onus of proof shifts and oscillates, as the trial proceeds, depending on the circumstances of the each case. However, once the parties have adduced their respective evidence in support of their claims, then it is 'preponderance of evidence', which rules the scale of relief. It is only when the Court deciding the Lis is unable to decide the matter on the evidence produced by the parties, that the significance of onus of proof would be revived and govern the decision. In this regard, the august Supreme Court of Pakistan in the case titled Mst.Qaisar Khatoon v. Molvi Abdul Khaliq (PLD 1971 SC 334) has explained the principle in term that:- - "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide. Manaka v. Madha Rao) (2). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion- (Vide PLD 1948 P C 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not case here, for, the evidence is, by no means, evenly balanced."
' In the present case, initially the `burden of proof was upon the shoulder of the respondent, as he was the plaintiff seeking title of the disputed house in possession of the present petition. However, when the contesting evidence produced by the parties are taken into account, it is but clear that the tilt of the scale is in favour of the present petitioner and against the present respondent plaintiff, as the preponderance of evidence is surely in favour of the petitioner and against the respondent.
13. Finally, this Court is alive to the scope of the revisional jurisdiction of this Court, which has been provided under section 115 of the Civil Procedure Code of 1908. As the two Courts below while passing the impugned decisions have failed to consider the essential admitted facts relating to possession of the petitioner over the disputed house and the applicable legal provision provided under section 50 of the Act of 1908, and have thus fallen in grave error, which warrants interference by this Court in its revisional jurisdiction.
' Accordingly, for the reasons stated hereinabove, the present petition is accepted and the impugned decisions of the two courts below are set aside.