NASIR SAEED SHEIKH, J.---The petitioner Sarfraz son of Muhammad Nawaz has assailed the judgment and decree dated 20-1-2000 passed by the learned Additional District Judge, Khushab whereby an appeal preferred by the respondents against the judgment and decree dated 24-10- 1993 passed by the learned Civil Judge, Khushab decreeing the suit for possession of the subject property was set aside and the suit instituted by the petitioner was directed to be dismissed.
2. The petitioner instituted a suit on 2-7-1991 before the learned Civil Judge, Khushab for the possession of a house comprising one room with a boundary wall over an area measuring 3-1/2 marlas described in the title of the plaint which the petitioner/plaintiff claimed to have purchased through a registered sale deed dated 2-1-1984 from Muhammad Shafi and others. It was further alleged by the plaintiff/ petitioner that on 26-7-1985 the respondents illegally dispossessed him from his purchased subject property and a criminal case under sections 452/324, 148/149 P.P.C.
Was got registered by the petitioner/ plaintiff against the respondents/defendants and their accomplices and that on account of the above mentioned criminal act the respondents/ defendants are in possession without any entitlement over the subject house. It was further contended by the plaintiff/petitioner that Muhammad Khan predecessor-in-interest of the defendants/respondents claimed a fabricated agreement to sell dated 10-7-1971 of the subject house in his favour and he instituted a suit for specific performance of the alleged agreement to sell which suit was dismissed and appeal against which also failed. The plaintiff/petitioner contended that the defendants/ respondents have no right or title in the subject property therefore the decree for possession be passed in his favour of the subject house against the defendants/respondents.
3. In the written statement submitted by the defendants/respondents the suit was contested by pleading that the predecessor-in-interest of the defendants/respohdents had purchased the subject property from the previous owners Shah Muhammad and Atta Muhammad sons of Mian Muhammad through an agreement to sell dated 10-7-1971 and that in pursuance to the said agreement to sell the defendants'/respondents' predecessor-in-interest was delivered the possession of the subject property and after their predecessor-in-interest, defendants/respondents are in possession on the basis of the agreement to sell dated 10-7-1971.
The defendants/respondents pleaded in their written statement that even prior to the agreement to sell dated 10-7-1971 the predecessor-in-interest of the defendants/respondents was in possession of the subject property which was further regularized and confirmed through the agreement to sell dated 10-7-1971 in his favour. It was also contended by the defendants/respondents that in respect of the subject property one Muhammad Nawaz son of Alam Sher resident of the village also claimed that he had purchased the subject property from Shah Muhammad and Muhammad Shafi and proceedings under section 145 Cr. P.C. Were initiated and the "Calandra" under section 145 Cr.P.C. Was dismissed by the learned Illaqa Magistrate vide order dated 11-8-1972. It is next contended that during the hearing of the said proceedings under section 145, Cr.P.C. The vendor Shah Muhammad denied the agreement to sell dated 10-7-1971 and the finger prints on the agreement to sell were got verified through Finger Print Expert and it was confirmed that the agreement to sell dated 10-7-1971 was executed by Shah Muhammad in favour of predecessor-in-interest of the respondents. It was further contended in the written statement that said Muhammad Nawaz instituted a suit for specific performance of another agreement to sell dated 15-3-1971 against the predecessor-in-interest of the defendants/ respondents and the successors of Atta Muhammad which suit was dismissed on 27-11-1981 and appeal against the said dismissal of the suit was also rejected on 22-1-1983. It was thus contended that Shah Muhammad and Atta Muhammad had sold out the subject house in favour of the predecessor-in-interest of the defendants/ respondents and they are in possession of the same on the basis of the agreement to sell. The suit was thus prayed to be dismissed as being frivolous.
4. The learned Civil Judge, Khushab framed the following issues arising out of the pleadings of the parties:-- ISSUES Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD
(2) Whether the form of suit is incorrect and is liable to be dismissed? OPD
(3) Whether the suit is bad for non joinder of, the parties? OPD
(4) Whether the suit is time barred? OPD
(5) Whether the plaintiff is estopped to bring the suit by his own words and conduct? OPD
(6) Whether the suit is hit by section 11 of C.P.C.? OPD
(7) Whether the suit is frivolous and is filed just to harass the defendants and the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(8) Whether the suit is incorrectly valued for the purposes of court fee and jurisdiction? If so, what is the effect of it? OPD
(9) Whether the plaintiff is owner of the suit land and is entitled to get decree for possession? OPP
(10) Relief
5. After the production of oral as well as documentary evidence by the parties the learned Civil Judge, Khushab recorded crucial finding on issue No.9 in favour of the petitioner and decreed the suit with costs in his favour vide judgment and decree dated 24-10-1993. The learned Civil Judge came to the conclusion that the petitioner has established his title on the basis of the sale deed Exh.P-I in his favour and that the petitioner was forcibly and illegally dispossessed by the defendants/respondents from the subject property therefore the petitioner is entitled to the judgment and decree in his favour.
6. The respondents preferred an appeal against the judgment and decree dated 24-10-1993 of the learned Civil Judge which appeal came up for hearing before a learned Additional District Judge, Khushab who accepted the appeal and set aside the judgment and decree of the learned Civil Judge and resultantly the suit instituted by the petitioner was dismissed vide judgment and decree dated 20-1-2000. The learned Additional District Judge although did not discuss the judgment and decree of the learned Civil Judge issue-wise but in paragraph No.9 of the judgment the learned Additional District Judge concluded that an agreement to sell dated 10-7- 1971 Exh.D1 was executed whereby Atta Muhammad and Shah Muhammad sold out the suit ihata comprising 3 marlas to Muhammad Khan the predecessor of the respondents/ defendants with possession on payment of total consideration with an undertaking to arrange the attestation of mutation. The learned Additional District Judge further concluded in paragraph No.10 of the impugned judgment that the agreement to sell dated 10-7-1971 is an admitted document and its execution is proved in between the transferor and the transferee and the possession is with the defendants since then which was admitted by the transferor during the proceedings of a suit for specific performance of another claimant Muhammad Nawaz. The learned Additional District Judge further concluded that although the suit of the defendants' predecessor Muhammad Khan failed technically on limitation but it does not reflect upon the possessory rights attached thereto.
The learned Additional District Judge further concluded that the sale deed in favour of the petitioner/plaintiff does not cover the entire suit property and is also not from all the heirs of the original owner and the agreement to sell dated 10-7-1971 give full protection to the rights of the predecessor of the respondents/defendants. The learned Additional District Judge concluded that the contentions raised of the dispossession of the petitioner/plaintiff in the year 1985 is not acceptable as according to the learned Additional District Judge the possession of the predecessor-in-interest of the respondents goes back to 1971 which can be successfully pleaded by the defendants in rendering the plaintiff's suit to be barred by time having been instituted after the expiry of twelve years. Thus by setting aside the finding of the learned Civil Judge on issues Nos.3, 4 and 9 the learned Additional District Judge dismissed the suit of the petitioner vide judgment and decree dated 20-1-2000. Hence this civil revision.
7. The learned counsel for the petitioner argued that the learned Civil Judge, Khushab has passed the decree in favour of the petitioner after relying upon the sale deed Exh.Pl and that the respondents claim based upon the agreement to sell dated 10-7-1971 was illegally given recognition by the learned Additional District Judge, Khushab after the dismissal of the suit instituted by the predecessor-in-interest of the respondents for specific performance of the agreement to sell dated 10-7-1971. It is further contended by the learned counsel for the petitioner that the agreement to sell dated 10-7-1971 Exh.D1 does not specifically read to contain a clause of delivery of possession in favour of the respondents. It is further contended by the learned counsel for the petitioner that although the learned Additional District Judge has given benefit of possession to the respondents under the agreement to sell dated 10-7-1971 but the provisions of section 53-A of the Transfer of Property Act, 1882 have been illegally applied to the facts and circumstances of the instant case by the learned Additional District Judge in order to non-suit the petitioner. It is next contended by the learned counsel for the petitioner that once .An agreement to sell as claimed by the respondents in favour of their predecessor-in-interest became unenforceable, the same cannot be given any legal effect to non-suit the petitioner in a suit instituted on the basis of title emanating from the registered sale deed Exh.P1 claimed by the petitioner from the original owners. The learned counsel for the petitioner relied upon the judgments reported as Muhammad Ismail and 5 others v. Bashir Ahmad and others (2005 SCM R 1079), Malik Ellahi Bux, and others v. Muhammad Aslam (2002 CLC 433), Rashid Ahmad v. Messrs Friends Match Works (PLD 1989 SC 503) and Muhammad Rafique Through Legal Heirs and 2 others v. Mst. Marzia Sultana (2002 CLC 662) in support of his contentions.
8. The learned counsel for the respondents has seriously controverted the arguments of the learned counsel for the petitioner by contending that although the predecessor-in-interest of the respondents instituted a suit for specific performance of an agreement to sell dated 10-7-1971 and the said suit was dismissed by the learned Civil Judge and the Appellate Court but the predecessor-in-interest of the respondents was not obliged to file any suit and he could successfully defend the possession of the subject house on the basis of agreement to sell dated 10-7-1971 keeping in view the principles embodied in section 53-A of the Transfer of Property Act, 1882. The learned counsel for the respondents contends that the provisions of Transfer of Property Act, 1882 were not applicable to the Province of Punjab and mere execution of an agreement to sell dated 10-7-1971 was sufficient to clothe the predecessor-in-interest of the respondents with the title of the subject property. The learned counsel contends that the suit instituted by the predecessor-in-interest of the respondents was not dismissed on merits but it was dismissed on the point of limitation therefore it has no adverse effect insofar as the entitlement of the respondents is concerned to claim the protection of their possession on the basis of the agreement to sell dated 10-7-1971 Exh.D1 in favour of their predecessor-in-interest. The learned counsel for the respondents further contended that the sale in favour of the predecessor-in- interest of the respondents was complete through the agreement to sell dated 10-7-1971. The learned counsel for the respondents relied upon the judgments reported as Hoshiar Ali v. Ghulam Sabir (2000 CLC 1858), Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others (2000 YLR 1513) and Dost Muhammad and others v. Ghaus Muhammad Through Legal Heirs and others (2004 SCM R 515) in support of his contentions.
9. Arguments of the learned counsel for the parties have been heard at length and record has been perused.
10. The crucial point of law requiring consideration in the instant case is the interpretation of section 53-A of the Transfer of Property Act, 1882. The basis of the claim of the respondents in the instant civil revision is the agreement to sell dated 10-7-1971 as pleaded by them in the written statement and which agreement to sell has been exhibited during the trial as Exh.D1. A careful perusal of this document Exh.D1 points out that it is executed between Atta Muhammad son of Mian Muhammad and Muhammad Khan son of Alam Khan. This Atta Muhammad has claimed in the document Exh.D1 that he along with his brother Shah Muhammad are the owners of the house measuring 3 marlas described therein and that Atta Muhammad and his brother Shah Muhammad have their permanent residence in Chak No.102/12 in Tehsil and District Sahiwal and the house in question is required no more and the agreement to sell has been made in favour of Muhammad Khan s/o Alam Khan for a sum of Rs.1,000. The executant Atta Muhammad further admitted that he has received the sale price of Rs.1,000 on behalf of his brother Shah Muhammad as well and that the mutation of the house in question shall be got incorporated within a period of two years in favour of the vendee and that the executant Atta Muhammad has further undertaken to effect the transfer on behalf of his brother of his share of the house in question in favour of the vendee. The executant Atta Muhammad further undertook that if the mutation is not effected in favour of the vendee within the prescribed period by him or his brother Shah Muhammad the amount of Rs.1,000 received shall be refunded along with another sum of Rs.1,000 as a compensation to the vendee and that the vendee shall have the right to receive the said amount through the court of law. It is further agreed in the agreement to sell that the vendee shall have a right to seek specific performance of the agreement to sell in question through the court of law. This document Exh.D1 does not specifically state that the possession of the house in question has been delivered to the vendee in pursuance to this agreement to sell or that the vendee held possession of house in question earlier and his such possession has been regulated through the agreement to sell dated 10-7-1971 Exh.D1. Muhammad Khan the vendee of the house in question is the predecessor-in- interest of the defendants of the suit in the manner that Muhammad Akram and Asghar Ali are his sons and Mst. Sat Bhirai is his widow which successors of Muhammad Khan are the respondents in the instant civil revision. It is a matter of record that the plaintiff alleged in his plaint that the respondents/defendants forcibly took over the possession of the house in question from him on 26-7-1985 for which a criminal case was registered through an F.I.R. Registered. It was further claimed by the plaintiff of the suit that the predecessor-in-interest of the defendants Muhammad Khan instituted a suit for specific performance of the agreement to sell in question which was dismissed and against the dismissal of the suit an appeal was preferred which was also dismissed vide judgment and decree dated 1-6-1991.
11. The defendants of the suit pleaded in their written statement that their processor-in-interest Muhammad Khan purchased the subject house through agreement to sell dated 10-7-1971 and he precisely held the possession of the subject house which was later on regularized under the agreement to sell dated 10-7-1971. It was further pleaded in their written statement by the respondents that one other person Muhammad Nawaz s/o Alam Sher entered into arena and claimed that Shah Muhammad and Shafi Muhammad had sold the house in question to him as a result of which proceedings under section 145 of Cr.P.C. Were initiated which proceedings were dismissed on 11-8-1972 and during the hearing of the said proceedings under section 145 Cr.P.C.
Shah Muhammad denied to have executed the agreement to sell dated 10-7-1971 and his thumb impression was got verified on the agreement through the Finger Printer Expert. The respondents pleaded that in view of the above facts the learned Magistrate trying the proceedings under section 145 Cr.P.0 directed the parties to have recourse to the civil courts and the said Muhammad Nawaz instituted a suit for specific performance against the predecessor-in-interest of the respondents in which the L.Rs. Of Atta Muhammad were also impleaded and the said suit was dismissed vide order dated 27-11-1981, the 'appeal against which was also dismissed vide judgment dated 22-1-1983. The respondents thus claimed that in view of the said litigation the predecessor- in-interest of the petitioner have lost every right to claim the subject house in any manner and thus the suit was prayed to be dismissed.
12. The question which now arises is that if the agreement to sell dated 10-7-1971 Exh.D1 does not speak of the delivery of possession either before the agreement or thereafter in favour of the predecessor-ininterest of the respondents, whether the provisions of Section 53-A of the Transfer of Property Act, 1882 can be used even as a shield by the respondents to seek the protection of their alleged possession over the subject house which the plaintiff alleged in his plaint to have been illegally and forcibly taken by the respondents on 26-7-1985. The suit instituted by the petitioner was admittedly based upon the registered sale deed Exh.P1 in his favour from Muhammad Shafi son of Mian Muhammad, Saleh Muhammad and Sher Muhammad who are sons of Atta Muhammad and one Mukhtar who is in return son of Shah Muhammad. This sale deed was executed through a general attorney Hazir Muhammad who is also son of Shah Muhammad on the basis of registered power of attorney dated 3-12-1983 which sale deed has been executed in favour of the petitioner on 2-1-1984 and has not been assailed by the respondents at any stage. It is important to point out that a copy of plaint of the suit instituted by the predecessor-in-interest of the respondents which was produced as Exh.P14 the predecessor-in-interest of the respondents admitted in para-4 of the plaint that the successors of Shah Muhammad and Atta Muhammad have sold away the subject house in favour of Sarfraz Khan, however it was alleged that those predecessors have no right left to sell out the subject house therefore it is of no legal effect.
13. The subject property is admittedly owned by Shah Muhammad and Atta Muhammad. The predecessor-in-interest of the respondents was admittedly Muhammad Khan who had filed a suit for specific performance of the agreement to sell dated 10-7-1971 and this suit was instituted by Muhammad Khan s/o Alam Khan the predecessor-in-interest of the respondents on 24-7-1985 and the copy of the plaint has been produced as Exh.P14. This suit was instituted by the predecessor-ininterest of the respondents in pursuance to the order passed by the learned Magistrate in the proceedings under section 145 of Cr.P.C. a copy of which order has been produced as Exh.D2. The suit instituted by the predecessor-in-interest of the respondents was dismissed by the learned Civil Judge 1st Class vide order dated 7-3-1987 as being barred by time and the order of dismissal of the suit has been produced as Exh.P11. This dismissal of the suit of the predecessor-in-interest of the respondents vide judgment and decree dated 7-3-1987 by the learned Civil Judge was further assailed through an appeal which appeal was also dismissed vide judgment and decree dated 1-6-1991 a certified copy of which judgment has been produced as Exh.P4 by the plaintiff/ petitioner.
14. In addition to the above the petitioner also produced a copy of the plaint Exh.P5 which is a suit for pre-emption instituted by one Muhammad Mumtaz son of Manzoor ul Hag against the petitioner Sarfraz Khan for pre-emption of the sale effected in favour of the petitioner through registered sale deed dated 2-1-1984. This suit for preemption was dismissed on 6-6-1992 a certified copy of which order has been placed as Exh.P9. The learned Civil Judge in para-10 of the judgment and decree dated 24-10-1993 after discussing the entire evidence recorded the following finding under issue No.9 in favour of the petitioner:-- "10. Exh.P1 is copy of registered sale deed concerning the suit property, in favour of plaintiff, executed by Hazir Muhammad, the attorney of Muhammad Shafi son of Mian Muhammad, Saleh Muhammad and Sher Muhammad sons of Atta Muhammad and Mukhtar Ahmad son of Shah Muhammad. In this sale deed it is described that the possession was delivered to the plaintiff. The registered sale deed Exh.P1 was executed on 2-1-1984. Exh.P2 is a site plan of suit property prepared by Sadiq Hussain Bhatti P. W.2. Exh.P3 shows that Muhammad Khan, the predecessor-ininterest of the defendants, filed an appeal against the plaintiff along with Muhammad Shafi son of Mian. Muhammad and the legal heirs of Shah Muhammad and Atta Muhammad against the judgment and decree dated 7-3-1987 by which the suit filed by him, for specific performance of agreement dated 10-7-1971 was dismissed. The copy of order dated 7-3-1987 passed by Syed Tahir Hussain Kazmi Civil Judge, Khushab Exh.P11 reveals it that the plaintiff Muhammad Khan claimed that he purchased the suit property through agreement to sell, dated 10-7-1971 from Shah Muhammad and Atta Muhammad that was to be performed within two years. The suit for specific performance of agreement dated 10-7-1971 was filed on 24-7-1985. The learned Civil Judge dismissed the suit as time barred, and that order of learned Civil Judge was upheld by District Judge, Khushab in appeal vide judgment dated 1-6-1991 (Exh.P4). The defendants claim their rights upon suit property on basis of agreement dared 10-7-1971 which has become time barred. Two courts have given their judgments that agreement in favour of Muhammad Khan dated 10-7-1971 is not specifically enforceable. So, the defendants cannot claim their title on basis of that agreement. The copy of F.1.R. Exh.P15 is crystal clear to conclude that on 26-7-1985, the defendants along with some others, forcibly got possession of suit property".
In the subsequent paragraphs Nos.12, 13 and 14 of the judgment the learned Civil Judge, Khushab discussed the plea of the respondents and dismissed the 'same.
15. The learned Additional District Judge, Khushab in para-9 of the appellate judgment dated 20-1- 2000 did not meet the specific points noted by the learned Civil Judge in the judgment and decree dated 24-10-1993 and passed the judgment in favour of respondents and in Paragraphs Nos.9 and 10 of the impugned judgment recorded the following observations : - "9. It is alleged in the plaint that original owner Muhammad Shafi etc. Sold out the suit land to the plaintiff Sarfraz by way of registered sale deed dated 2-1-1984 and also transferred possession which was subsequently disturbed by the defendants along with others on 26-7-1985 for which case was registered and the defendants are in unlawful occupation as the suit of their predecessor for specific performance of agreement to sell was dismissed and appeal against the same failed on 1-6-1991. Copy of sale deed Exh. P1 dated 2-1-1984 reveals that Muhammad Shafi son of Mian Muhammad, Saleh Muhamntad, Sher #TBS 10. The agreement dated 10-7-1971 is admitted and its execution #TBE Muhammad sons of Atta Muhammad, Mukhtar Ahmad son of Shah Muhammad through their attorney Hazir Muhammad son of Shah Muhammad sold out two marlas out of their land 3-1/2 marlas to plaintiff Sarfraz while he has brought this suit respecting a constructed house within the area of 3-1/2 marlas without impleading other co-owners which includes his alleged vendor as well. According to defendant the suit property originally owned by Shah Muhammad and Atta Muhammad was sold out with possession under agreement dated 10-7-71 to the defendant's predecessor. There is a copy of plaint Exh.P14 whereby defendant's predecessor Muhammad Khan filed suit for specific performance of the agreement to sell dated 10-7-71 respecting suit land comprising 3 marlas against Muhammad Shaft and 18 others claiming to have purchased the same from Shah Muhammad and Atta Muhammad predecessor of defendants 2 to 19. In this suit the present plaintiff Sarfraz and another Muhammad Mumtaz were also impleaded as defendants Nos.18 and 19 respectively. It was also alleged therein that the suit of one Muhammad Nawaz for specific performance against Muhammad Shafi and Shah Muhammad in which Atta Muhammad and Muhammad Khan alleged that then defendant No.1 Muhammad Shafi had nothing to do with the suit land. Heirs of Atta Muhammad supported the contention of Muhammad Khan and suit of Muhammad Nawaz. Failed against which appeal also filed on 22-1- 1991 before the learned District Judge in which it was settled that Muhammad Shaft had nothing to do with the suit property and that no agreement was executed by Shah Muhammad in favour of Muhammad Nawaz. There is a copy of agreement to sell dated 10-7-1971 Exh.D.1 whereby Atta Muhammad and Shah Muhammad sold out suit ihata comprising 3 marlas to Muhammad Khan the predecessor of the present defendants with possession on payment of total consideration with an undertaking to arrange the attestation of mutation. In the suit of Muhammad Nawaz the heirs of Atta Muhammad impleaded as defendants Nos.11 to 17 admitted the claim of the then defendant No.18 Muhammad Khan the predecessor of the present defendants. Report of Finger Print Expert arising in criminal proceedings Exh.D.3 revealed the genuineness of thumb impression of Shah Muhammad upon the agreement Exh.D.1 of Muhammad Khan. All the heirs of Atta Muhammad and Shah Muhammad are not the transferor of the sale being relied by the plaintiff and some of the cannot bind the others who are large in number. is proved in between the transferor and the transferee and the possession is with the defendants since then which was admitted by transferor during the proceedings of suit for specific performance of another claimant Muhammad Nawaz son of Alamsher. The suit of the defendants' predecessor Muhammad Khan failed technically on limitation and not decided on merits.
Therefore, it does not reflect upon possessory rights attached thereto. The plaintiff's alleged sale does not cover the entire suit property and is also not from all the heirs of the original owner. Time limitation once started running since the agreement dated 10-7-1971 and possession of the defendant's predecessor since then will not stop and continue to run against any person claiming title through the original owner. The plaintiff's contention of dispossession in 1985 after his purchase of 1984 and the suit for possession filed in 1991 is within time is factually incorrect because defendants' possession is protected and goes back to 1971 which can be successfully pleaded by the defendants in rendering the plaintiff's suit to be barred by time falling after expiry of 12 years.
Findings on issues Nos.3, 4 and 9 are reversed. In view of above discussion I accept the appeal, set aside the impugned judgment and decree dated 24-10-1993 and dismiss the suit with costs."
The learned Additional District Judge, Khushab did not read the contents of the agreement to sell dated 10-7-1971 in which there is no mention of the delivery of possession to the predecessor- ininterest of the respondents and his observations in Paragraphs Nos.9 and 10 as quoted above regarding the respondents being in possession of the subject property under the agreement to sell dated 10-7-1971 Exh.D1 is baseless, illegal, incorrect and 'is not sustainable in the eye of law.
16. It is a settled proposition of law that where the judgments of the two courts below are at variance, the learned first appellate court is under a legal obligation to meet and analyze the reasoning of the learned trial court and then record the contrary finding if permissible on account of the available record. Reliance in this respect is placed upon the judgment reported as Ch. Muhammad Shafi v. Shamim Khanum (2007 SCM R 838). The finding and observations of the learned first appellate court that the respondents or for that purpose their predecessor-ininterest were in possession of the subject property on the basis of agreement to sell dated 10-7-1971 is not supported by the contents of the agreement to sell Exh. D I.
17. Section 53-A of the Transfer of Property Act, 1882 is reproduced:-- "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 therefore 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. "
18. The application of section 53-A of the Transfer of Property Act, 1882 as argued by the learned counsel for the respondents in his defence, although was not specifically taken before the courts below but being a question of law can be analyzed by this Court. The doctrine of part performance and protection of possession under an unregistered agreement to sell is applicable only if there is an unequivocal proof of the existence of the agreement to sell and the delivery of the subject property to the vendee under the sale agreement and this contention is a sine qua non for claiming protection of possession under section 53-A of the Transfer of Property Act, 1882. Reliance in this respect is placed upon the judgment reported as Ali Rehman v. Fazal Mehmud and 8 others (2003 SCM R 327). It is further laid down in the reported judgment Sardar Mahomed Tahir v. K.B.Mian Pirbux (AIR 1932 SIND 42) that where the defendant of a suit takes an illegal possession of the subject property the provisions of section 53-A of the Transfer of Property Act, 1882 cannot be pleaded by such a defendant.
19. Another principle of law which is relevant in view of the facts and circumstances of the instant case is that the alleged agreement to sell claimed as a defence or a shield for seeking protection of the possession by the vendees of the subject property is that the agreement to sell must have been capable of enforcement at the time when the defence of the doctrine of part performance is pleaded. Respectfully reliance is placed upon the judgments reported as Raju Roy and others v.
Kasinath Roy and others (AIR 1956 PATNA 308) and Messrs Saudi Arabian Airlines through Sales Manager, Lahore and another v. Miss Hira Khan and another (2002 CLC 204). The predecessor-in- interest of the respondents admittedly instituted a suit for specific performance of the agreement to sell dated 10-7-1971 in his life time which was dismissed although on the point of limitation and his appeal was also dismissed but the established position in the eye of law remains that the alleged agreement to sell dated 10-7-1971 was rendered incapable of specific performance and lost its all efficacy in the eye of law if any. An agreement to sell does not have any other right created in favour of the vendee except that of seeking the relief of specific performance. The respondents in the instant case were not therefore legally justified to claim the protection of alleged illegal possession taken by them over the subject property and that too under the agreement to sell Exh.D1 which does not specifically speak of the delivery of the possession to them and which agreement to sell was not specifically performed by the learned Civil Courts and the suit instituted by the predecessor-in-interest of the respondents was dismissed.
20. The case-law produced by the parties as noted above has little relevance in view of the legal position and analysis of the evidence made by this Court as noted above.
21. In view of the above the judgment and decree passed by the learned first appellate court dated 20-1-2000 is not sustainable in the eye of law and is accordingly set aside and the judgment and decree of the learned Civil Judge dated 24-10-1993 is restored.
22.. The instant civil revision is accepted. The suit instituted by the petitioner is ordered to be decreed with costs through out.