MUHAMMAD NOOR MESKANZAI, C.J.---The present petition calls in question the legality and validity of the judgment and decree dated 28th May, 2007 passed by the learned Additional District Judge- V, Quetta in Civil Appeal No.240/2006, whereby the judgment and decree dated 11th October, 2006 passed by the learned Senior Civil Judge-II. Quetta was reversed and the suit filed by the plaintiff was dismissed.
2. Facts, of the case in brief, are that the petition filed a suit for "Declaration, Specific Performance, Transfer of Revenue Entry and Injunction" in the court of Civil Judge, Quetta with the averments that the petitioner/plaintiff had purchased a piece of land from the respondent/defendant No.1, measuring 9000 square feet bearing Khewat No.9, Khatooni No.10, vide mutation No.68 against sale consideration of Rs.5,13,000/- (Rs.57/- per square feet) situated in Mohal Karez Adam, Mouza Ahmed Khanzai, Tappa Kaichi Baig, Tehsil and District Quetta (herein-after called the disputed property). The plaintiff paid a sum of Rs.473,000/- to the defendant No.1 in installments within six months, while the remaining amount of Rs.40.000/- were agreed to be paid at the time of mutation. An agreement in this regard was executed between the parties on 5th May, 1998 and possession of the disputed property was delivered to the plaintiff. Thereafter. the plaintiff started construction of houses over the plot; the defendants Nos.3, 4 and 5 posed themselves to be the owners of the said plot and with the intervention of defendant No.1, the plaintiff constructed two houses by spending an amount of Rs.350,000/-. The houses are in possession of the plaintiff. Later- on, it transpired that the disputed property, as per mutation No.68 is in the name of one late Mst.
Murad Bibi and others i.e. the mother of defendant No.2, while the defendant No.1 had purchased the same from defendant No.3 in the year 1996-1997. Nevertheless, he could not transfer the property for the reasons best known to the defendant No.1, however, the agreement pertaining to sale transaction was shown by the defendant. No.1, which was executed between the defendants Nos.3 and 1, thus the plaintiff on the basis of a valid agreement started raising construction on the disputed property without any objection from any, corner. After few months the defendant No.3 again started interference and tried to grab the disputed property by posing himself as well as defendants Nos.4 and 5, to be the owners of the disputed property. It was averred that at the time of sale agreement, the defendant No.1 had agreed to transfer the mutation on receipt of remaining amount of Rs.40,000/-, who after receiving the amount started playing delayed tactics on one or the other pretext. The plaintiff issued a legal notice to the defendant No.1 calling upon him to transfer the mutation in favour of the plaintiff, which was returned unserved.
3. The defendant No. 1 while filing written statement admitted the sale agreement executed by him in favour of the plaintiff, receipt of payment and the delivery of possession to plaintiff and urged his earlier purchase of disputed property from the defendant No.3, whereas, the defendants Nos.3 to 5 contested the suit and claimed ownership. However, the purchase of the disputed property by the plaintiff, construction of houses and possession of the plaintiff were not denied and disputed.
4. The learned trial court out of the pleadings of parties, framed following issues: "1. Whether suit is liable to be dismissed in view of legal objections 'A', 'B', 'C'. 'D', 'F' of the written statement?
2.Whether the plaintiff and defendant No.1 entered into agreement dated 5-5-1998?
3.Whether the plaintiff is in possession of the property in question and has raised construction upon the same sending (sic) Rs. 350, 000/-?
4.Whether the plaintiff is entitled for relief (sic) claimed?
5.The relief?"
5. To substantiate his claim, the petitioner/plaintiff produced five PWs and exhibited the sale agreement as Ex:P/1-A. The respondent No.1 did not produce any evidence, however; the defendants Nos.2 to 5 examined DW-1 Ali Muhammad and their attorney Raz Muhammad also entered the witness box.
6. On conclusion of trial, the trial court vide judgment and decree dated 11th October, 2006 decreed the suit. Feeling aggrieved of the above referred to judgment and decree the defendants Nos.3 to 5 filed an appeal before the learned District Judge, Quetta which was later on transferred to the file of learned Additional District Judge-V, Quetta. The appellate court vide judgment and decree dated 28th May, 2007, set aside the judgment and decree passed by the trial court and dismissed the suit, hence the instant revision petition.
7. The process issued to the respondents Nos. 1 and 2 was returned with the report that the said respondents have lost interest in proceeding with the matter, as such, vide order dated 13th March, 2015 they were proceeded against ex partee.
8. The learned counsel for the petitioner reiterating the grounds mentioned in the petition stated that the petitioner established his case by producing tangible and confidence inspiring evidence.
The learned trial court after proper appraisal of the material available on record rightly decreed the suit. The findings of the appellate court are based on misreading of evidence and mis- appreciating the facts. The appellate court illegally, unlawfully and without any plausible justification reversed the finding drawn by the trial court.
On the other hand, learned counsel for the defendants/ respondents Nos. 3 and 4 while refuting the contentions of learned counsel for the petitioner, stated that the appellate court rightly set aside the Judgment/Decree passed by the trial court because the petitioner failed to prove his case.
9.I have considered the contentions advanced by the learned counsel for the parties and perused the record of the case. The perusal record reflects that the judgment passed by the trial court was not available, therefore, the record of appellate court was requisitioned. Admittedly, there is conflict of opinion between the lower forums and reversal of the decree mainly revolves around P.L.Os, therefore, I would like to discuss, dilate upon legal objection some what exhaustingly and each issue would also be dealt with separately. Issue No.1 pertains to a couple of P.L.O. i.e. A, B, C, D & F.
10. The objection 'A' which pertains to registration of document has been dealt with by the appellate court contrary to law for a couple of reasons. Firstly. because there was a contract duly executed and signed by the transferor i.e. predecessor-in-interest of respondents Nos.1 and 2.
Secondly, this document was produced and exhibited as Exh:P/1-A without any objection and remained undisputed so far as the petitioner and predecessor-in-interest of respondents Nos.1 and 2 is concerned. The document Exh:P/1-A unequivocally provides for transfer of property by specifically mentioning Khewat Khatooni, Khasra number and measurement thereby the transfer of the property is reasonably ascertainable. Thirdly, the possession was delivered as part performance of the contract by the transferor to the transferee and this aspect is not only undisputed rather admitted. Fourthly, the petitioner continues to be in possession and has done something more in furtherance of contract i.e. raised construction to the notice of respondents.
Fifthly, the petitioner has performed his part of contract and has paid a sum. of Rs.4,73,000/- as valid consideration and even now is ready to make the payment of the remaining amount i.e. Rs.40,000/-. Sixthly, the petitioner is a bona fide purchaser and in peaceful possession against valid consideration right from the day of transaction. The above stated admitted characteristics of the document inevitably attract the provisions of section 53-A of the Transfer of Property Act. 1882 and, therefore, the petitioner was/is legally entitled to the benefits of section 53-A of Transfer of Property Act, 1882 which was illegally withheld by the appellate court. The prerequisites of a document warranting attraction and applicability of section 53-A of the Transfer of Property Act, 1882 has been enumerated by the Hon'ble Supreme Court in the judgment 'titled as Abdul Ghani v. Abrar Hussain reported in 1999 SCM R 348 which applies on all fours to the facts of the instant case.
In the first case, this Court held that in order to apply section 53-A of the Transfer of Property Act, 1882, the following A ingredients are necessary: (i)There is a-contract in writing signed by the transferor in respect of an immovable property; (ii)from the writing, transfer can be ascertained with reasonable certainty; (iii)in part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and (iv)the transferee has performed or is willing to perform his part of the contract; (v)if all these conditions are satisfied, then even if the contract is not registered, the transferor or any person claiming under him cannot enforce any right in respect of the property of which the transferee has taken possession except such right, which a transferor is entitled to enforce by virtue of the contract.
11. Similarly, the proviso (1) to section 50 of the Registration Act, 1908 apply with full force in the instant case and it can safely be concluded that the appellate Court while dealing with this objection was ignorant of the provisions of section 53-A of the Transfer of Property Act, 1882 and remained oblivious of the proviso (1) to section 50 of the Registration Act, 1908 which reads as under: "Proved that the person in possession of the property under an unregistered documents 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."
Likewise in the judgment titled as Fazla v. Mehr Din reported in 1997 SCM R 837. it was held as under: "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.
All these cases are distinguishable because there section 50 of the Registration Act as amended was not under consideration. It was not even referred. It may be noted that first proviso to section 50(1) of the Registration, Act gives protection to person in possession of the properly under an unregistered document be it an agreement for sale or a contract of sale. It does not make any such distinction. 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 Propel.) Act."
12. In my considered view the petitioner/plaintiff stands fully benefited with the provisions of section 53-A of the Transfer of Property Act, 1882 and thereby protected by the proviso (1) to the Section 50(i) of the Registration Act, 1908.
As discussed herein above, the nature of transaction in the wake of admitted position and on account of the satisfaction of requirements of section 53-A of Transfer of Property Act, 1882 the first proviso to section 50 of the Registration Act, 1908 is fully attracted, hence; the finding on PLO 'A' are hereby reversed.
13.So far as PLO 'B' is concerned, of course, the constraints, limitations and restraints of sections 33 and 35 of the Stamp Act, 1899 were not adhered to by the trial court as neither the instrument was impounded nor the instrument was refused to be admitted in evidence. So much so, even no objection was raised during the course of admission of the instrument. So with this backdrop, the appellate court dealt with the P.L.O. 'B' illegally and contrary to relevant provisions of the Stamp Act, 1899. Once a document is admitted in evidence the legality and validity of the admission with reference to provisions of Stamp Act is beyond the competence of the appellate court. The appellate court referred to sections 33 and 35 of Stamp Act, 1899 but failed to visualize section 36 of the Stamp Act, 1899 which prima facie bars, restrains and D prohibits the appellate court to question the admission of an instrument even if the document has been admitted erroneously. The appellate court had no other option except to have had endorsed the admission of document.
Document either under stamped or unstamped once admitted in evidence, the appellate court is not supposed to entertain any controversy except to the extent permitted under Section 61 of Stamp Act, 1899. Since trial court did not pass any specific order regarding sufficiency or otherwise of stamp on the instrument, therefore, the appellate court could not pass any order under section 61 of Stamp Act. Admittedly, Section 36 comes after sections 12-33 and 35 of the Act, therefore, has got prevailing effect. Further the obvious object of section 35 of Stamp Act is not to invalidate the document and play mischief with the commercial life rather the aim, object and theme is just to collect the public revenue. The appellate court remained oblivious of this philosophy; therefore, the findings are bound to be set at naught. I am supported in my view by the dictum laid down by the Apex Court in the judgment titled as 'Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Sadique' reported in PLD 1978 SC page 279 it was held as under:-- "I would now examine section 35 in some detail. It prescribes that no instrument, which is not properly stamped, shall be admitted in evidence for any purpose . . . or shall be acted upon. . . "
Now merely because an instrument cannot be admitted in evidence for any purpose as because it cannot be acted upon by the persons specified in the section does not mean that such an instrument is invalid, and it is not irrelevant to observe here that the words which 1 have quoted have to be construed strictly, because they are to be found in a provision of a penal nature.
Therefore, it would be against all canons of construction to enlarge the meaning of these words, so as to render invalid instruments which fall within the mischief of the section. After all, instruments, which are not duly stamped, are executed every day, but I venture to think that most persons, who incur obligations under such instruments, honour their liabilities under such instruments, regardless of the provisions of section 35. In any event, this section is attracted only when an instrument is produced before the persons specified in the section. But, for example, an instrument would be produced in evidence only when there is a dispute about it, therefore, if the intention of the Legislature had been to render invalid all instruments not properly stamped, it would have made express provision in this respect, and it would also have provided some machinery for enforcing its mandate in those cases in which the parties did not have occasion to produce unstamped instruments before the persons specified in the section.
Additionally, I find nothing in the section which would support the appellant's plea that an instrument becomes invalid, if it falls within the mischief of the section. After all, if an instrument is invalid, it must be invalid for all purposes, but proviso (d) to the section expressly saves unstamped instruments in most criminal proceedings, whilst the other provisos to the section enable the parties to overcome the disabilities attached to an instrument not properly stamped by paying the requisite duty together with a penalty, therefore; this would suggest that the object of the section is to protect public revenue. Again, if an instrument is invalid, it should not lie admissible in evidence, and it is so stated in section 35. But the next section prescribes that if an instrument has been admitted in evidence, howsoever erroneously, its admissibility cannot be questioned at any stage thereafter, and even the appellate Court's powers to entertain an - objection about the admissibility of documents have been removed by section 61, which instead empowers the, appellate Court to collect the duty payable on the unstamped instrument together with a penalty. These provisions as well as other provisions in Chapter IV of the said Act, such as sections 33, 38, 39 and 40, can only lead to the conclusion that the object of the Legislature in enacting the said Act was to protect public revenues and not to interfere with commercial life by invalidating instrument vital to the smooth flow of trade and commerce.
In this judgment the Hon'ble apex Court further held as under: "I agree with the view taken in these judgments, which coincides with my own views, and, I would hold that an arbitration agreement, which is unstamped or is not properly stamped is subject only to the disabilities specified in section 35 and these disabilities can be removed in the marine prescribed in sections 35 and 36. But such an agreement is not invalid.
Similarly, in the judgment titled as Muhammad Ashiq v. Niaz Ahmed reported in PLD 2004 Lahore page 95 (relevant at page 101) it was held as under: "Mere reading of the aforesaid provisions of law reveals that objection about stamp insufficiently affixed on document cannot be taken when a document is already admitted. Section 35, no doubt, prohibits a Court from admitting, in evidence an instrument which in its view is not duly stamped and also prohibits the Court from acting on such document, yet if the Court wrongly admits such document, Appellate Court is prevented by section 36 of the Act for calling into question the admission in evidence of such an instrument, though it may have been wrongly admitted, meaning thereby the Appellate Court is bound to hold that admission was proper. The aforesaid section was interpreted and laid down the aforesaid principle in Amin Jute Bailing Company Ltd. v. Aminpur Union Cooperative Multi Purpose Society Ltd. PLD 1961 Dacca 102. The relevant observation is as follows: "Now, section 35 of the Stamp Act prohibits a Court from admitting in evidence an instrument which in its view is not duly stomped. This section also prohibits the Court from acting on such document. If the Court, however, wrongly admits such document, the Appellate Court is prevented by section 36 of the Stamp Act from calling in question the admission in evidence of such an instrument, though it may have been wrongly admitted. In other words, the Appellate Court is bound to hold that admission was proper."
14. So far as objections "C" is concerned, in my opinion the findings are absolutely unwarranted and unjustified. Admittedly, the petitioner has purchased the property from predecessor of respondents Nos.1 and 2 who entrusted the possession to petitioner. He raised structure without reasonable objection by the defendants Nos.3 to 5. So in such state of affair, how could it be observed that the petitioner lacks locus standi to file the suit. A suit to sustain under section 42 of the Specific Relief Act, 1877 and remain competent and maintainable requires to reveal and reflect the claim of a right to or interest in subject matter, and a denial or an interest to deny the same by the defendant. Applying this analogy and analyzing on such touchstone, I am fully satisfied that the present suit is competent and maintainable particularly keeping in view the findings drawn on objections "A&B", hence the findings rendered on P. L.O 'C' are reversed.
15.Similarly, the findings drawn qua legal Objection "D" are also in flagrant violation of the relevant provisions of law. The principles for applicability of the provisions of Order VII, Rule 11, C.P.C. are set and settled. The suit was neither hit nor could be hit within the parameters prescribed by any cause of the Order VII, Rule 11, C.P.C. To attract the penal provision of Order VII, Rule 11, C.P.C. the contents of plaint must be accepted as it is and thereafter to ascertain as to whether the plaint stands hit by any provision of the clauses of Order VII, Rule 11, C.P.C. Even otherwise, for the sake of argument, assuming but not conceding, if the suit was liable to be rejected in view of any clause of the Order VII, Rule 11, C.P.C. then in that case the Court was required to have had laid off its hand there and then should have rejected the suit without discussing the merits of the case which course was not adopted by the appellate forum, thus the findings on objection "D" are hereby reversed.
16.So far as legal objection "E" is concerned, the appellate Court itself has observed that suit could not be dismissed on mere technical ground,so it requires no discussion.
17.So far as issue No. 2 is concerned, the appellate court observed that the findings either affirmative or negative would not have any impact on the case of the plaintiff, therefore the findings drawn by the trial Court were not disturbed. However, Issue No. 2 is undisputed because the marginal witnesses of the document were produced and the document was also exhibited but the predecessor in interest of respondents Nos.1 and 2 filed written statement and owned the contents of the agreement dated 15th May, 1998. So in such circumstances the findings of the trial court on issue No. 2 are hereby re-affirmed.
18.As far as issue No. 3 is concerned, the learned appellate Court unjustifiably and for unviable reasons reversed the findings. The perusal of written statement filed by the contesting respondents reveals that the transaction has never been disputed. Besides, no counter claim for possession and cancellation of agreement dated 15th May, 1998 was filed by the respondents Nos.3 and 4. There is no cavil to the fact nor any dispute among the parties that the possession of the petitioner/plaintiff is continuous since 1998 and therefore, now even a suit for possession by contesting respondent may not have a good future. Similarly the structure raised by the petitioner is also undisputed. The statement of attorney for contesting respondents is quite important and significant. The relevant portion of the statement of the attorney for defendants No. 2 and 5 is reproduced herein below:-- {{urdu Text}} In cross-examination, he stated that: {{Urdu Text}}
19. Apart from the evidence produced by the petitioner which is consistent, coherent, and straight forward even the sole statement of the attorney for defendants is sufficient to prove issue No.3. therefore, the findings drawn by the appellate court are hereby reversed.
20.As far as issues Nos.4 and 5 pertaining to relief are concerned, the petitioner in his plaint has requested for a couple of relief, which prima facie and as per the undisputed facts were liable to have been granted. For instance relief "A, C, D, G, H and J" could not have been refused, as were undisputed. Furthermore, in view of the evidence available on record and particularly the statement/stance of the attorney for defendants Nos. 2 to 5 wherein the attorney not only admitted the entitlement of the petitioner for the mutation of the disputed property, rather is not aggrieved of the sale transaction and the grievance is confined only to the non-payment of price. At the cost of repetition, once K again the admission is reproduced: {{Urdu Text}} This admission itself is sufficient enough to entitle the petitioner for the relief(s) prayed for and warrant the drawing of a decree in terms of the plaint.
In view of the above discussion, the petitioner is entitled for the relief as prayed for in the suit: Resultantly the petition is accepted and the judgment/decree passed by the appellate court is hereby set aside and the decree passed by the trial court is hereby up-held.