JUDGMENT: Mohammad Azam Khan, C.J. The appellant filed a declaratory suit with specific prayer of perpetual injunction and possession in respect of the land measuring 4 kanal, 9 marla, comprising (old) survey No.43, (new) survey Nos.76 & 77, situate at village Kardala Chanjala, Tehsil & District Muzaffarabad in the Court of Civil Judge, Muzaffarabad on 29th April, 1999, against the defendant- respondent, herein. The respondent, Syed Munir Hussain Shah filed a suit for declaration and perpetual injunction in respect of the same land on 12th January, 2002, on the ground that he has purchased the land through oral sale. He also challenged the sale-deed executed on 25th January, 1987, by Habibullah in favour of the appellant, herein. After necessary proceedings, the trial Court through judgment and decree dated 30.11.2004 dismissed the suit filed by the appellant, herein, whereas the suit filed by the respondent was decreed on the ground that the oral sale is recognized under section 3 of the Transfer of Land Validation Act, 2003 (Bik). The appellant challenged the said judgment and decree by way of appeal in the Court of District Judge. The same was dismissed. Second appeal filed by the appellant before the High Court was also dismissed through the impugned judgment and decree dated 18th August, 2014, hence this appeal by leave of the Court.
2. Mr. Muhammad Yaqoob Khan Mughal, Advocate, counsel for the appellant, submitted that the Courts below fell in error of law and facts while resolving the legal controversy involved in the case.
The learned counsel submitted that the Courts below have declared that the oral sale is recognized under section 3 of the Transfer of Land Validation Act, 2003 (Bik). He submitted that the Act was enforced on 16th Katik 2003/(1st November, 1946). Section 3 only recognizes the oral sales which took place before the enforcement of the said Act and mutations were registered on the basis of such oral-sales. The learned counsel submitted that after the enforcement of the Act, the oral sales are no more recognized under law. The suit was filed on 11th January, 2000. The case is not covered under the provisions of Transfer of Land Validation Act, 2003 (Bik)/1946 A.D. On merit, the learned counsel submitted that the witnesses of the defendant-respondent, herein, have stated in the Court that the land was allotted to Habibullah in the year 1968 and the respondent, herein, had been paid Ghalla Batai to Habibullah. The case suffers from misapplication of law as well as misreading and non-reading of the record. He requested for acceptance of appeal.
3. While controverting the arguments, Mr. Asghar Ali Malik, Advocate, counsel for the respondent, submitted that the respondent filed the suit for declaration, alleging therein, that he purchased the land through oral sale in the year 1975 from Habibullah and promised to transfer the land after obtaining the proprietary rights of the land. The learned counsel submitted that this fact was not specifically denied by Habibullah. There is only an evasive denial, as such the claim of rival plaintiff-respondent, herein, is admitted. The learned counsel submitted that the decree for declaration was not valid, thus the respondent was entitled for moulded relief of specific performance of agreement. The learned counsel argued that the rival plaintiff-respondent proved his case from cogent and reliable evidence. He lastly argued that there are concurrent findings of facts recorded by the two Courts below which have been affirmed by the High Court. There is no misreading and non-reading of the record. The learned counsel while relying upon the case reported as Ch. Muhammad Saeed Majheana, Advocate vs. Muhammad Anwar-ul-Haq and others [2000 YLR 280], requested for dismissal of the appeal.
In the case reported as Ch. Muhammad Saeed Majheana, Advocate vs. Muhammad Anwar-ul-Haq and others [2000 YLR 280], it was observed by the Lahore High Court that the practice of transfer of property through oral sale is not unknown in our society and it is common knowledge that in the matter of agricultural property, people do transact through oral sale."
4. We have heard the learned counsel for the parties and perused the record. The appellant filed a declaratory suit with the prayer of perpetual injunction and possession in respect of the suit land on the ground that he is owner of the land on the basis of sale-deed executed on 25th January, 1987. The respondent is in illegal possession of the land. In the new settlement, he claimed that he is owner of the land. The respondent filed counter suit for declaration against the appellant and another on the ground that he has purchased the said land through oral sale from Habibullah, the allottee of the land. He also prayed for cancellation of the sale-deed executed on 25th January, 1987, by Habibullah in favour of the appellant, herein. The trial Court dismissed the suit filed by the plaintiff, appellant, herein and decreed the suit filed by the respondent on the ground that the oral sale of rival preemptor is proved. Firstly; the legal point whether oral sale is recognized and validated or not, has to be resolved. The Transfer of Land Validation Act, 2003 (Bik)/1946 A.D. (Act XIV of 2003) was enforced in the State of Jammu & Kashmir on 16th Katik 2003/1st November, 1946.
Section 3 of the said Act, validates the transfer of land. We deem it proper to reproduce the same which is as under:- "3. Validation of transfer of land.- Notwithstanding anything contained in subsection (1) of section 138 of the Transfer of Property Act, 1977, all transfers of land made before this Act comes into force, by oral agreements or, if in writing by unregistered deeds, mutations whereof have been duly sanctioned and not subsequently set aside by any competent authority shall be deemed to have the same effect as if they were in writing and registered in accordance with the provisions of the Registration Act, 1977."
A plain reading of section 3 of the Transfer of Land Validation Act, reproduced hereinabove, shows that the transfer of land made before coming into force of this Act by oral agreement or, if in writing by any unregistered deed, the mutations whereof have been duly sanctioned and such mutations have not been set aside by any competent authority, are validated. Section 3 further provides that such mutations shall have same effect as the land has been transferred through registered document in the light of the provisions contained in the Registration Act, 1977. The transfer of land by oral agreement which took place prior to the enforcement of the Act, the mutations of which were sanctioned and are intact till the enforcement of the Act, have been validated. There is no concept of validation of oral sale which took place after the enforcement of the Transfer of Land Validation Act, 2003 (Bik).
5. The word "sale" has been defined in section 54 of the Transfer of Property Act, 1882 which provides that the transfer of ownership in exchange of price paid or promised to be paid or partly paid and partly promised to be paid, is "sale". The land can be transferred in the light of the provisions of the Transfer of Property Act, through a registered document. If the value of the land is Rs.100/- or upward then in the light of the provisions contained in section 17 of the Registration Act, 1908, the document must have to be registered. The provisions of Transfer of Land Validation Act, 2003 (Bik) are not applicable on the sales of land which took place after the enforcement of the Act. The said act was specifically promulgated and enforced to validate the transfer of land through oral sales etc. As mentioned hereinabove. The provisions of Transfer of Land Validation Act are not applicable.
The oral sales are not recognized by law. It was observed by this Court in the case reported as Khalid Hussain & 3 others vs. Haji Muhammad Rafique and another [2008 SCR 207] as under:- "5. It may be stated at the very outset that according to Muhammad Bostan, appellant, he had purchased the land through an oral agreement-to-sell. Under section 54 of the Transfer of Property Act, a contract to sell doesn't transfer title in the immovable property; it does not create even charge on the property muchless any title...."
Thus, decree of the trial Court as well as the appellate Courts on the ground of the Transfer of Land Validation Act, 2003 (Bik) is not maintainable.
7. The plaintiff/appellant filed suit for declaration with the prayer of perpetual injunction and possession on the ground that he has purchased the land through sale-deed registered in year 1987. He claimed that previously the father of the defendant, Syed Mir Hussain Shah was in illegal possession of the land and later on, the defendant is in possession of the same. The suit was filed on 29th April, 1999. After a period of 9 months, the defendant-respondent, Syed Munir Hussain Shah, filed a declaratory suit wherein he claimed that his father has purchased the land from Habibullah, allottee against a price of Rs.30,000/-, out of which, he paid Rs.25,000/. He also claimed that the sale-deed executed by Zaib-un-Nisa, the sole surviving daughter of the allottee, Habibullah was kept secret. The lower Courts observed that the sale-deed dated 25th January, 1987, confers no right in the plaintiff because it is just a piece of paper.
8. We have carefully perused the record. Admittedly, the disputed land was an evacuee property which was allotted to one Habibullah. After his death the sole surviving daughter Zaib-un-Nisa was declared as allottee. She procured the Proprietary Rights Transfer Order and sold the land to the appellant through registered sale-deed on 25th January, 1987. The said sale-deed is a valid document which confers ownership/title in the plaintiff-appellant, herein. The plaintiff-appellant claimed in his suit that the rival plaintiff, respondent, herein, was already in possession of the land at the time of registration of sale-deed. He has filed the suit on the basis of title. This Court in the case titled Feroz Din Khan vs. Muhammad Latif Khan & 5 others [PLJ 2012 SC (AJ&K) 46], has observed that an owner of the land, if he sues on the basis of title, can file a suit for possession at any time. It was observed as under:- " ...Article 142 of the Limitation Act is applicable only if a suit for possession of immovable property is filed on the ground that the party was in possession of land and has been dispossessed or its possession is discontinued, but when a suit for possession of immovable property is filed on the basis of title, then Article 142 is not applicable and Article 144 governs the period of limitation. After the deletion/omission of Article 144, no other Article of the Limitation Act governs the limitation for filing a suit on the basis of title or interest in the property. This brings us to the conclusion that there is no period of limitation for filing a suit for possession of immovable property on the basis of title. A true owner can file a suit for possession of immovable property anytime on the basis of title."
Mere illegal possession confers no right in a person and declaratory decree for ownership cannot be passed in favour of a person who is in illegal possession of the land. The defendant, rival plaintiff claimed that he is in possession of the land on the basis of oral sale. As we have already declared that oral sale is not recognized in law and possession of rival plaintiff, respondent herein, is illegal, he has no legal right to remain in possession of the suit land. The appellant is entitled for possession.
9. The appellant, herein, filed suit bearing No.180 for correction of the entries in the sale-deed by way of omission of boundaries of the land mentioned in the sale-deed. The defendant filed a cognovit and stated that no boundaries were asked to be mentioned. The scribe of the sale-deed incorrectly mentioned the boundaries in the sale-deed. He has no objection if a decree for correction of entries regarding boundaries of the land in the sale-deed is passed. The matter of sale of the land is between the vendor and vendee. The vendor who sold the land has admitted in the written statement/cognovit that she has no objection if the corrections are made in the sale- deed. The trial Court as well as the appellate Courts have drew the incorrect conclusion. The appeal is accepted and the requisite decree in suit No.180 titled Syed Mahram Shah vs. Ghulam Mustafa is passed. The boundaries of survey numbers mentioned in the sale-deed are omitted.
10. The second suit bearing No.171, filed by the appellant was of declaration cum-perpetual injunction along with the decree for possession, whereas the rival plaintiff, respondent herein, filed suit for declaration on the basis of oral sale. The trial Court while dismissing the suits filed by the plaintiff, appellant, herein, decreed the suit filed by the rival plaintiff, respondent herein. As we have concluded hereinbefore that the oral sale is not recognized by law, the plaintiff appellant, herein, has validly purchased the land through a registered sale-deed, therefore, we are constrained to accept the appeal and set aside the judgment and decree of the High Court as well as the Courts below. Resultantly, the suit filed by the appellant, herein, bearing No.171, filed on 29th April, 1999, titled Syed Mahram Hussain Shah vs. Syed Munir Hussain Shah is decreed, the other suit filed by the plaintiff appellant herein, bearing No.180, is also decreed, while suit No.524, filed by the rival plaintiff, respondent herein, titled Syed Munir Hussain vs. Syed Mahram Shah is dismissed.
The appeal is accepted in the terms indicated above. There will be no order as to costs.