' The above titled appeals are offshoots of one and the same decree and judgment passed by learned District Judge, Bhimber dated 30.04.2008. It is, therefore, proposed to dispose them off through the same judgment.
2. Facts forming background of these appeals are that Muhammad Sarwar filed a suit for redemption of land under survey No, 1497 measuring 4 kanals 4 marlas, Survey No, 1499'measuring 18 marlas and Survey No, 1500 measuring 3 kanals 3 marlas. The appellant/plaintiff Muhammad Sarwar and others contended in their suits that Muhammad Sarwar, the plaintiff mortgaged the suit land to Muhammad Bashir, the respondent/defendant for a sum of Rs, 4000/-and delivered the possession to the mortgagee. The plaintiff further contended that Muhammad Bashir, the defendant wrote down a receipt of Rs, 4000/- on plain paper, which is under his possession.
Muhammad Sarwar and others, the plaintiffs prayed to the Court for decree for possession of the suit land on payment of mortgage money of Rs, 4000/-.
3. Muhammad Bashir, the defendant filed written statement and denied claim of the plaintiff by contending that suit land measuring 16 kanals 7 marlas was firstly mortgaged in his favour for a sum of Rs, 4000/- and possession of the land was handed over to him, which is continued to date.
He further contended that document of mortgage was written on 21.06.1976 in the presence of witnesses. Later on, Muhammad Sarwar Khan borrowed a sum of Rs, 13,000/-from him and wrote down a document on 02.09.1980 and agreed to return the whole amount of Rs, 17,000/- until 12.09.1980. Muhammad Sarwar further agreed that if he could not return the money within due date, he would be liable to register a sale-deed of the suit land in favour of Muhammad Bashir, the defendant. Muhammad Bashir filed a rival suit for declaration and specific performance of contract as well. Muhammad Bashir in his suit further contended that Muhammad Sarwar did not pay back the money within time fixed, so he is now bound to register a sale-deed in his favour. It has further been averred in the plaint that during proceedings, Muhammad Sarwar, the mortgagor transferred the suit land in favour of his sons Khalid Mehmood and Abdul Khaliq through a gift- deed on 20.02.1990. Muhammad Bashir prayed to the Court for a decree for specific performance of the contract and for cancellation of gift-deed dated 20.02.1990. Both the suits were heard and decided by the trial Court on 17.09.2005. Learned Judge in the trial Court dismissed the suit of Muhammad Bashir for specific performance of contract for want of proof and decreed the rival suit in favour of Muhammad Sarwar and others in the tune that the plaintiffs are entitled to decree for possession of the suit land on payment of Rs, 1,17,000/-. It was further directed that as an amount of Rs, 17,000/- has already been deposited in the Court, rest of the amount R. 1,00,000/- be deposited in the Court within 30 days, failing which, suit of the plaintiff would be deemed to have been dismissed. Mortgage of the property in question was also redeemed through the same judgment and decree.
4. The rival contestants filed separate appeals before the Court of District Judge, Bhimbcr who was persuaded to dismiss the appeal filed by Muhammad Bashir and the other appeal filed by Muhammad Bashir was partly accepted. It was concluded by the first appellate Court that Muhammad Bashir, the appellant is entitled to receive a sum of Rs, 65,009/- from Muhammad Samar. Learned Court below concluded that Muhammad Bashir is entitled to this much amount on account of receipt of Rs, 13,000/- along-with interest of Rs, 52,009/- w.e.f 02.09.1980 to 30.04.2008.
Another appeal filed by Muhammad Sarwar and others was also partly accepted and the mortgage was redeemed for a sum of Rs, 4,000/-.
5. Feeling dissatisfied with the decree and judgment of the Court below, the parties have filed the above titled appeals before this Court. Muhammad Bashir, the appellant in Appeal No, 227/2008 has prayed for a decree for specific performance of contract dated 02.09.1980. In' another Appeal No, 221/2008, Muhammad Bashir has challenged the validity of impugned decree, whereby he has been held entitled to receive an amount of Rs, 65,009/- from Muhammad Sarwar, the respondent.
Muhammad Bashir in his 3rd Appeal No, 206/2008 has challenged the decree, whereby mortgage of the suit land has been redeemed for a sum of Rs, 4,000/-.
6. Raja Khalid Mehmood, learned counsel for the respondents has argued that concurrent judgments of the Courts below cannot be disturbed through second appeal on facts before the High Court. Learned counsel has relied on the following case law:- i 2007 SCR 310; ii. 1998 SCR 76; iii. 1999 SCR 495; and iv. 1998 SCR 244.
7. On the one hand judgments of the Courts below cannot be termed as concurrent findings because the first appellate Court has altered the judgment of trial Court. However, if at all, it is considered that judgments of Courts below are concurrent, a legal question of interpretation of document is involved in the instant case, so argument advanced by counsel for the respondents is weightless.
8. I have heard learned counsel for the parties and examined the record of the Courts below as well. It looks appropriate to reproduce the consolidated issues framed by the trial Court. {{URDU TEXT}}
9. The following points require resolution by this Court, which have been raised during the course of arguments:-
(i) Whether suit for declaration and specific performance of contract filed by Muhammad Bashir is within limitation?
(ii) What is the effect of non-registration of agreement-tosell exhibit "DA" on the suit filed by Muhammad Bashir?
(iii) Whether the document dated 02.09.1980 is an agreement-to-sell? If yes, whether Muhammad Bashir, the appellant/ plaintiff is entitled to decree for specific performance of the contract and on what terms?
(iv) What is the effect of gift-deed dated 20.02.1990 on the rival suits?
10. It looks appropriate to discuss these points one after the other. It is the contention of learned counsel for Muhammad Sarwar and others, the respondents that Muhammad Bashir filed suit for specific performance on 09.05.1985, whereas the purported agreementto-sell was written on 02.09.1980. It has been argued by learned counsel that limitation for such a suit is 3 years, so suit filed by Muhammad Bashir is hit by law of limitation. A perusal of amended suit filed by Muhammad Bashir states in Para 6 that cause of action arose on 12.09.1980 and later it arose 7/10 days prior to the institution of the suit. This contention of the appellant/ plaintiff Muhammad Bashir finds support even from evidence led by Muhammad Sarwar as well. Zia Iqbal, a witness on behalf of Muhammad Sarwar, the respondent/ plaintiff described in his Court statement on 21.06.2005 that Muhammad Sarwar demanded for suit land from Muhammad Bashir and offered to pay-off the mortgage amount of Rs, 4,000/-. It has been admitted by both suitors that mortgage money was not paid back in time. Zia Iqbal, the witness has stated that Muhammad Sarwar offered the mortgage amount to Muhammad Bashir, the appellant who refused to receive the same and arbitration between parties was held several times on the dispute. Abdul Khaliq, one of the respondents/ plaintiffs has also deposed that his father used to go to the shop of Muhammad Bashir for paying off the mortgage amount but the shop usually was found closed. The witnesses have not mentioned dates or year when the arbitration between the parties was held. But this fact reveals that dispute between the parties continued even after the purported agreement-to-sell.
Muhammad Sarwar and others were under obligation to prove the fact that Muhammad Bashir, the appellant never demanded for specific performance of the contract prior to institution of the suit. Question of limitation in such a situation becomes a mixed question of law and facts. In the absence of any clear evidence, it cannot be concluded that suit for specific performance of the contract filed by Muhammad Bashir was hit by law of limitation and we have to believe the version of the plaintiff in this regard.
11. The next point relates to non-registration of purported agreement-to-sell. Learned counsel for the appellant has diverted my attention towards Section 17 of Registration Act, 1908. Second revised edition, authored by Dr. Zia-ul-Tslam Janjua, Advocate describes in commentary that the agreement-to-sell is not a compulsorily registerable document. It has been stated that "A contract of sale of immoveable property though it contains a recital of payment of a part of purchase money of more than Rs, 100 to the proposed vendee, does not require registration). "PLD 1963 (WP)
Peshawar 128 referred. While relying on PLD 1964 (WP) Lahore 490, it has further been laid down that, "agreement-to-sell does not create any present right in property, it only recites an agreement arrived at between the parties that the plaintiff/ respondent would transfer the property in dispute to the defendant/ appellant either by registration of a document or by means of a mutation. It is not a document requiring registration." This view finds support from another judgment reported as PLJ 1977 SC 104. In a case titled Muhammad Ishaq vs. Erose Theatre and others their lordships in the Supreme Court of Pakistan have held that: "It is well settled that an agreement-to-sell or purchase immoveable property does not, by itself create any present right in the property in question; on the contrary it is a document falling within the ambit of Exception 5 as enumerated in sub-section (2) of Section 17 of the Registration Act, namely, a document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immoveable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, etc. Such a right. (AIR 1930 Pat. 601) referred."
12. The aforementioned citations are clear on the subject that agreement-to-sell is a document, which does not require compulsory registration because it does not create, extinguish or assign a right in itself. The argument of learned counsel for the respondents is, therefore, weightless.
13. The 3rd point relates to status of agreement dated 02.09.1980. Muhammad Bashir, the appellant claims that this is an agreement-to-sell, whereby Muhammad Sarwar, the respondent has agreed to pay off a sum of Rs, 17,000/-, failing which Muhammad Sarwar has further agreed to transfer the property under Survey Nos. 1497, 1499 and 1500 measuring 15 kanals in favour of Muhammad Bashir. It is pertinent to mention here that Muhammad Sarwar Khan, the respondent executed a document in favour of Muhammad Bashir on 21.06.1976, whereby he mortgaged the suit land to Muhammad Bashir for a sum of Rs, 4,000/- and delivered possession of the land as well. It is interesting to observe here that Muhammad Samar has not even admitted execution of document dated 21.06.1976, which is part of the file of the trial COurt as exhibit "DF". Muhammad Sarwar, in Para 2 of his plaint has contended that he mortgaged the suit land to Muhammad Bashir for a sum of Rs, 4,000/- but the mortgage was orally executed. He has further contended that he wrote down a receipt of Rs, 4,000/- in favour of Muhammad Bashir on a plain paper. Muhammad Sarwar, the respondent/ plaintiff has denied the execution of agreement dated 02.09.1980 as well. However, it has been proved through evidence that both the documents dated 21.06.1976 and 02.09.1980 were executed by Muhammad Sarwar Khan in favour of Muhammad Bashir. Before proceeding further towards the genuineness and effect of agreement dated 02.09.1980 it would suffice to state that Muhammad Sarwar, the respondent admits that the suit land measuring 16 kanals 7 marlas was mortgaged in favour of Muhammad Bashir for a sum of Rs, 4,000/, Although Muhammad Sarwar claims that said mortgage was orally agreed between the parties, however, the document dated 21.06.1976 exhibit "DF" supports the view that the suit land was mortgaged in favour of Muhammad Bashir for a sum of Rs, 4,000/-.
14. As a principle of law, the best interpretation of a document is to extract apparent meaning after bare perusal of such a document. It may further be added here that parties to a contract are bound by the wording and conditions specified in the document. Before discussing the dispute that whether document dated 02.09.1980 stands proved via evidence, it looks appropriate to define status of this document. For proper appreciation, wording of the document exhibit "DA" dated 02.09.1980 is reproduced as under: {{URDU TEXT}}
15. A perusal of the aforementioned document shows that certain facts have been stated therein.
Muhammad Sarwar, the deponent has admitted that he owes a sum of Rs, 17,000/- in the shape of domestic goods and cash money to Muhammad Bashir who happens to be a shopkeeper.
Muhammad Sarwar has further agreed to pay off the amount of Rs, 17,000/- up to 12.09.1980, failing which Muhammad Sarwar has agreed to transfer the suit land measuring around 15 kanals under Survey Nos. 1497, 1499 and 1500 situated in Dheri Karala through a deed. Muhammad Sarwar further agreed that he would be entitled to take possession of the suit land after harvesting the Khareef yield of the land and after payment of money to Muhammad Bashir.
16. The word "{{URDU TEXT}}" in local dialect reflects the meaning of mortgaged property. This translation of the term has not been disputed by learned counsel for the parties, during the course of arguments. So, it has been admitted by Raja Muhammad Sarwar Khan, the deponent that suit land had already been mortgaged. So far as, the words "{{URDU TEXT}}" are concerned, it means nothing else than transfer of land to Muhammad Bashir, the mortgagee through a deed. The facts mentioned in the document are clear that Muhammad Sarwar Khan has accepted that suit land has already been mortgaged for a sum of Rs, 17,000/-. Obviously this amount includes the previous mortgage amount of Rs, 4,000/- as admitted by Muhammad Sarwar himself in his plaint. It has been admitted by Muhammad Samar Khan that if he could not pay-off the money worth Rs, 17,000/- he would be liable to transfer the suit land in favour of Muhammad Bashir through a deed.
By any stretch of imagination this document is nothing else than an agreement-to-sell. It is also relevant to state here that evidence led by Muhammad Bashir states that Muhammad Sarwar got an amount of Rs, 4,000/- as loan from Muhammad Bashir and wrote down a document in his favour on 21.06.1976, whereby he handed-over the possession of the suit land. Later on, Muhammad Sarwar borrowed another sum of Rs, 13,0001-, so the total amount beefed up to Rs, 17,000/, At the stage of borrowing amount of Rs, 13,000/-, Muhammad Sarwar executed a document exhibit "DA" in favour of Muhammad Bashir with the condition that if he could not pay back the amount of Rs, 17,000/- until 12.09.1980, he would be liable to transfer the suit land in favour of Muhammad Bashir through a deed. Witnesses appearing before the trial Court on behalf of Muhammad Bashir, the appellant herein have stated the document exhibit "DA" as agreement-to-sell.
17. Now the question arises that whether the purported agreement-to-sell dated 02.09.1980 stands proved via evidence? In order to prove a document in accordance with provisions of Qanoon- eShahadat Order, 1984, it ought to be proved through statement of its author and the marginal witnesses. The document exhibit "DA" shows that it has been authored by Naib Subedar Abdul Hai, and as many as 4 marginal witnesses have inscribed their signatures on the document. Moreover, Muhammad Sarwar, the executor has also inscribed his signature on the document. Muhammad Sarwar opted to deny the genuineness of the document in question, whereupon Muhammad Bashir, the appellant, herein, filed an application before the trial Court for sending the document to the handwriting expert for his opinion. Muhammad Ashral Malik, retired SP/Director Forensic Science Laboratory, after scrutinising the document exhibit "DA" and after having a comparison of his signature, prepared a report and submitted it before the trial Court. The expert was later on called upon to record his statement before the trial Court, which was accordingly recorded on 12.04.2001. In his statement as handwriting expert, Muhammad , Ashraf Malik has stated that purported signature of Muhammad Sarwar on document exhibit "DA" has been inscribed by him and non-else. It may be stated here that during cross-examination on the expert witness, nothing adverse could come up which could be read in favour of Muhammad Sarwar, the respondent.
Requirement of proof through marginal witnesses has, therefore, exhausted.
18. Another question arises that whether a mortgagor can subsequently enter into an agreement- to-sell. Learned Courts below have recited in the impugned judgments, the old principle of "once a mortgage always a mortgage". I have no doubt in my mind that a mortgage property cannot be sold unless the mortgage has been redeemed. But the situation is a bit different here because the mortgagor Muhammad Sarwar is himself a deponent of agreement-tosell. In my humble view, the mortgage stood redeemed no sooner than he agreement-to-sell dated 02.09.1980 was executed by the mortgagor himself. Learned Courts below have skipped to consider this aspect of the matter. It may again be mentioned here that Muhammad Sarwar Khan, the mortgagor has admitted in the document of agreement-tosell that he agrees to sell the mortgaged land in favour of Muhammad Bashir for a sum of Rs, 17,000/-. Original mortgage money is. Admittedly Rs, 4,000/-.
Obviously, Muhammad Sarwar borrowed some more money worth Rs, 13,000/- in the shape of cash from Muhammad Sarwar and was, thus, compelled to execute the document on 02.09.1980.
Learned counsel for the appellant has referred to 2004 SCMR 1140 SC Pakistan, wherein Section 12 of Transfer of Property Act, has been discussed. The same proposition came before their lordships in the Supreme Court of Pakistan. The suit land was previously mortgaged and later on the mortgagor entered into an agreement-to-sell. Relevant portion of judgment is reproduced hereunder: "We have considered the contentions advanced by the learned counsel for the parties and have perused the entire material brought on record with their assistance. A perusal of the documents annexed with the petition demonstrates that an agreement-to-sell, dated 15-10-1978 Exh.P.1 of Hidayat with Muhammad and subsequent payment of Rs, 20,000 (Exh.P.2) have been established on record through independent and reliable evidence. The petitioner took wavering stances; at one place he stated that the disputed property was not exclusively mortgaged with Hidayat as there were mortgagees of different shares while in the memo. Of appeal before the High Court, the opening sentence starts with the averment that one Muhammad owned agricultural land which he mortgaged with Hidayat respondent. There are concurrent findings of fact determined by both the Courts below against the petitioner which have been affirmed by a learned Single Judge of the Lahore High Court. We fail to understand on what basis the petitioner allegedly exchanged the land with Muhammad of which he could not get possession, as the same admittedly was mortgaged with Hidayat Learned counsel for the petitioner has failed to point out any legal infirmity in the judgment impugned warranting interference by this Court."
19. Therefore, it stands established that a mortgagor can subsequently enter into an agreement- to-sell in favour of mortgagee, validly. It is, therefore, concluded that Muhammad Sarwar, the respondent herein executed an agreement-to-sell in favour of Muhammad Bashir, the appellant, herein. Muhammad Sarwar could not fulfil the condition of paying off the borrowed money within prescribed time and is, therefore, liable to execute a sale-deed in favour of Muhammad Bashir.
20. So far as, the question of execution of gift-deed dated 20.02.1990 is concerned, it has obviously been executed during trial of the rival suits. Under Section 52 of the Specific Relief Act, such an execution is not valid. The rule of us pendens is to protect plaintiff against alienation of property during pendency of suit in favour of third party. Rule of lis pendens would take effect the very moment suit is instituted and would remain operative up to the time suit comes to its final end in all respects without effecting rights of decree holder. 1987 MLD 394, 1990 CLC 670, PLD 1988 Lah. 717 and PLJ 1990 Lah. 106 relied. There is yet another aspect of the matter. Necessary ingredients of a valid gift under Mohammadan Law are (i) offer by the doner, (ii) acceptance by donee, and (iii) delivery of possession to the donee. In the instant case first two ingredients of the gift look to have been fulfilled but the 3rd necessary ingredient of delivery of possession has not been fulfilled.
Possession of the gifted property, admittedly lies with Muhammad Bashir. Muhammad Sarwar and his sons have filed a suit for possession of the same land, so, delivery of possession has not been made to the donees. Gift-deed dated 20.02.1990 is, therefore, defective and has no legal effect.
' Nutshell of the above discussion is that by setting aside the judgments and decrees of the Courts below appeals filed by Muhammad Bashir are accepted in the terms that Muhammad Bashir is entitled to decree for specific performance of contract of the suit land for an amount of Rs, 17,000/-. The amount has already been received by Muhammad Sarwar, the respondent herein, he is, therefore, directed to execute a sale-deed of the suit land under Survey Nos. 1497, 1499 and 1.500 situated at village Dheri Karala, Tehsil Smahni measuring 16 kanals 7 marlas within 30 days, failing which, the sale-deed shall be executed through Nazir of the Court of Sub Registrar Bhimber. Suit filed by Muhammad Sarwer and others for redemption of mortgage stands dismissed as a result.
No order as to costs.