MOHAMMAD AZAM KHAN, C.J.---The titled appeal with leave of the Court arises out of the judgment and decree of the High Court dated 21st January, 2013, whereby the appeal filed by the appellants, herein, has been dismissed.
2. Respondent No.1 filed a suit for specific performance on the basis of agreement to sell executed on 18th February, 1997 by one Feroze Din in respect of the land measuring 5 kanal, 18 marla, bearing survey Nos. 1012, 1013, 1014, 1027 and 1028, situate in village Jamalpur Aghar, Tehsil Kotli. After necessary proceedings the Additional District Judge Kotli passed a decree for specific performance of agreement. Dissatisfied from the judgment and decree of the Additional District Judge, the appellants, herein, filed an appeal in the Azad Jammu and Kashmir High Court. The learned Chief Justice in the High Court dismissed the appeal vide impugned judgment on 21st January, 2013 hence this appeal by leave of the Court.
3. Mr. Muhammad Ayub Sabir, Advocate, the learned counsel for the appellants, argued that the judgment and decree of the High Court is against the law and not maintainable. The agreement- to-sell is an unregistered document. Under the provisions of the Registration Act, 1908, if a document confers some right in respect of property, value of which is Rs.100/- or above, it needs compulsory registration. Unregistered document confers no right, therefore, the decree on the basis of such document is against the law and not maintainable. The learned counsel submitted that the possession of the land is with the appellants. They are owners of the land. The suit has been filed only for specific performance of agreement. Without consequential relief of possession, the suit was not maintainable. It was liable to be dismissed on this sole ground. The learned counsel argued that agreement-to-sell was executed on 18th January, 1997. The plaintiff- respondent, herein, made a cutting on it and changed the date from 18th January to 18th February, 1997, therefore, he was not entitled for equitable relief. The learned counsel further argued that the period stipulated for execution of the agreement was two months. The suit was filed beyond the period of limitation, therefore, it was not maintainable. The learned counsel lastly argued that there is a condition in the agreement-to-sell that if party No.1 fails to execute sale-deed, party No.2 will be entitled for double amount against the amount paid in advance. At the most the plaintiff- respondent, herein, is entitled for receipt of double amount against the earnest money paid.
Therefore, the judgment and decree of the lower Court as well as the High Court is against the law and not maintainable. These are pure legal questions. He requested for acceptance of appeal.
4. While controverting the arguments of the counsel for the appellants, Mr. Abdul Aziz Ratalvi, Advocate, respondent No.!, himself argued the case and submitted that the judgment and decree of the High Court is perfectly legal. The arguments raised by the counsel for the appellants were not part of the pleadings. He is not entitled to raise these arguments at the stage of the appeal. The learned counsel argued that there is no interpolation or cutting in the date of agreement-to-sell.
The marginal witnesses of agreement-to-sell have stated that the Court inquired Mr. Abdul Aziz Ratalvi that how the suit for specific performance of contract is maintainable in presence of the condition in agreement-to-sell, i.e. The vendee refuses to execute the sale deed, the vendee will be entitled to obtain double amount against the paid earnest money Rs. 200000/- The learned counsel submitted that this point was not raised by the appellants in the written statement, therefore, this point cannot be considered at this stage. He argued that there are concurrent finding of the facts recorded by the two Courts below, which cannot be disturbed by this Court. He requested for dismissal of the appeal.
5. We have heard the learned counsel for the parties and also perused the record. The plaintiff- respondent filed a suit for specific performance of agreement-to-sell dated 18th February, 1997 in respect of land falling in survey Nos. 1012, 1013, 1014, 1027 and 1028 total measuring 5 kanal and 16 marla land. In the written statement, the defendant-appellant, herein, denied the allegation and stated that the plaintiff has not fulfilled the conditions of agreement-to-sell. He, by interpolation, changed the date from 18th January, 1997 to 18th February, 1997 and failed to get registered the sale-deed within a period specified in the agreement-to-sell. The trial Court through judgment dated 20th August, 2007, decreed the suit. An appeal before the High Court was dismissed through the impugned judgment and decree dated 21st January, 2013.
6. The suit filed by the plaintiff-respondent, herein, is based upon agreement-to sell. We deem it appropriate to reproduce the same, which speaks as under:-- {{URDU TEXT}} {{URDU TEXT}} ' A plain reading of the agreementto-sell reveals that Feroze Din executed the said agreement in respect of land falling in survey Nos. 1012, 1013, 1014, 1027 and 1028 that he is owner of half of the land.
He stated that he will sell his shares from the said survey number including the houses against a price of Rs. 500000/- per kanal. The earnest money of Rs. 200000/-has been received in presence of the witnesses. A condition was imposed that Abdul Aziz Ratalvi, Advocate shall pay the remaining, price within a period of two months. He will be bound by the terms of agreement and in case of any unforeseen event, his legal heirs will be bound by the agreement. If the vendor fails to execute the sale-deed then he will pay the double amount of the earnest money and if the vendee fails to get the land registered within time fixed, then he will be deprived of his earnest money.
According to the terms of agreement, the plaintiff was bound to pay the remaining price to the vendor and get the sale- deed registered and if the vendor fails to execute the sale-deed then the vendee is entitled to receive the double amount against the amount of earnest money. There is no condition in the agreement-to-sell that in case of failure of the vendor, the vendee shall be entitled for decree for specific performance. Had there been a condition in the agreement-to-sell then the vendee would have been entitled to file a suit for specific performance of agreement-to-sell. From the terms and conditions it is crystal clear that the respondent, vendee was only entitled for receiving an amount double of the earnest money which was paid to the vendor. Similar- proposition came under consideration by this Court in the case titled Walayat Khan and another v.
Muhammad Razzaq and others (Civil Appeal No. 89/1998, decided on 23.4.1999) where the part performance of the contract was made by payment of earnest money. This Court observed that there is a condition in agreement-to-sell that in case of failure of the vendor to execute the sale- deed, the vendee will be entitled to receive back the earnest money.It was observed in para 5 of the referred judgment as under:- "5. We have given due consideration to the matter and also perused the contents of the agreement-to-sell. It is amply clear from the contents of the agreement to-sell that Mst. Daulat Bibi undertook to pay back the consideration amount of the said agreement and rupees two lac as damages in case she did not execute the sale-deed in favour of the plaintiffs-appellants. In the instant case, she failed to do the needful within the period stipulated in the agreement-to-sell and instead afterwards transferred the land to Muhammad Razzaq, respondent. Thus, in view of the terms of the contract, the plaintiffs-appellants are only entitled to rupees three lac, the consideration of agreement-tosell, and rupees two lac as damages for the breach of the contract and nothing more. We are unable to subscribe to the contentions of the learned counsel for the appellants that there was any understanding between Mst. Daulat Bibi and the plaintiff-appellants to the effect that the sale-deed of the suit land would be invariably executed in favour of the plaintiffs-appellants, irrespective of the terms of the agreement-to-sell in question. It may be observed that such a stipulation was neither pleaded nor the same could be proved in derogation to the provisions contained in sections 102 and 103 of the Qanun-e-Shahadat. Therefore, we are of the opinion that the learned counsel for the appellants cannot be heard saying that Mst. Daulat Bibi or for that matter her legal representatives were legally bound to execute the sale-deed in favour of the plaintiffs-appellants."
From the recital of agreement-tosell allegedly executed on 18.1.1997/ 18.2.1997 it is explicitly evident that no cause of action for filing the suit for specific performance is available to the plaintiff- respondent, herein.
7. We have also considered the argument of the counsel for the appellant that there is interpolation in the date entered in the agreement-to-sell from 18th January, 1997 to 18th February, 1997. From the naked eye, it can easily be ascertained that originally the date was entered as 18.1.1997 at two places in the deed but later on the figure 1 has been changed and made as '2'. Not only that, it appears that half of the second last line and last line are also written with different pen/ball point and there is double pencil writing on certain other words.
8. Since we have come to the conclusion that the plaintiff had no cause of action to file the suit for specific performance of agreement-to-sell purportedly executed on 18th January, 1997/18th February, 1997, therefore, we refrain from commenting upon the date. We have also considered the argument of the counsel for the appellant that agreement-to-sell is an unregistered documents and on the basis of provisions contained in the Registration Act, 1908, registration of document which confers a right in property, the value of which is Rs.100/- or above, requires compulsory registration. The argument has no force, because in the case reported as Sardar Muhammad Sarwar Khan and 2 others v. Muhammad Nawaz Khan 2012 M LD 1440, it was held that agreement- tosell confers no right in a party in the property, such document can only be utilized for procuring another document. The argument is misconceived. The relevant portion is reproduced as under:-- "12. According to the terms of hereinabove reproduced deed of agreement-to-sell, further steps of execution of sale-deed or obtaining decree for specific performance have to be taken by the parties. Therefore, in our considered view the suit has been filed prematurely merely on the basis of above referred agreement-to-sell, which is not sale, hence there is no right of pre-emption.
However, if in furtherance of this agreement-to- sell, the sale-deed is executed or a decree for specific performance is granted in that case any person in whom right of pre-emption vests, may approach the Court for enforcement of his right. Therefore, the subordinate Courts have rightly declared that the respondent-plaintiff has got no cause of action on the basis of the agreement- tosell. The learned High Court has not dived into deep for true perception of the word "alienation" and the terms and condition of the document (agreement-to-sell), therefore, we are unable to subscribe with the view of the High Court. Consequently, this appeal is accepted, the impugned judgment and decree are set aside and the judgment and decree of the trial Court is hereby restored. The parties shall bear their own costs."
The result of the above discussion is that the appeal is accepted. The judgment and decree of the High Court and the Courts below is set aside. Resultantly, the suit field by the plaintiff is dismissed.
There is no order as to the costs.