' Noor Rehman and Fazal Hakeem, the petitioners, through the instant revision petition have challenged the judgment and decree dated 30.09.2014 passed by Additional District Judge-II, Takht Bhai, whereby the appeal of the petitioners was dismissed and the judgment and decree dated 26.2.201 1 passed by Civil Judge-I, Takht Bhai, was upheld.
2The brief facts of the present case are that the petitioners-plaintif fs instituted a suit against respondents, seeking declaration, permanent injunction, specific performance and possession, to the effect that petitioners are owners in possession of property measuring 94 kanals 19 marlas situated in Mahal Shahbat Khel bearing previous Khasra Nos. 1398, 1394, 1393, 1399, 1400, 1422 as per fard jamabandi for the year 1906-1907, and present Khasra Nos.
1127, 1129, 1130, 1131, 1132, 1162, 1133, 1134, 1137, 1161, 1138, 1139, 1140, 1143, 1145, 1146, 1151, 1152, 1163, 1.159, 1169, 1127/2, 1127/1, 1172, 1134/1, 1160, 1171, 1173, 1174, 1176, 1177, 1178, 1179, 1180, 1184, 1186,1 187, 1185, 1176/1, 1144, 1157, 1158, 1100, 1094/1 and 1099 as per jamabandi for the year 2005-2006 ("disputed property "); that the Petitioners further prayed for cancellation of inheritance Mutation No, 1435 and 1436 attested on 24.6.2008, and averred that their father purchased the dispute d property from predecessor of defendants/ respondents namely Abdul Karim vide Iqrar Nama/Sale deed dated 24.12.1962 ("Deed"); that possession of some portion of the disputed_ property was handed over to them by predecessor of respondents- defendants and that the remaining property would be handed over to them after attestation of mutation or registered deed in their names; that when they got knowledge, they approached the respondents for attestation of mutation and handing over possession of the disputed property , but they refused, hence a suit was instituted.
3. The respondents were summoned by the trial Court, who appeared and contested the suit by filing written statement. From the divergent pleadings of the parties, the trial Court framed the following issues:- 1.Whether plaintiffs have got any cause of action? OP 2.Whether this Court has got jurisdiction to entertain the present suit? OP 3.Whether suit of the plaintiffs is within time? OP 4.Whether plaintiffs are estopped to sue? OD 5.Whether suit of the plaintiffs is competent in its present form? OP 6Whether suit of the plaintiffs is bad due to non-joinder and mis-joinder of necessary parties? OD 7Whether plaintiffs have not prescribed Court Fee and is subject to dismissal? OD 8Whether defendants are entitled to special cost under Section 35-A, CPC? OD 9.Whether plaintiffs are entitled to specific performance of deed dated 24.12. 1962 from Abdul Karim (decd) for valuable consideration of suit land measuring 94 kanals and 19 marlas? OP 10 Whether defendants are owners in possession of suit land as their ancestral property from Abdul Karim
(decd) and Mst. Tajbaro (deed) and inheritance Mutation No, 1435 attested on 24.6.2008 and Mutation No, 1436 attested on 24.6.2008 were lawful and correct? OD
11. Relief.
4.Both the parties produced pro and contra evidence before the trial Court. The learned trial Court after hearing the learned counsel for the parties vide judgment and decree dated 26.02.201 1 dismissed the suit of the petitioners.
5.The petitioners being aggrieved from the judgment and decree dated 26.02.20 11 passed by the learned trial Court, challenged the same by filing Civil Appeal No, 35/13 of 2011 before the Appellate Court, and after hearing the learned counsel for the parties, who vide judgment and decree dated 16.12.201 1 set aside the impugned judgment and decree of the trial Court and remanded the case to the trial Court.
6.Being not satisfied from the judgment and decree dated 16.12.201 1 passed by the learned Additional District Judge-II, Takht Bhai, the present respondents challenged the same by filing Civil Revision Petition No, 25 of 2012 before this Court. After hearing the learned counsel for the parties, this Court vide judgment dated 7.10.2013 partially accepted the revision petition, set aside the impugned judgment and decree of the Appellate Court and remanded the case to the Appellate Court in terms that: "Accordingly , for what has been discussed above, this Court partially allows the present revision petition and holds:
(1) that the impugned order of the learned appellate Court is set aside while the judgment and decree passed by the learned trial Court is kept intact;
(2) That the appeal of the respondents is deemed to be pending before the appella te Court and it would decide the same after recording of evidence of Mr . Amin Gul, marginal witness of the subject deed."
7On receipt of order of this Court, the. worthy Appellate Court, on 27.1.2014 recorded the statement of Amin Gul son of Alif Khan, as APW -1. The Appella te Court, after hearing the arguments of learned counsel for the parties, vide judgment and decree dated 30.9.2014 decided the appeal in terms that: "33.The above discussion leads us to the conclusion that suit of the plaintif fs/appellants is time barred. The plaintif fs/appellants have failed to establish a valid and legally sound cause of action and they have failed to prove execution of sale-deed dated 24.12.1962, therefore, they are not entitled to decree for specific performance, declaration and consequential reliefs of possession and permanent injunction, therefore, Issues No, 1 and 9 are decided in negative against the plaintif fs/appellants. The defendants/respondents have established their ownership and possession over the disputed property from their predecessor as such both the impugned inheritance mutations were lawfully attested, hence, Issue No, 10 is decided in affirmative, in favour of defendants/ respondents.
34The trial Court has properly assessed the evidence and material available on record, and even after recording evidence of Amin Gul, the plaintif fs/ appellants cannot be held entitled to any relief. The additional discussion on Issues No, 1, 3, 9 and 10 by this Court, further confirm judgment and decree of trial Court. Resultantly , the judgment and decree of trial Court is upheld and appeal in hand is dismissed with application for temporary injunction, being misconceived and devoid of merit. No order as to costs of the appeal."
8.The petitioners being aggrieved of the judgment and decree dated 30.9.2014 passed by the learned Appellate Court, filed the instant revision petition before this Court.
9.The worthy counsel for the petitioners vehemently contended that as far as limitation was concerned, the same was to run from the date when the performance of the agreement was refused and in the present case it was to commence from the date when the notice of the petitioners after attestation of the inheritance mutation was not adhered by the respondents and not earlier; that the benefit of Section 53-A of the Transfer of Property Act, 1882 ("Act"), was to be extended to the petitioners as they were admittedly in possession of part of the disputed property , which was handed over to them at the time of execution of the agreement; that even a single marginal witness, if confidence inspiring, was sufficient for proof of the execution of the Deed, as the same was prior to promulgation of Qanun-e-Shahadat Order , 1984 ("Order"); and that the Deed being more than 30 years old document had the presumption of truth attached to it as provided under Article-100 of the Order . The worthy counsel for petitioners for his submissions sought reliance on Muha mmad Akram's case (1977 SCMR 433), Muhammad Younus's case (1989 CLC 837), Arshad Khan's case (2005 SCMR 1859 ), Mst. Ghulam Fatima's case (2006 YLR 1290 ), Aurangzeb's case (2007 SCMR 236), Sheraz Tufail's case (2007 SCMR 518), Sikandar's case (PM 2008 SC 131), Hafiz Tassaduq Hussain's case ( PLD 201 1 SC 296 ), and Bashir Ahmad Khan's case ( 2012 CLC 699 ).
10. The worthy counsel for the respondents vehemently contended that the suit of the petitioners was badly barred by time, as the reason for filing a belated suit, as required under Order VII Rule-6 of Civil Procedure Code, 1908 ("CPC"), was stated to be that they were minors at the time of the execution of the Deed, which was belied by their own statement in the witness-box; that the petitioners were co-owners with the respondents and were in excess of their due share, which was to be correc ted in the partition, proceedings, which had been filed by the present respondents and that the present suit was a counterblast to the partition proceedings filed by the respondents. The worthy counsel for respondents placed reliance on Allah Dad's case (1989 CLC 1571 ), Muhammad Noor's case (1989 CLC 1575 ), Muhammad Ismail's case (2001 CLC 252), Messrs Syed Tasnim Hussain Naqvi's case (2001 CLC 256), Noor Salam's cake (PLD 2002 SC 622), Mehandia's case (2011 MLD 1081 ), Khalil-ur-Rehman's case (2011 MLD 1088 ), Haji Abdul Karim's case (PLD 2012 SC 247), Pir Wali Khan's case (2013 MLD 1106), Mazhar's case ( 2013 MLD 1 115), and Noor-un-Nisa's case ( 2015 SCMR 380 ).
11.Valuable arguments of learned counsel for the parties heard and available record perused with their able assistance.
12.Canvassing through the pleadings and the evidence produced by the parties, the admitted position that emerges, in chronological order , is as follows: 24.12.1962.
' Deed is executed between Abdul Karim, the predecessor in-interest of the respondents and Fazal Akbar , his step brother and the predecessor-in-interest of the present two petitioners. (Exh: PW- 7/1), which stipulated the sale of 94 Kanals 19 Marlas by Abdul Karim in favour of the present petitioners, who were at that time minors, Petitioner No, 1 namely Noor Rehman ten years old and Petitioner No, 2 Fazal Hakeem five years old. It is also stipulated therein that 54 Kanals 5 Marlas was handed over by Abdul Karim at .the time of the execution of the deed, while the remaining 40 Kanals 14 Marlas of the disputed property was to be handed over after the finalization of the, allotment by the Federal Government in the name of Abdul Karim.
' The sale consideration was fixed as Rs, 20,000/-, which was paid by Fazal Akbar to Abdul Karim, who acknowledges receipt thereof in the Deed.
' The marginal witnesses to the Deed are Fazl-ur-Rehman (PW-7) brother of the petitioners and son of Fazal Akbar , and Amin Gul (APW -1).
' 1965.
' Fazal Akbar passes away .
2.3.1971.
' Allotment by Federal Government in favour of Abdul Karim (Exh:PW - 1/4).
' 7.5.1975.
' Attestation of Mutation No, 2628 for the transfer of the 24 garibs property in favour of Abdul Karim (Exh: DW 1/3).
' 2004.
' Abdul Karim, the predecessor-in-interest of the respondents passes away .
' 2007.
' Mother of the respondents passes away .
24.6.2008.
' Inheritance Mutations No, 1435 and 1436 confirming the transfer of property of Abdul Karim, and his wife in the name of their children, the present respondents.
' 20.7.2009.
' The present two petitioners filed the instant suit, wherein inter-alia, the present petitioners assert in their plaint that they were minors at the time of execution of the Deed and thereafter had no knowledge thereof and on acquiring knowledge asserted their rights, which was refused and thus they have moved the Court.
' The present respondents/defendants filed their joint written statement, wherein they denied the assertions made by the petitioners, inter alia, the execution of the deed, however , admitted without any explanation that 40 Kanals of disputed property was in possession of the petitioners without any lawful cause.
13. The petitioners claim declaration of title over the disputed property on the basis of the Deed, which is unregistered. The law by now is well settled that, such declarations are not legally maintainable. In such cases, the beneficiary of the unregistered agreement has to first seek the specific performance of the same, and thereafter , the law protects his propriety interest in the immovable property . Thus, the suit for declaration and consequential relief would follow the specific performance of the agreement and be legal competent only thereafter .
14. Moving on to the claim for specific performance of the Deed, it is noted that there is a concurrent finding of the two Courts below declaring the said claim to be barred by time. The applicab le provision relating to specific performance of an agreement has been provided under Article 113 of the Limitation Act, 1908 ("Act, 1908"), which reads that; Description of suit.Period of limitationTime from which period begins to run
113. For specific Three years The date fixed for performance of a contract the performance, or, if no such date is fixed, when the plaintiff has notice that the performance is refused.
' The bare reading of the aforementioned provision provides for two situations, for triggering the period of limitation of three years; ' First; in case, the deed stipulates a fixed date for the performance, then the period of three years would commence therefrom; ' Second; in case, no fixed date is provided in the agreement for the performance of the obligation, then the period of limitation would start to run from the date when the party to the agreement has notice of refusal of performance by the other party under the said agreement.
15. In the present case, no fixed date has been provided in the Deed for Abdul Karim to perform his part of the obligation in transferring the possession of the entire disputed property to petitioners. And thus the latter situation referred to in Article 1 13 of the Act would apply to the present case.
16. Let us now consider the reason rende red by the petitioners in their plaint for filing the case at a belated stage; it has been averred in the plaint that, the petitioners were minors at the time of the execution of the Deed, and thus were unaware of their rights arising therefrom. It is further asserted in the plaint that, as the petitioners became aware of their rights under the Deed, they served a notice upon the respondents and on their failure to perform their part of the obligation in the Deed, they approached the Civil Court to enforce their rights.
17. Surprisingly , the evidence so produced by the petitioners does not support their pleadings. In this regard, Petitioner No, 1 namely Noor Rehman (PW-10), who at the time of the execution of the Deed was 10 years old, during his cross-examination frankly conceded that he was then a student, and on his return from school, his father Fazal Akbar informed him about the purchase of disputed property in their names. This clear admission of Petitioner No, 1, Noor Rehman (PW-10), who was also the attorney of Petitioner No, 2, during his evidence, has belied the stance so taken by them in their pleadings. However , the worthy counsel for the petitioners vehemently urged that the subject suit was within time. He first argued that the Deed, embodied a contingent contract, and thus the rights of the petitioners arising therefrom matured when the allotment in favor of Fazal Karim was finally attested. This would stretch the period of limitation to commence from 7.5.1975, when the allotment in favor of Fazal Karim was finally recorded vide Mutation No, 2628 vide Exh. DW- 1/3 and thus filing a suit in 2009 was still barred by time. The worthy counsel for the petitioners when confronted with this aspect of the matter , urged the Court that, time would not commence from the said point of attestation of the allotment but in fact from the moment the respondents refused the demand of the petitioners vide Notice to perform their obligations under the Deed and added that the attestation of the inheritance mutation in favor of the respondents on the death of their parents was the triggering point for knowledge of the allotment being matured in favor of Abdul Karim. No doubt, the attestation of inheritance mutation is a public information, but so was the Mutation No, 2628 dated 07.05.1975 (Exh.DW - 1/3), whereby the property was finally transferred in the name of Fazal Karim after its allotment by the Federal Government. Viewed from another perspective, Fazal Karim having expired in 2004 would surely be the end of his commitment to transfer the remaining part of the promised disputed property to the petitioners. More importantly , the relationship of the parties, is also to be taken into account. Fazal Rahman (PW-7), who was the marginal witness of the Deed, is the real brother of the petitioners and hence the assertion of the petitioners that they were unaware of the transaction embodied in the Deed or that they were unaware of the final allotment in favor of their uncle Fazal Karim is highly improbable. Moreso, when the petitioner's family was also allotted 25 Garib by the Federal Government and thus, well acquainted with such transactions.
' Thus, viewed from every angle and stretching the legal submissions of the worthy counsel for the petitioners even beyond the pleadings, still the suit of the petitioners, is barred by time, as it is beyond the three years period provided under Article-1 13 of the Act.
18. It would not be legally appropriate for this Court to conclude the case of the petitioners on the issue of limitation and not dilate upon the findings of the two Courts below regarding other issues involved therein, as valuable rights of the petitioners are involved.
19. To start with, this Court finds that the two Courts were not legally correct to apply the requirement of two witnesses to prove the execution of the Deed, as is provided under Article-79 of the Qanun-e-Shahadat Order , 1984 ("Order"). The two Courts below erred by applying the provisions of the Order , the Deed was executed on 24.12.1962, well before the same was enacted. Thus, the provision of Section 66 of the Evidence Act, 1872, which did not require the two mandatory witnesses to prove the execution of the Deed, would be applicable to the present case. This principle of appreciation of evidence regarding proof of documents predating the Order has by now been settled by the Apex Court in Manzoor Ahmad's case (2002 SCMR 1391 ), Noor Muhammad's case (2002 SCMR 1301 ), and finally in Muhammad Ameen's case ( PLD 2006 SC 318 ), wherein it was clearly explained that; "It is an admitted fact that agreement to sell was executed between the parties on 16.11.1981 whereas Qanun-e- Shahadat Order came into force on 26.10.1984 meaning thereby agreement to sell executed prior to coming into force of the said order 1984 (President's Order No, 10/1984). By virtue of Article 1(3) of the said Order came into force at once, there it does not apply retrospectively to documents already executed and are past and closed."
20. Canvassing the record, it is noted that the petitioners produced sufficient evidence to prove not only the execution of the E Deed, but also the transaction stipulated therein. Fazal Rahman (PW 7), the marginal witness of the Deed, testified to be a witness to the execution of the Deed by Fazal Karim, the transfer of the sale consideration of Rs, 20,000/-and being the brother of the beneficiaries, was a natural witness to the said transaction. No doubt, the other marginal witness Amin Gul (APW -1) was declared hostile, but the other evidence produced by the petitioners was sufficient to substantiate their claim, as far as the execution of the Deed and the transaction embodied therein.
21. There is no doubt that a plaintif f, who claims a fact, has to prove the same himself by producing cogent and reliable evidence and cannot seek refuge behind the weaknesses of the other side. However , when there are contesting claims of the opposite party backed by supporting evidence, the adjudicating Court is to weigh the evidence produced by the rival parties and to see on whose side the "prepondera nce of evidence" rests. It is only when the evidence produced by the parties are evenly balanced and the Court is unable to decide the matter on the available evidence, only then the issue of burden of proof would come into play. In this regard, the august Supreme Court of Pakistan in the case title Mst. Qaiser Khatoon vs. Molvi Khaliq ( PLD 1971 S.C. 334 ) held that: "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao) (2). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion- (Vide PLD 1948 PC 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not case here, for, the evidence is, by no means, evenly balance."
22. In the present case, the most crucial evidence, which tilted the balance of probability in favor of the petitioners was the actual transfer of possession of 54 Kanals 5 Marlas out of the disputed property . This fact was asserted by Petitioner No, 1 (PW-10) in his examination-in-chief, which went unchallenged by the respondents during his cross- examination and thus would be deemed legally admitted. This principle of appreciating such evidence, as proof of a fact is by now settled by the Apex Court in Mst. Murad Begum's case (PLD 1974 SC 322), Muhammad Ameen's case ( PLD 2006 SC 318 ) and Aurangzeb's case ( 2007 SCMR 236 ).
23. The two Courts below also erred on another legal aspect regarding the legal presumption of correctness attached to the Deed being more than 30 years old and having been produced by the proper party under Article- 100 of the Order . This presumption in favor of the petitioners was not rebutted by any clear evidence produced by the respondents-defendants.
24. A very crucial aspect, which has escaped the worthy attention of the two Courts below is that in the present case, the petitioners were not only armed with the unregistered Deed but also admittedly in possession of the part of the disputed property . No doubt, an effort was made by the sole respondent witness, Akram Khan (DW-1) being the attorney of the respondents, to explain the said admission to be attributable to the private partition, but no evidence to that effect was produced. Their entire emphasis was that the revenue record, in particular , the khasra girdawaries did not reflect the petitioners in possession of even a part of the disputed property . The evidentiary value of khasra girdawari has been negated by the superior Courts to the extent of having no presumptive values as held in Muhammad Akram's case (1977 SCMR 433), and Sikandars case (PLJ 2008 SC 131). It was also argued that the jamabandies clearly depicted Fazal Karim to be the owner in possession of the entire disputed property . The presumption of correctness attached to jamabandies is rebut-able, as laid down in Arshad Khan's case (2005 SCMR 1859 ). The crucial fact remains that the un-equivoble admission made in the pleadings by the respondents, which was not explained by any supporting evidence to justify the alienation thereof and being in such long and continuous possession with the petitioners, would rebut the presumption of correctness reflected in the said jamabandies and the Khasra Girdawaries. In fact, the parties are bound by their pleadings and even evidence produced contrary thereto has to be clearly discarded.
25. The fact that possession of part of the disputed property was transferred to the petitioners under the Deed, appears to be proved from the available evidence. In the circumstances, the non-registration of the Deed would not be fatal to all the rights accruing to the petitioners, at least to the extent of the property they are in possession. Let us examine the said rights and privileges. In this regard, it is noted that the rights of the petitioners to retain possession over the 54 Kanals 05 -Marlas of the disputed property are protected under the first proviso to Section 50 of the Registration Act, 1908 ("Act of 1908"), read with Section 53-A of the Act of 1882, which reads as under:- "50 Certain registered documents relating to land to take effect against unregistered documents.--(1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of Section 17, sub-section (1), and every document registrable under Section 18, insofar as such document affects immovable property or acknowledges the receipt or payment of any consideration in respect of any transaction relating to immovable property shall, if duly registered; take effect as regards the property comprised therein; against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not: ' Provided that the person in possession of the property under an unregistered document 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: ' Provided further that the person in whose favor an unregistered document is executed shall be entitled to enforce the contract under the unregistered document in a suit for specific performance against a person claiming under a subsequent registered document, subject to the provisions of clause (b) of Section 27 of the Specific Relief Act, 1877 (I of 1877)."
(Emphasis provided)
' Faced with similar situation, the apex Court in Fazla's case (1997 SCMR 837), has elaborated and discussed the true purport of Section 50 of the Act of 1908 in terms that: "These two provisos were added by the Registration (Amendment) Ordinance, 1962 with effect from the 7th June, 1962. The first proviso clearly indicates that a person, who is in possession of the property under an unregistered document prior in date, would be entitled. to claim rights under Section 53-A of the Transfer of Property Act provided he fulfills all the conditions laid down in the said section. It, therefore, applies Section 53-A of the Transfer of Property Act to persons in possession of the property acquired under an unregistered document...
"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...........
"The only condition is that it should be an unregistered document by a person in possession of the property under it and that he fulfills 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 Property Act."
26. Now, this Court has to see whether the present petitioner fulfills the conditions provided under Section 53-A of the Transfer of Property Act, 1882 ("Act of 1882"), which reads as under: "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."
27. The conditions precedent for a person to seek protection under the above Section 53- A of the Act of 1882, are essentially as follows:- i) That written contract of sale of immovable property for consideration; ii) Steps taken in pursuance of the said written contract; iii) The possession is with the transferee and it is continuous.
28. In the present case, it is noted that there is written contract in the form of the Deed, regarding disputed immoveable property for a consideration of Rs, 20,000/-, and in pursuance thereof possession of 54 Kanals and 05 Marlas has been transferred to the petitioners and who continuously retains the same. Thus, the essential ingredients of Section 53-A of Act, of 1882 appear to have been fulfilled by the petitioners. Let us now consider what benefits and legal protections would accrue to the petitioners in fulfilling the said condition precedent. This issue has been elaborately explained by the Apex Court in Fazla's case (1997 SCMR 837), wherein after discussing the various precedents, the worthy Court observed that; "Learned counsel has relied on Naib-Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others (1992 SCMR 1265) in which <u>essential ingredients of applicability of Section 53-A of the Transfer of Property Act have been enumerated, which require a contract in writing signed by the transferor in respect of an immovable property; transfer can be ascertained with reasonable certainty; from the document 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 that the transferee has performed or is willing to perform his part of the contract. It is on satisfaction of these conditions that one can claim the benefit of Section 53-A of the Transfer of Property Act.
In this judgment reference was made to Mst. Ghulam Sakina v. Umar Bakhsh and another (PLD 1964 SC 456), Habibur Rehman and another v. Mst. Wahadania and others (PLD 1984 SC 424), Mst. Shankri and others v.
Milkha Singh (AIR 1941 Lahore 407) and observed as follows: "Section 53-A of the Transfer of Property Act <u>enunciates equitable principle to protect the rights of such purchasers who have entered into agreement and in pursuance thereof obtained the possession of the immovable property and have further either performed their part of the agreement or are agreeable to perform the same. In such circumstances, mere non-registration of a deed which requires registration under Section 17 of the Registration Act, will not deprive him of the benefit which he is entitled to protect by virtue of Section 53-A of the Transfer of Property Act. It is true that Section 53-A does not confer or create any right but it provides a defence to a transferee to protect his possession.</u> Reference can be made to the cases of Kalimuddin Ansari v. Director, Excise and Taxation, Karachi, and another (PLD 1971 SC 114) and Sri Kalulam Subranmanyam and another v. Kurra Subba Rao (PLD 1948 PC 52). Section 53-A debars a transferor from enforcing any right other than rights specifically provided by the contract against a transferee who in part performance of a contract has taken possession. Reference tray be made to the cases of Abdullcth Bhai and others v. Ahmed Din (PLD 1964 SC 106) and Mst.Ghulam Sakina v. Umar Bakhsh and another (PLD 1964 SC 456). In the present case, the agreement itself recites that the appellant in part performance of the agreement had been put in possession of the property. The appellant is, therefore, entitled to the protection of his possession."
(emphasis provided)
29. In view of the ratio-decidendi of the aforementioned decisions of the Apex Court, any person, who fulfils condition precedents. of Section 53-A of Act of 1882, would not be able to claim title over the possessed property but would surely be able to shield any challenge made to his possession and to be legally entitled to retain the possession thereof.
30. To sum up, it is noted that the suit or the present petitioners was rightly declared to be time barred by the two Courts below . However , despite the petitioners fulfilling the condition precedent of Section 53-A of the Transfer of Property Act, 1882, the legal protections arising therefrom, regarding their retention of possession to the extent of 54 Kanals and 05 Marlas of the disputed property has not been appreciated by the two Courts, and to which they are legally entitled under the law. Accordingly , for the reasons stated hereinabove, the present petition is dismissed with the observations rendered herein above.