1. AMIN-UD-DIN KHAN, J.--- Through this civil revision, the petitioner has challenged the judgment and decree dated 29.06.2016 passed by the learned Additional District Judge, Sahiwal, whereby the appeal filed by him was dismissed and the appeal filed by respondent No,1/plaintiff has been accepted. The judgment and decree dated 08.06.2012 passed by the learned Civil Judge, Sahiwal have also been challenged by the petitioner, whereby the suit for possession filed by the plaintiff/respondent No,1 was partially decreed.
2. The brief facts of this case are that the plaintiff/respondent No,1 filed a suit for possession and recovery of mesne profit. She pleaded that the agreement dated 11.11.2003 being without any reason and without consideration not binding upon the plaintiff. The case pleaded by the plaintiff was that defendants Nos,1 and 2 stated that they will arrange for immigration of son of defendant No,3, who is the husband of plaintiff for England and they got the agreement executed, therefore, the suit. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 08.06.2012 learned trial court decreed the suit to the extent of possession of property. The mesne profits were refused. Both the parties went in appeals. The appeal filed by the petitioner was dismissed, whereas the appeal filed by the plaintiff/ respondent No,1 has been accepted and she was granted mesne profits. Hence, this civil revision by the judgment debtor.
2. 3.When questioned to the learned counsel as to whether the petitioner has filed a suit for specific performance on the basis of agreement dated 11.11.2003; the answer is in the negative. Learned counsel while relying upon "PLD 1997 Lahore 709 (Akbar Ali and others v. Lal and others)" states that on the basis of section 53-A of the Transfer of Property Act, 1882 the petitioner/defendant was entitled to defend the possession of the suit property, therefore, the judgments and decrees passed by both the courts below are against the law. Prays that same be set aside.
3. 4.I have heard the learned counsel for the petitioner at length and gone through the case law referred to by the learned counsel.
4. 5.In the judgment referred to by the learned counsel for the petitioner it is observed that the proposed vendee can defend his title and possession under section 53-A of the Transfer of Property Act, 1882, when under the agreement possession has been transferred otherwise the agreement of sale does not convey any right. It is settled now that an agreement to sell with regard to immovable property does not create or confer any right except to file a suit for specific performance and even a decree granted in a suit for specific performance in favour of plaintiff is a declaration of maturity of his right to get the property and the rights confer upon the decree holder in execution of the decree and not through mere passing of decree. In these circumstances, I am clear in my mind that on the basis of mere contract of sale of immovable property, even though the possession under the agreement has been transferred, the transferee cannot protect his possession or defend the possession if the suit for recovery of possession is filed by the owner i,e, the other party to the agreement on the basis of section 53-A of the Transfer of Property Act, 1882. I am of the view that the protection given under section 53-A of the Act (ibid) is available to the person with whom there is an instrument of transfer but having any legal defect in it, only in that case the possession can be protected. The further condition for taking benefit of section 53-A of the Transfer of Property Act, 1882 is that a transferee has to perform his part of .contract. Admittedly the petitioner/defendant has not performed his part of contract, neither he is willing to perform his part, as the agreement is dated 11.11.2003 and the' suit for possession has been filed by the plaintiff/respondent No,1 on 29.01.2005 and till today the petitioner-defendant has not filed a suit for specific performance. There is no doubt in my mind that he has neither performed his part of contract nor he is willing to perform his part, therefore, he cannot take benefit of section 53-A of the 'Transfer of property Act. In this view of the matter, when there are concurrent findings of fact recorded by two courts below, I have no reason to disagree with the same. The instant civil revision does not call for any interference by this court while exercising jurisdiction under section 115 of the C.P.C. and the same stands dismissed in limine.