SHAKEEL AHMAD, J.- This civil revision is directed against the judgment/decree dated 22.11.2008, passed by the learned ADJ-I, Takht Bhai, whereby the learned ADJ dismissed petitioner's appeal against the judgment/decree dated 26.05.2007 of the learned Civil Judge, Takht Bhai dismissing the declaratory suit filed by petitioners.
2. Facts significance for the disposal of instant revision petition are that Latif Ullah and others brought a suit for declaration to the effect that they are owners in possession of the property , detail whereof is given in the heading of the plaint on the strength of two unregistered deed dated 09.04.1974 executed by the defendant No.1 (Mst.Sakeena) whereby the land measuring 10 kanals and 10 marlas was sold out to them and deed dated 01.03.1986 executed by the defendant No.2 (Mst.Mumtaz Begum) in respect of area measuring 38 kanals and 16 marlas and sought cancellation of mutation No.8794 attested on 29.03.1989 whereby the suit property mentioned in deed dated 09.04.1974 was subsequently transferred by the defendant Mst.
Sakeena in favour of defendant Mst. Mumtaz Begum and cancellation of registered sale deed No.151 dated 30.08.1994 vide which the defendant Mst. Mumtaz Begum subsequently transferred the entire property measuring 49 kanals and 6 marlas in favour of defendants No.3 to 9, stating that the impugned mutation and registered sale deed are illegal and ineffective upon the rights of the petitioners/plaintiffs. It was contended that the defendant No.1 Mst. Sakeena had transferred her share in the suit property measuring 38 kanals and 16 marlas in favour of plaintiffs through unregistered deed, out of which land measuring 28 kanals and 6 marlas had been transferred in faovur of plaintiff and defendant No.1 through registered sale deed dated 09.04.1974 but the remaining 10 kanals and 10 marlas could not be transferred by them due to limitation imposed by Martial Law Regulations enforced at that time, therefore the vendor Mst. Sakeena on the same date executed the said unregistered deed in favour of petitioners/plaintiffs. The rest of the property i.e. measuring 10 kanals and 10 marlas, after receiving the entire sale consideration of the whole property delivered the possession of the same to the petitioners/plaintiffs.
3. The suit was contested by the defendants by way of filling written statement wherein legal and factual objections were raised. It is also pertinent to mention that the defendants No.3 to 9 jointly contested the suit and defendant No.10 Gohar Ali independently while defendants No.1, 2 & 11 did not appear before the Court, hence proceeded exparte. The defendants No.3 to 9 though contested the suit on various grounds asserted in the plaint, but they did not specifically denied the execution or validity of deed relied upon by the petitioners/plaintiffs, showing sale of suit property in their favour. The learned trial Court keeping in view the contested pleadings of the parties framed the followings issues and directed the parties to produce their evidence in support of their respective claim.
Issues:
1. Have the plaintiffs got a cause of action.
2. Is the suit incompetent in its present form.
3. Are the plaintiffs stopped.
4. Is the suit within time.
5. Has not this court got jurisdiction.
6. Have defendants No.1 and 2 sold the suit land to plaintif fs.
7. Are the sale mutation No.8794 attested on 29.03.99 and registered sale deed No.151 attested on 30.8.94 wrong and liable to be cancelled.
8. Are the plaintif fs entitled to the decree as prayed for .
9. Relief.
4. The petitioners produced Patwari Halqa as PW-1 who produced fard jamabandi for the year 1991/1992, Aks Shajara Kishtwar and Khasra Gerdawari for the year 1994 to 1996 as EX.PW1/1 to EX.PW1/3, Afridi Khan Registration Moharrir as PW-2. He produ ced registered deed No.151 attested on 30.08.1994 as EX.PW2/1, Zahir Shah ADK as PW-3 who produced fard jamabandi for the year 1981/1982 as EX.PW3/1 (consisting of two sheets), Khasra Gerdawari for the year 1982 to 1990 as EX.PW3/2, mutation bearing No.8432 attested on 14.04.87, mutation NO.8625 attested on 16.01.89, mutation No.8794 attested on 29.03.89 as EX.PW3/3 to EX.PW3/5, Shakoor Khan Registration Moharrir as PW-4. He produced registered deed No.266 attested on 09.04.74 as EX.PW4/1. Latif Ullah plaintiff appeared himself as PW-5 and as special attorney for the rest of the petitioners, Said Nawab appeared as PW-6 and Abdul Qayum as PW-7 marginal witnesses of the unregistered deed dated 09.04.74, Muhammad Iqbal Moharrir Sub Registrar, Mardan appeared as PW-8 who registered the special power of attorney executed by Mst. Mumtaz Begum in favour of Gohar Ali as EX.PW6/1.
5. On the other hand, the defendant Khurshid Ahmad appeared as DW-1, who is also special attorney of the defendants, Umar Dad appeared as DW-2. In his statement registered deed was exhibited as EX.DW1/2. The local commissioner was appointed who visited the spot. He appeared as CW -1 and submitted his report EX.CW1/1.
6. On conclusion of the trial the learned trial Court vide judgment dated 25.05.2007 dismissed the suit filed by the petitioners. Against the judgment/decree of the learned trial Court present petitioners preferred appeal but the same was also dismissed by learned ADJ-I, Takht Bhai on 22.1 1.2008, hence this revision petition.
7. It has been argued by the learned counsel for the petitioners that the petitioners are in possession of the suit property under agreement to sell, therefore, entitled to protect their possession, which he admittedly acquired on the basis of unregistered deed dated 09.04.74 executed by the previous owners in their favour before the execution of the alleged registered sale deed dated 30.08.94 and attestation of mutation in favour of defendant No.2. He next argued that mere non registration of deed which required registration would not deprive the petitioners of the benefit which he was entitled to protect by virtue of section 53-A of The Transfer of Property Act, 1882. He further argued that, possession of the petitioners over the suit property is visible, therefore, the subsequent transferee had the notice of the earlier sale in favour of the petitioners as contemplated in section 53-A of The Transfer of Property Act, 1882. He next argued that protection under section 27-(b) of the Specific Relief Act, 1877 is not available to the respondent No.3 to 9. He lastly argued that the learned trial Court admitted that the agreement to sell executed in favour of petitioners is prior in time and is genuine but refused to pass decree in favour of the petitioners without any cogent reason, thus committed material irregularity, which resulted in gross miscarriage of justice, therefore warrants interference. In support of his contentions the learned counsel for the petitioners placed reliance on the following case laws; 1992 SCMR 1265 1997 SCMR 837 PLD 1975 SC 31 1 93 SCMR 428 2010 CLC 407 2014 YLR 2005
8. Conversely , the learned counsel for the respondents argued that the petitioners have failed to discharge his onus of proof of knowledge of the defendants of the prior agreement to sell, therefore, benefit of Section 27 (b) of the Specific Relief Act, 1877 is available to them. He next contended that in pursuance of the agreement to sell (as alleged) the petitioners were not put in possession of the suit property, therefore, they cannot seek benefit of Section 53-A of the Transfer of Property Act, 1882 and proviso of Section 50 (1) of the Registration Act, 1908. Therefore, the petitioners/plaintiffs were rightly non suited by the learned trial Court. He lastly contended that this Court while sitting in revisional jurisdiction is not supposed to interfere in the concurrent findings of the two courts below unless it is established that the judgments of the two courts below were without jurisdiction or the two courts below acted illegally or with material irregularity resulting into miscarriage of justice.
9. The above mentioned arguments of the learned counsel for the parties have been considered with due care and attention and the record available has also been perused with the assistance of both the learned counsels.
10. This being a civil revision as argued by the learned counsel for the respondent and rightly so that this Court while sitting in revisional jurisdiction is not supposed to interfere in the concurrent findings of the two courts below unless it is established that the judgments of the two courts below were without jurisdiction or the two courts below acted illegally or with material irregularity resulting into miscarriage of justice. In case of Mst.
Kulsoom Bibi and another..vs..Muhammad Arif and others (2005 SCMR 135), it was held that revisional jurisdiction cannot be equated with that of appeal or equal to appeal and the High Court before exercising revisional jurisdiction has first to satisfy itself whether the subordinate courts while passing the impugned judgments had the jurisdiction vested in them, or whether it was a fit case where the revisional jurisdiction ought to be exercised and whether the impugned judgments of the courts below suffer from illegality or material irregularity resulting into miscarriage of justice. It has also been held in the case of Shah Wali..vs..Muhammad Iqbal PLD 2005 Lahore 214 that the concurrent findings of fact returned in consonance with the record are immune from interference in revisional jurisdiction of High Court as mandated by Hon'ble Supreme Court of Pakistan in a chain of consistent judgments. In this respect reliance can also be placed on cases of Mst.Shumal Begum..Vs..Mst. Gulzar Begum and 03 others (1994 SCMR 818), Secretary to Government of the Punjab, Education Department, Lahore and another..Vs..Saeed Ahmad Khan (PLD 1994 SC 291), Sirbaland..Vs..Allah Loke and others (1996 SCMR 575), Abdul Hakeem.. Vs..Habibullah and 11 others (1997 SCMR 1139), Mst.Ameer Begum..Vs..Muhammad Naeed Khan and another (PLD 2000 SC 839) and Mst.Kaniz Fatima through legal heirs..Vs..Muhammad Saleem and 27 others ( 2001 SCMR 1493 .
11. In the light of abovementioned dictum of the superior courts whether the findings of two courts below in the present case fulfill the above requirements and that this is a fit case for interference by this court in the revisional jurisdiction, the learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence and has tried to persuade this Court to reappraise the evidence on the question of unregistered deed executed in favour of the parties was followed by possession which is visible. The learned Civil Judge after proper appraisal of evidence has record the following findings on issues No.6 & 7.
"Regarding issue No.6 evidence of DW-3 Gohar Ali is of importance it has been admitted by Gohar Ali who is the special attorney for defendant No.2 vide registered special attorney deed which is EX.PW3/1 that vide agreement to sell deed dated 01.03.1986 he sold the disputed property in Khasra No.1186 to plaintif fs for amount of Rs.20,000/- received by him on behalf of defendant No.2 and delivered the possession of suit land to the plaintif fs. In the light of the admission the execution of agreement to sell deed dated 01.03.86 in between special attorney for defendant No.2 and plaintif fs is proved. As for as sale from defendant No.1 in favour of plaintif fs of the rest of the disputed property comprising 10 kanals 10 m,arlas is concerne d i.e. plaintif fs fail to bring any evidence to prove the sale so issue No.6 decided accordingly .
Now question comes that whether plaintiffs are entitled to the disputed property comprising 38 kanals 16 marlas vide agreement to sell deed dated 01.03.86 sale mutation N0.8794 attested on 20.03.89 and registered sale deed No.151 attested on 03.08.94 have got no effect on the right of the plaintiffs in the light of agreement to sell deed dated 01.03.86, hence liable to be cancelled. In such like situation when the property once sold through unregistered deed and later on sold through registered deeds which requires compulsory registration under section 17 of the Registration Act the following provisions of law gets importance to decide the issue. Section 17, 48, 49 of the Registration Act read with Section 53 (A) of Transfer of Property Act.
In the light of these sections, an unregistered sale deed if in the part performance of the unregistered sale deed the transferee has taken possession of the property or any part thereof or the transferee, being already in possession continuous in possession in part performance of the contract and has done some act in furtherance of the contract. To decide this question my predecessor in office issued repeated commission for to find out whether the plaintiffs are in the actual physical possession with agreement to sell deed dated 01.03.86. To final commission report conducted by Nisar Khattak, advocate is placed on file. But I am not relying the same to decide the issue NO.7 for the reason the revenue record placed on file speaks out that the disputed property comprised in Khasra No.1186 was the joint ownership of the plaintiffs and defendants No.1 and 2 and others. At the time of agreement to sell deed dated 01.03.86 plaintiffs were already in actual physical possession of the disputed property as being joint owner in the disputed Khasra No.1186 while defendant No.2 was not in actual physical possession of the disputed property anywhere in khasra No.1186. So the question whether u/s 53 (A) in part performance of the agreement to sell deed physical possession was delivered to the plaintiffs or not becomes immaterial.
Defendant No.2 was never in actual physical possession of the disputed property as is evident from the Khasra Gardawari which is EX.PW3/2 (two sheets). So how come defendant No.2 transfer physical possession of the disputed property to the plaintiffs. In this situation section 53(A) Transfer of Property Act further elaborate that if the transferee being already in possession continuous in possession in part performance of the contract and has done some act in furtherance of the contract. So in the light of the section 53(A) plaintiffs are now burdened to prove same 'act' in furtherance of the pluts and find no such act in furtherance of the agreement to sell deed dated 01.03.86. So now the situation becomes within the ambit of section 17, 48, 49 of Registration Act. According to these sections the registration sale deed would have precedence over the unregistered sale deed. I am of the view that the plaintiffs are not entitled to the disputed property only by proving the agreement to sell deed dated 01.03.86. Similarly they are also not entitled for the cancellation of sale maturation No.8794 and registered sale deed No.151 attested on 30.08.94. So issue No.7 is decided in negative."
12. Similarly the learned Appellate Court has agreed with the finding of the learned trial Court by holding that; "The most important question now in the case when sale transactions in favour of both the parties on contest were made by defendants No.1 and 2 on different occasions in respect of the same property, the transactions in favour of plaintiffs being unregistered sale but prior in time and transaction in favour of contesting defendants made through registered sale deed but latter in time, which of the transactions have to take legal effect as for the rights of the parties to the suit property are concerned. General provision u/s 50 of the Registration Act, 1908 in this respect is that the document registered according to law has to take effect against unregistered document. Learned counsel for plaintiffs on the basis of Ist to section 50 of the Registration Act claimed that the plaintiffs being in possession of the property under an unregistered document prior in date were entitled to rights u/s 53-A of the Transfer of Property Act, 1882, and that under the second proviso to the same section (50 of the Registration Act) the plaintiffs are entitled to enforce the contract under the unregistered document in a suit for Specific Performance against the defendants who are claiming under the subsequent registered document. Possession of the plaintiffs over the suit property may be accepted for the purpose under discussion, but at the same time section 53-A of the Transfer of Property Act as well as section 27 clause (b) of the Specific Relief Act protect the rights of contesting defendants if they are proved transferees of the suit property for consideration paying the value in good faith without notice of the prior contract. It has already been proved that sale deed EX.SW1/2 in favour of contesting defendants was executed and registered according to law on behalf of vendor Mst. Mumtaz Begum through attorney Muhammad Shafiq. Contents of this deed categorically show that amount of Rs.600,000/- was paid by the defendants as sale consideration of the suit property attested in their favour through this document.
Accordingly, it was settled position that transfer in favour of contesting defendants was for consideration or value. In such a situation the deciding factor would be, as to whether the defendants had notice of the prior transactions in respect of the suit property made in favour of the plaintiffs. Learned counsel for plaintiffs contended that since possession of the property was delivered to the plaintiffs at the time of prior sales made in their favour and this possession was visible because of the fact that a brick kiln of the plaintiffs was situated in the suit property and as such, it was alleged that, though no specific notice of the sale was given to the defendants but visible possession of the suit property by the plaintiffs would be deemed as notice of prior sale to the subsequent vendees. On the strength of such contention it was alleged that defendants were not bona- fide purchasers of the property through subsequent transaction. Possession of the parties over the dispute property is a relevant factor in this behalf, but it is not all important as was taken by the plaintiffs and the trial court in earlier proceedings, in view of the fact that it was proved and admitted by the plaintiffs that defendants the subsequent vendees had no knowledge of the prior sale in favour of the plaintiffs. DW.1 namely Khursheed special attorney for defendants for the purpose of instant suit, stated in his examination in chief that the defendants had no knowledge of the prior sale in favour of the plaintiffs. This part of the statement of DW.1 was not only left unchallenged when this witness was cross examined by the plaintiffs, but the plaintiffs by putting a suggestion to the witness confirmed that defendants had no knowledge of the prior sale in respect of the suit property. The answer given by DW.1 to the suggestion put on behalf of the plaintiffs may be plainly translated as: It is correct that before institution of this case DW.1 had no knowledge about any sale agreement executed by the defendant Mst.Mumtaz Begum in favour of the plaintiffs". The referred part of the statement of DW.1 could not be interpreted in any other sense but that the plaintiffs had admitted that the contesting defendant/subsequent vendees of the suit property had no knowledge of the prior sale of the suit property in favour of the plaintiffs at the time of execution of deed EX.DW2/1 in their favour. Though proof of possession for the purpose under consideration was not much important after examination of DW.1, but even if this factor is seen, for, the parties as well as the learned trial court have exhausted so much energies and consumed three long years at the determination of question of possession of the parties over the suit over the suit property, Khasra Girdawari, copy EX.PW1/3 and Fard Jamabandi, extract EX.PW1/1 in respect of the suit property show that plaintiffs are in possession of khasra No.3458 measuring 25 kanals 2 marlas and khasra No.3463 measuring one kanal four marlas and it is settled position on record that brick kiln of the plaintiffs is situated in Khasra No.3458. But it is also admitted on record that the plaintiffs are already undisputed co- owners of the property measuring 28 kanals and six marlas, more than their possession shown by the revenue record. As such, the possession of the plaintiffs over a portion of the joint property as shown by the revenue record, though visible as claimed but could not be called their possession over the disputed property. Different local commissions were issued for the purpose of determination of actual physical possession of the parties over the disputed property, but earlier reports and record could not be referred as those commission reports were set aside by the courts at different stages except the last report EX.CW1/1 dated 13.09.2006 submitted by local commissioner Mr. Nisar Khattak Advocate, status of which was not determined by the trial court as it was objected to by the defendant party. Even if the objections of defendant party on this report commission are ignored for the purpose of this discussion, this report commission shows that disputed property is mostly occupied by the plaintiffs with a smaller portion like 8 kanals in possession of defendants and some portion with other co-sharers, but in fact the suit property mostly falls in khasra Nos.3455 and 3459 shown as Banjar Qadeem mostly not cultivatable as per revenue record as well as per report commission EX.CW1/1 dated 13.09.2006. Thus the plaintiffs may be in possession of maximum portion of this land but since it is not capable of physical occupation through cultivation etc. Therefore, possession of any person over it could not be taken as visible possession sufficient for the purpose that the subsequent transferee of the property could take notice of that possession. It is, therefore, concluded that though sale transaction in respect of the suit property made in favour of defendants was subsequent transaction, but the vendees thereof were bona-fide purchasers for consideration of Rs.6,00,000/- and had no notice of the prior sale made in favour of the plaintiffs and as such, their rights are protected under the law. No doubt fraud was committed by the vendors-defendants Mst. Sakina and Mst. Mumtaz Begum in selling the same property upon different persons through double transactions but remedy of plaintiffs in the attending situation only lies in suing these defendants for damages in respect of any loss suffered and recovery of the amount paid as sale consideration, for, sale agreements made in their favour are not possible of performance as they have already exhausted their entire entitlement in the disputed Khata.
13. Coming to the contention of the petitioners that he enjoys protection under section 53-A of the Transfer of Property Act, 1882 and proviso of section 50(1) of Registration Act, 1908, no doubt it protects the possession of transferee over the property, but, subject to fulfillment of two conditions, first existence of agreement of transfer and secondly transferee must be put in possession of the suit property in part performance of the agreement, but possession under this section is specific possession. Needless to mention here that both the learned lower fora had concurrently held that the possession of the petitioner was not visible, therefore, the subsequent transferee had no notice of earlier transaction executed in favour of the petitioners. The onus to prove that the contesting respondent had the knowledge of the sale of the suit property in favour of petitioners but they had miserably failed to discharge this onus, therefore, protection of section-27 of the Specific Relief Act, 1877 is available to the contesting respondents who are the subsequent transferee of the suit land for value in good faith and without notice of any prior agreement to sell or sale deed. In this respect reliance can be placed on the case Abdul Haque and other..Vs..Shaukat Ali and 02 others, 2003 SCMR 74, wherein it was held as under; "----Sections. 12 & 27(b)---Specific performance of agreement to sell---Bona fide purchaser for valuable consideration without knowledge of prior agreement---Onus to prove---Sale in favour of defendant was assailed by plaintif f on the ground of having prior agreement to sell in his favour and sought specific performance of the agreement in his favour---Plaintif f failed to prove knowledge of prior agreement, thus First Appellate Court allowed the appeal filed by the defendant and judgment and decree passed by Trial Court in favour of the plaintif f was set aside---Second appeal was filed by the plaintif f in the High Court which was allowed and judgment and decree passed by the First Appellate Court were reversed---V alidity---As the plaintif f had failed to discharge the onus to prove the knowledge of defendant of the prior agreement to sell, the protection of Section.27(b) of Specific Relief Act, 1877, was available to the defendant who was transferee of the suit-land for value in good faith and without notice of any, prior agreement to sell--- First Appellate Court had rightly dismissed the suit for specific performance of agreement in favour of the plaintif f---Judgment and decree passed by the High Court were set aside and that of the First Appellate Court was restored---Appeal was allowed."
14. The case laws relied upon by the learned counsel for the petitioners are out of context because in all those cases, cited by the leaned counsel for the petitioner , the unregistered deed was followed by possession, therefore benefit of section 53-A of the Transfer of Property Act, 1882 was given to the prior purchaser , which is lacking in the present case.
15. Perusal of findings of the two Courts below leave no doubt at all that either the same suffer from jurisdictional defect or result of misreading and non reading of evidence on record or the same has been recorded illegally or with material irregularity resulting into miscarriage of justice.
16. The upshot of the above discussion is that this revision petition has no force and the same is dismissed with no order as to costs.