MOHAMMAD IBRAHIM KHAN, J.--Having look out of as to bunch of the facts like resume to Paras. 1 to 5 of the earlier order of this Court dated 05.04.2017, its extracts are:- In a titled suit "Muhammad Jan and others v. Gul Shehzada and others" the following prayers were set for obtaining favourable decree, these are:-- On execution of the sale deed dated 14.12.2013 pertaining to a house the bounda ries of which are given in prayer 'Alit it may be declared as ownership on account of sale price of Rs,37,00,000/- (thirty-seven lacs) which amount has been paid.
Prayer for permanent injunction that as an amount of Rs, 37,00,000/- (thirty-seven lacs) has been paid to Defendants, they be permanently restrained not to deny the ownership rights of the Plaintif fs.
Suit for possession.
In alternate if sale is not proved then the house may be partitioned, 4 shares be handed over to the Plaintif fs, one ,hare will go to the Defendants Nos,5 to 9 and recovery of Rs,37,00,000/- paid for the 5th share to Defendants Nos, 1 and 2, which comes to Rs,7,40,000/-.
Recovery of Rs, 8,000/- monthly rent from August, 2013 to January 2014, total of which come to Rs, 48,000/- and monthly rent to be recovered till final decision of this case.
2. On behalf of the Respondents (herein before called Defendants Nos, 1 and 2) jointly , Respondent / Defendant No, 3 and Respondent/Defendant No, 4 separately submitted their cognovits and having no objection on the grant of a decree in favour of Petitioners/Plaintif fs whereas the Respondents-Defendants Nos, 5 to 9 contested the claim on many legal and factual grounds. The issues were yet to be framed when an application under Order VII Rule 11 read with Section 151 of the Civil Procedure Code was submitted for dismissal of the suit/rejection of the plaint on account of having no cause of action that the suit is barred by law with all together other legal flaws.
3. The then learned Civil Judge Prisiding Officer of the Court of Illaqa Qazi Samarbagh Dir Lower (Mr. Akbar Ali Mohmand) vide his detailed order dated 10.09.2014 dismissed the referred application being devoid of force and fixed the case for further proceedings.
4. This order was impugned before the Hon'ble High Court Mingora Bench (Dar-ul-Qaza) Swat in Civil Revision bearing No, 424 of 2014 titled "Mst. Bach a Begum alias Begum and others v. Muhammad Jan and others". In this Petition the other part was put on pre-admission notice, however under the request for withdrawal it stood dismissed as withdrawn on 17.1 1.2016.
5. Just after another application like two peas in a pod pursuant to provision of law, Order VII, Rule 11 of Civil Procedure Code with identical posture being taken therein that the plaint does not disclose a cause of action and is barred by law. This time the learned Presiding Officer/Civil Judge (Akbar Ali) developed soft corner for the said Applicants and altogether knowingly that the similar type of application has already been dismissed having almost similar prayer for rejection of plaint. On 19.9.2015 by allowing the application under Order VII Rule 11 of the C.P.C. held that the suit being not maintainable the plaint stood rejected summarily .
2. In the light of further observation, the then learned Civil Judge/Illaqa Qazi Chakdara Dir Lower Mr. Akbar All has furnished his comments, which are receiv ed by the office of learned Additional Registrar (Judicial) of this Court by Fax. Yet going through the comments, it has reasonably been explained that owing to the judgments of the Hon'ble superior Courts as referred to an application under Order VII, Rule 11 of the Civil Procedure Code under second presentation was accepted by the learned Civil Judge absolutely without any malice. Thereby , it is simply better that the learned Civil Judge since delivered its earlier verdict under due care and caution, thus absolutely the observations made therein shall not infringe his judicial career .
3. Learned counsel for the parties re-heard and with their valuable assistance record gone through.
4. Looking for a decree on the basis of prayer for obtaining declaration in the event whereof there is an agreement to sale in respect of the house, the boundaries of which are given in the head-no te of the plaint followed on the basis of receipt dated 01.05.2012 and for part performance for payment of the remaining amount the agreement to sale dated 14.10.2013 is being in possession of the Plaintif fs (hereinafter called the Appellants) which obviously to introduce a suit for specific performance for execution of the sale deed. Indeed, there are dictums of the Hon'ble superior Courts in plethora of authorities cited as PLD 1990 (Lahore) 467 "Muhammad Saeed v. Nahid Shagufta and 3 others". The relevant citation (a) speaks of f:- Rejection of plaint---Relinquishment Deed falls within the purview of S. 17(1)(b)--Plaint was solely based upon a relinquishment deed for claiming ownership rights in the property comprised in it --- Such document, even if assumed to be genuinely executed, required compulsory registration and its absence was fatal to the effective transfer of rights under it Suit based on such unregistered deed was barred by law and plaint merited outright rejection.
Likewise 2015 YLR 1845 (Peshawar) "Khalid Khan v. Haji Muhammad Anwar" has been relied upon, wherein the relevant citation (b) opines:- --S. 42--Registration Act (XVI of 1908), S. 49---Suit for declaration on the basis of unregistered sale deed-- Maintainability---Plaintif f filed suit for declaration on basis of two unregistered documents, which had not created any title or right or interest in favour of plaintiff in disputed land as envisaged under S. 49 of Registration Act, 1908-- -Declaratory suit filed under S. 42 of Specific Relief Act, 1877 on basis of unreg istered sale deeds was neither permissible nor maintainable.
Similarly 2011 YLR 888 (Peshawar) "Gahar Rehman v. Riaz Muhammad" has been relied upon. Citation (a) of the said judgment reads as under:-- ----S. 42--Civil Procedure Code (V of 1908), O. VII, R.11---Registration Act (XVI of 1908), S.49--Suit for declaration---Rejection of plaint--Plaintif f who filed suit for declaration based his claim upon lqrar Nama and in alternate suit for specific performance of agreement to sell regarding suit property was prayed--Deed of Iqrar Nama, was admittedly an unregistered document which would neither create any title nor any right or interest in the suit property as envisaged under S.49 of Registration Act, 1908---Declaratory suit under S.42 of Specific Relief Act, 1877 on the basis of lqrar Nama was not permissible; and suit for declaration would not be maintainable--Even if said Iqrar Nama was considered as an agreement to sell; and suit was considered to be that of specific performance, same would not be maintainable being barred by limitation as said lqrar Nama was scribed on 18-7- 1996 and the suit was brought on 2-4-2008--Impugned judgment and decree passed by the Appellate Court were set aside and the judgment and decree passed by the Trial Court was restored, in circumstances.
It has been held in 2017 SCMR 347 "Muhammad Iqbal and others v. Mst. Baseerat and others" in the following manner:- "S. 54. Registration Act (XVI of 1908), Ss. 17 & 49. Immovable property . Unregistered agreement to sell. Such an agreement would not confer any title upon the vendee in the immovable property ." In unreported judgment rendered at Peshawar High Court Mingora Bench (Dar-ul-Qaza) Swat in C.R. No, 158 of 2011, it has been enunciated by the then His Lordship Mr . Abdul Latif Khan as below:- "Admittedly , deed being unregistered document bestows no title upon the beneficiary . Apart from sale consideration, the other important ingredient is the delivery of possession under the sale, which is also not proved."
5. Where the form of suit has been wrongly presented for its cause of action being accrued other than the required one, it has been held in 2014 SCMR 513 "Noor Din and another v. Additional District Judge Lahore and others" as under:- "O. VII, R.11--Rejection of plaint. Object and purpose. Object of powers conferred upon trial Court under O. VII, R.11, C.P.C. was that the courts must put an end to litigation at the very initial stage, when on account of some legal impediments full-fledged trial would be a futile exercise.
In respect of the same view 2016 CLC 663 (Peshawar) "Sher Khan through LRs v. Gul Zar Khan" has been referred to, wherein the relevant citation (b) is reproduced for ready reference:- "O. VII, R.11. Rejection of plaint. Object and scope. Object of O. VII, R.11, C. P.C. is primarily to save parties from rigors of frivolous litigation at very inception of proceedings. If Court on the basis of averments made in plaint are proved, plaintif f will not be entitled to relief claimed, court would be justified in rejecting plaint in exercise of powers available under O.VII R.II C.P .C..
6. Here, besides for obtaining declaration which is based upon an agreement pertaining to sale deed dated 14.12.2013 and that the Appellants (here inbefore called the Plaintif fs) themselves are seeking possession on the basis of an unregistered sale deed would absolutely may be entitled for the grant of specific performance decree as the contract would reveal that obviously it has been entered by the Defendants (hereinafter called the Respondents Nos, 1 to 4) to have submitted their cognovit, however , when having no objection to the form of suit if at all a decree is warranted it shall be specifically for specific performance of contract decree subject to payment of all the required fee for its registration according to the sale value being fixed. However , sale deed dated 14.12.2013 is a transaction in between the Plaintif fs (hereinafter called the Appellants) and the Defendants (hereinafter called the Respondents) by their names Gul Shehz ada, Shah Jehan Shehzada, Khan Sheh zada and Jan Shehzada, where earlier transaction was settled through sale deed dated 01.05.2012, here Nauman son of Lal Shehzada, Defendant No, 9 has been shown as a minor represented by guardian ad-litem Mst. Bacha Begum mother of the minor who is widow of Lal Shehzada he has been shown to have thumb impressed the said sale deed but obviously when the sale deed conditions were to be met-out the final transaction dated 14.12.2013 does not mention the name of this minor Nauman Shahzad, meaning thereby , that absolutely the Defendants (hereinafter called the Respondents Nos, 5 to 9) have never sold-out the share in the house under the legacy of Lal Shehzada. Thus, to the extent of others obtaining declaration or the decree for specific performance would not affect the rights at all the legal heirs of the said deceased Lal Shehzada. However , besides the prayer for obtaining declaration obviously to have prayer introduced for specific performance, the amendments, if any, may be allowed to this extent within the legal framework under Order VI, Rule 17 of the Civil Procedure Code, if wish so, subject to all legal and valid objections to be raised by the other part. Yet for the rest of the prayers whether that be for obtaining permanent injunction, a prayer for possession of the suit house and in alternate for partition of the shares if at all fall under the ownership of the Plaintif fs (hereinafter called the Appell ants). The final prayer which is for obtaining a rent @ Rs, 8,000/- from the month of August, 2013 to January , 2014 which has been assessed Rs, 48,000/- for earlier 6 months and for the remaining period yet the defendant/Respondent Muhammad Jan remained in possession as occupier who has also not denied this relationship and admits this fact through his cognovit. The other prayers absolutely do not fall for rejection of plaint under Order VII Rule 11 of the C.P.C at the stage when if at all there are reasons to believe that the parties would allow further evidence, if need be.
7. In the present scenario, the second presented application even if under the arguments of the learned counsel for the Respondents that previously regarding the suit house a decree was granted in favour of Mst.T abaan, it may lead to further complications at the time of trial but not before this Court.
8. In view of what has been discussed in terms above, on acceptance of this Regular First Appeal, the impugned order passed by the learned Civil Court dated 19.09.2015 is set aside. Parties are directed to appear before the learned trial Court for a date to be summoned for further proceedings in accordance with the Civil Procedure Code.