1. RAZA ALI KHAN, J.---The captioned appeal has been filed against the judgment and decree recorded by the learned Reference Judge Mangla Dam Raising Project Mirpur on 31.01.2008, whereby reference filed by appellants herein, has been dismissed.
2. Precise facts of the case are that besides other land, land comprising survey No,149 renumbered as 199 measuring 3 kanals 9 marlas situated at village Lakhora Tehsil Mirpur was acquired by the Collector Land Acquisition vide Award No,66/07. The appellants herein, filed a reference under section 18 of the Land Acquisition Act before Collector Land Acquisition stating therein, that land comprising survey No,149 renumbered as 199 measuring 3 kanals 9 marlas situated at village Lakhora Tehsil Mirpur was purchased by their grandfather through agreement to sell dated 28th Magh 2001 and since then the land is in their possession , hence, they are entitled to receive the compensation of the said land. It is further contended that compensation has wrongly been awarded to the Custodian being owner of the land. The reference was sent to learned Reference Judge Mangla Dam Raising Project Mirpur. The learned Reference Judge sought objections from the other side and framed issues in light of the pleadings of the parties. The parties were provided an opportunity to lead evidence in support of their respective claim. At the conclusion of the proceedings the learned Reference Judge through the impugned judgment and decree dated 30.01.2008 dismissed the reference for want of proof. Feeling dissatisfied appellants herein, filed appeal before this Court. A bench of this Court vide judgment dated 25.01.2017 accepted the appeal and declared the appellants entitled to receive compensation of the land in question. On appeal the Hon'ble Supreme Court set-aside the judgment dated 25.01.2017 on the ground that the learned Judge who decided the appeal has additional charge of Custodian, hence, was not competent to decide the case. On remand, vide order dated 16.05.2018 the parties were directed to file written arguments. The parties have filed written arguments in pursuance of the order of this Court.
3. The summary of the written arguments filed on behalf of the appellants is that land in question was purchased by their grand father through agreement to sell dated 28th Magh 2001, however, mutation could not be entered in the revenue record. It is next argued that the appellants proved their claim by producing oral as well as documentary evidence before the learned Reference Judge, but the learned Reference Judge has failed to appreciate the evidence in its true perspective and wrongly dismissed the reference.
4. In the written arguments filed on behalf of the respondents it is stated that necessary parties have not been impleaded in line of the respondents. It is further argued that land in question was in the ownership of one Nathoo Ram as per revenue record and Hayati had no concern with the same land, hence, Hayati had no authority to execute any agreement. It is also contended that agreement dated 28th Magh 2001 relied upon by the appellants is uncertified copy, hence, is not admissible in evidence. It is also contended that land in question is an evacuee property and the Custodian being owner of evacuee property has rightly been declared entitled to receive compensation of the land.
5. I have considered the written arguments filed by the learned counsel for the parties and gone through the record of the case. The sole claim of the appellants is that they are owners of land comprising survey No,149 renumbered as 199 measuring 3 kanals 9 marlas situated at village Lakhora Tehsil Mirpur on the basis of agreement to sell dated 28th Magh 2001, Exh.PA, registered on 1st Phaghan 2001, executed by Hayati in favour of their grandfather. This aforesaid document is an agreement not a sale deed, which fact is admitted by the appellants in their pleadings. There is a plethora of case law on the point that an agreement to sell does not confer any right in the property or title rather A such a document can only be utilized for procuring another document i,e, sale deed by filing a suit for specific performance of the contract.
6. In case titled Ch. Liaqat All v. Mirza Abdul Aziz and 3 others (2001 CLC 1502) the apex Court has observed that "mere execution of an agreement-to-sell does not bestow any title until and unless further steps are taken in pursuance of the said agreement-to-sell"
7. In case titled Hameedullah and 2 others v. Muhammad Hussain and 2 others (2006 SCR 183) it has been ruled that agreement to sell does not bestow the ownership. A person cannot claim ownership on the basis of agreement to sell, however, he may claim possession of the land and the Court after recording evidence of the parties can direct protection of his possession.
8. In case titled Muhammad Siddique and 6 others v. Abdul Aziz Ratalvi and 7 others (2016 YLR 612) the apex Court opined that agreement to sell confers no right upon a party in the property. Such document can only be utilized for procuring another document.
9. In 2016 SCR 1712 titled Muhammad Siddique Khan and another v. Zareen Khan, the apex Court has held that agreement to sell does not create any right or title. It can only be used to procure another document and when performance of agreement to sell shall be made the document i,e, sale deed, that will confer a right upon the vendee.
10. In view of above, it can safely be concluded that the learned Reference Judge has rightly dismissed the reference because in view of settled law the appellants cannot be declared owners of the land mere on the basis of agreement to sell referred to and relied upon by them. The appellants have never filed any suit for specific performance of the contract to get the sale deed on the basis of agreement to sell.
11. The appellants herein, to prove issue No,II "Whether the petitioners were owner of the land under reference? produced Muhammad Bashir and Ghulam Sarwar as witnesses and Muhammad Museeb, appellant No,1, got recorded his statement as witness. From the statements of these witnesses even execution of agreement 28th Magh 2001 is not proved. They have deposed that agreement was executed before their birth and they are hearsay witnesses hence, their evidence cannot be made base for passing a decree in favour of the appellants.
12. Moreover, it is not proved from record that Hayati who executed the agreement to sell dated 28th Magh 2001 was owner of the land and from whom and when she purchased the land or how the land was transferred to her. The learned Reference Judge has rightly appreciated the evidence brought on record and reached at a just conclusion-which hardly require any interference by this Court.
13. The upshot of the above discussion is that the appellants, herein, neither could prove execution of agreement to sell relied upon by them nor agreement to sell create any right in favour of the appellants except to procure another document, hence, the learned Reference Judge has rightly dismissed the reference through the impugned judgment and decree, which stands maintained.
14. Muzaffarabad 29.05.2018 JUDGE (Note)
15. The judgment has been written and duly signed. Deputy Registrar circuit Mirpur is directed to announce the judgment after due notices to the parties. The office at Headquarter shall transmit the file to Circuit Mirpur forthwith.
JUDGE