MOHAMMAD IBRAHIM KHAN, J.---With the preface of a suit by Muhammad Shoaib Plaintiff (hereinafter called the Petitioner) for obtaining declaration with regard to a house, the boundaries of which are given along with a Hujra stating its boundaries to have been purchased by an agreement to sell dated 02.08.2004 from Haji Mehronesh Khan the predecessor of Defendants (hereinafter called the Respondents) to the exclusion of anyone else. There are other prayers of obtaining permanent injunction and cancellation of an agreement to sell dated 11.12.1994 and Hiba Nama dated 04.01.2010 by the said Haji Mehronesh Khan in favour of his wife Mst. Bakht Rokhana Bibi. There is added prayer for obtaining of its possession on the basis of agreement to sell in his favour.
2. This claim was hotly contested by the Defendants (hereinafter called the Respondents) who submitted their separate written statements. During the course of proceedings issues have been framed on the basis of diversion pleading of the parties. The evidence was under way of its conclusion when in the meanwhile, the Defendants (hereinafter called the Respondents) submitted an application for rejection of the plaint as suit for declaration is not competent for obtaining a decree as the proper form of suit its for obtaining specific performance on the basis of the contract of sale in between the parties.
3. Having heard learned counsel for the parties, the learned Senior Civil Judge/AIQ Judicial Magistrate Swat vide his order dated 27.11.2014 accepted the application and rejected the plaint under Order VII, Rule 11 of the Civil Procedure Code, allowing the plaintiff (hereinafter called the Petitioner) to file afresh suit of specific performance of contract on the basis of agreement to sell dated 02.08.2004. This order was further assailed before the Court of learned Additional District Judge-VI/IZQ Swat in an appeal bearing No. 75/13 which too met the same fate as where there is an agreement to sell, the party is to enforce such an agreement would require to bring a suit for specific performance of the contract and may obtain a favourable decree, it is fact.
4. Here is a Civil Revision bearing No. 100-M/2017 against the concurrent findings of the learned Courts below whereby the grounds being taken, the prayer has been set: "It is therefore, prayed for on acceptance of the instant revision petition orders/judgments of both the Courts below as the case may please be decided on merits in the light of evidence of the plaintiff and all exhibits documents according to the law. Any other remedy coupled with cost, which is efficacious and appropriate, in peculiar circumstances of the case, may please be granted prayed for".
5. Having heard learned counsel for the parties, record with their valuable assistance gone through.
6. While dealing with the course to be adopted for disposal of the application under Order VII, Rule 11 of the Civil Procedure Code which has been accepted by the learned Senior Civil Judge/AIQ Swat.
The appeal preferred has also been dismissed. Thereby the contents of the plaint are taken for consideration.
7. Indeed there is a prayer for obtaining a decree for declaration with regard to the house and Hujra, the boundaries of which are given in head note of the plaint which is followed by prayer for obtaining permanent injunction and cancellation of the agreement dated 11.12.1994 on behalf of Haji Mehronesh Khan in favour of his wife Mst. Bakht Rokhana Bibi, besides the gift deed dated 04.01.2010 in between the same parties. The available agreement to sell is Ex PW-1/1, through this agreement while entering into the transaction of sale pertaining to the house by Haji Mehronesh Khan in favour of Muhammad Shoaib along with Hujra. It settled a sale consideration of Rs.
15,00,000/- but at the footnote for the purpose. of completion of the agreement contract as it requires registration. The transfer was placed to fulfill his obligation to get it registered before the Illaqa Registrar. Meaning thereby, that for the above performance of the agreement, still the parties were to get the premises registered in the office of Registrar Swat. Thus where the sale is not completed by way of its registration when the value is more than hundred rupees. Where in the present transaction, the sale consideration is fixed for Rs. 15,00,000/-. It requires registration where in such scenario for the fulfillment of such contract suit for declaration would not be competent except that the plaintiff is in possession under enforceable contract of sale.
8. Indeed, there are dictums of the Hon'ble superior Courts in plethora of authorities cited as PLD 1990 Lah. 467 "Muhammad Saeed v. Nahid Shagufta and 3 others". The relevant citation (a) speaks off:-- 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:-- 42---Registration Act (XVI of 1908), S. 49---Suit for declaration on the basis of unregistered sale deed--Maintainability---Plaintiff 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 5.49 of Registration Act, 1908---Declaratory suit filed under S.42 of Specific Relief Act, 1877 on basis of unregistered sale deeds was neither permissible nor maintainable.
Similarly 2011 YLR 888 (Peshawar) "Gohar 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---Plaintiff who filed suit for declaration based his claim upon Iqrar 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 Iqrar Nama was not permissible; and suit for declaration would nor 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 Iqrar 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."
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 0. 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 tlic 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 0. 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, plaintiff will not be entitled to relief, claimed, court would be justified in rejecting plaint in exercise of powers available under 0. VII, R. 11, C.P.C.
9. It has been held in other judgments cited as 2000 CLC 1546 "Agreement for sale of immovable property--Right of purchaser of the property---Scope---Purchaser of a property through an agreement of sale has no right, title or interest in the property proposed to be sold except to maintain a suit for specific performance", followed by 2001 YLR 2789 "Suit for declaration of title on basis of agreement to sale Maintainability --Rejection of plaint under O. VII, R. 11, C.P.C.--- Contention of appellant was that agreement to sale did create an interest in property and on its basis, they could maintain suit for declaration and permanent injunction--Validity---Agreement to sale did not create any right title or interest in the property and on its basis, suit for declaration of title would not be maintainable---Appellants should have filed suit for specific performance under Specific Relief Act, 1877 and S.42 thereof would not apply to their, case Appellants never thought of amending the plaint and neither in trial Court nor before High Court made even oral request to allow conversion of declaratory suit into a suit for specific performance--High Court dismissed the appeal as no infirmity or illegality was found in order passed by the trial Court" further followed by 2002 YLR" 2571 "Suit for declaration-Maintainability-Title on the basis of agreement to sell-- Validity--Agreement to sale does not create any right, title or interest in property--Suit for declaration on the basis of such agreement is not maintainable".
10. Where the sale in between the parties has not been completed, declaration cannot be sought either regarding plaintiff right to any legal character or in respect to property claim by him/her in suit section 42 of B the Specific Relief Act, 1877 rather the only course available would be to bring a suit for specific performance as to ask for completion of the sale.
11. In view of the above observation, the impugned orders assailed before this Court would not call for any interference. Hence the plaint has rightly been rejected, however, the Petitioner (hereinbefore called the plaintiff) has the lawful right to bring any suit if advised for specific performance of contract on the basis of the agreement dated 02.08.2004.
12. In view of what has been discussed above, this revision petition is hereby dismissed.