MUHAMMAD NAEEM ANW AR, J.---This revision petition under section 115 of the Code of Civil Procedure, 1908, "
(C.P.C)" has been preferred against the judgment and decree of learned Additiona l District Judge-I, Mardan, dated 17.02.2017, whereby appeal filed by the petitioner against the judgment and decree of learned Senior Civil Judge, Mardan, dated 20.10.2015, was dismissed.
2. FACTS . A suit for declaration was filed by the petitioner-plaintif f to the effect that he is owner in possession of property measuring 'one kanal' boundaries whereof were given in HEADNOTE 'A' of the plaint, situated in the Estate of Rustum, Tehsil and District Mardan, through sale deed dated 21.09 .2005, executed by defendant- respondent No.1 in his favour . He averred that transfer of the said property through mutation No. 3276 dated 23.09.2010 and mutation No.3470 dated 22.06. 2011 by defendant No.1 in favour of defendants Nos.2 to 4 is wrong, illegal, against the fact and is the result of fraud and collusion by the defendants-respondents inter se, which is ineffective upon his rights. Perpetual injunction to the effect that the respondents-defendants be restrained from its alienation to anyone else was also prayed. It was also averred that the entire sale consideration amounting to Rs.50,000/- was received by the defendant-respondent No.1 and by acknowle dging the same, the deed Exh.
PW 2/1 was also executed by him in presence of marginal witnesses.
3. When summoned, the defendant-respondent No.1 submitted his cognovit in favour of petitioner- plaintif f whereas defendant-respondent No.4 contested the suit by filing his written statement by taking therein many legal and factual objections. After recording of pro and contra evidence, suit of the plaintif f-petitioner was dismissed by learned Senior Civil Judge, Mardan, vide his judgment and decree dated 20.10.2015. The petitioner-plaintif f assailed the judgment and decree of learned trial Court before learned Appellate Court, however , the appeal also met the same fate, hence, this revision petition.
4. Learned counsel for the petitioner contended that the defendant-responden t No.1, who was owner of the disputed property and executed the deed in favour of the petitioner , has admitted the claim of the petitioner by submitting cognovit statement before the learned trial court and the petitioner-pl aintif f also produced the stamp vendor , who has not only testified that the stamp paper was sold by him but also confirmed that Exh. PW 2/1 was scribed by him. Marginal witnesses of the deed, Shamim Iqbal and Zar Taj, were also produced and the statement of Zar Taj (PW-04) too was recorded as special attorney for petitioner , who corroborated the version of the petitioner , thus, the deed was proved in accordance with law and possession of the property in dispute was transferred by respondent No.1 to the petitioner , wherein the petitioner has buried one of his relative but despite of the above solid and concerte evidence, both the learned courts below have dismissed the suit of the petitioner . In support of his contentions, he relied on 2017 SCMR 608 , 2017 SCMR 316 and 2008 CLC 283 .
5. As against that, learned counsel for defendant-respondent No.4 argued that plaintif f- petitioner while relying on Exh. PW 2/1 contended that he has purch ased the property from respondent-defendant No.1 somewhere in 2005, however , during the course of evidence, when statement of PWs i.e., PW-2, PW-3 and special attorney for plaintif f- petitioner were being recorded, they alleged :that the date on Exh.PW -2/1 is 21.09.2003 instead of 21.09.2005.
Likewise, originally , the property in dispute was the ownership of "Muqadar Khan ", the father of respondent No. 1, on whose death, it devolved upon all the legal heirs including Ajmal Khan (respondent No. 1) and the inheritance mutation No.3261 was attested on 23.09.2010. Thus, at the time of alleged deed Exh.PW 2/1, Ajmal Khan was not the owner of property , therefore, how could he transferred it to the petitioner-plaintif f. He also reiterated that Exh.
PW 2/1 allegedly was in respect of 'one kanal' property but the petitioner has challenge d 'three kanals ' property .
While controverting the arguments of petitioner , he added that on the death of Muqadar Khan, his son Ajmal Khan has become owner of the property more than the claim of the plaintif f and on the basis of cognovit, he (Ajmal Khan) could transfer "one kanal" to the petitioner , thus, on the basis of consent/admission and that too in respect of the time, when Ajmal Khan was not owner of the property , no relief could be granted to the petitioner . Similarly , while pointing to Exh. PW 2/1, he added that it contains no khasra number , thus, how could it be alleged that the same is about the property in dispute. In continuation of his arguments, he added, that the property which was purchased by the contesting respondent No. 4, is in his possession and this fact has been admitted by special attorney for the petitioner (PW-4) and in such a situation, the petitioner could not claim the benefit of Section 53-A of the Transfer of Property Act, 1882, qua possession of respondent No.4 duly reflected in khasra girdawri, Exh. PW 1/2, when entries in khasra girdawri were changed with reference to mutation No. 3276 dated 23.09.2010. Lastly , it was argued that an agreement to sell could not create any title in favour of the petitioner , thus, suit for declaration could not be entertained and, as such, deserves dismissal. He placed reliance on 2000 SCMR 204 .
6. I have listened the valuable arguments of the learned counsel for the parties and have gone through the file.
7. Evidently , suit of the plaintif f is based on Exh.PW 2/1, wherein specification/description of the property was not given. Neither any khata number nor khasra number was mentioned in the deed (Exh.PW -2/1). In the same manner , contents of plaint reveal that though five khata numbers were mentioned but khasra (survey) number was not mentioned. It was for the petitioner to have pointed out the "ONE KANAL " property as to where does it locate.
It would also be of much significance that respondent No. 1 Ajmal Khan was owner of the property or not because the contents of Exh. PW 2/1 signify that he (Ajmal Khan) alleged himself to be the exclusive owner of "ONE KANAL " at the relevant time i.e., 21.09.2005 or 21.09.2003. It was also for the petitioner to have proved that when `Muqadar Khan', the father of respondent No.1, died in order to determine the ownership of respondent No.l.
Similarly , respondent No. 1 was not the only issue of Muqadar Khan, there were other heirs of him, so, why and how 'ONE KANAL ' plot became the exclusive ownership of Ajmal Khan. Though, the petitioner has not brought on record the answer of the above mentioned points in unambiguous and clear term, however , the documents suggests that inheritance mutation of Muqadar Khan was attested on 23.09.2010, when the property was devolved upon his legal heirs, including Ajmal Khan. It Is no-where mentioned in the revenue papers that Ajmal Khan was owner of the property prior to inheritance mutation, because one of his brothers Qaidar Khan was shown to be the owner alongwith father in kahsra No. 1858 in the Jamabandi for the year, 2009-2010. So, while considering the respondent No.1 as owner on the strength of mutation No. 3261 dated 23.09.2010, in absence of any contrary evidence and that too positive, direct or convincing, presumption of truth is attached to entries of revenue papers, thus, respondent No.1 (Ajmal Khan) was not the owner in the properties of his father what to say about "ONE KANAL " plot on which the petitioner lays his hand. This view is fortified with the case law titled Muhammad Saddique v . Raj Begum and 39 others (2008 CLC 61 ) wherein it was held that:- "It is the principle of law that entries recorded in Jambandi carry statutory presumption of truth".
Reliance can also be placed on case law Muhammad Amin and others v. Mst. Beevi and others (2007 SCMR 614), wherein it has been held that:- "10. The learned first appellate Court and the learned High Court ignored from consideration that mutation entries when incorporated in the record of rights carry presumption of truth. In this case the entries of mutation were given effect to in the Jamabandies of 1966-67 (Exh.D.5), 1969-70 (Exh.D.6), 1974-75 (Exh.D.7), 1978-89 (Exh.D.8), 1982-83 (Exh.D.9) and 1986-87 (Exh.D.10). the following observations of this Court in Abdul Ahad and others v.
Roshan Din and 36 others PLD 1979 SC 890, illustrate the principle.
"When a mutation gets incorporated in Jamabandi (i.e. annual record) then as held in Bhagwan Das v. Mangal Said (1), Jamabandi carries a presumption of truth and the learned District Judge in the circumstances was not justified to ignore the said Jamabandi and its corresponding supporting mutation."
8. Another significant aspect of the case was the alleged date of scribing of the deed i.e., 21.09.2003 or 21.09.2005. This date will also determine the accrual of cause of action. The petitioner instituted the suit on 17.01.2012, statements of PWs 2, 3 and 4 were recorded on 16.05.2015 and the suit was decided by the learned trial Court on 02.10.2015 but since institution of the suit till its decision, no reques t was made for correction of the date as 21.09.2003. Even before this court, learned counsel for petitioner argued his case while relying upon the deed dated 21.09.2005, lastly , submitted that it should be read as 21.09.2003. The Exh. PW 2/1 reveals that the date was written on it when it was allegedly scribed and on the overleaf, when the stamp paper was purchased. On both the pages, i.e., on front side the year of the deed i.e., 2003 or 2005 is not clear and on the overleaf of it, the last digit of the year, i.e., unit was intended to be rubbed. Likewise, in the list of witnesses, once again, the date of Exh. PW 2/1 was over written and, thus, not clear . Statement of stamp vendor (PW-2) was recorded, who has deposed that he sold the stamp paper on 21.09.2003 and the same date was noted down in his register but, amazingly , the said register was not produced and copy of the relevant page of the register was also not placed on file. The same shall be seen in the light of Article 129 (g) of the Qanun-e-Shah adat Order , 1984. Though, the petitioner-plaintif f produced the Stamp vendor but when copy of register was not placed on file, it would tantamount to withholding of best piece of evidence and in such a way adverse inference shall be drawn against the plaintif f.
9. Although, the plaintif f's contention was that Exh.PW 2/1 is a sale deed whereby possession of the property was handed over to him, however , the documents itself appear to have been signed by the vendor's only as an acknowledgment of receipt of sale consideration but the same for the purpose of handing over possession could not be considered a best evidence notwithstanding that the executant has admitted the same as correct because when the possession has been disputed by respondent No. 4 then it was for plaintif f to prove the deed by producing its executant even though he has admitted it through, cognovit. Now, in this scenario, the executant was the witness for plaintif f and would be subjected to cross examination for bringing the truth on record regarding the contents of Exh.PW 2/1, especially , when the plaintif f alleged that possession was transferred to him. In addition to the above, for the purpose of proof of possession, the only reliance of the plaintif f was that one of his relative was buried in the subject property . It was never materialized that when the deed body was buried, however , it was admitted by PW-4 that the very person was not the relative of the plaintif f, thus, the stance of the plaintif f was negated by his own witness. The document Exh.PW 2/1 without possession is of no help to the plaintif f-petitioner within the four corners of section 53-A of the T ransfer of Property Act, 1882 , which reads as thus:- "53-A. Part performance.-- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty , and the transferee has in part performance of the contract, taken possession of the property or any part thereof or the transferee, being already , in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or where there is an instrument of transfe r, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consid eration who has no notice of the contract or of the part performance thereof."
Therefore, undoubtedly , the deed Exh. PW 2/1, as per the version of the plaintif f, could at the best be considered as an agreement to sell and in such circumstances the suit of the plaintif f for declaration was not competent.
Wisdom is drawn from the case titled Muhammad Yousaf v. Munawar Hussain and 5 others ( 2000 SCMR 204) wherein it was held that: - "5. Before proceeding further it would be necessary to examine in brief the scope of section 53-A of the Act. The said provision of law enables the transferee to protect his possession provided the conditions laid down therein are fulfilled. The said conditions are the existence of the agreement and the transferee having been put in possession in part performance of the said agreement. In other words as rightly observed by the learned Judge of the Lahore High Court, the aforesaid provision of law is a shield and cannot be used as a sword. Judged in this background, it is obvious that the petitioner/plaintif f seeks a declaratory decree on the basis of an agreement to sell and in the same breath further declaration is sought that the sale of the disputed shop by the respondents Nos.1 to 5 in favour of the respondents Nos.6 to 10 was against his rights. In this view of the matter , the right course for the petitioner would have been to institute a suit for specific performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect' of a legal right or character . The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under section 53-A of the Act. It was also urged before the Lahore High Court that the agreement to sell should be construed as sale-de ed. This plea was repelled and rightly so. The agreement to sell is executed on five rupees stamp paper and being unregistered document cannot be equated with a sale-deed. Another feature of the case, which was noticed by the High Court was delay of 14 years in instituting the suit. The agreement to sell was executed in 1975 while the suit was instituted in the year 1989 and no satisfactory explanation came forth to explain the delay . It was alleged that at the time of the execution of the agreement to sell, Rs.31,000 had been paid. Strangely enough no steps were taken to get the sale-deed executed and registered, therefore, it was rightly inferred that the agreement to sell was fictitious and was fabricated with a view to avoiding eviction in proceedings under the Rent Restriction Ordinance."
10. Legally speaking, possession of the property is the sine qua non for suit under section 53-A of the Act ibid. The said aspect has been clarified by the hon'able apex Court in a case titled Fazla v. Mehr Din and 2 others (1997 SCMR 837 ) wherein it has been held that:-- "11. These two provisos were added by the Registration (Amendment) Ordinance, 1962 with effect from the 7th June, 1962. The first proviso clearly indicates that a person who is in possession of the property under an unregistered document prior in date, would be entitled to claim rights under section 53-A of the Transfer of Property Act provided he fulfils all the conditions laid down in the said section. It, therefore, applies section 53-A of the Transfer of Property Act to persons in possession of the property acquired under an unregistered document.
Learned counsel for the appellant contended that the receipt/contract is a document of sale requiring registration but has remained unregistered. Therefore, the appellant can claim benefit of section 53-A of the Transfer of Property Act. Learned counsel has relied on Naib-Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others (1992 SCMR 1265 ) in which essential ingredients of applicability of section 53-A of the Transfer of Property Act have been enumerated, which require a contract in writing signed by the transferor in respect of an immovable property; transfer can be ascertained with reasonable certainty; from the docu ment the transferee has taken possession of the property or any part thereof or if he was in possession, he conti nues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and that the transferee has performed or is willing to perform his part of the contract. It is on satisfaction of these conditions that one can claim the benefit of section 53-A of the Transfe r of Property Act. In this judgment referen ce was made to Mst. Ghulam Sakina v Umar Bakhsh and another (PLD 1964 SC 456), Habibur Rehman and another v. Mst. Wahadania and others (PLD 1984 SC 424), Mst. Shankri and others v. Milkha Singh (AIR 1941 Lahore 407) and observed as follows:-- "Section 53-A of the Transfer of Property Act enunciates equitable principle to protect the rights of such purchasers who have entered into agreement and in pursuance thereof obtained the possession of the immovable property and have further either performed their part of the agreement or are agreeable to perform the same. In such circumstances, mere non-registration of a deed which requires registration under section 17 of the Registration Act, will not deprive him of the benefit which he is entitled to protect by virtue of section 53-A of the Transfer of Property Act. It is true that section 53-A does not confer or create any right but it provides a defence to a transferee to protect his possession. Reference can be made to the cases of Kalimuddin Ansari, v. Director , Excise and Taxation, Karachi and another (PLD 1971 SC 114) and Sri Kalulam Subranmanyam and another v. Kurra Subba Rao (PLD 1948 PC 52). Section 53-A debars a transferor from enforcing any right other than rights specifically provided by the contract against a transferee who in part performance of a contract has taken possession. Reference may be made to the cases of Abdullah Bhai and others v. Ahmed Din (PLD 1964 SC 106) and Mst. Ghulam Sakina v. Umar Bakhsh and another (PLD 1964 SC 456). In the present case, the agreement itself recites that the appellant in part performance of the agreement had been put in possession of the property . The appellant is, therefore, entitled to the protection of his possession."
From the above observation it is clear that if any document requiring registration under section 17 of the Registration Act has not been registered, it cannot bar or deprive a purchaser from Claiming benefit under section 53-A of the Transfer of Property Act provided he satisfies the requirement of the said section."
Thus, the case law relied upon by learned counsel for the plaintif f is distinguished from the case in hand, as such, do not apply to it.
11. There is another aspect of the case, transfer of the property in favour of respondent No. 4 was effected through two mutations No. 3276 dated 23.09.2010. and 3470 dated 22.06.201 1, which were challenged on the ground that the property was purchased by the plaintif f, however , as discussed above, the plaintif f could not substantiate his contention by producing cogent and reliable evidence, thus, the transfer through both the above referred mutations is held as correct and legal one, especially , when possession of the property was not only with respondent No.4, but has been admitted by witnesses produced by the plaintif f.
12. Obviously , before this court there are concurrent findings of both the learned courts below , regarding which the petitioner could not point out any misreading and non-reading of evidence or illegality , material irregularity or any infirmity , in absence Of which concurrent findings could not be set at naught as held by the Supreme Court of F Pakistan in the case reported 2003 SCMR 1114 and 2007 SCMR 368. I have gone through the impugned judgments from all angles and found nothing wrong in the same, which could warrant interference by this Court in exercise of revisional jurisdiction. When so, the petition, being IG without any substance stands dismissed.