WIQAR AHMAD, J. This order is directed to dispose of the instant writ petition as well as connected W.P No. 1198- M/2019 and W.P No. 1229-M/2019. The common question requiring answer in all these petitions was relating to maintainability of a suit on the basis of an unregistered sale deed and an ancillary question thereto was whether a suit brought on the basis of an unregistered sale deed of immovable property should or should not be rejected under Order VII Rule 1 1 CPC?
2. Brief facts of the respective cases necessary for disposal of all these petitions are briefly mentioned hereunder; i) W.P No. 946-M/2018 (Sultan Yousaf & others vs. Muhammad Sherin & others); In this case, plaintif f/respondent No. 1 had brought a suit for declaration etc, before civil Court on 16.09.2014 on the basis of an unregistered sale deed dated 26.10.1998. It was contended in body of the plaint that possession of property in dispute had also been handed over to him on said date. The suit was contested by defendants No. 1 to 4, 6, 7 & 9 by filing their separate written statements. During proceedings of the suit, petitioners (defendants No. 6, 7 & 9) filed an application for rejection of the plaint under Order VII Rule 11 CPC. The learned civil Court after hearing arguments of learned counsel for the parties rejected application of petitioners vide its order dated 06.10.2017. Petitioners filed civil revision there-against before learned District Judg e Swat, which was dismissed by learned Additional District Judge-II, Swat vide impugned order dated 13.09.2018. They then filed instant writ petition with a prayer that their application filed under Order VII Rule 11 CPC may be accepted and plaint filed by plaintif f/respondent No. 1 be rejected. ii) W.P No. 1 198-M/2019 (Shah Karim Jan & another vs. Mst. Mastoria Bibi & others); Plaintif f/respondent No. 1 had brought a suit for declaration etc, before the civil Court on 31.07.2017 on the basis of an unregistered sale deed dated 17.02.2006. It was contended in body of the plaint that suit property had been ownership of Haji Muhammad Suliman, Haji Musa Umar , Haji Barkat Ali sons of Haji Muhammad Ismail, who had sold it to one Haji Ajmeer Shah son of Haji Khushal Khan (late) vide sale deed dated 26.06.2003 at a sale consideration of Rs. 28,87,050/-. It was also contended therein that from Haji Ajmeer Shah, the plaintif f had purchased suit property vide sale deed dated 17.02.2006 at a sale consideration of Rs. 38,70,000/- and since then, she had been in exclusive possession of same. Petitioners and respondent No. 2, who were defendants in the suit appeared and filed an application for rejection of plaint under Order VII Rule 11 CPC. The learned civil Court after hearing arguments of learned counsel for the parties rejected the application vide its order dated 25.09.2017.
Revision petition filed there-against was dismissed by the learned Additional District Judge-II, Swat vide impugned order dated 16.09.2019. Petitioners then filed the writ petition with a prayer that their application filed under Order VII Rule 1 1 CPC may be accepted and plaint filed by plaintif f/respondent No. 1 be rejected. iii) W .P No. 1229-M/2019 (Zaiwar Shah & another vs. Said Akram through legal heirs & others); Plaintif f (predecessor-in-interest of respondents No. 1 to 16) had brought a suit for declaration as well as permanent injunction, before the civil Court on 11.06.2014 on the basis of an unregistered sale deed dated 20.01.2014. It was contended in body of the plaint that plaintif f had purchased the suit property along with a spring (described fully in heading of the plaint) from Khawaneen Palai vide sale deed dated 20.01.2014 and that he had been owner and in possession of same. The suit was contested by defendants/ petitioners by filing their joint written statement. During proceedings, petitioners filed an application for rejectio n of the plaint under Order VII Rule 11 CPC. Their application was rejected by the learned civil Court vide its order dated 13.02.2019. Revision petition filed there-against was also dism issed by the learned District Judge Malakand at Batkhela vide impugned order dated 03.10.2019. Petitioners then filed the writ petition with a prayer that their application filed under Order VII Rule 1 1 CPC may be accepted and plaint of plaintif fs/ respondents No. 1 to 16 be rejected.
3. Learned counsel for petitioners (who were defendants before the respective civil Courts) have contended that every document of sale purporting to transfer title, having a value of consideration of one hundred rupees or upwards, was compulsory registrable under section 17 of the Registration Act, 1908 (hereinafter referred to as the "Registration Act" ) and if not so registered, then same would not operate to transfer title under section 49 of the Registration Act. They also contended that a suit filed under section 42 of the Specific Relief Act, 1877 is not maintainable as an unregistered sale deed was not creating title under section 49 of the Registration Act. They further contended that the Registration Act had been extended to Provincially Administered Tribal Areas vide Regulation No. II of 1974 i.e. Provincially Administered Tribal Areas (Application of laws) Second Regulation, 1974 and any deed executed thereafter could not be claimed to have created any title and interest in any immovable property , therefore the suits brought on the basis of unregistered sale deeds have not been maintainable and same should be rejected under Order VII Rule 11 CPC. They placed reliance on the judgments reported as 1983 SCMR 988, 1989 SCMR 949, 2000 SCMR 204, PLD 2003 Supreme Court 410, 2006 SCMR 315, 2014 SCMR 513, 2017 SCMR 367, PLD 2018 Supreme Court 189, 2019 SCMR 974, AIR 1934 Lahore 758, 1985 MLD 1563 , PLD 1986 Lahore 399, PLD 1990 Lahore 467, NLR 2000 Civil 304, 2002 CLC 48, 2002 CLC 361, 2002 CLC 1165, 2005 YLR 2129 , 2005 MLD 526, 2011 YLR 888, 2012 MLD 1062 , 2014 CLC 492, 2015 YLR 1845 , 2015 CLC 385, 2019 MLD 195, 2019 YLR 305, 2019 YLR 505, 2019 CLC 1046 and 2020 MLD 1230 as well as unreported judgment of this Court given in the case of Hamish Jalal vs. Muhammad Raziq and others (C.R No. 158/201 1).
4. Learned counsel for respondents submitted in rebuttal that certain rights are created even by an unregistered sale deed or agreement to sell particularly when possession is transferred. They placed reliance on provisions of Section 53-A of Transfer of Property Act, 1882 (hereinafter referred to as "TPA"). They also placed reliance on the judgments reported as 1997 SCMR 837, PLD 2006 Supreme Court 66, PLD 2006 Supreme Court 202, 2004 CLC 1029 , 201 1 CLC 329, 2012 MLD 1062 , 2017 MLD 785 , PLD 2018 Peshawar 173 , and 2019 YLR 646 .
5. I have heard arguments of learned counsel for the parties and perused the record.
6. There is no doubt about the fact that a deed compulsory registrable under section 17 of the Registration Act (after said Act is applied to a particular area), cannot be given an effect of creating title in immovable property as per Section 49 of the Registration Act but it is equally true that an unregistered sale deed is not totally divested of a legal character , moreso when possession is also transferred along with execution of the sale deed. Section 53-A of TPA gives certain rights to a person for protection of the possession obtained by him in part performance of an agreement to sell. Section 50 of the Registration Act also gives certain rights to a person in whose favour an unregistered sale deed or agreement to sell is executed. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Mst. Akhtar Seguin vs. Mian Aziz & others reported as 1985 SCMR 1617 has held, after an extensive survey of the then existing case law on the subject; "In the case of S.N. Banerji and another v. Kuchwar Lime and Stone Co. Ltd. (in Liquidation) and another AIR 1941 PC 128 the Privy Council held that: "the words of section make it quite plain that the section does not operate to create a form of transfer of property which is exempt from registration. It creates no real right; it merely creates rights of estoppel between the proposed transferee and transferor , which have no operation against third persons not claiming under those persons."
In another case of Probodh Kumar Dass and others v. Dantmara Tea Co. Ltd. and others AIR 1940 PC 1 like the plaintiff-respondent of this appeal, the appellants before their Lordships of the Privy Council "contended that, notwithstanding that they had not chosen to sue for specific performance of the contract of 10th October , 1931 and notwithstanding that they had taken no steps to, complete their title they were nevertheless entitled under section 53-A actively to assert the rights of a proprietor in virtue of the contract of 10th October , 1931 and their possession." Their Lordships rejected this contention observing "the amendment of the law effected by the enactment of section 53-A conferred no right of action on a transferee in possession under an unregistered contract of sale--the section is so framed as to impose a statutory bar, on the transferor; it confers no active title on the transferee. Indeed any other reading of it would make a serious inroad on the whole scheme of the T ransfer of Property Act."
This Court examined the question in a different context in Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and held that though a sale in violation of section 54 of the Transfer of Property Act "is not altogether void" yet the interest acquired under such a sale as inchoate and imperfect and "even such an imperfect transaction will give rise to equities in favour of the buyer ."
In another case, Inayatullah and others v. Shah Muhamm ad and others PLD 1961 Lah. 372 the vendee came as plaintiff, sought specific performance of an unregistered contract of sale partly performed. His claim to get the contract specifically performed was resisted on two grounds, the first being that he could, if at all, protect his interest under section 53-A of the Transfer of Property Act as a defendant and could not come to Court as plaintiff. Secondly , it was said that in the absence of registration of the agreement to sell, notwithstanding its part performance, he acquired no enforcible right. Reliance was placed for these submissions on the decision of the Privy Council in case of Probodh Kumar Das. Both these contentions were repelled with by the Division Bench observing as follows:-- "It would be rather anamolous if the position of a transferee in a suit, i.e. whether he has come to Court as a plaintiff or as a defendant should determine whether he should be accorded recognition of his rights and if he were a plaintiff he should fail but if he raised precisely the same plea if he were a defendant he should succeed. I am of the view that when a transferee by means of a document which has not been registered, though under the law that document was compulsorily registrable, comes to Court as a plaintiff and bases his claim on part performance, of the contract of transfer , he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the title of anyone else. The decision of their Lordships of the Privy Council in Probodh Kumar Dass v. Dantamara Tea Co. was , therefore, of no avail to defendants Nos. 2 to 9."
In the case of Pakistan Employees Co-operative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others PLD 1969 Kar. 474 another Division Bench affirmed the enforcement of rights under an unregistered agreement partly performed by plaintiff.
The upshot is that in such a case, on other conditions being satisfied the plaintiff can be granted the declaration that the plaintiff is in possession of the property under an enforcible contract of sale in his favour and that defendants Nos. 1 and 2, and persons claiming under them are restrained from interfering with their possession."
7. There is no doubt about the fact that an unregistered sale deed does not create unqualified rights of ownership but having said that it cannot be claim ed that no suit can be brought on the basis of an unregistered sale agreement. Section 50 of the Registration Act provides in unequivocal words that a suit for specific performance of an agreement may be brought on the basis of an agreement to sell. Section 53-A of TPA also provides certain legal rights, which may be claimed on the basis of such a deed. However , there exists no doubt about the fact that a declaration of ownership cannot be soug ht on the basis of an unregistered sale deed but seeking of rejection of plaint was a remedy which has been sought prematurely .
8. It is settled law that while deciding an application filed under Order VII Rule 11 CPC, contents of plaint and documents annexed therewith should be looked into and if a cause of action is found deciphering there-from, then plaint should not be rejected. A plaint cannot be rejected for the reason of impro per frame of suit. If a plaintif f is entitled to one relief but he prays for another and contents of his plaint disclose a cause of action, then in such a case a plaint cannot be rejected under Order VII Rule 11 CPC. The question involved in all these cases requires recording of pro & contra evidence, wherein the actual transactions could be unearthed and thereafter the Court would be in a position to decide whether or not the respective plaintif fs are entitled to grant of any relief and if so, what appropriate relief may be granted in given circumstances of the case but as stated earlier , it cannot be held that an agreement to sell has been divested of any legal character and that no suit could be brought on the basis of such an agreement. In appropriate cases , Court has got the jurisdiction to mould a relief. A suit for declaration may be converted into a suit for specific performance of agreement. Order VII Rule 11 CPC no doubt requires that relief in a suit has to be stated specifically but even if not so stated, the Court may grant a relief it thinks just. Similarly , the Court is empowered to allow parties to amend their pleadings under Order VI Rule 17 CPC at any stage of proceedings. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Javaid lqbal vs. Abdul Aziz and another reported as PLD 2006 Supreme Court 66, had allowed conversion of a suit of declaration into that of specific performance when case of the plaintif f had been found well placed and he had been found entitled to the relief. While doing so, reliance had inter-alia been placed on judgment of the Hon'ble Lahore High Court given in the case of Shabbir Ahmad vs. Khushi Muhamma d reported as 1993 CLC 2316 , wherein the Hon'ble High Court had reversed order of dismissal of suit made by the appellate Court in said case and had held that relief of specific performance could be granted to the plaintif f, if evidence on record had established agreement of sale and performance of his part of agreement and the question of limitation was not involved. Relevant part of observation of the Hon'ble Supreme Court of Pakistan given in the case of Javaid Iqbal Supra is reproduced hereunder for ready reference; "Adverting to the case law on the subject, we may refer to Jankirama Iyer v. Nilakanata (AIR 1962 SC 633), lying laid down that construing the plaint, the Court must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form. Interpreting the provisions of Order VI, rule 2, C.P.C. and Order XLI, Rule 33, C.P.C., Supreme Court of India in Bhagwati v. Chandramaul (AIR 1966 SC 735) held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it. It was emphasized that in considering the application of this doctrine to the facts of a particular case, Court must bear in mind the other principle that consideration of form cannot override the legitimate considerations of substance. In Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) it was held that in a suit for declaration where plaintiff was able to seek consequential relief by way of possession, which had not been claimed, Court in such case should allow amendment of plaint by adding prayer for possession and paying appropriate Court-fee and granting him relief even though he had not specifically asked for it. In Manager , Jammu & Kashmir , State Property v. Khuda Yar (PLD 1975 SC 678), rule of law laid down is to the effect that the scope of the revisional powers of the High Court, though circumscribed by conditions of excess of jurisdiction, failure to exerc ise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes, beyond that at least in two respects in as much as; firstly , its discretionary jurisdiction may be invoked by the Court suo motu, and secondly , the Court "may make such order in the case as it thinks fit". In Amina Begum v. Ghulam Dastgir (PLD 1978 SC 220), this Court laid down the principle of law that a discretion is vested in the Courts to be judicially exercised in proper cases to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties, and mould the relief according to the altered circumstances in the larger interest of justice. In Samar Gul v. Central Government (PLD 1986 SC 35), interpreting the provisions of Order VII, rule 7, C.P.C. Zafar Hussain Mirza, J. (as his Lordship then was), speaking for the Full Bench authoritatively held that it is well-settled that a Court is empowered to grant such relief as the justice of the case may demand. For purposes of determining the relief asked for, the whole of the plaint must be looked into so that the substance rather than the from should be examined. In Mir Mazar v. Azim (PLD 1993 SC 332) it was laid down that amendment of pleadings has to be allowed keeping in view the circumstances of the case and the stage of litigation and on such terms as may be just. In this case, in second appeal before the High Court, application was filed seeking amendment of plaint, notice whereof was served on the other party but no reply was filed thereto. High Court did not pass any order on the said application but dismissed the second appeal. It was ruled that ends of justice demanded that amendment should have been allowed, as such request could be treated at par with the case of declaration under section 42 of Specific Relief Act when consequential relief had not been sought. It was reaffirmed that rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice. A case in point almost on all fours from Lahore jurisdiction is reported as Shabbir Ahmed v. Khushi Muhammad (1993 CLC 2316 ) authored by an illustrious Judge of this Court Munir A. Sheikh, J (as his Lordship then was in the Lahore High Court). In this case Appellate Court had dismissed the suit on the ground that the same was not in proper form as the remedy of the plaintiff was to seek decree for specific performance, his Lordship authoritatively held that the suit could not have been dism issed on this technical ground and ruled that the relief of specific performance could be granted to the plaintiff if the evidence on record had established agreement of sale and performance of his part of agreement and the question of limitation was not involved."
Hon'ble Supreme Court of Pakistan at the time of giving its judgment in the case of Mian Jan vs. Mian Pir Jan and others reported as 2015 SCMR 298, while dealing with a case arising from this particular part of the country (Swat) had also held that the sale deed relied upon in said case had though been unregistered but had to be looked into on the touchstone of the practice and laws prevalent at the time when same had been executed. Relevant findings given in this respect are also reproduced hereunder for ready reference; "This Court is slow in reversing findings on facts, more so when the same have been concurrently arrived at by all the Courts. However , in the present case we have noted that all the Courts have proceeded on the legally erroneous premise that the sale deed of 1965 does not hold good as its execution is not in accordance with the laws currently enforced in the District. As earlier observed the deed had to be examined on the touchstone of the practice and the laws prevalent at the time the same was executed. We are, therefore, constrained to hold that the Courts have fallen into grave error in dismissing the suit of the petitioner by misapplication of law. The petition is therefore converted into appeal and allowed. The impugned judgments and decrees are set aside and the suit filed by the petitioner is decreed as prayed for."
9. This Court would avoid jumping to any conclusion in any of these connected cases as it would be for the civil Courts to decide the intricate questions of facts and law that may be arising from evidence available in the cases, but the purpose of citing abovementioned judgments was that it cannot be held that no suit could be instituted on the basis of an unregistered sale deed even if it is coupled with transfer of possession. Findings recorded in this judgment are only aimed at disposal of the controversy in hand, the scope of which is limited to purview of Order VII Rule 11 CPC and these findings are not supposed to prejudice case of either party before the learned civil Court at the time of its ultimate conclusion. Similarly , the question of limitation being a mixed question of law and facts shall be answered in the attending circumstances of each case and such questions cannot be settled in the instant proceedings.
10. In light of what has been discussed above, it is held that a plaint cannot be rejected for the only reason that it is defective in the relief asked for, when the plaint otherwise discloses a cause of action. The applications filed for rejection of the plaints in all these cases have therefore been ill-conceived. Same have rightly been rejected by the respective Courts through the orders impugned in W.P 946-M/2018, W.P No. 1198-M/2019 and W.P No. 1229- M/2019. All the petitions were therefore found divested of any force and same are accordingly dismissed.