1. Through the captioned appeals, the propriety of judgments and decrees of Additional District Judge dated 12.04.2017, has been called in question, whereby, the learned Additional District Judge while dealing with the appeals of the parties, the appeal of Muhammad Azad Khan has been ordered to be dismissed, whereas, the appeal of Begum Jan and others has been allowed and while modifying the judgment and decree of trial Court, Begum Jan and others have also been declared possessor as co-sharer in the suit land vide consolidated judgment and decrees dated 12.04.2017, impugned herein.
2. Since both the appeals originate from single consolidated judgment, hence, heard together and have been proposed to be disposed of through this single judgment.
3. Succinctly, the facts giving rise to the appeals in hand are that Muhammad Azad appellants herein filed a suit for possession on the basis of ownership in respect of piece of land comprising old survey No. 391, new 767, measuring 05 kanal 14 marls, averring therein that a piece of land, in the light of private partition is within the sole ownership of plaintiff but defendant Muhammad Shafi, while occupying the said piece of land has constructed a house over the said piece of land. It is further averred that earlier in another suit, the question of exchange of said piece of land with Survey No. 559/1 came into consideration but neither any party nor Court admitted the factum of exchange, hence, a decree of recovery of possession be issued in favour of plaintiff accordingly.
4. Said suit was resisted by the defendant and while filing separate written statements, claim of the plaintiff was refuted in toto on legal and factual scores.
5. Subsequently, Muhammad Shafi, the predecessor of the respondents herein filed a suit of declaration-cum-perpetual injunction averring therein that the suit land comprising Survey No. 391(old), 767(present) in the light of exchange with the piece of land comprising Survey No. 183, 186, 189 (old), 178 (present) is owned and possessed by him, over which, he has raised construction with a cost of huge amount to the tune of Rs.50,00,000/-(fifty lac), hence, defendants be restrained to claim possession and interfere into the suit land.
6. Muhammad Azad and others, while resisting the said suit filed written statement through which the claim of the plaintiff, Mulammad Shafi was refuted in toto.
7. Out of pleadings of the parties, learned Senior Civil Judge Rawalakot, consolidatedly, framed as many as 08 issues alongwith two additional issues and after recording the evidence and hearing the counsel for the parties disposed of the lis on 12.08.2009, but the learned 1st appellate Court remanded the matter to decide the same afresh.
8. The learned trial Court, after hearing the learned counsel for the parties, while recording the issue wise findings, dismissed the suit of Muhammad Azad, the appellants herein, whereas, the rival suit of the respondents herein was ordered to be decreed to the extent of perpetual injunction vide judgment and decrees dated 28.09.2010.
9. Dissatisfied from the aforesaid judgment and decrees, both the parties filed separate appeals in the Court of District Judge Rawalakot, from where the case was entrusted to Court of Additional District Judge. The learned Additional District Judge, after hearing the arguments of counsel for the parties, allowed the appeal of the respondents herein with the, observation that respondents alongwith other co-sharers are owners and possessor of suit land comprising survey No. 39(old), 767 (new) measuring 05 kanal 14 marlas situate at village Kharik resultantly, the judgment and decree of the trial Court was ordered to be treated modified accordingly, whereas, the appeal of the appellant Muhammad Aazad was ordered to be dismissed vide consolidated judgment and decree dated 12.04.2017, impugned herein.
10. Arguments heard.
11. The learned counsel appearing on behalf of appellants herein after narrating the facts of the case at some length argued with vehemence that there is no estopple against law and admission or estopple is not enough to exonerate such requirement which law requires to do or not to do certain acts and in the matter in hand, on the one hand, no question of estopple stands established, whereas, on the other hand no immovable property could validly be treated transferred mere on the basis of estopple as Transfer of Property Act, narrates the mode of transfer of immovable properties and under law, an immovable property having its worth of Rs. 100/- or above requires to be transferred through mode of registration, so, unless and until, said mode is adopted, the said property cannot create any title or rights, merely on the basis of possession.
12. The learned counsel pressed into service that respondents herein, have wrongly been declared the owners of the suit land, whereas, admittedly, the so called "exchange" does not quality to be considered a valid mode of transfer of property due to non-registration of the same, hence, by allowing the appeal in hand suit of the appellants herein be decreed as claimed for, whereas, the counter suit be dismissed with costs. The learned counsel referred to and relied upon a series of case law but only photocopy of one page of "Transfer of Property Act" was produced, the perusal of which indicates that while relying upon a case law recited in a foot note tilted "Mathura Mohan v.
13. Ram Kumar (1916) 43 Cal. 790, 35 I C 305", the interpretation of estopple in a note "No. 23" is recorded as "(23) Estopple---An admission that land has been sold will not operate as estopple so as to do away with the necessity for registered conveyance. Title to land will not pass by mere admission when the Act requires a conveyance"
14. Conversely, the learned counsel representing the respondents herein, while defending the judgment and decrees impugned herein submitted that record available at the file speaks volume that earlier to the suit in hand, Muhammad Azad filed a suit for declaration-cum-perpetual injunction wherein he categorically took a claim that suit land narrated in the present suit is given to the respondent herein in the light of exchange with other survey number but his said suit failed. It is claimed that no appeal was filed but with the a fresh claim of ownership, suit for recovery of possession has been filed and the learned Courts below, while dealing with the claims of the parties have rightly decided the lis in accordance with law. The learned counsel maintained that undisputedly an immovable property is to be transferred in terms of Transfer of Property Act read with "Registration Act" but prior to the enforcement of said Acts, the verbal transfer and unregistered documents have been given protection under Transfer of Land Validation Act, hence, in the light of said Act, the exchange deed in question might be treated a valid document. The learned counsel, while referring to the case law reported as 2006 SCR 88, 2002 SCR 550 and an unreported judgment of apex Court of Azad Jammu & Kashmir recorded in case titled "Muhammad Ameer Khan & others vs. Mehtab & others" dated 05.10.2009 solicited dismissal of both the appeals with costs. In a case law reported as 2006 SCR 88, it is observed that under the principle of estopple by conduct, a party cannot be allowed to blow hot and cold in the same breath.
15. Similarly, in a case law reported as 2002 SCR 550, it is Observed that appellant is estopped to challenge the point on which he failed to succeed in the earlier proceedings.
16. In an unreported case titled "Muhammad Ameer Khan and one another vs. Mehtab and other" decided on 05.10.2009, the Hon'ble Judge of apex Court of Azad Jammu & Kashmir, while referring to the Transfer of Land Validation Act, have observed that transfer of immovable property on verbal basis or through unregistered document, prior to the enforcement of Transfer of Property Act, will be deemed valid in the light of Section 3 of the Transfer of Land Validation Act.
17. Having heard the arguments of both sides, I have also gone through the record made available at the file.
18. Admittedly, the dispute between the parties pertains to survey No. 391 (old) 767 (new), measuring 05 kanal 14 marlas situate at village Kharik. Muhammad Azad and Saeed and others appellants herein are claimant the recovery of possession of the said piece of land on the basis of entitlement, whereas, the respondents are claimant that said survey number due to exchange with other survey number is within their possession and ownership. Admittedly, the disputed survey number is within the possession of respondents over which, admittedly, the respondents, in the shape of construction of house have made improvements.
19. It is also an admitted position that "exchange" is not registered deed but the claim of the respondents herein is that said exchange is admitted by Muhammad Azad, hence, in terms of principle of estopple, he cannot claim ownership and possession of the suit land but appellants herein have raised a legal question that "until and unless, a document is duly registered, such document cannot create any right of entitlement in favour or respondents herein."
20. In view of aforementioned claim of the parties and some admitted facts, by narrowing down the controversy, the main question which needs consideration is "as to whether Muhammad Azad appellant herein has admitted the factum of exchange of disputed piece of land and now, he, under law of US topple is estopped to agitate a new claim regarding disputed piece of land whereas, without adopting the proper mode of alienation of suit land in terms of Transfer of Property Act, coupled with Registration Act, on the basis of said exchange, the respondents herein could be declared owner of the suit land From the perusal of record, it depicts that prior to the suit in hand. Azad Khan and others filed a suit of declaration the cum-perpetual injunction against predecessor of respondents herein and others claiming therein that a piece of and comprising survey No. 539, measuring 14 kanal is within their ownership and possession on account of exchange of their piece of land comprising survey No. 391, as their said claim, very clearly reflects from the contents of their earlier suit exhibited as "DM".
21. Moreover, Muhammad Azad Khan, while recording his statement in his suit of this round has admitted the factum of exchange. For the purpose of better appreciation, the relevant portion of the statement is reproduced hereunder: The above deposition of one of the appellants herein speaks volume in terms that claim of exchange of respondents herein is admitted by Muhammad Azad Khan, so, it is not a simple question of estopple in view of earlier litigation, rather it is a clear matter of admission of claim of respondents herein, as the statement referred to herein above, has been recorded in the suit of recovery of possession, wherein, he has also admitted the factum of exchange and said exchange in the light of revenue record also stands corroborated.
22. Now, this question is to be addressed as to whether on the basis of said verbal exchange recited in revenue record or in the light of admission respondents may be declared owner of the suit land or not?
23. Admittedly, on the basis of admission or estopple, no legal requirement necessary for alienation of immovable property in terms of a registered conveyance can be frustrated and admission or estopple, whatsoever, the case may, be, the same will not operate to defeat the very purpose of mode of alienation of immovable property in the light of Transfer of Property Act, coupled with Registration Act, and in this regard, the argument of learned counsel for the appellants herein holds weight but the matter in hand may be adjudged in the light of "The Transfer of Land Validation Act". The said" Act" was enforced in order to validate the transfers made through unregistered transaction or mutations attested on the oral request of the e parties to such transaction. As such transfers were violative of Subsection (1) of Section 138 of the Transfer of Property Act, 1977, as was enforced at that time in the State, hence, the said law was promulgated to validate these transfers.
24. Section 3 of the Transfer of Land Validation Act, 2003 deals with the proposition in hand, hence, for proper Appreciation the same is reproduced hereunder:
3. Validation of Transfer of Land.
25. Notwithstanding anything contained in Sub-section (1) of Section 138 of the Transfer of Property Act, 1977 all transfers of land made before this Act comes into force by oral agreement or if in writing by unregistered deeds, mutations whereof, have been duly sanctioned and not subsequently set aside by any competent authority shall be deemed to have the same effect as if they were in writing and registered in accordance with the provision of the Registration Act, 1977.
26. The exchange and mutation etc in the matter in hand has admittedly been executed prior to enforcement of aforementioned law, hence, the claim of respondents herein is fully covered in the light of said law, thus, it can safely be observed that respondents herein along-with other co- sharers stand lawful owners of the disputed piece of land by operation of law.
27. In view of afore narrated circumstances, it is observed that learned 1st appellate Court, while dealing with the appeals in hand has rightly recorded its findings quite in consonance with evidence and law, thus, judgment and decrees impugned herein are hereby maintained, resultantly, both the appeals in hand, being devoid of substance are dismissed with no order as to costs. Copy of this judgment shall be annexed with the connected file. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.