This second appeal arose out of a suit filed by the respondent for declaration to the effect that the sale-deed dated 10th June, 1963 alleged to have been executed by him in respect of - shop No, 58, Goal Bazar, Haroonabad, District Bahawalnagar, was void and ineffective as against his proprietary rights in the property and that the appellant was the tenant in the said property of which the respondent/plaintiff was the landlord.
2. The factual background of the controversy subject-matter of the suit was that property No 59- BSA. Goal Bazar, Haroonabad, consisted of two shops on ground floor and Chubara on the first floor. Muhammad Rashid, appellant was transferred Chubara whereas one shop was transferred to Khushi Muhammad respondent and the other was transferred to one Din Muhammad by the Settlement Authorities. This was the final result of the litigation which the parties carried on up to the level of Chief Settlement Commissioner. Muhammad Rashid, appellant filed a constitutional petition against the order of transfer of one shop to the respondent and as the same was dismissed on 3rd January, 1963, Letters Patent Appeal was filed on 30th May, 1963. This was also admittedly dismissed later on during the pendency of the suit. After the dismissal of the writ petition and during the pendency of the L.P. a., document dated 10th June, 1963 was executed by Khushi Muhammad respondent. This document has been referred to as Exh. P. 5 in the judgments of the Courts below. Exh. P. 5 is a certified copy of the said document. The original is on record but the same was not got exhibited by the appellant. This document described as "compromise deed" inter alia recites that party of the first part has transferred all rights which he had in the half southern part of the shop in dispute in favour of the party of the second part against consideration of Rs, 2,500 through this deed and as such neither the party of the first part nor its heirs are left with any rights in the said property. In between the lines of para. No, 2 words added read "amount has been paid by the party of the second part to the party of the first part." It is also mentioned in this deed that the possession of the half southern portion of the shop has been given to the party of the second part which has become from 10th June, 1963 the owner of the said portion. It is also mentioned therein that party of the second part has already paid price of the shop to the Deputy Settlement Commissioner, Bahawalnagar and P.T.O. Has also been issued in his name and the said P. T. O. Has not yet ,been cancelled but now as party of the first part has conveyed all rights in the said half southern portion to the party of the second party, it, i,e,, the party of the second part shall be entitled to receive P. T. D. In respect of the said half southern portion and that on the date of hearing of the L.P.A. The party of the first part will make the aforesaid statement as it is bound by the same. It was this document which was alleged to have been gat executed through fraud and misrepresentation and by making the respondent believe, that a lease-deed in his favour was being prepared. The appellant controverted these assertions and the learned trial Court after framing necessary issues and recording the evidence dismissed the suit observing that neither fraud was practised nor misrepresentation was made in having the said agreement executed.
3. On appeal learned Additional District Judge despite holding that fraud was not practised for having the deed Exh. P. 5 executed granted the relief under Order VII, rule 7, C. P. C. By recording the conclusion that the deed Exh. P. 5 was void and ineffective against the rights of the respondent, due to the reason that an unregistered document in view of provisions of section 49 of the Registration Act, 1908 was ineffective to convey any title to the person (the present appellant) in whose favour the said document was written. This decree dated 22nd April, 1967 of the learned Additional District Judge was challenged in the present appeal.
4. Learned counsel for the appellant argued that the relief under Order VII, rule 7, C.P.C. Could not be granted and the suit was liable to be dismissed as under section 53-A of the Transfer of Property Act the possession of the appellant over the shop in dispute stood protected. It was further argued that the document dated 10th June, 1963 was merely a compromise deed and as such was not compulsorily registrable under section 17 of the Registration Act.
5. The record of the case was also gone through with the assistance of the learned counsel for the parties. The question that arises is whether the document dated 10th June, 1963 is a Sale Deed or an Agreement to sell or a Compromise Deed or a Deed of Association surrendering the rights as is understood under the Settlement Laws. A bare reading of the' document Exh. P. 5 would show that it was not an agreement to sell as the rights were sought to be conveyed under the said deed itself. It is obvious that such a document would require registration in view of the provisions of section 17 of the Registration Act read with section 54 of the Transfe of Property Act. It may be added that the property being situated I Haroonabad a city of former Bahawalpur State provisions of section 54 o the Transfer of Property Act were applicable and as such no rights in immovable property of the value of Rs, 100 or above could be created except through a. Registered instrument. As to the applicability of section 54 of the Transfer of Property Act, reference may be made to Hail Near Muhammad v. Ghulam Masih Gill. If the document Exh. P 5 is treated as a Compromise Deed in view of the recitals contained therein, then the same was not acted upon as admittedly the L.P.A.
Was not got decided in terms of the said compromise deed. In case the document Exh. P. 5 was intended to be used as Deed of Association as it was stated in the deed that the appellant wilt be entitled to have the P. T. D. Issued then P. T. D. Was not got issued by the appellant on the basis of the said deed. It was stated in Court which statement was not controverted by the appellant that the P. T. D. Was issued in favour of Khushi Muhammad respondent on payment of price amounting to Rs, 2,554.69. It is also pertinent to note that on < the date of execution of the said document Khushi Muhammad respondent had not been issued the Permanent Transfer Deed. On the contrary it makes mention of the fact that a P. T.1
0. Was issued in favour of Muhammad Rashid appellant and that the said P. T.
0. Had not yet been cancelled. Khushi Muhammad respondent as such was not even entitled to sell the shop in dispute. He could, at best, surrender his rights by executing a Deed of Association in accordance with the procedure provided by the Settlement Laws. In addition to the aforesaid factors it is also pertinent to note that a shop, the transfer of which was obtained for Rs, 2,554.69 was transferred under the impugned document for Rs, 2,500 only after protracted litigation spreading over many years as is apparent from Exh. P. 1 order of Chief Settlement Commissioner, Exh. P. 2 order of the Settlement Commissioner Exh. P. 3 order passed in the writ petition. It is also apparent from the record that Muhammad Rashid remained unsuccessful even in the High Court as his writ petition was dismissed on 3rd January, 1963 and the L. P. A. Filed on. 30th May, 1963 was apparently barred by time as an application for condonation of delay was submitted. This application was placed on record as Exh. P.4.
6. In the background of aforesaid salient features and facts the oral evidence produced by the parties was to be examined. Both the learned Courts below unfortunately failed to examine the evidence in the context of the related factors and the salient features noted above. The learned trial Court was swa yed with the fact that two Advocates had appeared to support the version of the appellant/defendant. The evidence led by the plaintiff except for his own statement is not of much avail. Coming to the evidence led by the respondent, it will be seen that Abdul Hamid (D. W.
1) did not say anything besides the fact that Muhammad Rashid had paid Rs, 2,500 in his presence.
This payment was made according to the other witnesses at the time of execution of the document. If that was so then this witness should have witnessed the preparation and execution of the document as he had accompanied Abdul Razzaq to the High Court. In the cross-examination he further stated that in his presence the matter in respect of which payment was made was neither discussed nor talked. Statement of Malook (D. W. 2) is of no consequence as he deposed that Muhammad Rashid used to come to his lawyer and that on the asking of his "Vakil Sahib" he had gone to fetch Abdul Razzaq. Abdul Razzaq, brother-in-law of Muhammad Rashid appeared as D, W.
3. He deposed that Malik Dost Muhammad, Advocate had called him to inform that Khushi Muhammad wanted to enter into a compromise with Muhammad Rashid. He then called'Rashid through telegraphic message and next day Rashid came to him and both of them then went to the said Vakil Sahib. Khushi Muhammad also came there and it was decided that Rashid would pay Rs, 2,500 to Khnshi Muhammad and Khushi Muhammad would sell half portion of the shop to Rashid.
He further deposed that Rashid asked for tune and after two days he returned with money and then they went to Vakil Sahib and they, were asked to come to the High Court. Next day alongwith Abdul Hamid, P.W. They went to the High Court where Rashid paid Rs, 2,500 to Khushi Muhammad. It is to be noted that Abdul Razzaq D. W. Did not make any mention of the preparation or execution of any document. Abdul Aleem -(D. W. 4) deposed that he was working as a Junior of Malik Dost Muhammad Awan, Advocate in 1963 and that he bad scribed a document for Khushi Muhammad and Muhammad Rashid on the asking of Malik Dost Muhammad Awan and that immediately after that writing Rashid had paid Rs, 2,500 to. Khushi Muhammad. In cross-examination he admitted that he had not signed the document which he had written. He did not state anything as to the contents, nature and effect of the document written by him. Muhammad Nazir (D. W. 5) deposed that the parties had held talks in the office of the Advocate on 7th June, 1963. They had some dispute with regard to a shop and it was decided that Muhammad Rashid would pay Rs, 2,500 to Khushi Muhammad. Muhammad Rashid asked for time and then probably on 10th June, 1963 in the side room of the Bar-room he paid the amount. It is to be noted that even this witness did not state as to the nature of settlement arrived at except that Rs, 2,500 was agreed to be paid and were paid. Then we come to the statement of Malik Dost Muhammad Awan, Advocate (D. W. 6). He deposed inter alia that it was settled that the defendant will pay Rs, 2,500 to the plaintiff and in lieu thereof the plaintiff will abandon his right in respect of the shop. He further deposed that after two days Muhammad Rashid first came to his office and then reached the High Court where both the parties met him. The plaintiff then went to civil Courts for purchasing the stamp paper and thereafter Abdul Aleem, pleader drafted a compromise deed in the presence of the persons named in the statement. He further deposed that Rs, 2,500 were paid to the plaintiff. Malik Dost Muhammad Awan, Advocate was not asked to identify the document written by his Junior. He was the counsel of the appellant in the High Court and till the time that he made the statement the L. P.
A. Admittedly had not been decided. He was neither asked nor he explained the reason why Khushi Muhammad, the transferee of the shop despite dismissal of the writ petition was interested in abandoning his right in the said shop. D. W. 7 is Muhammad Rashid appellant himself. He deposed that when he on the first day came to the office of the lawyer, Muhammad Nazir P.W., Khushi Muhammad and Muhammad Shafi came there and then he was told that Khushi Muhammad wants to enter into a compromise and thereafter, it was settled that Rs, 2,500 will be paid by him to Khushi Muhammad and Khushi Muhammad will surrender his share in the shop. He further deposed that on his asking two days' time was given to him and thereafter the document was drafted on a stamp paper by Abdul Aleem, Pleader. He admitted in the cross-examination that the Settlement Commissioner and the Chief Settlement Commissioner had decided the matter in favour of Khushi Muhammad and that the writ petition filed thereafter by him was also dismissed.
Despite this, he stated that compromise was effected on the asking of the plaintiff/respondent. He further admitted that except for the agreement no other receipt was got written acknowledging the receipt of the amount of Rs, 2,500.
7. It is not without significance that the original document got executed from the respondent/plaintiff was not produced in the evidence by appellant through any of his witnesses.
Moreover, except the appellant himself and Malik Dost Muhammad Awan (D. W. 6) none of the other witnesses deposed about the alleged agreement to surrender the rights in the shop, though these other witnesses claimed that they were present at the time when the consideration of Rs, 2,500 was paid by the appellant and received by the respondent. These witnesses did not make mention of execution of any document by the respondent. Even Malik Dost Muhammad Awan (D.
W. 6) did not say that the document prepared by Abdul Aleem D. W. Had contained the alleged agreement or that any such document was signed in his presence by Khushi Muhammad. It may be noted that D. W. 6 was also impleaded as a defendant in the suit. Thus, independent evidence in support of the alleged agreement or transfer of rights is not available on record. The most surprising feature of the case is that a person who was successful in obtaining transfer of the shop after many years' litigation, came forward of his own to surrender his right in favour of his opponent and that too in consideration of a sum which was less than the transfer price of the property. The learned Courts below failed to examine the evidence in the light of attending circumstances. It is hard to believe that the respondent in his senses would have agreed to such an arrangement. Had he agreed freely and consciously to surrender his rights in the shop in dispute then question arises as to why the L. P. A. Was not got disposed of in accordance with the compromise when admittedly the parties were present at Lahore. No such thing was done till the institution of the suit on 26th September, 1963. Even this document was not presented to the Settlement Authorities for having the P. T. D. Issued on the basis of the surrender of the rights made through the said document. This conduct of the appellant would go against his assertion that the respondent agreed to surrender his rights in the shop in dispute and would rather support the assertions of the respondent that he was made to sign the document without apprising him of the true contents of the document. It will also be noted that an independent shop was transferred to Khushi Muhammad though this was described for identification purposes as the shop falling on the southern side. In the document Exh.
P. 5 the words written {{URDU TEXT}}" give the impression as if a portion of the shop was being conveyed. This was repeated in the statements of the defendant/appellant's witnesses. Malik Dost Muhammad Awan stated that Khnshi Muhammad agreed to abandon/surrender his share in the shop. Now it is apparent from record that Khushi Muhammad was not transferred any share in the shop but was transferred the shop falling on southern side as a whole. These statements as such fall short of the claim of the appellant that he was conveyed the rights in the entire shop.
8. For all these reasons, I am of the view that the plaintiff/respondent was successful in showing that he had neither sold nor agreed to sell the shop in dispute the transfer of which he had secured after years' litigation. The finding in this respect given by the learned Courts below was the result of non-consideration of entire evidence in the light of the attending circumstances emerging from the record itself. Now the submission that section 53-A of the Transfer of Property Act is applicable to the instant case may be noticed. In this connection, it is to be noted that except for the document Exh. P. 5 which mentions that possession has been given, there is nothing else on the record in this respect. The appellant in his statement did not state that he was delivered the possession of the shop in dispute or that his possession over the shop continued in part performance of the contract. The provisions of section 53-A of the Transfer of Property Act, as such, cannot be availed of by the appellant.
9. The net result of the above discussion is that the decree passed by the learned Additional District Judge is upheld though for different reasons. The appeal, therefore, fails with costs. P D 1965 B J 1