' Rahimuddin father of Irfanuddin petitioner herein was owner of the suit houses which were let on rent to Toti Gul, Abdus Samad and Rehman Shah respondents herein. The latter instituted a suit against the petitioner on 26-1-1977 in the Court of Civil Judge, Mardan for a declaration that they had become owners of the suit houses on the basis of agreement to sell executed in their favour on 12-11-1976 by his father Rahimuddin after receiving Rs,13,000 out total sale price of Rs,15,500 and also for injunction directing the petitioner herein to receive the remaining sale price of Rs,2,500 and refrain from claiming any right or interest in the suit houses. The respondents had based their claim of ownership by purchase on a report in the, daily diary of the Circle Patwari recorded on 12- 11-1976 at the instance of Rahimuddin, father of the petitioner. The suit was contested by the petitioner herein who had inter alia mentioned in his written statement that the respondents herein were in occupation of the suit houses only as tenants and that his father Rahimuddin had never sold the same to them, that his father used to put signature on documents and he had never thumb-impressed the report in the daily diary, that neither he nor his father had received any sale price from the respondents and that the suit was against law.
' From. The pleadings of the parties the learned trial Judge framed the following issues:--
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is competent in its present form?
(3) Whether the plaintiffs are estopped from suing?
(4) Whether the suit is had for non-joinder of necessary parties?
(5) Whether the suit is properly valued for the purpose of court-fee?
(6) Whether the plaintiffs have not prayed for possession of the suit property, if so, its effect?
(7) Whether the plaintiffs are entitled to the declaratory decree prayed for?
(8) Whether the plaintiffs are owners in possession of the suit property?
(9) Whether sale Mutation No,4885 dated 4-1-1977 in respect of the suit property was entered by the father of the defendant in favour of plaintiffs, if so, its effect?
(10) Whether father of the defendant thumb-impressed Roznamcha Waqyati Mad. No,101 dated 12- 11-1976 in presence of wintesses, and also received a sum of Rs,13,000 from the plaintiffs, if so, its effects?
(11) Whether the plaintiffs are .Entitled to a decree for permanent injunction prayed for?
(12) Whether the plaintiffs are in possession of the suit house as tenants?
(13) Relief.
' After recording evidence as produced by the parties, the learned Civil Judge, Mardan had decreed the suit of the respondents on 28-4-1983 and had also directed them to deposit the remaining sale price of Rs,2,500 in the Court. That judgment was challenged in appeal by the petitioner hereinbefore the learned District- Judge, Mardan who after going through the record came to the conclusion that issue No,5 had got material bearing on the fate of the case, he, therefore, by judgment, dated 21-3-1985 sent the record back to the learned Senior Civil Judge, Mardan with the direction to give specific finding thereon and then to transmit the finding alongwith the record back to the appellate Court. The learned Senior Civil Judge came to the conclusion that the suit was properly valued and transmitted the finding and record to the Court of learned District Judge, Mardan on 20-4-1985. The learned District Judge agreed with the findings of the learned trial Judge on issues Nos.8, 9 and 10 and dismissed the appeal by judgment dated 4-7-1985. The appellant still feeling aggrieved came up to this Court with the revision petition in hand.
2. I have heard learned counsel for the parties at length and have also perused record of the case.
3. It is admitted that the suit houses were owned by Rahimuddin, father of the petitioner and the respondents were in occupation of the same as tenants. It is also an admitted fact that a Mutation No,4885 was entered on the basis of report No,101 in the daily diary of the Circle Patwari dated 12-11- 1976 on the same date but it was dismissed on 11-1-9877 on the report that Rahimuddin had died.
The respondents have produced in evidence Exh.P.W.1/4, copy of the aforesaid daily diary, according to which Rahimuddin had made a report to the Circle Patwari to the effect that he had sold the suit houses to the respondents for Rs,15,500 out of which he had received Rs,13,000 from the vendees and the remaining sale price of Rs,2,500 was to be received by him at the time of attestation of the mutation. This report in the daily diary bears thumb-impression of Rahimuddin and there are 2 witnesses Amiruddin Lambardar and Shah Zarin. The said 2 attesting witnesses had also appeared as witnesses of the respondents and they had both stated that the report in the daily diary was written by the Circle Patwari at the instance of Rahimuddin and they both had attested the same. On the contrary the contention of the petitioner was that his father had never sold the suit houses to the respondents and that his father was a literate person and he used to put his signature on documents and had never put his thumb-impression on any document. He also produced identity card of his father, copy Exh.2/D.1, which bears signature of Rahimuddin. He also produced, Exh.D.W.1/PA. Photo copy of application of his father for identity card which shows that a mark of thumb-impression has been cut and instead it is signed by Rahimuddin. It has also come in evidence of the petitioner that his father died on 9-12-1976.
4. The learned counsel for the petitioner has challenged the judgments of both the learned lower Courts on the ground that the suit houses were of the value of more than Rs,100 and that the same could not be transferred without a registered sale-deed and since the mutation had been rejected on account of the death of his father (the petitioner) and since there was only an alleged report in the daily diary of the Circle Patwari on which the respondents had relied in proof of sale -of the suit houses in their favour, so the same did not create in their favour, or extinguish against the petitioner any right or title over the suit houses under the provisions of section 17 of the Registration Act. His other contention was that the report also appeared to be fictitious, coercive and bogus as the father of the petitioner used to put signature on documents whereas it allegedly contained his thumb-impression.
5. In so far as the first point is concerned, under section 17 of the Registration Act, any document which purports or operates to create, declare, assign, limit or extinguish, any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property is compulsorily registrable and under section 49 of the same Act the same shall not operate to create, declare, assign, limit or extinguish, any right, title or interest, to or in immovable property unless it has been registered.
6. Besides relying upon the provisions of sections 17 and 49 of the Registration Act, the learned counsel for the petitioner has also brought to my notice the case of Mt. Shankri and others v. Milkha Singh AIR 1941 Lah. 407, wherein it was held that no equitable doctrine can override the specific provisions of section 49 and operate so as to make an unregistered document create title if it requires registration. The learned counsel for the petitioner has also relied upon the case of Ram Sarup Rai and others v. Charitter Rai and others AIR 1927 All. 338, wherein it was held that mutation alone does not pass rights in immovable property in absence of registered instrument.
7. It shall be seen that the respondents had relied upon an oral agreement alleged to have been reported to Patwari by Rahimuddin disclosing that he had sold the suit houses to them for a sum of Rs,15,500. This document being a report recorded by the Patwari cannot be called a sale-deed or even a sale transaction because by itself such a report does not carry any legal value 'even though a mutation may be entered on its basis. Moreover, this report has also not been proved beyond any doubt because it bears thumb-impression' of the reporter whereas evidence has come on record that he used to put signatures on documents. Still this report would not confer any title because it purported to create interest in immovable property of the value of more than one hundred rupees and it was not registered.
8. Both the learned lower Courts failed to appreciate this aspect of the matter which was purely of a legal nature. The respondents had failed to produce any cogent and convincing evidence or a registered document to claim purchase of the suit houses. For the aforesaid reasons I set aside the findings of both the learned lower Courts on issues Nos. 7 to 11 and decide the same against them.
Consequently I accept this revision, set aside both the impugned judgments of the learned lower Courts and also dismiss the suit of the plaintiffs-respondents, leaving the parties to bear their own costs.