MUHAMMAD BASHIR KHAN JEHANGIRI, J.-This revision petition is directed against the judgment and decree of an Additional District Judge, Bannu, dated 19.7.1987, upholding the judgment of the learned Senior Civil Judge, Bannu, dated 2.11.1986, whereby a decree was granted in favour of the plaintiff for possession by pre-emption of 19 kanals 3h marlas of land situated in village Ameen Mughal Khan, Tehsil and District Bannu, on payment of Rs. 1,26,390/-.
2. The sale of 19 kanals 13 marlas or land described fully in the title of the plaint and situated within the area of village Ameen Mughal Khan on the basis of mutation No. 2311 attested on 8.6.1983 gave rise to a suit for possession by preemption by the pre-emptor-respondent against the vendee- petitioner herein. The suit was contested by the vendee-petitioner who, inter alia, pleaded that he has become co-sharer in the disputed land by virtue of an un-registered exchange deed dated 23.5.1983. In replication filed by the Pre-emptor-respondent, the alleged exchange deed purporting to transfer 2 kanals 11 h marlas of land out of the disputed Khata in favour of the vendee-petitioner was' attacked to be collusive, fraudulent and having been pre-dated and was, therefore, void and ineffective qua the superiority of pre-emptive rights of the pre-emptor- respondent.
3. On the pleadings of the parties, as many as 8 issues, including the issue of relief, were framed by the learned trial Court. The crucial question that came up for consideration of the Court was as to whether the exchange deed dated 23.5.1983, which was un-registered, had created any title in the disputed khata in favour of the petitioner so as to defeat the claim of the respondent to be a Co- sharer therein. The learned trial Judge held, on crucial issue No. 4, which reflected the effect of the impugned exchange deed, that it was not only collusive, fraudulent and having been pre-dated, but was also un-registered and, therefore, it had created no title in favour of the petitioner. The learned Appellate Court concurred with the findings of the learned trial Judge on the pivotal point that the impugned exchange deed, which was un-registered, did not confer any title on the petitioner. Hence this petition in revision.
4. Mr. Muhammad Ali Jan Khan, the learned counsel for the petitioner, contended that the executant of the impugned exchange deed, namely, Gul Khan, who was owner of 2 kanals 11^ marlas of land forming part of the khata in dispute, admitted in the witness-box to have transferred it to the vendee-petitioner in lieu of the latter's land described therein. According to the learned counsel, the impugned exchange deed, which was un-registered, could, therefore, be taken into consideration for collateral purposes, namely, the transfer of the land in the disputed khata to the vendor by way of exchange.
5. On the other had, Mr. Mir Adam Khan, the learned counsel appearing on behalf of the respondent, place reliance on: (1) Oudratullah V. Ghulam .Ian (PLD 1966 (W.P.) Peshawar 86), (2)
Turab Shah V. Warad Shah (PLD 1987 Peshawar 132) and, (3) Habib-ur-Rehman V. Wadania (PLD 1984 SC 424), to argue that the impugned exchange deed purporting to convey immoveable property valuing more than Rs.100/- was compulsorily registerable under section 17 of the Registration Act, 1908, and did not confer valid title upon the transferee. The ratio in all these cases cited at the bar is that a deed conveying an immoveable property of the value of Rs.100/- and more was compulsorily registerable under section 17 of the Registration Act, 1908 (XVI of 1908) and having not been registered, the said deed did not create any right or title in favour of the transferee of the disputed property within the meaning of section 49 of the Registration Act. In the instant case, the impugned exchange deed, being of immoveable property and the transaction having been reduced into writing and the value thereof being more than Rs.100/-, was compulsorily registerable u/s 17 of the Registration Act, 1908. The said deed, therefore, did not create any valid title in favour of the petitioner under section 49 of the Act.
6. The stand of the petitioner's counsel that the vendee-petitioner had become a co-sharer in the disputed khata by virtue of the admission of Gul Khan transferer in the witness-box and that in support thereof the impugned exchange deed although un-registered could be looked into for collateral purposes i.e. The delivery of possession of the land transferred therein, is erroneous.
Neither in the written statement this plea had been taken, nor in the witness-box it has been reiterated. Consequently, the contention of the petitioner's counsel does not hold any water. The petitioner has all along based his claim of co-sharer ship in the disputed khata on the strength of the impugned exchange deed. This being the position of the impugned exchange deed, it did not create any valid title in favour of the petitioner.
7. The result is that this petition in revision has no merit and is accordingly dismissed with costs.