' SALEEM AKHTAR, J.---The appellant has challenged the judgment of the Peshawar High Court passed by a learned Single Judge dismissing the revision application of the appellant, whereby the suit filed by him against the respondents was dismissed.
2. The appellant and respondent No,1 are sons of Namdar Khan and are step-brothers. The appellant filed a suit against the respondents on 12-5-1975 for a declaration to the effect that he was the mortgagee in possession of the disputed land having inherited it from his father Namdar and the Mutation No,13401 attested on 13-2-1975 on behalf of defendant-respondent No,4, in favour of his sons (respondents Nos. 5 to 7) is illegal, void and ineffective. It was alleged in the plaint that Yar Muhammad Khan, Respondent No,1 taking advantage of appellant's absence and old age of Namdar Khan, managed to obtain the transfer of the entire property of his father in'his own name under gift Mutation Nos. 5929 and 5930. After obtaining the land by these mutations, the said properties were transferred by him in the names of his sons, respondents 5 to 7, under Mutation No, 13401, dated 13-2-1975. On coming to know about the transfer, the appellant raised objections, upon which the elders of the village intervened and an agreement was made between the parties on 4- 1-1973, which was executed by Yar Muhammad Khan. Under this. Agreement, Yar Muhammad Khan, respondent No,4, out of the land at Vind Dak transferred a portion measuring 15 Kanals 14 Marlas to the appellant and delivered its possession to him. It seems that as respondent No,4, objected to the agreement executed by him, the appellant filed the suit.
3. The learned Civil Judge dismissed the suit but in appeal, the learned Additional District. Judge, Swabi, after reframing the issues, remanded the case for retrial. The learned Civil Judge again dismissed the suit. He held that the agreement was inadmissible for want of registration. While dismissing appeal, the learned Additional District Judge held that the execution of the agreement was proved, but observed that for want of registration it did not create' any right, title or interest in favour of the appellant. The appellant then filed a revision in the High Court. By the impugned judgment, it was held that the execution of the agreement was proved but as it was not registered, it did not create any right. It was further observed that the agreement was not of much help to the appellant on point of possession due to ovcrwritings and interpolations, which make it unreliable.
On the basis of this finding, it was observed that section 53-A of the Transfer of Property Act could not be pressed in service.
4. We have heard the learned counsel for the parties and have examined. The agreement dated 4- 1-1973, photocopy of which is included in the Paper Book. It clearly states that Yar Muhammad Khan had given possession of the land to the appellant at the time of execution of the agreement. The learned counsel for the respondents contended that the execution of the agreement has not been established. However, in view of the finding of both the Courts below, we are not inclined to accept this contention.
5. So far as the applicability of section 53-A of the Transfer of Property Act is concerned, it depends upon the following factors:--
(i) There is a contract in writing signed by the transferor in respect of an immovable property;
(ii) From the writing, transfer can be ascertained with reasonable certainty;
(iii) In part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and
(iv) The transferee has performed or is willing to perform his part of the contract.
5. If all these conditions are satisfied, then even if the contract is not,registered, the transferor or any person claiming under him cannot enforce any right in respect of the property of which the transferee has taken possession except such right, which a transferor is entitled to enforce by virtue of the contract. The learned counsel has referred to Mst. Ghulam Sakina v. Umar Bakhsh and another (PLD 1964 SC 456), where it was observed as follows:-- "Lastly the contention that in the absence of registration of the compromise decree the right of pre-emption could not be defeated, as the compromise could not affect her rights in the property, is also without any force. Section 49 of the Registration Act, no doubt, provides that if a document, which is compulsorily registrable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53-A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor any one claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property."
' In another case, namely, Habibur Rehman and another v. Mst. Wandania and others (PLD 1984 SC 424) the question fbr consideration was, whether section 53-A of the Transfer of Property Act was not only available to a defendant but but also to a plaintiff, where after referring to Mt. Shankri and others v. Milkha Singh (AIR 1941 Lah. 407), it was held that the equitable doctrine contained in section 53-A of the Transfer of Property Act cannot override the specific provisions of section 49 of the Registration Act, and it was observed as follows:-- "We have carefully perused the above decision and are inclined to agree with the view expressed in the said judgment. It has been held therein that no equitable doctrine can override the specific provisions of section 49 of the Registration Act, so as to make an unregistered documents create title, if it requires registration. The view expressed by the learned Judges of the Lahore High Court was based on the high authority of the Privy Council in Arif v. Jadunath Majumdar Bahadur (AIR 1931 PC 79). We are also in respectful agreement with the dictum contained in the aforementioned judgment of the High Court and do hereby endorse it. In this view of the matter, no reliance can be placed on the provisions of section 53-A of the Transfer of Property Act.
' However, we consider that the appellants can legitimately claim to have a charge on the property for the amount paid by them as purchase money for the property, namely Rs, 704. In this connection, we would like to point out that the position of a purchaser, who has been let into possession by his vendor under an unregistered document pursuant to an oral agreement to sell under the mistaken belief that the transaction is complete, whereas, in fact it is incomplete, for want of registration of the instrument purporting to effect the transfer, must be regarded to be a.
Purchaser under a contract for sale which has yet to be completed. Consequently, the purchaser cannot, in these circumstances, claim any title as owner in the property, whether as a legal or as an equitable owner but he would, however, have charge on the property for the amount paid by him towards the purchase of the property in question."
6. Section 53-A of the Transfer of Property Act enunciates equitable principle to protect the rights of such purchasers who have entered into agreement and in pursuance thereof obtained the possession of the immovable property and have further either performed their part of the agreement or are agreeable to perform the same. In such circumstances, mere non-registration of a deed which requires registration under section 17 of the Registration Act,' will not deprive him of the benefit which he is entitled to protect by virtue of section 53-A of the Transfer of Property Act. It is true that section 53-A does not confer or create any right but it provides a defence to a transferee to protect his possession. Reference can be made to the cases of Kalimuddin Ansari v..
Director, Excise and Taxation, Karachi and another PLD 1971 SC 114 and Sri Kalulam Subranmanyam and another v. Kurra Subba Rao PLD 1948 PC 52. Section 53-A debars a transferor from enforcing any right other than rights specifically provided by the contract against a transferee who in C part performance of a contract has taken possession. Reference may be made to the cases of Abdullah Bhai and others v. Ahmed Din PLD 1964 SC 106 and Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456. In the present case, the agreement itself recites that the appellant in part performance of the agreement had been put in possession of the property. The appellant is, therefore, entitled to the protection of his possession. Likewise, the respondent No,1 and his sons (respondents 2 to 4) cannot enforce any right against the appellant except the rights which have been specifically mentioned in the contract. We, therefore, allow the appeal, set aside the judgment of the Court below and decree the suit filed by the appellant in the aforestated terms with no order as to costs.