ABDUL MAJEED MALLICK, CJ.- The second appeal is addressed against the order of the learned District Judge, Mirpur, passed on September 30, 1991, whereby judgment and decree passed by the learned Sub-Judge, Mirpur, on August 30, 1984, resulting in dismissal of the suit of the plaintiff- appellant, was upheld.
2. Muhammad Ayub brought a suit for declaration and possession in respect of plot No. 478, situate in Sector C-4, Mirpur city, by seeking cancellation of agreement to sell, executed on September 23, 1969, for its being fraudulent. It was averred that the plot in dispute was allotted to the plaintiff- appellant on August I6, 1966 and possession was passed on to him on February I6.1967. He secured proprietary rights from the Mirpur Development Authority through a registered sale deed executed on November 15, 1976. it was further averred that the defendants without due right and authority, forcibly occupied the house during the pendency of the suit, on April 17,1977. It was claimed that the agreement to sell, purported to have been executed by the plaintiff on September 23, 1969, was fake, fictitious and fraudulent. In support of the allegations of deceptive character of the document, it was averred that the number of the house where the plaintiff resided at the the of execution of agreement, was wrongly entered as 468. The caste of the plaintiff was also incorrect. Likewise, the size of the plot and the year of construction of the house were wrongly mentioned, in the recitals of the deed. The plaintiff claimed that he let out the house to defendant No. 1, @ Rs. 60/- p.m. The defendant manoeuvred to concoct the deed of agreement to sell in the name of the plaintiff. The possession of the house was restored to the plaintiff in 1976. He was in possession of the house at the the of the institution of the suit but after institution of the suit, he was forcibly dispossessed in April 1977. The suit was instituted on March 29,1977. The amended plaint was presented on March 3, 1979. The defendant-respondents contested the suit. All the allegations and averments made in the plaint were expressly denied by supporting the execution of the agreement to sell and delivery of possession of the house to defendant- respondent.
3. The learned Sub-Judge accepted the claim of the defendant- respondents and disallowed the claim of the plaintiff. The execution of agreement to sell was accepted as valid. Issues were found in favour of Muhammad Gulzareen and against the plaintiff-appellant. The suit was accordingly dismissed. The first appeal also failed.
4. Mr. Abdul Latif Dutt, the learned Counsel for the plaintiff-appellant contended that the subordinate Court misread the evidence as they ignored the discrepancies apparent in the evidence of Kh. Abdul Karim, Raja Abdullah and Muhammad Gulzareen. The learned Counsel also contended that by virtue of securing the sale deed from the Chairman, Mirpur Development Authority, Muhammad Ayub, appellant was the owner of the house. On failure of defendant to bring a suit for specific performance of agreement within the, deprived him to seek his redress at this stage. Thus in the aforesaid position, the respondent was not entitled to protect his possession by virtue of provisions of Section 53-a, Transfer of Property Act. Mr. Muhammad Yunus Surakhvi, the learned Counsel for the respondent, controverted the aforesaid points and emphasised that the proposition under consideration is purely a question of fact. The interference of this Court in second appeal was unwarranted. It was argued that execution of agreement to sell was sufficiently proved by the evidence of plaintiff, in addition to scribe of the document, marginal witness and the defendant. The learned Counsel also referred to the provisions of Section 53-A of the Transfer of Property Act and contended that the defendant could validly protect his possession by virtue of rule of law contemplated under the aforesaid provisions.
5. It is accepted that the plot in question was allotted to Muhammad Ayub by the Allotment Committee on August 16,1966. The delivery of possession was also not contested, the claim of the defendant-respondent is that he purchased the plot from Muhammad Ayub through an agreement to sell which was duly registered by Sub-Registrar, Mirpur, on September 24, 1969. It is also admitted to the plaintiff that Muhammad Gulzareen occupied the house w.e.f. 1972 to 1976, in his capacity as tenant.
6. The first objection pertains to execution of document, the agreement to sell, purported to have been executed by Muhammad Ayub, allottee of the plot, in favour of Muhammad Gulzareen. The onus of proof was on Muhammad Gulzareen. He produced the original document and also produced Kh. Abdul Karim, petition-writer, scribe of the document, Raja Muhammad Abdullah, both are marginal witnesses and appeared himself as witness as well. Muhammad Ayub admitted in his examination-in-chief when he appeared as witness in defence that the stamp-paper was signed by him. However, it was explained that in 1969 when he wanted to go abroad, he decided to let out the house to the defendant on rent. The defendant insisted for execution of agreement. As the plaintiff was sick and was unable to go to the Court, he asked the defendant to secure the stamp- paper and bring the stamp-vendor to home. The stamp-paper was purchased and the same was signed by him. However, he denied the execution of the document. The explanation rendered by the plaintiff was dis-believed by both the subordinate Courts, it was concurrently held that execution of the document was well established from the evidence of the defendant, in addition to admission of signing the stamp-paper, made by the plaintiff.
7. It is interesting to note that the stamp-paper for execution of the document was sold by the slamp-venqdor in the name of the plaintiff on September 22, 1969. The document was written by the petition-writer on September 23, the next day and it was registered on September 24, 1969. The document contains the signatures of Muhammad Ayub in English as well as Urdu. The plaintiff was identified before the Sub-Registrar (Sardar Muhammad Ashraf Khan, presently Judge of the Supreme Court) by Abdul Aziz son of Muhammad Ashraf. At the the of registration, the deed was against signed by Muhammad Ayub, transferer of the property, Muhammad Gulzareen, transferee and Abdul Aziz who identified Muhammad Ayub. The plot was sold for a sum of Rs. 7,500/-. A sum of Rs. 5,500/- was paid prior to the registration, vide receipt Ext. DB, executed on September 22, 1969. it contains the signatures of Muhammad Ayub, both in English and Urdu. The marginal witnesses of the receipt are Mirza Muhammad Hashim and Muhammad Ibrahim. The scribe of is Kh. Abdul Karim, petition-writer. A sum of Rs. 2000/- was received by the transferor before the Sub- Registrar at the lime of registration- of the document. Abdul Aziz who identified Muhammad Ayub before the Sub-Registrar, also appeared as witness. He corroborated the defendant in respect of execution of the document.
8. The main objection against the evidence of Abdul Aziz is that he was nephew of the defendant.
May be that he was related to the defendant but he was equally related to the plaintiff as well, as the plaintiff admitted such position in his evidence before the Court. Therefore, mere relationship of Abdul Aziz with the transferee was not a disqualification to discredit him.
9. Kh. Abdul Karim, petition-writer and Abdullah Khan, marginal witness, also appeared as witnesses. They proved the execution of the document. There were some discrepancies in their evidence but such discrepancies were minor and ineffective. The question of identification of Muhammad Ayub was proved beyond doubt from the evidence of Abdul Aziz and Abdullah Khan.
Kh. Abdul Karim was also clear about it but he confused on Muhammad Ayub with Khurshid, his brother, present in the Court. He immediately corrected himself by testifying that Muhammad Ayub was not present at the the of his evidence in the Court. Such an omission is quite ignorable in view of the substantive testimony of the witness.
10. It was argued that the document contained the recitals pertaining to delivery of documents of allotment etc. The defendant produced only the approved site-plan of the house and no other document. It was therefore, emphasised that the execution was doubtful. May be that the recitals of the deed contained the delivery of documents to the transferee of the plot. It does not specifically mention the number and nature of such documents. The site-plan produced by the defendant was accompanied by an application-form for approval of the site-plan. Thus, the scribe of the document at the the of its execution may have misled himself by introduction of routine question of fact of delivery of documents. Be that as it may, but the facts remain that a solitary instance relating to absence of delivery of all the documents, does not reflect upon the claim of the defendant.
11. It was rightly pointed out by the learned Counsel for the respondent that the plaintiff-appellant failed to prove his dispossession of the property after institution of the suit or letting out of the house, to the defendant, on payment of Rs. 60/- p.m., in the year 1972. The onus of these averments was on the plaintiff. He failed to prove such averments by any convincing evidence.
12. The aforesaid analysis leads to the conclusion that the subordinate Courts rightly concurrent in their findings. In absence of material misreading or mis-construing of evidence, these findings warrant no interference.
13. Lastly, it was pointed out that the plaintiff secured sale deed from the Mirpur Development Authority and improved the status as proprietor of the plot in dispute. The sale deed was executed in favor of the plaintiff on November 15, 1976, i.e. After the institution of the suit. As the defendant failed to seek performance of the agreement within the, the defendant was not eligible to protect his possession by virtue of the provisions of Section 53-A, Transfer of Property Act.
14. Section 53-A of the Transfer of Property Act pertains to part performance of agreement. It was envisaged that where any person contracts, to transfer lor consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being, already in possession, continues in possession in part performance of the contract and has done some at in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the the going in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. These provisions were incorporated by the legislature to protect the possession of transfer of the immovable property provided he performed part of the contract and was willing to perform rest of his part of the contract. Section 53-A was enforceable in defence of the transferee of the immovable property by virtue of agreement to sell and not otherwise. Thus the defendant was conferred a right to protect his possession. The Section by itself created no title in the defendant but operated as a bar to the transferor or his agent or any person asserting the claim on his behalf to the property.
15. In present case, it is evidence from the terms and conditions of the agreement that the plot in dispute was transferred to the defendant in consideration of Rs. 7,500/-. The agreement was executed in such manner as at the relevant the the plaintiff-allottee enjoyed only the status of allottee of the plot. Its final title was to pass on to the allottee on completion of the construction of the house as envisaged under the rules and the provisions of the Allotment of Land Act. Thus, the terms and conditions liable to be performed or fulfilled by the defendant were satisfied on passing of the consideration to. The transferor. The defendant had nothing to do further on his part, to seek completion of the agreement, rather it was the plaintiff who had to fulfil his part of the contract by execution of sale deed on acquisition of title in the disputed plot. Therefore, the conditions contemplated under Section 53-A, Transfer of Properly Act, were fully satisfied by the defendant. He was, therefore, eligible to protection's possession accordingly. The objection raised by the learned Counsel for the appellant merits no consideration, it is, therefore, not sustained. No other point was canvassed in support of the appeal.
16. There is no force in the appeal. It is, therefore, dismissed. No order as to costs.