Civil Revisions bearing Nos. 920 and 952 of 1983 are interconnected. These have been filed by Sh.
Abdul Rashid (hereinafter called the petitioner) in order to call in question the consolidated judgment and decree of affirmance dated 25-5-1983 whereby the learned Additional District Judge, Faisalabad dismissed the Civil Appeals Nos. 4 and 13 of 1982 lodged by the petitioner and upheld the judgment and decree passed by the learned Civil Judge, 1st Class, Faisalabad dated 5- 12-1981. As these revisions arise out of a consolidated decision, they are being disposed of by a common judgment.
2. Since the basic outlines of these revisions are not in dispute, these are therefore, at the outset, being noted as precisely as possible. The dispute between the parties pertains to House No. 177 situated in Street No. 2 Dhobi Ghat, Faisalabad. Sh. Mubarak Ali, Sh. Muhammad Ali, Mst. Fatima Bibi, Mst. Zubaida Begum, Mst. Shameem Akhtar, Mst. Naseem Akhtar (herein respondents Nos. 1 to 6) and one Meraj Din, the predecessor-in-interest of respondents Nos. 7 to 12 were owners of the house. They shall be hereinafter described as sellers. By means of an agreement of sale dated 21- 9-1968 these sellers agreed to sell the house in consideration of Rs.18,000 to the petitioner. The petitioner paid Rs.11,000 to the sellers and promised to pay the remaining consideration till 20-11- 1968. In return, the sellers delivered possession of the house to the petitioner. Meraj Din, however, passed away before the completion of agreement of sale leaving behind respondents Nos. 7 to 12 as his legal heirs. Out of his legal heirs some were minors. In this factual background, the parties agreed to extend the time fixed in the aforesaid agreement of sale to 17-11-1969 vide an endorsement which was inserted into the already executed agreement of sale. In lieu of this endorsement, the sellers further obtained an amount of Rs.1,000 from the petitioner. The agreement of sale dated 21-9-1968 with endorsement shall be herein referred to as the agreement of sale. One thing to be noted is that endorsement clearly recited that the major legal heirs of Meraj Din would obtain necessary permission from Guardian Judge and will complete the agreement of sale within the time specified in endorsement on behalf of Meraj Din. On 20-5-1969, the petitioner approached the . Registrar for the purpose of getting agreement of sale completed in accordance with law but failure of seller to. come to Registrar did not fructify the wish of the petitioner. Thereafter lull prevailed between the parties. It was on 8-6-1980 when the sellers brought an action for the recovery of possession of the house against the petitioner in the Court of Senior Civil Judge, Faisalabad, alleging therein that the petitioner had wilfully not paid the remaining price of the house within the stipulated period under agreement of sale and thus had committed manifest breach of essential condition of agreement of sale. On these facts, the sellers alleged that the agreement of sale had come to an end and the sellers had become entitled to seek the recovery of the possession of the house. It was further prayed that the sellers were entitled to compensation at the rate of Rs.100 per month commencing from 20-5-1969 the suit was contested. The petitioner in the written statement pleaded that he had made the payment of Rs.12,000 out of Rs.18,000 to the sellers, had obtained the possession of the house from the sellers under the agreement of sale; that the petitioner had been making efforts to make the payment of remaining consideration to the sellers, was still ready to pay the same in Court to the sellers. On the basis of these facts, it was alleged that the petitioner was entitled to protect his possession of house on the basis of principle of part performance. In this background, the petitioner also lodged a declaratory suit against respondents for seeking declaration that the petitioner had become owner in possession of the house under agreement of sale; that he was entitled to maintain his possession against the sellers on the doctrine of part performance embodied in section 53-A of the Transfer of Property Act (IV of 1882) hereinafter called as the Act.
3. The learned trial Court consolidated both the suits, framed consolidated issues and recorded evidence of the parties. Upon the review of the evidence adduced by the parties, the learned original Court found that as petitioner' had not sued for performance of agreement of sale within the period prescribed under Article 113 in schedule to Limitation Act, he was, therefore, not entitled to take plea of part performance under section 53-A of the Act as the agreement of sale between the petitioner and the sellers had come to an end and was no longer subsisting. On this view, the learned original Court dismissed declaratory suit filed by the petitioner. As regards, the suit filed by the sellers, the original Court held that agreement of sale was ineffectual against the title of the sellers due to want of registration. On this conclusion, the learned Court found that the sellers were the owners of the house and were entitled to recovery of it on account of breach of the contract on the part of the petitioner. This occurred vide a consolidated decision dated 5-12-1981. Feeling aggrieved, the petitioner preferred two separate Appeals bearing Nos. 4 and 13 of 1982 which were dismissed by the appellate Court vide impugned judgment and decree of affirmance dated 25-5- 1983.
4. Mr: Hamid Khan, Advocate,. learned counsel for the petitioner impeached the impugned decisions of the two Courts below by contending that the petitioner had obtained possession of the house under agreement of sale and had made payment of Rs.12,000 out of Rs.18,000 to the sellers and, therefore, was clearly entitled to the benefit under section 53-A of the Act. According to the learned counsel the petitioner had raised the plea of part performance as a shield to protect his possession and not for declaration of his proprietary rights. According to the learned counsel the plea of limitation was not available against defence. Reliance was placed on Abdul Ghani Khan v.
Dino Bandhu Adhikari and another (PLD 1963 Dacca 777) and Naib-Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others (1992 SCM R 1265).
5. On the contrary, learned counsel for the respondent, supported the impugned decision by relying upon the rule laid down in Gejendra Nath Dey v. Maulvi Ashraf Hussain (AIR 1923 Calcutta 130).
6. From the above narration, the only question arming for determination is "whether the petitioner who obtained possession under a written unregistered agreement of sale from the sellers is not entitled to claim the protection under section 53-A of the Act if he has failed to sue sellers for performance of agreement of sale within a period as required by Article 113 in schedule to Limitation Act:" The answer to this question is not free from difficulty. There are number of authorities in support of the principle that doctrine of part performance is applicable only in those cases where the performance of unregistered agreement of sale can be obtained between the same parties in the same Court at the same time. Reference be made to Manchester Brewery Co. v. Coombs (190 2 Ch. 608), Walsh v. Lonsdale (L.R. 21 Ch. Div. 9 (1882), Bibi Jawahir Kumari v.
Chatterput Singh (2 CLJ343 (1905), Secretary of State for India in Council v. A.H. Forbes (16 CLJ-217 (1912), Singheeram Poddar v. Bhaghat Chander Nundi (11 CU 543 (1910) and Arif v. Jadunath Majumdar (ILR Vol. LVIII, 1930 PC 1235). The cases noted above except Arifs case (supra), were decided by various Courts before the incoming of section 53-A of the Act. This section was enacted in 1929 by Transfer of Property (Amendment Act, 1929) and imported into India a modified form of equity of part performance as developed in England in Maddison v. Alderson (1883) 8 App. Case 467). Arif s case (ILR Vol. LVIII, 1235), (supra) was decided by the Privy Council in 1930 but this case also related to a period prior to 1929. In this case the appellant had instituted a suit against the respondent for the recovery of Khas possession of plot of land alleging therein that the respondent was a tenant-at-will whose tenancy had been duly determined by notice. The respondent, in his written statement pleaded that the defendant is a permanent tenant having permanent rights in the land in suit and is not liable to be ejected. The learned original Court on the principle of doctrine of part performance found that the appellant had been given possession in part performance of a verbal contract. On appeal, the first appellate Court affirmed the decree of original Court. The High Court (Mukerji and Graham, JJ.) affirmed the decrees of the lower Courts. On appeal the Lordships of the Privy Council were of the opinion that the appeal must succeed; the decrees of the Courts below be set aside and an order be made for the possession of the land in question. The case was remitted to Munsif to deal with 8th issue on the footing on the opinions of the Privy Council. While delivering the opinion, Lord Russell of Killown held:-- "Whether an English equitable doctrine should, in any case, be applied so as to modify the effect of an Indian Statute may well be doubted; but that an English equitable doctrine; effecting the provisions of an English statute relating to the right to sue upon a contract, should be applied, by analogy, to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible. Whether any such authority exists will be considered later.
Their Lordships find themselves in agreement with the High Court in the view that Walsh v. Lcasdale (1882) 21 Ch. D. 9) has no application to this case, owing to the fact that the respondent's fight to enforce the verbal contract had been barred long before the commencement of the present suit.
The respondent was not in a position to obtain specific performance of the agreement for a lease from the same Court and at the same time as the relief claimed in this action. Had he been so entitled, the position would be very different, for. then the respondent could claim to have executed in his favour by the appellant an instrument in writing which he could duly have registered, the appellant's ejectment action being stayed in the meantime. In these circumstances, the respondent would obtain complete protection, but consistently with and not in violation of the provisions of the Indian statute."
7. However, the rule laid down in Arfi's case (supra) was not followed in Pucha Lal v.-Kunj Behari Lal (18 CWN 4451913), wherein the facts of the case were similar to the facts of the instant case. In this case the plea of part performance was recognised without any reference to the doctrine of limitation. Jankins, C.J. in his opinion observed:-- "It is quite true that the question whether the defendants first party, were entitled to bring at suit for specific performance in vindication of their rights was not debated before the lower appellate Court, but there is no matter brought out to notice which can throw any serious doubt upon the defendants' right to complete their right by such a suit."
In another case Muhammad Musa v. Aghore Kumar Ganguli (LR 42 IA. 1 S.C. ILR 42 Cal. 801), their Lordships of Judicial Committee applied the principle of part performance without any reference to the limitation. In this case the Judicial Committee relied upon the dictum laid down in Potter v.
Potter (1 Ves Sen 437, 441(1750), wherein it was held that contract if admitted or carried in part into execution will be binding on the parties. The rules laid down in the above cases were followed in Khagendra Nath Chatterjee and others. Sonatan Guha and others (I.C. Vol. XXXI (1915) 987) and Garu and another v. T Muthuramareddi and others (AIR 1924 Mad. 271).
8. The examination of the case-law on the subject will not be complete without mention of Nakul Chandra Polley v. Kalipada Ghosal, (AIR 1939 Calcutta 163). This is a direct authority on the question.
In this case, it was argued that section 53-A of the Act could not be applied in a case where the defendant had failed to institute a suit for specific performance of unregistered agreement of sale.
After review of the case-law, the Division Bench of Calcutta High Court laid down the rule that section 53-A of the Act was added in the Transfer of Property Act by means of Transfer of Property (Amendment) Act, 1923 and thereafter a person who is in possession of immovable property under unregistered agreement of sale and has done some act to perform his part of agreement, he is entitled to defend his possession as a passive equity as a right and plea of limitation was unavailable to such defence. The rule laid down in Nakul Chandra Polley's case (AIR 1939 Calcutta 163) was followed in Abdul Ghani Khan v. Dino Bandhu Adhikari and another (PLD 1963 Dacca 777).
9. Last but least is the judgment of Supreme Court in Mst. Akhtar Begum v. Mian Aziz and others (1985 SCM R 1617) which needs mention. In this case Wasiq Billa Abbasi was owner of 36 squares in Village Taller, Tehsil Hasilpur, District Bahawalpur jointly with his brothers. Abdul Aziz plaintiff--- respondent was lessee of the land under him and under the contract of lease, he was to hold it as such till 1965. On 8-9-1962 Wasiq Billa entered into a contract for sale of square of land and executed agreement in favour of Abdul Aziz. The land being unpartitioned, the particulars of land were not given in the agreement of sale. The two squares out of 36 squares were sold for a sum of Rs.20,000 and vendor admitted the receipt of Rs.10,000 towards its price. On 6-3-1963 the seller approached the Patwari, specified with particularity the land sold and admitted the receipt of entire price and prayed that mutation be entered. The Patwari accordingly recorded a report in Roznamcha, obtained thumb impression of the seller on it and entered mutation in the Register. On 5-7-1963 when the mutation was to be attested by the Revenue Officer, the seller appeared, repudiated the sale as a result the mutation was cancelled. On 25-7-1963, the seller sold the same land to Mst. Akhtar Begum-appellant. Abdul Aziz instituted a suit for seeking declaration to the effect that he had become owner of the land having purchased it from Wasiq Billa prior to sale in favour of the appellant and having paid the entire price. The suit was resisted. The appellant contended that there was no agreement to sell in favour of the plaintiff; that the sale was inchoate; that she was a bona fide purchaser. On the pleadings of the parties, the trial Court framed as many as 11 issues. The learned Senior Civil Judge held that the agreement to sell dated 8-9-1962 was void for its vagueness; that the agreement dated 6-3-1963 as incorporated in the report of Patwari was fresh agreement and valid; that the payment of price was not proved; that the transfer of possession had not taken place. On these conclusions, the learned trial Court found that the appellant was the owner of the land. On these conclusions, the suit filed by Abdul Aziz was dismissed. On appeal, the learned Additional District Judge did not agree with the conclusions of the learned original Court and accepted the appeal. The suit was decreed with grant of requested reliefs. The second appeal by the appellant was dismissed by High Court. Feeling aggrieved, the appellant preferred appeal which was partly allowed. The plaintiff/respondent was declared to be in possession of the suit property under an agreement of sale, Exh.P-34. His Lordship Mr. Justice Shafi-ur-Rehman delivering opinion on behalf of the Bench, held as under:-- "No other Court dealing with the case attended specifically to this question, viz., the validity and completeness of the writing Exh. P-34 for the purposes of section 53-A of the Transfer of Property Act.
In the context of the first two objections of the learned counsel for the appellant the requirements of section 53-A relevant are (i) there should be a contract to transfer, (ii) from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. The submission of the learned counsel are directed to establish that both these requirements remained unsatisfied. A contract which is incomplete, vague, incapable of identifying the subject-matter of sale cannot, according to him, qualify as a contract at all. Even if it does, the terms necessary to constitute the transfer cannot be ascertained with reasonable certainty and hence the protection sought for must be denied.
The argument Exh. P-34 qualifies as a. contract of sale notwithstanding the latent ambiguity of language to this limited. extent because the deficiency could be supplied under section 96 of the Evidence Act by extrinsic evidence. The question, how far and with what effect, the writing referred to in this section can be proved is to be decided by the procedural law, and not independently. The subsequent signed statement (Exh. P.1) of the owner supplied the requisite detail and served as an aid to the interpretation and application of document Exh. P-34 without detracting from its effectiveness as a contract of sale."
This appeal is allowed only to the extent of slight modification in relief. The plaintiff respondent is declared to be in possession of the suit property under an enforcible contract of sale in his favour and that defendants. Nos. 1 and 2 and persons claiming under them are restrained from interfering with his rights. In the circumstances of the case respondent No. 2 shall bear the costs of both the contesting parties throughout."
From the above decision, it is clear that the Supreme Court accepted the plea of part performance taken by Abdul Aziz respondent/plaintiff without reference to the question of limitation.
10.The ratio deducible from the foregone discussion is as follows:-- (i)The doctrine of part performance as developed by equity Courts in England was given statutory recognition by means of enacting section 53-A of the Act by Amending Act, 1929. The doctrine thereon became applicable to whole of sub-continent.
(ii)The Principle of part performance being based upon the golden rules of fairness, justness and righteous dealing between the parties is applicable to even those areas of Punjab where the Transfer of Property Act has not been enforced, on the principle of equity, justness and conscience.
(iii)In order to avail the plea under section 53-A of the Transfer of Property Act a person had to show following factors namely:-- (a)There is contract in writing signed by the transferor in respect of an immovable property; (b)From the writing, transfer can be ascertained with reasonable certainty; (c)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 (d)The transferee has performed or is willing to perform his part of the contract.
(iv)The plea of part performance is available to the plaintiff as well as defendant as a shield to protect and maintain possession against the transferor or any person claiming under him.
(v)That the doctrine of part performance as embodied in section 53-A of the Act is neither subject to the limitation as prescribed under Article 113 in schedule to Limitation Act nor is circumscribed by section 54 of take Act or by section 49 of the Registration Act.
11. Applying these principles to the fact of this case, it is clear to me that the petitioner did obtain possession of the house under agreement of sale, paid Rs.12,000 to the sellers and was willing to pay the remaining price to the sellers. It may be noted that the learned counsel for the petitioner stated emphatically before the Court that he was even prepared to pay the remaining price to the sellers today. It were the sellers who declined' to receive the payment. On these facts, I have no doubt left in my mind that the petitioner was and is clearly entitled to protect and maintain his possession of house which he had obtained under agreement of sale by performing an act of part C performance This being the legal position, these revision petitions are bound to succeed. The decisions of the two Courts below are found to be in complete defiance of section 53-A of the Transfer of Property Act.
12. In the light of foregoing discussion, these revision petitions are accepted, the judgment and decree passed by the two Courts below are hereby set aside and the suit fled by the seller/respondent for the recovery of possession is hereby dismissed. The suit for declaration filed by the petitioner is decreed with requested reliefs.