IHSAN-UL-HAQ CHAUDHARY, J.- The relevant facts for the decision of this second appeal are that the respondent transferred land measuring two killas for a total consideration of Rs.6,000/- to his sister, predecessor of the present appellants. The respondent reported the transaction to the local Patwari, who recorded report in the Rozenamcha on 8.10.1961. This was thumb-marked by the respondent. It was processed and ultimately mutation of sale No.293 was sanctioned on 3.11.1961.
The possession was also handed over to the vendee. However, subsequently the respondent filed a suit for possession of the land and declaration that mutation No.293 is illegal, against facts and not binding on him. The suit was contested by the transferee/defendants. The trial Court accordingly framed the following issues on 26.7.1968:-
1. Whether the suit is not maintainable in its present form as objected in para No.1 of the written statement?
2. Whether the impugned transaction is genuine? OPD
3. Whether the impugned mutation is fictitious and product of fraud and collusion? OOP.
4. Whether the impugned transaction is void for want of registration? OPP.
5. Relief."
2. The respondent in order to prove his contentions examined Bashir Ahmad as PW 1, Muhammad Anwar, Patwari as PW 2, Abdul Wahab as PW 3, Gehna as PW 4, Zaka A. Malik as PW 5 and plaintiff- respondent himself appeared as PW6. While the appellants examined Dilawar Muhammad as DW 1, Ahmad as DW 2, Said Muhammad as DW 3, Muhammad Rashid, Patwari as DW 4, Muhammad Afzal Khan, Tehsildar as DW 5 and Muhammad Ali-appellant No. 1 appeared as DW 6. The trial Court after hearing the arguments decided issues No. 2 and 3 in favour of the appellants while issues No. 1 and 3 were decided against them as a result thereof suit was decreed vide judgment and decree dated 9.10.1971, which was assailed through an appeal before the lower appellate Court, which dismissed the same on 16.5.1972. Hence present appeal, which was admitted to hearing and notice was issued to the respondent, who has appeared and contested the appeal.
3. The learned counsel for the appellants in support of the appeal argued that this was a past and closed transaction, therefore, the respondent could not get it reopened on the plea that the sale was made without registered sale deed. In this behalf, the reliance is placed on section 53-A of the Transfer of Property Act. The next submission is that one cannot take benefit of its own wrongs. It is explained that the plaintiff having transferred the land without registered deed subsequently could not turn down and declaim the transaction. It is added that in any case principle of peri delicto would apply and party in possession to be preferred. The learned counsel in this behalf has referred to cases of Muhammad Saeed and another Vs. Province of West Pakistan and others (P.L.D.
1964 S.C. 572), Malik Muhammad Hayat Khan Vs. Subedar Yar Muhammad Khan (P.L.D. 1966 S.C.612), Haji Sharif Khan and another Vs. Raja Abdul Rehman and six others (P.L.D. 1977 Karachi 814), ChAkbar Ali Vs. Secretary, Ministry of Defence, Rawalpindi and another (1991 S.C.M.R. 2114), Ch. Allah Bakhsh Vs. Karam Elahi and 2 others (P.L.D. 1988 SMRC 419).
4. On the other hand, the learned counsel for the respondent vehemently argued that it is not a case covered by section 53-A of the Transfer of Property Act while according to section 54 sale of immovable property of the value of more than one hundred can only be effected through registered sale deed and not otherwise. It is added that the transaction between the parties cannot be considered a sale, therefore, the suit was rightly decreed. In this behalf, the learned counsel has referred to Sohna Versus Allah Dad and another (P.L.D. 1962 B J. 17). It is added that since it was a suit for possession, therefore, the Court has no discretion unlike the suit for decimation where even when the plaintiff has proved his claim in the suit but still Court has the discretion to disallow the relief on account of inconsciousable or immoral conduct of the plaintiff. In this behalf, he has referred to Haji Noor Muhammad Vs. Ghulam Masih Gill (P.L.D. 1965 (W.P.) BJ. 1), Muhammad Amin Vs. Mian Muhammad (P.L.D. 1970 B J. 5), Sharavan Jayaram Patil and others Vs. Garbad Ukha Nhavi (A.I.R. (30) 1943 Bombay 406), Dharameshwar Sarma Vs. Lakhyadhar Borgohain (A.I.R. (37) 1950 Assam 107) and Murid Khan and others Vs. Usman Khan and others (A.I.R. 1962 Punjab 475)".
5. The questions involved were quite intricate and likely to have a far- reaching effect, therefore, senior advocates, M/s Muhammad Mahmood Bhatti and Chaudhry Naseer Ahmad, were asked to appear and assist this Court as amicus curiae.
6. It was noted that although the trial Court clearly held that the transaction did take place between the parties and for that reason decided issues No.2 and 3 in favour of the appellants yet the respondent was not directed to pay a sum of Rs.6,000/- received by him in the transaction. The learned counsel for the respondent when confronted with this illegality offered that the respondent is ready and willing to pay Rs.6,000/- alongwith the interest/profit upto date However, this point looses significance in view of the findings recorded in the latter part of this judgment.
7. Chaudhry Naseer Ahmad, Advocate pointed out that some of the vendors, who had transferred the land through mutations were prompted by the judgment in the case of Sohna (supra) and they proceeded to file suits. The learned counsel pointed out that although the suit is very intelligently drafted but main relief is still declaration. He in this behalf referred to the subject and prayer made by the respondent. He submitted that if declaration is refused then there is no legal justification on earth to decree the suit for possession.
8. Chaudhry Naseer Ahmad, Advocate then convassed the point that to attract principle of part performance there should be an agreement signed by transferor and it must be for consideration but he argued that the report recorded in the Rozenamcha of the Patwari is not covered by the agreement under section 53-A of the Transfer of Property Act. The learned counsel in this behalf referred to Muhammad Siddik and others Vs. Jurio alias Allah Jurio and others (PLD 1959 (W.P.)
Karachi Murid Khan and others Vs. Usman Khan and others (AIR 1962 Punjab 419).
9. It is then pointed out by Chaudhry Naseer Ahmad that the Notification dated 28th of May, 1931, whereby the provisions of sections 54 and 107 of the Transfer of Property Act, 1882, were made applicable to the transactions of sale and lease of immovable property involving value of Rs.100/-, was withdrawn by the Provincial Government vide Notification dated 23rd of August, 1979, published in the Punjab Gazette Extraordinary dated 10th of September, 1979, (NLR 1986 Punjab Statutes 72). This is a subsequent event which can also be taken into account while deciding this appeal.
10. The next argument is that the respondent/plaintiff was first to remove hurdles in the way of obtaining relief of possession. In this case, until the mutation was set aside, the relief of possession could not be granted. Therefore, declaration was primary relief and the same could be refused on account unconsciousable and unjust conduct of the plaintiff. In this behalf, he referred to Muhammad Akbar Shah Vs. Muhammad Yusuf Shah (PLD 1964 SC 329). It is added that the suit for possession in the circumstances would not be competent as neither transferor nor anyone claiming under him is entitled to enforce any right against the transferee in respect of the property transferred. The learned counsel referred to Mst Ghulam Sakina Vs. Umar Bakhsh and another (PLD 1964 SC 456).
15. The learned counsel then referred to judgment of Hon'ble Supreme Court in the case of Abdul Karim Vs. Fazal Muhammad Shah (PLD 1967 SC 411) to argue that such agreement is not altogether void and can be perfected as the defect is curable. The learned counsel developed the point with argument that it is clear from the report and the order sanctioning the mutation that the transaction amounted to a sale which was not in the form prescribed by section 54 of the Transfer of Property Act. The transaction was not void. The defect was curable by getting the document drawn and registered to perfect the cohate title by the vendee. This case incidently also pertained to Bahawalpur Circuit. The learned counsel also referred to Ahmad Ali and others Vs. Muhammad Iqbal and another (1986 SCMR 244), where the Hon'ble Supreme Court held that sanction of mutation was not sufficient to prove sale, at was held that the case of the appellants that the land was sold to them by respondent No.1 was supported by preponderance of evidence on record, therefore, the appeal was allowed and judgment of the trial Court dismissing the suit was restored.
16. The learned counsel finally argued with reference to Ahmad Ali's case supra that when the mutation is sanctioned, the rights created thereunder cannot be taken back and relief of declaration should be refused to the plaintiff.
17. Mr. Muhammad Mahmood Bhatti, Advocate, argued that the earlier view of Baghdadul Jadid reported as Haji Noor Muhammad Vs. Ghulam Masih Gill (PLD 1965 (W.P.) B J, 1) and Sohna Vs. Allah Dad and another (PLD 1962 B J. 17) was that the sale is void and suit for possession is competent.
The learned counsel for the respondent has also relied on these two cases. The case of Haji Noor Muhammad is not relevant because he was not in possession at the time of the suit, while in the case of Sohna it was held that neither the vendee nor the preemptor acquired any title in the land under oral contract of sale. But this view was not followed in the case of Muhammad Amin reported as (PLD 1970 B J. 5) mainly on the ground that no man can take advantage of his own wrong and principle of pari delicto. Learned counsel argued that equitable relief cannot be granted to a person not coming with clean hands. In this behalf, he has referred to Ghulam Rasul and others Vs. Muhammad Anwar and others (1969 SCMR 254), Manzoor Hussain etc. Vs. Wali Muhammad etc. (PLD 1965 SC 425), Malik Muhammad Hayat Khan Vs. Subedar Yar Muhammad Khan (PLD 1966 SC 612) and Muhammad Amin etc. Vs. Mian Muhammad (PLD 1970 B J.5). It is argued that sale not completed in accordance with provisions of section 54 of the Specific Relief Act is void but the possession is protected. Reference in this respect is made to Muhammad Bakhsh Vs. Zia Ullah and others (1983 SCMR 988), Habibur Rahman and others Vs. Mst. Wahdania and others (PLD 1984 SC 424), Mst Akhtar Begum Vs. Mian Aziz and others (PLD 1985 SCMR 1617) and Khawaja Ummar Hussain Vs. Muhammad Bashiruddin Khan (PLD 1986 Karachi 74).
18. It is argued that the person coming into possession legally in part performance of agreement can defend his possession. The learned counsel in this behalf referred to Kalimuddin Ansari Vs. Director, Excise and Taxation, Karachi and another (PLD 1971 SC 114).
19. In the ends, it is argued that the mutation is not agreement, therefore, transferee cannot file suit for specific performance. In, this behalf, reference is made to Murid Khan's case (AIR 1962 Punjab 475). The learned counsel pointed out that cases of Sharvan Jayaram Patil and others Vs. Garbad Ukha Nhavi (AIR 1943 Bombay 406) and Sharameshwar Sarma Vs. Lakhyadhar Borgohain (AIR 1950 Assam 107) relied upon by the counsel for the respondent have been noted in this judgment.
20. All the counsel including counsel for the respondent had not cavil with the proposition that where conduct is unconsciousable or immoral then the grant of relief of declaration is within the discretion of the Court in view-of the clear provision of section 42 of the Specific Relief Act. In this behalf, references can also be made to the judgments in the cases reported as Manzoor Hussain etc. Vs. Wali Muhammad etc. (PLD 1965 SC 425), Malik Muhammad Hayat Khan Vs. Subedar Yar Muhammad Khan (PLD 1966 SC 612), Bachu Bai F.E. Dinshaw Vs. Commissioner of Income Tax (PLD 1967 Karachi 372) and Muhammad Amin Vs. Mian Muhammad (PLD 1970 B J. 1).
21. The learned counsel for the respondent while summing up the arguments submitted that the possession was taken over in execution by the respondent before filing of the present appeal, it is added that this Court may take subsequent events into consideration. In this behalf, reference is made to Mst. Amina Begum and others Vs. Mehar Ghulam Dastgir (PLD 1978 SC 220).
22. I have given my anxious consideration to the arguments of the learned counsel for the parties as well as the two learned advocates appearing as amicus curiae. Before proceeding any further, I would deal with the question of limitation. The trial Court held that it is a case governed by Article 144 of the Limitation Act. It was clearly argued in the trial Court that the suit was covered by Article 120, therefore, the same should have been filed within she years. The argument did not find favour because the trial Court held that the possession was principle relief and it was not necessary for the plaintiff to seek declaration;hence, it would be governed by Article 144 of the Limitation Act. The trial Court lost sight of the view of the Hon'ble Supreme Court in the case of Muhammad Akbar Shah (supra), wherein it was held, as already noted, that the voidable transaction is required to be set aside first and limitation in such cases would be governed by article relating to such primary relief. In this case, the primary relief being declaration to the effect that the mutation in dispute was collusive, fictitious and product of fraud and not genuine, therefore, Article 120 would apply. The mutation is dated 3.11.1961, while the suit was filed on 10.1.1968, therefore, the same was clearly beyond the period of six years. The findings of trial Court on the point of limitation are, therefore, reversed. The suit is held to be time barred.
23. Now, I take up the argument of the learned counsel for the appellants that in this case, the principle of pari delicto would apply, then the party in possession was to be preferred. Mr. Muhammad Mahmood Bhatti, Advocate, as well as Chaudhry Naseer Ahmed, Advocate, the learned advocates appearing as amicus curiae, also subscribed to the view with reference to the judgments of the superior Courts. Suffice it to refer to the judgment of Mian Muhammad Saeed and others (PLD 1964 SC 472) in which the Hon'ble Supreme Court held as under:- "In these circumstances, it is clear that the petitioners in trying to undo the transaction of sale and to get back their property, were in fact attempting to take advantage of their own fraud. This conduct on their part would contravene the well known principle embodied in the Legal Maxim "Nullus commodum capere potest de injuria sua propria (Co. Litt. 148 (b) (No man shall take advantage of his own wrong)."
In the precedent case, the appeal of the plaintiff was ultimately dismissed. This Court in the case of Muhammad Amin etc. (PLD 1970 BJ 5) after refering to a large number of precedents concluded that the law would help the one in possession. The case was almost parallel to the case in hand.
The case of Haji Sharif Khan and another Vs. Raja Abdur Rehman and 6 others (PLD 1977 Karachi 814) is also on the same principle.
20. It is clear from discussion of two courts below not only issues No.2 and 3 but also from issue No.4 that the respondent has sought the declaration in respect of the impugned mutation. There is long chain of decisions of the Hon'ble Supreme Court and High Courts that declaration is in the discretion of the Court which may be refused on account of fraudulent conduct of the plaintiff. In this behalf reference can be made to Manzoor Hussain etc. Vs. Wali Muhammad etc. (PLD 1965 SC 425), Malik Muhammad Hayat Khan Vs. Subedar Yar Muhammad Khan (PLD 1966 SC 612), Bachu Bai-F.E. Dinshaw Vs. Commissioner of Income Tax (PLD 1967 Karachi.372), and Muhammad Amin Vs. Mian Muhammad (PLD 1970 BJ. 5).
21. This brings us to the last point as to whether the provisions of section 53-A of the Transfer of Property Act were attracted in the present case or not. In my humble view, before discussing further, it is relevant to refer to the legislative history of this provision. This section was added through the Transfer of Property (Amendment) Act, 1929. It partly introduced in the Sub-continent equitable principle of part performance as developed in England in the case of Maddison Vs. Alderson (1883) 8 A.C. 467). The brief background is that provisions of section 4 of the Statute of Frauds were recanted in section 40 of the Law of Property Act, 1925, wherein it was provided that no action could be brought on certain contracts pertaining to land unless they were reduced in writing. The purpose was to safeguard against fraud but soon the Courts were confronted with the situations where one party to an oral agreement had not only performed its part of the transaction but had acted upon on the basis of the agreement. It was realized that it would be manifestly unjust to deny such party relief arising from such contract. This equity is said to rest on the principle of fraud 'for Courts of equity will not permit the statute to be made an instrument of fraud.' The case of Maddison (supra) is the leading case upholding this doctrine but the other school of thought is that the equity rests on the principle that if a man has made a bargain with another and allowed the other to act upon It, thereby he has himself created an equity which he cannot resist by setting up want of formality. The leading case on this doctrine is Championise Vs. Lambert (1917)
2 Ch.356).
22. The principle before the amendment of 1929 was hinted in many judgments in the Sub- continent beginning with the case of Muhammad Musa Vs. Aghore Kumar Ganguli (28 IC 930), but the observations as to part performance were declared obiter dicta by the Privy Council. But still it was followed in number of cases of transfer, exchange or sale of land, wherein possession having been made over and taken but without a registered document. At the same time, in some cases, the Courts refused to apply the equity on the ground that it would annul a positive rule of law. In this behalf, reference can be made to the cases of Ram Gopal Vs. Tulshi Ram and another (116 IC 861) and Lala Baij Nath Vs. Lala Kundan Lai (122 IC 671). The number of Courts approved the later view. There was considerable uncertainty prevailing in the Sub-continent as can be seen from the decision of Privy Council in the cases of Muhammad Musa Vs. Aghore Kumar Ganguli (28 IC 930), G.H.C. Ariff Vs. Rai Jadunath Majumdar Bahadur (131 IC 762) and Khan Bahadur Mian Pir Bux Vs. Sardar Muhammad Tahar (151 IC 326) , some of the decision^ though delivered after the enactment of section 53-A yet suits and transactions pertained to a period prior to 1929. The Judicial Committee held that equity of part performance could not prevail in India so as to set at naught express statutory provisions regarding registration contained in both the Transfer of Property Act and the Registration Act. This controversy, however, was set at rest with the enactment of Amendment Act, 1929. It is worthwhile to mention here that not only section 53-A was added and principle of part performance recognized in the Sub-continent but it was re-enforced by amending Registration and Specific Relief Acts. The amendment in the Specific Relief Act was wider in scope than section 53-A of the Transfer of Property Act because here the equity was available only as a defence while in case of section 27- A it was active equity.
23. It is clear form the above discussions that section 53-A was enacted as an exception or a proviso to section 54 of the Act. The principles contained in section 53-A are recognized as rules of justice, equity and good conscious even where the act is not in force. The main requirements are: I) transfer of immovable property by writing; II) signed by the transferor or on his behalf; and III) possession delivered.
24. The purpose of insisting transfer by writing is that the terms necessary to constitute the agreement should be reasonably ascertained. It must be signed by the transferor or on his behalf.
Now, when the present case is judged in the light of the above ingredients, then it fulfils all the three pre-requisites for attracting principles of section 53-A. I am conscious of the decisions in the cases of Maung Ohn and another Vs. Maung Po Kwe and others (AIR 1938 Rangoon 356), Shravan Javaram Patil and others Vs. Garbad Ukha Nhavi (AIR 1943 Bombay 406), Dharameshwar Sarma Vs. Lakhyadhar Borgohain (AIR 1950 Assam 107), New Delhi Municipal Committee Vs. H.S.Rikhy (AIR 1956 Punjab 181), Chandra Nath Mukheijee Vs. Chulai Pashi and another (AIR 1960 Calcutta 40) and Murid Khan and others Vs. Usman Khan and others (AIR 1962 Punjab 475). These cases are clearly distinguishable and the main feature of distinction, as is-clear from the perusal of these judgments, is that in none of them the report was signed by the vendor/transferor.
25. The sale of land through mutation is quite common in this Province. Normally, the trend is that the vendor goes and informs the Circle Patwari, who records a report in the Rozenamcha and then it is processed and placed before the Revenue Officer, who sends for the parties and sanctions it.
There are cases like the present one where the vendor/transferor makes a report and signs or thumb marks the same. In my view the principle of section 53- A would not be attracted in the cases falling in first category while it would apply with full force to the cases falling in second category. The legislature in its own wisdom has used the word 'writing' which is comprehensive and wider in import as compared to the terms 'agreement' or 'deed' and when the word in writing is interpreted in legislative background, then it becomes clear that report Ex.P-1 is covered by section 53-A.
26. Conversely speaking the section was enacted to provide relief to this type of cases and by exduding documents like the present one would frustrate the purpose of law. The cardinal principle of interpretation of statutes is that it should advance remedy and suppress mischief. Therefore, this case is fully covered by the principle of part performance and the possession of the appellants was protected.
27. It may be made clear here that nowhere in this judgment it has been recorded that the report Ex.P-1 amounted to sale. It has only been held that this writing Ex.P-1 recorded by Patwari at the instance of the plaintiff and duly signed by him furnishes a legal and complete defence to the defendants to preserve then- possession in view of section 53-A of Transfer of Property Act.
28. I would be failing in my duties if the valuable assistance rendered by M/s Muhammad Mahmood Bhatti and Chaudhry Naseer Ahmad, Advocates, as amicus-curiae, as well as Mr. Ghulam Mohayyud Din Shah, counsel for the appellants and Mr. Ajaz Ahmad Ansari, counsel for the respondent is not acknowledged. In fact they assisted to the fullest extent to enable me to render this judgment.
The upshot of the above discussions is that this appeal is accepted, with the result that the suit of the respondent is dismissed with costs throughout.