' SARDAR SAID MUHAMMAD KHAN, C.J.--This appeal has been directed against the judgment and decree of the High Court dated 21-11-1996, whereby the judgment and decree passed by the District Judge were upheld.
2. The brief facts giving rise to the present appeal are that Plot No,121, measuring 1 Kanal, situated in Sub-sector F.-1, Mirpur Town, was allotted to Mst. Fazilat Rafique, respondent No,6. Thereafter, Mst.
Fazilat Rafique, allottee, transferred the said plot to Muhammad Bashir, appellant, through an agreement to sell dated 10-8-1972. According to defendant, Muhammad Bashir, appellant, raised some construction over the plot and thereafter, half of the said plot along with built up property over the same was transferred to him through an affidavit dated 28-6-1978 for a consideration of Rs,2,10,000 and also delivered possession to him. The remaining half of the plot along with built up property was transferred through another affidavit dated 14-3-1974 to one Allah Ditta who, in turn, transferred the same in favour of Muhammad Adil Kayani and others through an affidavit dated 31-10-1978. The present dispute between the parties pertains to half of the plot and built up property which were transferred to Muhammad Siddique, respondent No, 1 .
3. The plaintiff-appellant filed a declaratory suit against respondent No,1 in the Court of District Judge, Mirpur, in the year 1986 alleging that the property in dispute was in fact rented out to respondent No,1 for eight years and the rent amounting to Rs,1,80,000 was received by him in advance. The appellant further alleged that when the term of the lease came to an end, he demanded the possession of the land in dispute upon which he came to know that respondent No,1 had got the property in dispute transferred in his favour through a forged affidavit.
4. The learned District Judge, after the trial, dismissed the suit holding that the plaintiff-appellant had not leased out the property to respondent No,1, rather he had transferred the same by sale vide affidavit, Exh.DB. The appellant, herein, filed an appeal before the High Court which was dismissed and the findings of the District Judge were affirmed.
5. We have heard the arguments and perused the record Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the appellant, has argued that the Courts below have committed an error in holding that the disputed property was transferred by the appellant vide Exh.DB. He has contended that Exh.DB has not been proved as required by law. The learned counsel has contended that the Courts below erred in holding that as the plaintiff-appellant admitted his signatures on Exh.DB, there was no reason for doubting the authenticity of the same. The learned counsel has cited following authorities in support of his contention that Exh.DB cannot be said to have been proved in view of the evidence adduced by the defendant-respondent.
' In a case reported as Seithammarakkath Muhammad v. Koyommatath Mammad AIR 1957 Kerala 63, the facts were that plaintiff brought a suit on the basis of promissory note purported to have been executed by the defendant. The defendant had denned both the execution as well as passing of consideration. The defendant pleaded that he had entrusted to the plaintiff a blank sheet of paper containing his thumb impression for filling it up as a 'kychit' but he took an undue advantage and filled it as a promissory note. It was observed by the Court that onus to prove both the fact of execution and the passing of consideration was on the plaintiff, because the admission made by the defendant that he had affixed his thumb-impression and signed the blank paper without stamp could not be regarded an admission as to the execution of the promissory note.
' In the case reported as Madholal Sindhu v. Asian Assurance Co. Ltd. AIR 1954 Bombay 305, it was held that where the correctness of the contents of a document produced in the Court is in issue, that should be proved by calling the executor of the document as a witness. The document cannot be proved by a witness who was though acquainted with the signature or handwriting of the person signed or wrote the document, but had no personal knowledge about the contents of the same.
6. Ch. Muhammad Riaz Alam, Advocate, the learned counsel for Muhammad Siddique, respondent No,1, has controverted the arguments of the learned counsel for the appellant. He has submitted that apart from the admission by Muhammad Bashir that Exh.DB bears his signatures, there is overwhelming evidence on the record which proves the fact that Exh.DB was executed by Muhammad Bashir, plaintiff, in favour of Muhammad Siddique, respondent, whereby he sold the property in dispute to respondent No,1. The learned counsel has maintained that Khadim Hussain, one of the marginal witnesses of Exh.DB, appeared as a witness and has supported the execution of the same. The learned counsel has also drawn our attention to the statement of Ghulam Hussain, petition writer, a witness for the respondent, who has proved the signature of Abdullah, the other marginal witness of Exh.DB, because he was dead. The learned counsel has strenuously argued that the authorities cited by the learned counsel for the appellant are distinguishable because in the instant case the onus of the execution of Exh.DB was placed upon the defendant who has amply discharged the same not only by producing Khadim Hussain, a marginal witness, but also proved the signature of Abdullah, the other marginal witness who was dead. The learned counsel has further argued that Muhammad Siddique, respondent, has appeared as a witness but no suggestion was made to him in cross-examination that the stamp paper on which Exh.DB was written was blank when the appellant had given it to him and it was subsequently used for forgery.
7. We have given due consideration to the factum of execution of document, Exh.DB, and we have come to the conclusion that there is no reason for interfering with the concurrent findings of the Courts below with regard to the execution of Exh.DB. The plaintiff-appellant did not allege in the plaint that stamp paper on which Exh.DB was written was blank when he had given it to the defendant, no such suggestion was made to Muhammad Siddique, defendant-respondent, in cross-examination either. The stand of the plaintiff- appellant with regard to his signature on a blank stamp paper is afterthought and is not sustainable. Even otherwise, the statements of Muhammad Siddique, respondent, Khadim Hussain, the marginal witness, and Ghulam Hussain, petition writer, who proves the signature of Abdullah, the marginal witness, amply prove that the property in dispute was transferred to respondent No,1 vide Exh.DB, the stand of the plaintiff- appellant that Exh.DB was a forged document has no substance and is repelled.
8. The learned counsel for the appellant has argued that even if it is proved that Exh.DB was duly executed, it would not transfer any title to respondent No, 1 . The learned counsel has drawn our attention to sections 17 and 49 of the Indian Registration Act and has argued that in view of the contents of document, Exh.DB, it was compulsorily register able and as the same was not registered under the provisions of Registration Act, neither it would transfer any title to the respondent-defendant nor it is admissible in evidence under section 49 of the Registration Act. The learned counsel has argued that in view of Regulation 14 of the Mirpur Development Authority Regulations for Development and Disposal of Estates, 1977 (hereinafter shall be called the Regulations), the powers of the registration of a document have been entrusted to Development Authority in place of the authorities appointed under the Registration Act. He has contended that Regulation 14 not only envisages that any transfer is to be made with the permission of the Development Authority but also stipulates that such a transfer should be registered by the authority on payment of prescribed fee.
9. Ch. Riaz Alam, the learned counsel for the respondent, in reply, has argued that the provisions of Registration Act are not applicable to a transfer deed executed in pursuance of the provisions of Mirpur Development Authority Ordinance, 1974 (hereinafter shall be called the Ordinance), and Regulations framed thereunder. He has argued that under subsection (i) of section 39 of the Ordinance, the Development Authority was competent to lease, sell, exchange, rent or otherwise transfer any land vested in it subject to the terms and conditions as it may impose in this behalf, under subsection (ii) of section 39 of the Ordinance, notwithstanding any provision contained in any law for the time being in force, a certificate of title issued by the Authority in respect of any lease, sale, exchange or transfer of any piece of land within the specified area is regarded as sufficient proof of the said title and is admissible as evidence of the title in any proceedings, and appearing in Regulation 14, the sale, transfer or exchange of any plot or a part thereof can be made by an allottee, lessee or vendor with the permission of the Development Authority. He has argued that the phrase 'being registered by the Authority' appearing in Regulation 14 does not mean a registration under the provisions of Registration Act by the Sub-Registrar or the Registrar appointed under the provisions of Registration Act, it merely implies that there must be some record showing that such permission was granted and approved by the Authority after receipt of requisite fee prescribed by it. The learned counsel has argued that in the instant case, the certificate of title, Exh.DE, was duly issued in favour of Muhammad Siddique, defendant, after realization of the requisite fee, which is complete compliance of Regulation 14. He has further submitted that the document whether it is couched as an affidavit or otherwise would not change the real nature of a transaction, specially so when Regulation 13 stipulates that any document purporting to transfer any interest in the property would be deemed to be an 'agreement to sell' and a certificate of title is to be issued only by the Authority. The learned counsel, in alternative, has argued that as an agreement-to-sell is not compulsorily registrable under the provisions of Registration Act, it cannot be said that Exh.DB which would be deemed to be an 'agreement-to-sell' was compulsorily registrable, if at all the Registration Act is held applicable in the instant case. He has submitted that half of the Plot No,121 which was transferred to Allah Ditta who subsequently transferred the same in favour of Adil Kayani and others. The said transfer deeds were also identical to Exh.DB, but the same were not challenged by the plaintiff-appellant.
10. We have considered the arguments on the point of non-registration of Exh.DB under the provisions of Registration Act. It would be expedient here to reproduce below section 39 of the Ordinance and Regulations 13 and 14 of the Regulations to elucidate the matter:-- "Section 39:
39. (i) The Authority may retain, or may lease, 'sell exchange rent or otherwise transfer any land vested in it, subject to such terms and conditions as it may impose in this behalf;
(ii) Notwithstanding anything contained in any other law for the time being in force a certificate of title issued by the Authority in respect of any lease, sale, exchange or transfer of any piece of land within specified areas shall be sufficient proof of the said title and shall be admissible in evidence of that title in any Court proceedings;
(iii) The Authority may charge such fee for the issue of certificate of tile under clause (ii) above as it may fix from time to time with previous sanction of the Government.
Regulations 13 and 14:
13. Transfer of ownership. Any allotment of a plot or farm under the foregoing Regulations will only amount to an agreement to sell and the title to such a plot or farm will be transferred through a title certificate granted by the Authority, after fulfillment of conditions imposed by the Authority.
Such a title certificate granted by the Authority shall be sufficient proof of ownership of the property in respect of which is has been issued.
14. Transfer of plots/farms.--Sub-division, sale, transfer or exchange of any plot/form or any portion thereof will not be affected by the allottee, lessee or vendee except with the permission of the Authority and subject to the transfer being registered by the Authority, on payment of fees to be prescribed by the Authority from time to time."
It may be observed here that under subsection (ii) of section 39 of the Ordinance, the certificate of title issued by the Authority in respect of any lease, sale, exchange or any transfer would be sufficient proof of the said title and such a certificate is admissible as evidence of the title in any proceedings in the Court. Thus, in view of the aforesaid provision, it cannot be said that the Exh.DE, the certificate of title issued by the Authority, does not confer any title to respondent No,1 because the same was not registered under the provisions of Registration Act. Under subsection (ii) of section 39 of the Ordinance, any provision contained in the law for the time being in force would not affect the validity of transaction if the same is in consonance with the provisions contained in section 39 of the Ordinance and the relevant Regulations. Thus, the aforesaid provision expressly excludes the application of the Registration Act or any other law for the time being in force to the cases of the transfer of title falling within the ambit of the Ordinance or the Regulations. We are also unable to subscribe to the argument advanced by the learned counsel for the appellant that the expression 'registered by the Authority' under Regulation 14 of the Regulations, implies the registration by the Authority under the Registration Act. It may be observed that the aforesaid expression cannot be taken to mean any such registration because in view of subsection (ii) of section 39 of the Ordinance, irrespective of the provisions in any other statute to the contrary, the title in the property would pass to the transferee if a certificate of title is issued by the Authority and the same would be sufficient proof for such title. Therefore, after the exclusion of the application of the provisions of Registration Act or Transfer of Property Act to the case in hand, it cannot be said by any stretch of imagination that the 'registration' envisaged under Regulation 14 would be the registration under the Registration Act. One of the dictionary meanings of the word 'register' are 'a written record or official list regularly kept'. Thus, in the instant case word 'register' in Regulation 14 would mean to maintain 'written record' and nothing more; it does not mean the registration of a document under the provision of Registration Act. Therefore, the contention of the learned counsel for the appellant that in view of the phraseology employed in Regulation 14, Exh.DB should have been registered under the Registration Act is not tenable and is hereby repelled.
11. Next, it has been argued by the learned counsel for the appellant that section 53-A of the Transfer of Property Act has no application to the case in hand. The learned counsel has argued that if the document is ab initio void, the benefit of section 53-A is not available to a transferee. The learned counsel has cited following authorities in support of his contention:-- ' In the case reported as Raja v. Karam Ali PLD 1951 Lah. 177, it was observed that as the relevant document on the basis of which the protection was sought, was a document ab initio void, there was no question of extending benefit of section 53-A of the Transfer of Property Act. It may be observed that in the aforesaid case the relevant document was held to be ab initio void in view of the provisions contained in section 19 of the Colonization of Government Lands (Punjab) Act, because no permission was taken for the transfer of the land from the Commissioner, which was mandatory. The authority has no relevancy to the case in hand because it is not shown as to how the document, Exh.DB, is ab initio void, especially so when such transfer is valid under the Ordinance and relevant Regulations.
' In a case reported as Mokim Mondal v. Ali Miah Pradhan PLD 1967 Dacca 591, it was observed that a person seeking benefit of section 53-A of Transfer of Property Act but show that the contract was reduced to writing from which terms necessary to constitute transfer can be ascertained with reasonable certainty. It may be stated that in the instant case the plaintiff-appellant has transferred the property in dispute in clear terms after receiving consideration and there is no ambiguity with regard to the terms of the same. Therefore, this authority has also no application to the case in hand.
' In a case reported as Muhammad Siddik v. Jurio alias Allah Jurio PLD 1959 Kar. 400, it has been observed that for taking benefit under section 53-A of the Transfer of property Act, there must be a contract to transfer the property and not mere by an admission of previous oral agreement. It may be observed that in the instant case three is no question of mere admission of any previous oral agreement, the document, Exh.DB, is definitely a contract in pursuance of which, the possession of property in dispute was also handed over to respondent. No,
1. Therefore, the authority does not hold the case of the appellant.
12. In the light of what has been stated above, we are of the view that apart from passing of title to respondent No,1 in view of the document, Exh.DE, the certificate of title, and Exh.DB, respondent No,1 is even otherwise entitled to the protection of section 53-A of Transfer of Property Act. A reference may be made to a case reported as Kalimuddin Ansari v. Director, Excise and Taxation, Karachi PLD 1971 SC 114, wherein it was held that doctrine of part performance is valid defence in the proceedings of ejectment of the party in possession.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.