' SYED NAJAM-UL-HASSAN KAZMI, J.---This judgment will decide R.F.A. No,7 of 1994 which arises from judgment and decree, dated 4-12-1993 of the learned Civil Judge, Okara.
2. Sufi Muhammad Tufail, predecessor of respondents (Muhammad Anwar-ul-Haq and three others), filed a suit for possession of a plot measuring one Kanal, six Marla (100' x 66'), situated in Khewat No,31, Khatooni No,162, Min, Khasra No,53/11/2, Chak No,1/4-L, Okara, claiming that he was owner thereof, the appellant was his fast friend who did not have a house of his own and was fed up with the living in rented houses, therefore, he requested the respondent to provide plot in issue, for construction of a house. It was asserted that in view of poor financial conditions, the appellant could not construct a complete house or pay the price thereof, therefore, he was permitted to occupy the plot, construct a house thereon and to pay the price of the plot at his convenience during the 12 years, with a condition that if he would not be able to pay the price of the plot, vacant possession of the same would be restored to the respondents. It was added that the appellant constructed a Bungalow over the plot in 1972, started living therein, and from time to time, he was reminded of his obligation to pay the price of the plot but on account of weaker financial conditions, the appellant could not allegedly liquidate his liabilities towards the respondents.
According to the respondents on the expiry of 12 years, in 1984, the appellant was required to either pay the market value of the plot in the sum of Rs,6,50,000 or to restore the possession of the plot to the respondents, but the appellant, in total disregard to the close relations between the parties and confidence reposed upon him, declined the alternative demand of the respondents. With these assertions, the respondents prayed for restoration of possession.
3. The suit was resisted by the appellant who in his written statement, pleaded that the respondent had no cause of action; there was no revocable contract and it was a sale the suit was barred by limitation, the respondent could not claim possession without payment of Rs,10,00,000 as price of the Bungalow, and that appellant had otherwise, become owner through adverse possession. On merit, it was claimed that the plot was purchased at the rate of Rs,250 per Marla in 1970 which price was received by the respondents at the time of sale and delivery of possession. In his rejoinder, the appellant controverted the defence taken by the appellant, and maintained that the licence was revocable and that they were entitled to the restoration of the possession.
4. Controversial pleadings led to the framing of the following issues:-- ' Whether the plaintiff agreed to sell the land of the residential plot in question at the rate of Rs,250 per Marla in the year 1970 and ias the defendant paid the entire safe price of the said plot? OPD.
' What was the market value of the plot in question in the year 1971? OPP.
' Whether the defendant has become full owner of the plot in question through adverse possession extending over more than 12 years? OPD.
(4) When did the defendant construct the house on the plot in question and what is the value of the building constructed over it? OPD.
(5) Whether the suit of the plaintiff is mala fide? OPD.
(6) Whether the description of the plot in question has been incorrectly given in the plaint? If not, its effect? OPP.
(7) What were the conditions of licence under which the plaintiff granted the plot of the suit to the defendant and has the defendant contravened the conditions of the licence, if so, when? OPP.
(8) Whether the plaintiff was entitled to revoke the licence and had it been validly revoked, if so when? OPP.
(9) Whether the plaintiff is estopped to file the suit by conduct? OPD.
(10) Whether the suit is within time? OPP.
(11) Whether plaintiff is owner of plot in dispute, as such is entitled for decree of possession? OPP.
(12) Relief.
5. In affirmative evidence, respondent produced Muhammad Iqbal (P.W.1), Muhammad Sadiq (P.W.2). Documents Exhs.P/1 to P/14 were also tendered. Anwarul-Haq, one of the respondents, appeared in rebuttal as P.W.3. From the appellant's side, Ali Ahmed (D.W.1), Shaukat Ali (D.W.2), Abdul Ghani (D.W.3), Abdul Majeed (D.W.4), Sh. Muhammad Siddique (D.W.5), Mushtaq Muhammad (D.W.6), Shafqat Ali (D.W.7), Kanwar Saeed (D.W.8), Ch. Muhammad Saeed Majheana appellant (D.W.9), Bashir Ahmad, Building Officer and Mehboob Ahmad, Municipal Engineer, D.W.10 and 11 appeared as witnesses.
6. Vide judgment, dated 4-12-1993 the learned Civil Judge decreed the suit for possession and directed the appellant to remove superstructure, failing the respondents were allowed to get possession in execution of decree through removal of superstructure at the expense of the appellant.
7. Learned counsel for the appellant, contended that from the pleadings and evidence on record, it was established that the appellant as allowed to raise construction on the payment of price within twelve years, the price having been paid, the suit for possession would not lie as it was a case of sale. It was argued that even in the case of licence, it would be irrevocable under section 60 of the Easements Act as valuable permanent structure was raised; hence the respondents could not be allowed to revoke the licence. Learned counsel submitted that the appellant led sufficient evidence to prove payment of price which was either overlooked or misread by the Courts below. In the alternative, it was argued that under section 51 of the Transfer of Property Act, no order of eviction could be passed, without payment of price/ compensation of superstructure. Lastly, it was maintained that the findings on Issue No,1, were not tenable as the suit was hopelessly barred by time.
8. Supporting the impugned judgment, it was argued by the learned counsel for the respondents that the appellant was a licensee, the licence was revocable due to non-fulfilment of condition of payment of price, the licence was validly revoked, there did not exist any title in favour of the appellant, as no sale-deed was executed and that the appellant took contradictory positions in his pleadings and evidence, It was added that the appellant pleaded the case of purchase, which he could not prove as no transfer of title was possible in the absence of registered sale-deed, in view of the provisions of section 54 of the Transfer of Property Act. It was contended that, at best, the appellant could remove the superstructure without claiming any compensation in view of the commitments given at the time of obtaining possession. Lastly, it was submitted that the findings recorded by the learned Civil Judge did not suffer from any error of law or misreading of the record, hence no ground was made out for interference.
9. We have given our anxious consideration to the points raised before us and minutely scanned the record, inclusive of pleadings, oral and documentary evidence of the parties.
10. Case set up in the plaint was that the respondents were the owners of land measuring 1 Kanal, 6 Marlas, appellant was a practising lawyer who had deep friendly relations with late Sufi Muhammad Tufail (plaintiff), at the request of the appellant, who was allegedly having weaker financial position, he was allowed to possess the plot for constructing a bungalow with the commitment to pay market price of the land within 12 years or alternatively to remove the superstructure at his own expense and that the appellant constructed a bungalow, did not allegedly pay the price of land and, thus, respondents were entitled to the restoration of the possession. As against this, appellant maintained that it was a case of sale, he had paid the price at the rate of Rs,250 per Marla and, thereafter, raised the construction within the knowledge of the respondents who never objected to the same and that the suit for possession would not lie.
11. Considering the respective pleadings, the point for determination will be as to what was the nature of transaction/deal between the appellant and Sufi Muhammad Tufail, and whether the transfer of possession of the plot, with a right to raise permanent construction, on undertaking to pay the market price was a sale or licence. The view taken by the learned Civil Judge is that the appellant was a licencee, the land was to be used for residential purpose, price was to be paid within 12 years at the market rate, failure to make payment of price entitled to respondents to revoke the licence and that the appellant was legally obliged to restore the possession by removing the superstructure from the plot. Careful review of the evidence reveals that the view of the learned Civil Judge as to the transaction being a licence, is not based on any admissible or legal evidence and the same appears to be a result of misreading and non-reading of evidence on record. From the contents of the plaint, it is discernible that the intention of the parties was to make sale. In para.5 of the plaint, deceased-plaintiff asserted that the appellant approached him and pleaded that he was, fed up with the continuous living in the rented house and that he should be allowed to raise construction on the plot in issue and that he would pay the price of the same in 12 years at the market rate, failing he would remove the Malba. In the next paragraph i,e, (6), it was asserted that on the, expiry of 12 years, the deceased-plaintiff, reminded the appellant in the year 1984, that he should pay the market price of the plot in the sum of Rs,6,50,000 or he should remove the superstructure. From the aforementioned averments in the pleadings, one gains the impression that the intentions were for the sale of plot in consideration of market price, which according to the respondents was Rs,6,50,000 and payable in 12 years. If, in the event of failure to make payment of the price within 12 years, the arrangement was to be terminated and the possession was to be restored, then there was no occasion for the predecessor of respondents to demand the payment of price after the expiry of 12 years. The fact that the deceased-plaintiff claims to have asked for the payment of price in the sum of Rs,6,50,000 even after the expiry of 12 years, will indicate that the parties had agreed to the sale-purchase of the plot and it was not a case of mere licence. The learned Civil Judge relied on the statements of P.W.1 and P.W.2 for assuming that it was a case of licence and also that the appellant had undertaken to remove the superstructure after 12 years.
Deeper study of the statements of P.W.1 and P.W.3 will show that there were contradictions between their statements and between the pleadings and the oral statements and also that the credibility of the witnesses had been considerably shaken in cross-examination. P.W.1 (Muhammad Iqbal) claimed that he had old relations with Sufi Muhammad Tufail, predecessor of respondents, as both of them, were in the same business and that he came into contact with the appellant through the predecessor of the respondents. It was deposed that in September, 1971, the appellant alongwith Muhammad Sadiq approached him after Juma prayers and requested him to accompany them to approach the deceased-plaintiff for requesting him to give plot to the appellant as he was not in a position to make payment of price at one time and that the market price would be paid in 12 years and that at his request and also at the request of Muhammad Sadiq, predecessor of respondents agreed to the arrangement on the condition that the price would be paid within 12 years, failing the superstructure would be removed. The witnesses tried to give an impression that it was on his persuasion and the persuasion of Muhammad Sadiq, the predecessor of respondents had agreed to this arrangement and delivered the possession. The statements of the witnesses are contradictory to the plaint as in paragraphs (5) and (6) of the plaint, late Sufi Muhammad Tufail pleaded that the appellant was his fast friend and he had full confidence in him and that the appellant allegedly approached him in 1971-72 and informed that he was fed up with the living in a rented house, and that he requested for getting the plot to raise construction with the understanding to pay the market price of the plot within 12 years and also that on account of deep relationship and confidence upon the appellant, he was delivered possession, who raised the complete construction in 1972. It is evident from the plaint that late Sufi Muhammad Tufail did not claim that he was approached by P.W.1 and P.W.2 or that on their persuasion, he had agreed to deliver possession and instead, it was clearly stated that it was a direct deal between the deceased-plaintiff and the appellant. It is manifestly clear that the appellant was not present at the time of deal and his entry at the scene was a created stance. Even otherwise, the statement of P.W.1 is not confidence-inspiring, for the reason that P.W.1 claims to have come into contact with the appellant through late Sufi Muhammad Tufail while Sufi Muhammad Tufail claims fast friendship with the appellant and full confidence upon him. In this scenario, it does not appeal to the reason that the appellant who had direct relations with the predecessor of the respondents would require the services of P.W.1 and P.W.2 to persuade the deceased-plaintiff for transfer of possession of plot. It is also observed from the statements of P.W.1 that he in cross-examination admitted that he did not know the number of brothers of the appellant, he did not know if the father of the appellant was a sourceful person, he did not remember the alleged cases pleaded by the appellant as an Advocate for late Sufi Muhammad Tufail. This will show that the witness had no relations with the appellant and instead he being in the same business in which the deceased plaintiff was engaged, appeared as a witnesses to lend helping hand for pleading a story of a licence and for this purpose, he distorted facts for supporting the case of respondents. It is interesting to note that there are other contradictions between the statements of P.W.1 and P.W.2.
P.W.1 stated that the appellant first approached him, explained his intended desire, stayed for some time at his place and then he alongwith Muhammad Sadiq accompanied the appellant to the place of deceased-plaintiff where they remained for one or one and half hour. As against this, P.W.2, Muhammad Sadiq, stated that he alongwith the appellant approached P.W.2 at his Cold Storage wherefrom they immediately proceeded to the place of deceased-plaintiff and they stayed with him for 10/15 minutes. The two statements, therefore, do not tally with each other. It is also observed that P.W.1 did not mention the presence of Anwar-ul-Haq at the time of alleged settlement of deal while P.W.2 also admitted that he had friendly relations with Anwar-ul-Haq and acted as his Polling Agent in the Elections. It was admitted by him that he was involved in criminal cases, raid was conducted at his place, Ch. Faiz Ahmad, Advocate, who was working in the same Chamber with the appellant, was a witness in the raid and also a counsel against him. All this will show his enmity against the appellant and close association with the respondents. In these circumstances, the statements of P.W.1 and P.W.2, terming the transaction as licence, cannot be possibly believed as their testimony is not confidence inspiring and worthy of credence.
12. As against the evidence of respondents, the appellant produced oral evidence including D.W. 7 to D.W.9 to prove that the real deal between the parties was a sale and not a licence. The contents of the plaint, and oral evidence of the parties, if considered, in juxtaposition, the only conclusion which can be drawn is that it was a case of oral sale for consideration to be paid within 12 years and not a licence. The evidence is indicative of the fact that the parties had trust in each other, they settled a bargain in an amicable way and on account of good relationship, trust upon the appellant, the deceased-plaintiff agreed to allow the payment of price within 12 years. Thi" position is further strengthened by the fact that admittedly, no notice, legal or otherwise, was ever claimed to have been given, during the 12 years from the transfer of possession or thereafter.
13. The practice of transferring the property through oral sale is not unknown in our society and it is common knowledge that in the matter of agriculture property, people do transact through oral sale. Sale has been defined as transfer of ownership, in exchange of price paid or promised to be paid or partly paid and partly promised. In this case, the respondents and their predecessor admitted in so many words that transfer of possession took place with the understanding that the market value of the land would be paid within 12 years. This being so, the real intention was obviously a sale of the property and not creation of a licence. The story of licence appears to have been fabricated, because of the subsequent developments as it is in the evidence that the appellant and the respondents, started extending their favours and loyalties to two different parties having political conflict and difference of ideas. It appears that on account of subsequent strained relations, the deceased-plaintiff decided to take up a position which would harm the interest of the appellant and with this idea, the plea of licence was raised to deprive the appellant of the valuable property.
14. In the course of hearing of this appeal, one of the arguments, advanced, was that no title could be conveyed in the absence of a registered sale-deed, in view of section 54 of the .Transfer of Property Act. Reference was made to Niaz Ali and 16 others v. Muhammad Din and 13 others (PLD 1993 Lahore 33), to support this plea. In the precedent case, it was observed that under section 54 of the Transfer of Property Act, the transfer of immovable property worth more than Rs,100 could be effected through registered instrument and the oral transaction would not create title in favour of vendee. In the same judgment, while relying on the case of Arif v. Jadu Nath Majumdar, (58 Cal.1234), Pir Bukhsh v. Muhammad Tahir (58 Born. 650), Habib-ur-Rehman and others v. Mst.
Wandania and others (PLD 1984 SC 424) and Mst. Akhtar Begum v. Mian Aziz and others (1975 SCMR 1617), it was observed that the suit filed by the vendor may be dismissed on the ground of estoppel or acquiescence even if there was no registered sale-deed. In the present case too, the predecessor of respondents was the vendor who delivered the possession in consideration of the payment of sale price, which was agreed to be paid within 12 years, the appellant admittedly constructed Bungalow in 1972, no proceedings were initiated for more than 12 years to either stop construction, removal of construction or to recover possession and instead, it was claimed that the construction was raised with authority and consent and, in these circumstances, even if there was no registered sale-deed, still the respondents being vendor can be denied the relief of possession on the ground of estoppel/ acquiescence. Considering the circumstances noted supra, we are of the view that the real intent of the parties was to make sale in consideration of payment of market price of the land, which the appellant was permitted to pay within 12 years and that even after the expiry of 12 years, the predecessor of the respondents by demanding payment of price kept the transaction intact. The findings of the learned Civil Judge, being based on misreading and non- reading of the evidence and suffering from legal infirmity are reversed.
15. Next question for consideration will be whether or not market price was paid within the agreed period. According to the appellant, in terms of the argument, the price was to be paid at the rate of Rs,250 and that he allegedly paid Rs,6500 as price of the land to the deceased-plaintiff. For this purpose, some oral evidence was also led. An attempt was made to prove the market value of the land at the relevant time, but Issue No,2 was decided against the appellant on the ground that the document Exh.D/1 pertained to June, 1970 and did not contain transaction of 1971 and also the same did not explain as to what was the nature of the transactions. It is, thus, obvious that the case of the appellant was that the market value was Rs,6,500 which was allegedly paid. This being so, one thing becomes certain that the intention was to purchase the plot on the payment of market price. The document Exh.D/1 does not help the appellant in proving that the market value of the plot was Rs,6,500 and the same was, therefore, rightly discarded. In view of our findings that the price was agreed to be paid within 12 years and that the appellant was to pay the market value at the time of payment, the document produced by the appellant was irrelevant and the respondents was justified in demanding the payment of Rs,6,50,000 being the market price, immediately before the filing of the suit when the final demand for payment was made. Even otherwise, in this case, admittedly, a huge Bungalow was constructed the appellant in good faith believed that land belonged to him, and, therefore, in a suit for recovery of possession, he could validly ask under section 51 of the Transfer of Property Act, for the transfer of interest in the land in his favour by the respondents on payment of market value of the land. Respondents having themselves ascertained the market value of the land as Rs,6,50,000, the appellant will be entitled to enforce right of transfer on payment of the said amount. As regards the plea of payment of Rs,6,500, no receipt whatsoever has been produced and, therefore, we are not inclined to accept the claim of payment of this amount. If the appellant could take care of maintaining receipts for purchasing material etc., necessary for the construction of the building, he could also ensured the obtainment of receipt for payment of consideration. Evidence led by the appellant to claim payment of the amount being not satisfactory and confidence inspiring, he will be deemed to have failed to prove the payment of the said amount. In view thereof, respondents are legally entitled to ask for a decree for the payment of Rs,6,50,000, being the sale consideration and in case the appellant does not pay the price, despite orders of the Court, the respondents can lawfully ask for the possession of the property as an alternative relief. We have observed that the respondents only asked for the relief of possession and did not make a specific prayer for the recovery of the sale price. In law, the Court is competent to mould the relief and also to grant the relief to a party to which the said party is found entitled, keeping in view the substance of the plaint and also the evidence on record, no matter such relief is not specifically asked for. Reference can be made to Samar Gul v. Central Government and others (PLD 1986 SC 35) and Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220). In the given circumstances, the appropriate relief, which could be claimed in the suit was for recovery of the sale price or in the alternative for recovery of possession.
16. This brings us to the question of payment of compensation for superstructure, in the event of restoration of possession due to non-payment of price of the land. It was contended by the learned counsel for the appellant, that the respondents could not ask for possession, either with the superstructure or through its demolition without payment of compensation in view of the provisions of section 51 of the Transfer of Property Act. Section 51 of the Act (ibid). Provides that where a transferee of immovable property makes improvements on the property believing in good faith that he is absolutely entitled thereto and subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing eviction, either to have the value of improvements estimated and paid or secure to the transferee or to sell his interest in the property to the transferee at the then market value thereof, irrespective of value of such improvements. In view of this provision of law, two courses would be open; one for the assessment of the value of the superstructure and payment of compensation thereof to the evictee, and the other, the payment of the value of interest in law to the respondents to allow continuation of possession.
17. In this case, from the circumstances noted supra, it has been proved that the predecessor of respondents inducted the appellant, in the plot with an intent to transfer the same by way of sale in consideration of the payment of market price, which was agreed to be received within 12 years, and that the appellant constructed a bungalow, with the express consent of the predecessor of the respondents. This being so, the appellant could legitimately plead the rule of promissory and equitable estoppel and could ask for the benefit of section 51 of the Transfer of Property Act. Even otherwise, under section 2 of the Mesne Profits and Improvement Act, 1855, the appellant could ask for the transfer of interest in the land on payment of price and, in case of eviction, he can press for the payment of compensation for the improvements/construction made over the plot. Reference can be made to Muhammad Siddique v. Mst. Aziz Begum and 4 others (1991 SCMR 2407). In this view of the statement of law, the learned Civil Judge fell in error in granting straightaway decree for possession, without firstly allowing option to the appellant to make
18. For the reasons above, this appeal is allowed, a decree in the sum of Rs,6,50,000 being cost of the land is passed in favour of the respondents, which the appellant shall pay within three months from today, failing, the decree for possession of the plot shall stand restored, subject to payment by the respondents of compensation for the super-structure at the time of taking possession which will be assessed by the Executing Court before the delivery of possession.Deposit of the sale price or providing for a condition of payment of compensation, in case of ultimate eviction.