' On 13-8-1976 the respondents filed a suit for possession in respect of the disputed house claiming that they have purchased the same from one Saif Ullah Khan to whom the house has been transferred by the Settlement Department vide registered sale-deed, dated 8-4-1968. They delivered the possession of the house to the present petitioners as licensees but when sought the return of the possession the same, has been declined by the petitioners.
2. This suit was resisted by the present petitioners on be ground that vide agreement, dated 17-4- 1962, registered on 19-4-1962 and mortgage deed Exh.D.2, Saif Ullah has mortgaged this house to them with the stipulation that when the PTD would be issued in his favor, the house shall be transferred to them thus, they are in possession of the said house in part performance of the agreement to sell and also as mortgagees.
3. Issues were framed, parties were put to trial and the learned Civil Judge, seized of the matter, earlier decreed the suit on 20-2-1980, against which the respondent preferred an appeal which we accepted and the case was remanded on 20-9-1981, for having of some further evidence.
Thereafter, the suit was dismissed on 5-9-1983, but the appeal filed by the respondents has been accepted on 22-4-1987, hence this revision petition.
' I have heard the learned counsel for the parties. It is contended on behalf of the petitioners that the Appellate Court has confined itself only to Issue No,1 and by holding that as the sale-deed in favour of the respondents is a registered document, thus, the agreement to sell being an unregistered instrument cannot have the preference and, therefore, the decision of the trial Court has been reversed. It is emphatically stated that on Issue No, 5 i,e,: ' Whether the defendants are entitled to the protection of section 53-A of the Transfer of Property Act? OPD.
' The appellate Court observed as follows: "The learned counsel for the appellants next challenged the findings of the trial Court on Issues Nos.3 and 5 and argued that since the plaintiffs were owners of the suit land, defendants Nos.1 and 3 are not entitled to retain the possession and their rights were not protected under section 53-A, Transfer of Property Act and they can sue Saif Ullah Khan for the return of the money. They can seek their remedy from the original owner according to law.
' On the other side, it was argued by the learned counsel for the respondents that the respondents could not he dispossessed, as mortgaged deed for 20 years was executed in their favour and there was also agreement to sell Exh.D.1 in their favour.
' The arguments of the learned counsel for the respondents are devoid of any force.
' In view of my above discussion, the appeal is hereby accepted and judgment and decree are set aside and decree for possession and permanent injunction in respect of the suit house is passed in favour of the plaintiffs/appellants against the defendants/respondents. Parties are, left to bear their own costs."
From the above it is clear that no finding on this issue has been given at all. By relying upon Naib- Subedar Taj Muhammad v. Yar Muhammad Khan and 6 others (1992 SCM R 1265, Hikirat Khan v.
Shamsur Rehnian (1993 SCM R 428) and 1993 SCM R 837 it is contended that the applicability of section 53-A of the Transfer of Property Act is dependent upon certain factors:
(1) There is a contract in writing signed by the transferor in respect of an immovable property.
(2) From the writing, transfer can be ascertained with reasonable certainty.
(3) 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
(4) The transferee has performed or is willing to perform his part of the contract.
' If all these conditions are satisfied, then even if the contract is not registered, the transferred or any person claiming under him cannot enforce any right in respect of the property of which the transferee has taken possession except such right, which a transferor is entitled to enforce by virtue of the contract. Furthermore, mere non-registration of the agreement to sell would not deprive the transferee of the benefits which he would be entitled to protect by virtue of section 53-A of the Transfer of Property Act.
6. Conversely the learned counsel for the respondent placed reliance upon Prodi Khan v. Sufaid Gul and others (PLD 1965 (W.P.) Peshawar 259) and Mst. Resham Jan and 3 others v. Muhammad Latif and another (PLD 1987 SC (AJ&K) 93) to argue that the agreement to sell does not confer any right or title to a transferee under the agreement and, therefore, the protection of section 53-A is not available to the petitioners.
7. I have perused the judgment of the Appellate Court which has been reproduced above. It is evident therefrom that the Court in appeal has absolutely failed to attend or consider Issue No,5 nor any evidence in this behalf has been taken into account to 'find whether the criteria laid down by the Supreme Court was fulfilled and the petitioners were entitled to seek the protection of his possession on the basis of section 53-A. The appellate Court has simply after giving findings on Issue No,1 on the basis of comparison of registered document with unregistered agreement to sell has disposed of this issue. This is not in accord with law. The Appellate Court was required to have discussed this issue separately and on the basis of the evidence on record to see if the petitioners could avail the protection of section 53-A.
' The upshot of the above discussion is that as there is no specific findings on Issue No,5, therefore, this petition is accepted and the case is remanded to the Appellate Court to re-decide this issue in