SYED JAMSHED ALI, J.-- This is plaintiffs' revision petition whose suit and appeal have concurrently been dismissed.
2. The petitioners herein filed a suit for declaration against respondents. Nos. 1 and 2 and Mst.
Sharifan Sibi deceased (now represented by respondents Nos. 8 to 16) with the averment that Muhammad Hussain, their predecessor-in-interest agreed to sell the disputed land on 9.5.1973 (Ex.P1) for a consideration of Rs. 9000/- and received an earnest money of Rs. 5000/-. However, on 9.6.1973 time for completion of the sale transaction was extended upto 8.7.1973 and on 9.6.1973 the balance amount of Rs. 4000/- was paid on which Muhammad Hussain got a mutation entered in the revenue record but it was rejected. It was further averred that the possession of the land in dispute was also delivered to the petitioners.
3. It was contested by the respondents. A number of preliminary objections including that the suit was incompetent in the present form; it was barred by time, the petitioners were tenants under the respondents and wanted to appropriate the produce and that they had not come to the Court with clean hands were taken. The agreement was denied and it was claimed that they were the owners in possession of the said land.
4. 'Necessary issues were framed and the suit was tried. The learned Trial Court found that the suit was not competent in the form it was filed, the petitioners could not seek enforcement of the agreement to sell because the suit for specific performance was time-barred and other conditions of a completed sale were not satisfied. Lt was further found that the petitioners were recorded as tenants at will. Lt was also held that the suit was not within time. Execution of the agreement, Ex.P1 was, however, found to have been proved. It was further held that it was not established that the petitioners had paid the balance sale consideration of Rs. 4000/-. Accordingly, the suit was dismissed vide judgment and decree dated 28.9.1985.
5. The petitioners challenged the aforesaid judgment and decree in an appeal which was dismissed on 15.10.1987. The learned first Appellate Court found that the suit was not maintainable as an agreement to sell does not confer any title on the prospective purchaser. Lt was further held that unless registered, the sale was hit by section 54 of the Transfer of Property Act.
6. The learned counsel for the petitioners contends that the suit for declaration was based on a completed oral sale, therefore, it was maintainable I n the form it was filed and the petitioners were not bound to ask for specific performance. Lt was further contended that the suit for declaration was governed by Article 120 of the Limitation Act and was within time. This other contention was that the evidence on the record as to the oral sale was not properly considered by the learned two Courts. He relied on-the entries of mutation No. 93 (Ex.P3) which was entered on 15.6.1973 but was rejected on 25.1.1975 on the ground of ban on oral transactions. He submitted that section 54 of the Transfer of Property Act was adopted for the whole of the Province of the Punjab vide notification dated 30.12.1974 while the oral sale had earlier been completed and, therefore, it was not applicable. He next contended that under section 53-A of the Transfer of Property Act the petitioners could seek a declaration for protection of their possession as the predecessor of the respondents, had delivered possession of the disputed land to them under the agreement to sell. Reliance was placed on Mst.
Akhtar Begum v. Mian Aziz and others (NLR 1981 AC 545).
7. On the other hand, the learned counsel for the respondents has contended that there was no evidence at all of the completed sale and, therefore, suit for declaration was rightly held to be incompetent. He contended that in fact suit for declaration was filed to avoid the bar of limitation which operated against the petitioners to file a suit for specific performance. He further contended that the matter stands concluded by concurrent findings of the learned two Courts and no interference is called for.
8. I have considered the submissions made by the learned counsel for the parties. There is merit in the contention of the learned counsel for the petitioners that the basis of the suit was for a perfected oral sale which was permissible in the rural area of the Punjab till 30.12.1974 when section 54 of the Transfer of Property Act was adopted for whole of the Punjab. (This notification was however, rescinded later on). Therefore, the form of the suit could not be objected to. There is also merit in the contention that such a suit was governed by Article 120 of the Limitation Act and, therefore, the suit filed on 29.10.1977 was within limitation. The questions, which require determination are whether the petitioners were able to establish .a perfected oral sale and whether they could claim protection under section 53-A of the Transfer of Property Act.
9. The case of the plaintiffs has been that on 9.6.1973 the balance sale price was paid to Muhammad Hussain and mutation was entered at his instance. In support of his case, Meraj Din, a Lambardar of the village was examined as PW 1. He is also a marginal witness of Ex.P1. He stated that he went to the Patwari Halga where Muhammad Hussain was paid Rs. 4000/- on which mutation was entered and that Muhammad Hussain had delivered possession of the land to the petitioners. Mubarak A.I was examined as PW 2 who testified to the execution of Ex.P1 and that at the time of payment of earnest money possession was delivered to the petitioners. Fazal Hussain Shah Patwari was examined as PW3 who recorded mutation No. 93. He stated that some amount was paid in his presence but the mutation was rejected because the Govt. Had imposed ban on oral transactions. Ghulam Abbas son of the scribe of Ex.P 1 was examined as PW 4 who testified that Ex.P1 was written by his father. Ahmad A.I, one of the petitioners was examined as PW 5. According to him, the balance sale consideration of Rs. 4000/- was paid to Muhammad Hussain in presence of the Girdawar, Patwari Halqa and Meraj Din Lambardar. He further claimed that they were in possession of the land in dispute. The evidence as to the payment of the balance sale consideration so as to bring about a completed sale was disbelieved by the learned Trial Court.
10. According to entry in column No. 14 of mutation No. 93 (Ex.P3) Muhammad Hussain and Muhammad A.I petitioner No. 2 appeared before the Patwari Halqa, had admitted the oral sale, transfer of possession and the sale consideration noted in column No. 12 as Rs. 10,000/-. The Patwari Halqa had admitted that he did not know Muhammad Hussain because he was not a resident of the village. Presence of PW 1 has nowhere been recorded on this mutation. Therefore, his statement that the balance sale consideration of Rs. 4000/- was paid to Muhammad Hussain at the time of entry, of mutation could not be believed.
11. As far as PW 2 is concerned, he admitted that Ex.P1 was not executed in his presence nor any sale consideration had passed on in his presence and that he was not present at the time when the mutation was entered. As far as PW 3, the Patwari is concerned, he admitted that he did not know Muhammad Hussain. Ahmad A.I PW5, was also not present when mutation Ex.P1 who entered. It was, according to entries in column No. 14 of Ex.P3, Muhammad A.I petitioner, but he never entered in the witness-box. The sale consideration noted in Ex.P3 was Rs. 10,000/-. It was contrary to the case set up in the plaint. Thus, merely entry of mutation could not be construed as a completed sale particularly when the statements of the parties were not even recorded by the Revenue Officer.
12. The contention of the learned counsel for the petitioners that possession of the disputed land was delivered to them under the agreement to sell, and therefore, they could seek protection of their possession under section 53-A is not backed by the evidence on the record. According to Ex.P5, khasra girdawari from Kharif 1974 to Rabi 1977, the petitioners are recorded as tenants on one khasra number only measuring 8 kanals. This khasra girdawari was not even relevant because the date of agreement to sell was 9,5.1973. It was not specifically averred in the, plaint that possession was delivered at the time of execution of the agreement or on 9.6.1973 when statedly a sum of Rs.
4000/- was paid by the petitioners to Muhammad Hussain. According to PW1, possession was delivered to the petitioners when the balance amount of Rs. 4000/- was paid to Muhammad Hussain. PW2, however, contradicted this and stated that possession was delivered to the petitioners at the time of receipt of earnest money. The agreement Ex.P1 also does not recite that possession was delivered to the petitioners. The petitioners, thus, failed to prove that possession was transferred to them under the agreement to sell Ex.P1. .The judgment relied upon by the learned counsel for the petitioners proceeds on its own facts and unless it was established by clear evidence that possession was delivered to the petitioners under the agreement to sell the rule laid down therein was not attracted.
13. For what has been stated above, I find no merit in this revision petition which is, accordingly, dismissed. There is no order as to costs.