' Syed Karam Shah and 16 others brought a suit for declaration against Haji Allah Ditta and another claiming that Allah Dad Shah and Faiz Ahmad Khan were the only owners in the khatta of the suit- land in equal shares. The claim of the plaintiffs was that Faiz Ahmad Khan sold 104 Kanals of land in Khatta No,155 Mouza Daimwala Tehsil Ahmadpur East jointly to Allah Dad Shah and Haji Allah Ditta in equal share. The agreement to this effect was executed on 9-10-1955 and after payment of the sale price both the parties were put in possession according to their share. The plaintiffs further averred that Haji Allah Ditta had been admitting the right of Allah Dad Shah to the extent of 52 Kanals and Mutation No,497 was also entered on 10-9-1956. It was, however, admitted that the mutation had not been sanctioned. It was further contended that in violation of the rights of the plaintiffs, Haji Allah Ditta got a gift Mutation No,724 sanctioned in favour of defendant No,2, who tried to interfere in the possession of the plaintiffs.
2. The defendants contested the suit both on legal and factual grounds. According to the defendants, th6y had validly purchased the land measuring 104 Kanals from Faiz Ahmad Khan through a registered sale-deed dated 26-10-1955. The agreement dated 9-10-1955 which is the basis of the suit of the plaintiffs was totally denied. Among other legal objections, the defendants also raised the objections that no valid title could be transferred by means of an agreement only as it would be in violation of section 54 of the Transfer of Property Act, 1882.
3. From the pleadings of the parties, following issues were framed:--
(1) Whether Syed Allah Dad Shah, the predecessor-in-interest of the plaintiffs along with Haji Allah Ditta, the defendant No,1 had jointly purchased the lands measuring 104 Kanals from Faiz Ahmad Khan? OPP
(2) Whether the registered sale-deed dated 26-10-1955 in favour of the defendant No,1 Haji Allah Ditta is benami to the extent of 52 Kanals?
(3) Whether the gift Mutation No,724 is also collusive, illegal, void and ineffective over the rights of the plaintiffs?
(4) If issues Nos.1 and 2 are not proved in affirmative whether the plaintiffs are in adverse possession of the suit property for more than 12 years, if so its effect?
(5) Whether the suit is not properly valued for the purposes of court-fees, if so what the correct valuation?
(6) Whether the suit is not maintainable in its present form, if so its effect? OPD
(7) Whether the suit is bad for non-joinder of necessary parties? OPD.
(8) Whether the suit is within time? OPP
(9) Whether the plaintiffs are not entitled to any discretionary relief? OPD
(10) Whether the defendants are entitled to special costs? OPD
(11) Relief.
4. The learned trial Court having found Issues Nos.1 and 2 in favour of the plaintiffs, held that the plaintiffs had jointly purchased the land with Haji Allah Ditta from Faiz Ahmad Khan and was thus, owner in possession of 52 Kanals so purchased. It was also held that the sale-deed dated 26-10- 1955 in favour of defendant No,1 was benami to the extent of the said 52 Kanals. Having found Issues Nos.1 and 2 in favour of the plaintiffs, issue No,4 was decided accordingly. Issues Nos.5, 6, 7, 8 and 9 were decided in favour of the plaintiffs. Finally, vide judgment and decree dated 10-4-1978, the plaintiffs' suit was decreed.
5. On appeal, the learned District Judge vide judgment and decree dated 14-6-1979 dismissed the appeal filed by Haji Allah Ditta.
6. In this regular second appeal, the appellants have strongly challenged the findings of the learned trial Court and the learned Appellate Court on many counts. Foremost in the contentions of the learned counsel for the appellants is that Issues Nos.1 and 2 have been decided by the learned trial Court in the absence of any reliable evidence whatsoever. There was neither any receipt nor any registered sale-deed by virtue of which it could be claimed that the plaintiffs/ respondents had become owners of the suit land and that no title could be created in violation of section 54 of the Transfer of Property Act, 1882. The sale agreement dated 9-10-1955 itself was allowed to be brought on the record in an illegal manner and the said document could not advance the case of the plaintiffs/respondents. It was further contended that the suit for declaration was not maintainable.
7. On the other hand, the learned counsel for the respondents supported the.,, concurrent judgments. He also submitted that' the objection based upon section 54 of the Act was never raised and it cannot be raised at this stage. The learned counsel for the respondents also submitted that Haji Allah Ditta had failed to appear as his own witness, and therefore, the failure to examine him would raise a presumption against the appellants.
8. n order to appreciate the respective contentions raised by the learned counsel for the parties, it is necessary to examine the quality of evidence produced by the parties. The basic document of title of the respondent is the agreement deed dated 9-10-1955. The contention of the plaintiffs in the first place was that they were not in possession of the original of the said agreement and contended that the said agreement was handed over to the appellants. Improbable as this contention is, there was little justification for the learned trial Court to have allowed the plaintiffs/ respondents to lead secondary evidence to prove the agreement. The document that was produced as secondary evidence was a photostat copy of the extract from the Register of Petition Writer Ghulam Qadir. The extract of the agreement was marked 'A'. The plaintiffs/respondents produced Bashir Ahmad P.W.4, a son of Ghulam Qadir Petition Writer who allegedly wrote the agreement deed dated 9-10-1955. The said witness failed to identify the handwriting of Ghulam Qadir Petition Writer on mark 'A'. The observation of the learned trial Court that P.W.4 intentionally avoided to give any opinion about the handwriting was not warranted. In an attempt to prove the agreement mark 'A', Muhammad Yar Chishti P.W.7 claiming to be a colleague of the Petition Writer Ghulam Qadir was produced. His statement that Ghulam Qadir used to sit near him in the Court compound and thus, affirming the handwriting of Ghulam Qadir on mark 'A' was least convincing.
Besides the mode of proof which was lacking, the document mark 'A' is also silent about the sale price, the complete details of the land and the person from whom it was to be purchased. Besides this, the other evidence of the plaintiffs comprised of oral statements of Karim Bakhsh, Abrah, Habibullah, Karim Bakhsh Jhabel and Ghulam Nabi who made statements stating about the sale transaction in favour of the plaintiffs and the payment of Rs,2,600 to Haji Allah Ditta. The plaintiff himself appeared as P.W.8 and his statement too is an oral narration of the background of the transaction. P.W.1 Muhammad Yar Patwari stated that he had partitioned the land purchased from Faiz Ahmad Khan in equal share on the request of Allah Dad Shah and Hall. Allah Ditta, although he had candidly admitted that he did minter the same in the Roznamcha Waqatti. The learned trial Court under Issues Nos.1 and 2 not only found that the agreement was proved but also came to the conclusion that the registered sale-deed dated 26-10-1955 in favour of the appellants was benami to the extent of 52 Kanals. The learned counsel for the appellant analysed the judgment of the First Appellate Court, particularly its findings contained in paras.6 and 7 of the impugned judgment. The learned First Appellate Court came to a definite conclusion that the agreement mark 'A' was an inadmissible piece of evidence. The learned First Appellate Court clearly found that the document mark 'A' would not create any credible evidence and has to be excluded out from the consideration. The learned Appellate Court also held that the reliance placed upon this document by the learned trial Court was incorrect. The learned First Appellate Court in the alternative placed reliance upon the oral evidence alone and came to the conclusion that the transaction of sale in favour of the plaintiffs/respondents was complete to the extent of 52 Kanals.
9. It is in this backdrop that the merit of this. R.S.A. Has to be examined. It is evident from the written statement filed by the appellants/defendants that the objection regarding section 54 of the Act was taken at the very outset in the written statement. The learned counsel for the appellants submitted that where Transfer of the Property Act applies, no title can be created in the absence of a registered document in terms of section 54 of the Transfer of Property Act, 1882. No amount of evidence of an oral sale would prove the existence of such a transaction. Reliance has been placed upon the cases of Muhammad Baldish v. Zia Ullah and others 1983 SCM R 988; Habibur Rehman and another v. Mst. Wandania and others PLD 1984 SC 424 and Mst. Akhtar Begum v. Mian Aziz and others 1985 SCM R 1617 to support this contention. It was next argued that even if any agreement to sell existed the only suit which was competent could have been a suit for specific performance and not a suit for declaration. "
10. After having heard the learned A counsel for the parties, there is much force in the contentions made by the learned counsel for the appellants. Firstly, the evidence on the record is not sufficient to prove any agreement in favour of the plaintiffs/ respondents as alleged. Even if any such agreement is proved, it would not create any right or title being an unregistered document in accordance with the provisions of section 54 of the Transfer of Property Act, 1882 and the dicta of the Hon'ble Supreme Court referred to above. On the other hand, the title of the appellants is firmly established by the registered sale-deed duly executed in their favour on 26-10-1985 and there is no justification whatsoever to hold that the said document was benami to any extent. The learned counsel for the appellants is correct in submitting that both the lower Courts have arrived at an incorrect decision by misreading and non-reading of evidence on the record and placing undue reliance upon totally inadmissible and untrustworthy evidence. The adverse presumption drawn against the appellant for his non-appearance is also misplaced. It is also worth-mentioning that a suit for declaration on the basis of an agreement to sell was not maintainable and the only suit which could be filed was one for specific performance of the agreement. Mark 'A' also falls far short of the standard of an agreement to sell as it is silent about the sale price or the details of the land to be sold or description of the vendor.
11. In view of the above discussion, the Regular Second Appeal is accepted and the judgments and decrees passed by the learned District Judge and the learned Civil Judge dated 14-6-1979 and 10- 4-1978 respectively are set aside. The parties to bear their own costs.