MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been directed against the judgment and decree passed by the High Court on 12-4-2000, whereby the appeal filed by the appellant, herein, was dismissed.
2. The necessary facts of the case, precisely stated, are that respondent No.1. Mirza Abdul Aziz, filed a suit in the Court of Sub-Judge, Mirpur on 4-8-1992 against Raja Khalid Khan, respondent No.4, and appellant herein, claiming therein that Plot No.387, measuring 50 x 90 (1 Kanal), situate in Sub- Sector F/3 was in his ownership and possession as he had purchased the same from respondent No.4, Raja Khalid Khan, through an agreement to sell dated 8-10-1991 for a consideration of Rs.6,25,000. He also alleged that subsequently, fraud was practised and plot in dispute was transferred by Raja Khalid Khan respondent No.4 in favour of appellant herein secretly. The plaintiff-respondent also prayed that order of transfer of this plot effected in M.D. A. Record on 30- 7-1992 in favour of appellant by I inoperative as against his rights. The plaintiff-respondent prayed that transfer of plot in favour of appellant herein might be declared null and against his interests and in the alternative he claimed that a decree specific performance of contract against respondent No.4 directing him to execute a regular transfer deed in his favour be passed. The trial Court after taking necessary proceedings and framing the issues directed the parties to lead their evidence in support of their, respective claims. The trial Court after the conclusion of the suit dismissed the same vide its judgment, dated 5-5-1998 on the ground that plaintiff-respondent had failed to prove his, ownership of the plot in his favour and that the plot in dispute was duly transferred in favour of Ch. Liaqat A.I, appellant herein, by Raja Khalid) Khan, respondent No.4, as is evident from order of transfer made by the l on 30-7-1992. Mirza Abdul Aziz, respondent No. 1, challenged the judgment and decree of the trial Court by filing an appeal before the District Judge who accepted the same and passed a decree in his favour to the effect that plot in dispute was in his ownership and possession which was duly transferred to him vide the agreement-to-sell, dated 8-10-1991 and the appellant herein and respondent No.4 have practised fraud upon him by effecting the transfer of the same through M.D.A. The appeal filed by appellant herein before the High Court was dismissed vide the impugned judgment and decree of the High Court dated 12-4- 2000. It is the aforesaid judgment and decree of the High Court which is the subject of present
3. In support of appeal it was vehemently contended by Ch. Lal Hussain, the learned counsel for the appellant, that the entire claim of respondent No.1 based in his plaint was that respondent No.4 secretly and fraudulently got --transferred the plot in dispute in favour of appellant as he had purchased the plot from respondent No.4 on the basis of an agreement --to sell executed on 8-10- 1991. The defendants Ch. Liaqat A.I and Raja Khalid Khan (the appellant and respondent No.4 herein) in their written statements refuted the averments made in the plaint and took a clear stand that the plot in dispute was sold by respondent No.4 in favour of appellant in the year 1982 and the valid transfer was effected in favour of appellant by the Mirpur Development Authority. The learned counsel contended that the agreement to sell dated 8-10-1991 Exh.P.A. Produced by the plaintiff-- respondent could not be relied upon as the execution of the same has not been proved. The two marginal witnesses of the Exh.P.A. Are stated to be Imran and Muhammad Akram. Out of them Imran was not produced by the plaintiff-respondent, whereas Muhammad Akram, the other witness who was produced by plaintiff-respondent has also not supported the execution of the said agreement. The signatures of this witness also do not appear on the agreement-to-sell Exh.P.A. This witness has also stated in his statement before the Court that the agreement-to-sell, for which he is cited a marginal witness has not been shown to him in the Court. Thus, the learned counsel contended that it was bounden duty of the plaintiff-respondent to prove the execution of said agreement-to-sell. According to the learned counsel for the appellant the document Exh.P.A.
Could not have been considered as a valid piece of evidence in support of claim of plaintiff- respondent. The learned counsel for the appellant contended that even otherwise the agreement- to-sell by itself creates no rights or bestow any title upon the plaintiff-respondent as in pursuance of the said agreement-to-sell no further steps were taken by the plaintiff-respondent. The learned counsel contended that sufficient evidence has been brought on record that before the alleged agreement-to-sell the plot in dispute had been sold to the appellant in the year 1982 for a consideration of Rs.1,00,000 and all rights attached with the plot inclusive of , its possession were transferred to the appellant. The learned counsel pressed into, service the submission that the transfer effected under section 39 of the M. D. A. Act, 1974, is a valid transfer of title on the transferee. He also referred to Rules 13 and 14 of the Regulation for Development and Disposal. Of Estates Rules, 1977. In support of his contention that the mere agreement-to-sell does not create any title, the learned counsel cited a reported case of this Court titled Muhammad Bashir v. Haji Muhammad Siddique and, 5 others PLD 1998 SC (AJ&K)
36. The learned counsel emphasised that the appellant had become a valid transferee of the plot in dispute and according to the M.D.A.
Record the possession of the plot in dispute was also with the appellant.
4. On the other hand Raja Muhammad Siddique, the learned counsel for respondent No.1, strenuously controverted the arguments advanced by the learned counsel for the appellant. The learned counsel for respondent has argued that agreement-to-sell dated 8-10-1991 is a registered document in pursuance of which Raja .Khalid Khan, respondent No.4 handed over the original documents of plot in dispute to respondent No.1. This also lends. Support to the assertion of respondent that he duly purchased the plot in dispute for a consideration of Rs.6,25,000.And the possession of the same was handed over to him. The learned counsel contended that in pursuance of the agreement-to-sell, steps were taken by respondent No.4 by putting the respondent No.1 into possession of the plot in dispute. The learned counsel in support of his contentions relied upon an unreported case of this Court titled Fazal Hussain v. Muhammad Manzoor and others Civil Appeal No.69 of 1999, decided on 20-12-1999. The learned counsel for respondent also argued that Raja Khalid Khan, respondent No.4, previously made a statement before the M.D.A. That before executing the agreement-to-sell, he did not transfer the plot to anybody else. Thus, the accumulative effect of the entire evidence brought on record is that it stands proved that the plot in dispute was purchased by respondent No. 1 from respondent No.4.
5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that plaintiff-respondent. No. 1 mainly based his claim on the ground that he became owner of plot in dispute on account of an agreement-to-sell executed in his favour on 8-10-1991 by Raja Khalid Khan, respondent No.4. This agreement-to-sell has been marked as Exh.P.A. In the file of the trial Court. Respondent No.4, Raja Khalid Khan, in his written statement categorically denied about entering into any agreement-to-sell or its execution in favour of respondent No.1 as alleged by him in the plaint. Similarly the appellant also refuted the aforesaid averment of plaintiff in his written statement. Thus, it was the bounden duty of plaintiff-respondent to prove the execution of the said agreement-to-sell. The marginal witnesses of the agreement-to-sell Exh.P.A. Are stated to be one Imran and Muhammad Akram. Out of them Imran was never produced by the plaintiff-respondent as his witness. So far as Muhammad Akram, the other marginal witness of document Exh.P.A., is concerned, he though appeared as a witness for plaintiff but he deposed before the Court in his statement that the agreement-to-sell, of which he is a marginal witness, has not been shown to him, Our attention was also drawn to the fact that Muhammad Akram's signatures also do not appear on the document Exh.P.A. Even the plaintiff-respondent, Mirza Abdul Aziz, also deposed in his statement before the Court that Muhammad Akram's signatures do not appear on Exh.P.A. At the time of registration of agreement-to-sell Exh.P.A. Raja Khalid Khan, respondent No.4, was identified by one Imran, son of Abdul Rehman, resident of B/4, Mirpur. Even this Imran, the identifier, was also not produced by the plaintiff-respondent as his witness. The plaintiff also deposed in' his statement before the Court that the plot m dispute was shown to him by Khalid Hussain Qureshi and Imran and it was Khalid Hussain Qureshi who had shown the documents of plot in dispute to him. In this view of the matter, the irresistible conclusion is that the execution of agreement-to-sell, dated 8-10-1991 has not been proved by the plaintiff-respondent. The mere fact that the agreement-to-sell is a registered document or the fact that the original documents of plot in dispute were handed over to plaintiff-- resnondent do not prove the execution of agreement-to- sell. Thus, the plaintiff-respondent having miserably failed to establish the execution of an agreement-to-sell on which his whole claim is based was not entitled to any decree on its basis.
The trial Court, in our considered view, has rightly observed that the plaintiff failed to establish the execution of agreement-to---sell Exh.P.A. By producing any cogent or convincing evidence and also failed to prove that title of transfer of plot in dispute was obtained by respondent No.4 by the M.D.-A. Secretly and by practising a fraud upon the plaintiff-respondent.
6. Both the witnesses Muhammad Akram and Khalid Hussain Qureshi produced by the plaintiff- respondent admitted in their statements before the trial Court that it transpired later on that Raja Khalid Khan, respondent No. 4, had alienated the plot in question in favour of respondent No. Khalid Hussain Qureshi, the witness for the plaintiff-respondent, stated that he did not know that Raja Khalid Khan alienated the plot in dispute in 1981 or in 1982. This witness went on saying that he also did not know as to whether Raja Khalid Khan, respondent No.4 herein, transferred the possession of plot in dispute to Ch. Liaqat A.I, the appellant herein, in the year 1981 to the similar effect is the statement of Muhammad Akram, the other witness produced by plaintiff-respondent. This witness also stated that it transpired later on that Raja Khalid Khan had alienated the 1st in question to someone else. The witness further stated that he did not know whether the plot in dispute had been transferred by Raja Khalid Khan to appellant in the year 1982 or 1983 and the possession of the same was delivered to Ch. Liaqat A.I. On the other hand, the claim of appellant, Ch. Liaqat A.I, is that he purchased the plot from Raja Khalid Khan, respondent No.4, in 1982 and got a valid transfer order in his favour by the M.D.A. In 1992
7. Section 39, subsection (2) of M.D.A. Act, 1974, reads as follows:-- "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. "
Similarly in Rules 13 and 14 of M.D.A. Regulations for Development and Disposal of Estates, 1977, it has been provided as under:-- "
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 fulfilment of conditions imposed by the Authority. Such a title certificate granted by the Authority shall be sufficient proof of ownership of the 'property inrespect of which it has been issued. '
14. Transfer of plots/farms.--- Sub-division, sale, transferor exchange of any plot/farm or any portion thereof will not be effected 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."
The aforesaid provisions of law show that under subsection (2) of section 39 of the M.D.A: Act, certificate of title issued by the Authority in respect of any lease, sale, exchange or any transfer establishes a sufficient proof of the said title and such a certificate is admissible as evidence of that title for any proceedings in the Court. Thus, in view of the aforesaid provisions contained in subsection (2) of section 39 of the M.D.A. Act, 1974, and Rules 13 and 14 of the M.D.A. Regulations for Development and Disposal of Estates, 1977; it cannot be said that the certificate issued by the Authority does not create any title in favour of appellant. Our aforesaid view finds support from a reported case titled Muhammad Bashir v. Haji Muhammad Siddique and 5 others PLD 1998 SC (AJ&K) 36.
7. Another significant aspect of the case is that even if we assume theexecution of agreement-to- sell Exh.P.A. For the sake of arguments, the same does not bestow any title upon respondent in view of provisions of Transfer of Property Act. The mere execution of an agreement-to-sell does not bestow any title until and unless further steps are taken in pursuance of the said agreement-to- sell. Raja Muhammad Siddique, the learned counsel for respondent No. 1, has strenuously argued that in pursuance of theagreement---to-sell dated 8-10-1991 the original documents were handed over to respondent No.1 and possession of plot was also given to him in pursuance of the said agreement-to-sell. He in support of his contentions cited an unreported case of this Court titled Fazal Hussain v. Muhammad Manzoor and others Civil Appeal No.69 of 1999, decided on 20-12-1999.
8. The contention raised by the learned counsel for the respondent merits no consideration for the simple reason that in the first instance as observed in the previous part of the judgment the execution of agreement-to-- sell has not been proved by the plaintiff-respondent. Secondly in pursuance of the said agreement no steps were taken by plaintiff-respondent either to obtain the possession of the plot in dispute or to get it validly transferred by M.D. A. In his favour. It is also on record that even the documents pertaining to the plot in dispute were handed over to Khalid Hussain Qureshi, the witness for the plaintiff-respondent. It is also borne out from the, statements of witnesses produced by plaintiff-respondent that advance money of Rs. 10,000 on behalf of respondent No.1 was paid to one Kh. Imran. Both Kh. Imran and Zahid appear to be the middle men between the vendee/allottee and plaintiff. Even the possession of plot in dispute in the record of Mirpur Development Authority has been entered in the name of Ch. Liaqat A.I, the appellant herein.
Thus, it can safely be held that in I pursuance_ of an agreement-to-sell no steps were taken by the plaintiff-- respondent which could have bestowed. Some legal right or title of the plot in dispute in favour of plaintiff-respondent.
PLD 1964 SC 106 it was observed that the provision of section 53-A of Transfer of Property Act does not create any right or interest in violation of provisions of section 107 and section 17 of Registration Act, 1908.
9. In a case titled Muhammad Ayub v. Gulzarin 1993 CLC 384 it was observed that section 53-A of Transfer of Property Act though itself does not create title in the defendant yet would operate as a bar to the transferor or his agent or any person asserting claim on his behalf to the property.
1992 SCMR 1265 it was observed that it is true that section 53-A of Transfer of Property Act does not confer or create any right but it provides a defence to a transferee to protect his possession.
9. In the instant case, as stated earlier, the respondent failed to prove the execution of agreement- to-sell alleged to have been executed in his l favour. In absence of proving the execution of the document agreement-to-sell and that some further steps in pursuance of the said agreement were taken in favour of respondent, he was not entitled to the decree claimed by him.
10. So far as the authority cited by Raja Muhammad Siddique, the learned counsel for respondent No.1, titled Fazal Hussain v. Muhammad Manzoor and others Civil Appeal No.69 of 1999, decided on 20-12-1999 is concerned, it has no relevancy to the case in hand. In the aforesaid case, the execution of the agreement-to-sell was admitted by the Court to be true and in pursuance of the agreement-to-sell, the possession of the land in dispute had been transferred to the defendant who had raised construction to the knowledge of the opposite-party. Thus, in those circumstances, it was observed that the agreement-to-sell stands fully proved.
11. The High Court, in our view erroneously escaped the notice of the fact that plaintiff-respondent failed to prove the execution of agreement-to---sell and even if its execution be admitted as correct, the same does not bestow any legal right or title upon the plaintiff-respondent. In pursuance of the agreement-to-sell no further steps were taken by the plaintiff-respondent either to get the registration of sale-deed in his favour or to obtain titlecertificate from the Mirpur Development Authority.
12. In the light of what has been stated above, by setting aside the impugned judgment and decree passed by the High Court and those of the District Judge, Mirpur, we accept the appeal filed by the appellant and restore the judgment and decree passed by the trial Court ordering the dismissal of suit filed by plaintiff-respondent No.1 with no order as to costs. I