This regular second appeal is directed against the judgment and decree dated 20-6-1995 of the learned District Judge Mandi Baha-ud-Din dismissing, the appeal tiled by the appellant against the judgment and decree dated 24-5-1977 passed by the learned. Civil- Judge Mandi Baha-ud-Din whereby the suit tiled by Ghulam Nabi etc.. respondents herein for possession was decreed.
2. Brief facts of the case are that respondent Ghulam Nabi etc., allegedly purchased the suit house on the basis of two unregistered sale-deeds dated 13-7-1950 from one Mirza son of Haji Ahmad.
The suit was contested by the appellants-defendants, who claimed that they are in possession of the land being the owner on the basis of a consent decree passed by the learned Civil Judge on the statement of father of the respondents, namely, Muhammad Din dated 15-10-1970. The controversy led to the framing of the following issues:-
(1) Whether the plaintiffs are owners of disputed house? OPP
(2) Whether the defendants has attained ownership by prescription? OFD
(3) Relief.
3. The learned Civil Judge on the basis of evidence recorded by the Court accepted the plea of the respondents that they are the owner of the suit property on the basis of sale-deed dated 13-7-1950 and refused to rely on the decree dated 15-10-1970 (Fxh. D/1) in tavour of me appellant.
Consequently, the suit was decreed vide judgment and decree dated 24-5-1977. First appeal of the appellant was dismissed by the learned District Judge on 20-6-1995.
4. The learned counsel for the appellants contends that the decree has been wrongly awarded in favour of the respondents by the two Courts below because in "the suit for possession on the basis of title under section 8 of the Specific Relief Act. 1877, the onus was on the respondents to prove that they were owner of the suit-land and that both the Courts below have wrongly relied on the one sale-deed dated 13-7-1950 which was not a registered document and therefore, under section 49 of the Registration Act no right or title had transferred to the respondents. Further contends that the respondents could have not claimed the title of the property in dispute because it was not shown that their vendor namely Mirza son of Hai Ahmad had valid title of the property.
5. On the other hand, the learned counsel for the respondents contends that there is concurrent finding of fact against the appellant and that the respondents had been declared owner by the two Courts below on the basis of evidence on record, therefore, the appeal is liable to he dismissed.
It is further contended that though the sale-deed Exh.P.I is not a registered document yet the respondents were also to prove the sale in their favour from Mirza son of Haji Ahmad therefore, the title vests in favour of the respondents.
6. The controversy is regarding the ownership of the disputed property. The respondents have claimed the title on the basis of two sale-deed dated 13-7-1950. Out of two sale-deeds only one sale-deed dated 13-7-1950 was produced as Exh. P.1. I have perused the document Exh. P.1, which is an unregistered one. Section 49 of the Registration Act is relevant, which is reproduced as under:-- "49. Effect on non-registration of documents required to be registered.---No document required to the registered under this Act or under any earlier law providing for or relating to registration of document shall--
(a) operate to create, declare assign, limit or extinguish, whether in present or in future, any right, title or interest; whether vested or contingent. to or in immovable property, or
(b) confer any power to adopt unless it has been registered."
A bare reading of the above section 49 of the Registration Act, manifestly reveals that no title has been passed to the respondents by their vendor namely Mirza son of Haji Ahmad. Further, Mirza son of HO Ahmad himself was not the owner of the property, because the sale-deed Exh. P. 1 dated 13- 7-1950 is silent about his title. The First Appellate Court has non-suited the appellant on the ground that he could not prove the title of his vendor on whose statement decree Exh. D/1 was passed. But this principle was not applied to the respondent. The onus to prove the title document Exh. P.1, a sale-deed, was on the respondents. which they have failed to discharge. It is well-settled rule of law that the person who claims or alleges anything in the pleadings would prove and if he fails to do so his claim shall be rejected. No doubt. transferee. who transfers possession of property on the basis of an unregistered deed, the transferor cannot enforce a right against the transferee in respect of that property except a right provided for in the deed, as held in case reported as Abdullah Bhai v. Ahmad Din (PLD 1964 SC 106), but this equitable doctrine as provided in section 53-A of the Transfer of Property Act. 1882 could not override specific provisions of section 49 of the Registration Act so as to have an unregistered document create title, if the same require registration under section 49 of the Registration Act, 1908. See case reported as Habib-ur-Rehman and another v. Mst. Wandania and others (PLD 1984 SC. 424). It has been ruled in the case reported as Ghulam Hussain and another v. I. Muhammad Hussain (1986 CLC 770) :-- "Non-registration of document.--- Unregistered document required to be registered held would not create title nor would be admitted as evidence of title."
In my opinion. the respondents have not been able to prove their title in the property on the basis of Exh. P. 1, sale-deed, in their favour by Mirza dated 13-7-1950. Therefore, the Civil Judge fell in error while granting the decree for possession under section 8 of the Specific Relief Act in favour of the respondent, and the appeal of the appellant has wrongly been dismissed by the learned District Judge by misreading the evidence of the parties. Both the Courts committed material irregularity and illegality.
For what has been discussed above, this appeal is accepted, the judgment and decree dated 24- 7-1977 of the learned Civil Judge as well as of the learned District Judge dated 20-6-1995 are set aside. The suit for possession of the respondents against the appellant shall stand dismissed with costs.