Respondents Nos, 1 to 4 filed a suit for declaration against the petitioners claiming that they are owners in possession to the extent of 1/2 share in the suit land measuring 182 Kanals. 14 Marlas under an Adhlapi agreement dated 10-12-1949 executed in their favour by Haji Rab Nawaz. the predecessor-in-interest of the petitioners. The plaintiffs further contended that they are in continuous possession of the said land eversince the execution of the Adhlapi agreement.
2. The suit was resisted on the grounds that the suit was not within time; that the plaintiffs cannot claim any title under the unregistered Adhlapi agreement even it' one was proved to have been made; that the plaintiffs were estopped to file the suit and that the suit was not maintainable as the plaintiffs did not sue for specific performance. Upon merits, the execution of the Adhlapi agreement was denied. It was also controverted that the plaintiffs had fulfilled the conditions of the Adhlapi.
3. The learned trial Court, on the basis of the evidence produced before it, found that the Adhalpi agreement was executed in favour of the plaintiffs and that its conditions were fulifilled. Reliance was placed upon the statements of as many as 7 P.Ws. including Muhammad Asghar P.W.2 (who is a son of Haji Rab Nawaz, the executor of the Adhlapi agreement). The plaintiffs were also found to be in possession of the suit land. Relying further upon the Adhlapi agreement Exh.P.1 and the record of rights relating to the year. 1946-47 (Exly.PL3). it was held that although the land was shown as Baniar Qadeem in the said document, it was made cuiturable as shown in Exh.P.5 wherein the plaintiffs were entered in the cultivation column. It was also noticed that in the subsequent Jamabandis, the suit land was shown to be cultivated by the plaintiffs and has become Chahi and Nehri. Finding that the suit was not barred by time and that the suit was maintainable. the learned, trial Court decreed the suit vide judgment and decree dated 30-5-1989.
4. The petitioners preferred an appeal. The said appeal was dismissed vide judgment and decree dated 8-10-1990. The learned appellate Court reappraised the oral and documentary evidence and concurred with the findings of the learned trial Court. The learned appellate Court elaborately discussed the evidence on the record and held that the respondents were in possession as owners of the suit land in pursuance of the Adhlapi agreement. The findings of the learned trial Court upon other issues was also upheld.
5. In this civil revision, the findings of both the learned lower Courts are sough; to be challenged. It was contended that the suit as originally filed was one for declaration and permanent injunction and that as such it was not maintainable. It is contended that even if the execution of the Aldhlapi agreement is found to have been proved, yet mere agreement alone would not confer a completed title and that in such, circumstances, only a suit for specific performance of the agreement was competent. As to the amendment of the plaint whereby the relief for specific performance was also incorporated in the alternative, it was contended that such amendment would be barred by limitation and would not advance the case of the plaintiffs/respondents.
6. The learned counsel for the petitioners contended that an unregistered document cannot confer any title upon the plaintiffs. He placed reliance upon the cases of Habibur Rehman and another v.
Mst.Wandania and others (PLD 1984 SC 424) and Mst. Ghulam Sakina v. Umar Bakhsh and another ( PLD 1964 SC 456). Upon the question of limitation, reliance was placed upon the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) to contend that where a suit for specific performance was not tiled within the period prescribed by Article 113 of the Limitation Act, it was liable to be dismissed.
7. The contention of the learned counsel for the petitioners that the Adhlapi agreement was compulsorily registerable is not correct. The term "Adhlapi" is a form of tenure under which proprietary rights are acquired in land, through agreement whether oral or written by reclamation or expenditure of capital in sinking a well. This is a common form which is prevalent in the south western Punjab and under such agreement, the proprietor of a well estate not possessing a well gives half of his land in proprietary rights to an outsider who sinks a well and thereupon acquires the proprietary right of half of the well and. of the land attached to it. Reference is made to para. 173 of the Punjab Settlement Manual and Gazetteer of Dera Ghazi Khan.
8. Adhlapi tenure does not amount to a sale and is also distinguishable from the incidents of other transactions which are compulsorily registerable under the Transfer of Property Act, 1882.
Reference is made to the case of Allah Rakhiya Khan and others v. Ahmad and Sewa Ram alias Kalu Ram (AIR 1923 Lahore 70) wherein it has been noticed that the creation of an Adhlapi tenure in which no money consideration has passed at all does not amount to a sale.
9. In Black's Law Dictionary, sale has been defined as under:-- Sale. A contract between two parties, called respectively, the seller or vendor and the buyer for purchaser), by which the former, in consideration of the payment or promise of payment of a certain price in money, transfers to the latter the title and the possession of property.
It is thus, concluded that an Adhiapi agreement if proved, does not require compulsory registration under any provision of law.
10.The next contention raised by the learned counsel for the petitioners. that the suit for declaration was not maintainable a the time-barred amendment in the plaint incorporating the prayer for specific performance was futile, is considered and found to be fallacious. It has been concurrently found by both the learned lower Courts that the agreement was in fact executed in favour of the respondents. The possession of the respondents has also been established. Both the learned lower Courts have found that the respondents have fulfilled the conditions of the Adhiapi agreement. In this view of the matter, as nothing else remained to be performed through a decree of specific performance, the respondents were justified in filing a suit for declaration of title and protection of possession. The suit filed for declaration in respect of right to property was fully competent and has been rightly held so by both the learned lower Courts. Even if the prayer for specific performance was made beyond limitation, it would not advance the case of petitioners as held above.
11. Resultantly, there is no force in this civil revision which is hereby dismissed. No order as to costs.