' This purports to be an appeal filed against the order dated 7-11-1977 passed by the learned Commissioner, Multan Division, whereby he confirmed in appeal the Deputy Land Commissioner's order dated 8-10.1977 determining the holding of the appellant under the Punjab Land Reforms Act, 1977 and the rules framed thereunder.
2. As stated above, the appellant has already availed of the remedy of appeal as provided for in the rules. There being no provision for a second appeal, the present memo. Of appeal has been treated as a revision petition under rule. 13 (1) of the Land Reforms Rules, 1977 and is being disposed of as such. The appellant will hereinafter be referred to as the petitioner.
3. The facts of the case as narrated by the learned counsel for the petitioner are that the petitioner sold an area measuring about 100 acres of land situated in Chak No, 6/9-R, Tehsil Khanewal, District Multan, to one Mr. Muhammad Rafi Muneer of Karachi for a consideration of Rs, 8,00,000.
This transaction was subsequently recorded on 12-12-1976 in the form of an agreement. The petitioner received in the first instance a sum of Rs, 50,000 as earnest money and the balance amount was received by him in two instalments, the first on 15-12-1976 and the second on 26-12- 1976. According to the stipulations contained in paras. 2 and 4 of the agreement, regular sale deed was to be executed and registered by the 31st December 1976. But the petitioner was suddenly taken ill and he had to proceed to London on 16-12-1976 for an operation. He returned from abroad in the third week of January 1977 and by that time the Land Reforms Act, 1977 had come into operation. The petitioner had filed his declaration under section 7 of the Act and the sale deed was not registered and no mutation in respect of the alienation was sanctioned before the crucial dated i,e, 9-1-1977, the Deputy Land Commissioner during the determination of the declarant's holding vide order dated 8th October 1977, came to the conclusion that no interest in property under the agreement of sale passed to the interested transferee and as such the declarant's total ownership including 100 acres of Land covered in the agreement was in excess of 8000 P. I. Us. Thus the surplus area of 6200 Units was resumed. This decision of the Deputy Land Commissioner was challenged by the petitioner in appeal before the Land Commissioner who dismissed it vide his order dated 7th November 1977. Hence the present petition.
4. I have heard the learned counsel for the petitioner at length and the Assistant Secretary (Litigation), Punjab Land Commission, who appeared on behalf of the State. I have also perused the relevant record.
5. In view of the stress laid by the learned counsel for the petitioner on several legal issues, it seems necessary to maintain a clear distinction between "sale proper" and "contract for sale". Since section 54 of the Transfer of Property Act was made applicable throughout the Province of the Punjab vide Notification No, 15246-74/2237-LR-V, dated 30th December 1974, the connotation of these two expressions as given in section 54 ibid would be relevant. Whereas sale is a transfer of ownership, contract of sale implies that a sale of such property shall fake place on terms settled between the parties. The contract of sale does not by itself create any interest or charge in property agreed to be sold.
6. The law as contained in section 54 of the Transfer of Property Act, read with sections 17 and 49 of the Registration Act clearly postulates that a document of sale envisaging transfer of ownership cannot unless registered, operate to create any right, title or interest in property. Thus, if the agreement of sale- in the present case was intended to transfer ownership, it could not be considered to have created any right in the property in favour of the transferee without registration.
Actually since the documents was merely an agreement to sell property in future and was holding the premises entitled to get the sale executed and registered, the same cannot be considered to be a document of sale.
7. The arguments advanced on behalf of the petitioner are based mostly on section 53 (a) of the Transfer of Property Act and it has been stressed that as the promisee had paid the consideration amount and taken possession of the property under the contract, it was a complete transaction of sale.
8. Actually the doctrine of part performance envisaged in section 53 (a) ibid merely provides a shield of defence to the promisee to protect his possession obtained under a contract/sale against the transferee or a person claiming through him. This provision does not confer any title in favour of the intended transferee and the right of ownership or title in property continues to remain in the actual owner i,e, the promiser. It is an established principle of law that where in order to transfer title against third parties the law prescribes a mode of transfer compliance with that mode is necessary. Thus where the law requires a registered instrument, title/ ownership cannot be conferred by mere agreement of the parties. Conclusions to this effect are obviously derivable from section 54 of the Transfer of the Property Act and section 49 of the Registration Act. Although on this subject, a number of rulings are available, it would suffice to refer to the law as enunciated in PLD 1967 Kar.
372.
9. The appellant's plea with regard to his inability to get the document registered (on account of his ailment) has no force because as provided under section 32 of the Registration Act, even a person holding a power of attorney a representative or an assignee of an executant could have presented and got the document registered. Similarly the argument that there were instructions from the former Prime Minister allowing completion of sales without registration can easily be repelled. Such instructions though issued by the Executive Head of the Government cannot have the force of law nor can they supersede the provisions of law. The provision of law relating to registration embodied in a statute could have been changed only through an amendment of the statute made by a competent Legislature.
10. Section 3 of the Land Reforms Act, 1977, prescribes a limit of ownership/possession and as such any one who owns or holds land in excess of that limit has to declare and surrender the same in favour of the Government. The area so surrendered comes to invest in the Government for utilization under the provisions of the Act. The alleged transaction made by Mr. Naseem Hassan Qureshi, being no transfer in the eyes of law, the land intended to be transfered through the agreement of sale would still form a part of his ownership and would be deemed to have been validly resumed and consequently to have come to vest in the Government. The Government would accordingly be deemed to have acquired ownership by law and not through title or right derived from him. The promise would thus become incapable of invoking in aid the provisions of section 53 (a) of the Transfer of the Property Act to protect his possession vis-a-vis the Government's statutory right.
11. As regards the issue of natural justice raised in arguments, it has, for the purposes of declarant's holding, no force because we are merely assessing the right of the petitioner vis-a-vis the limit of ownership permissible under the Land Reforms Law.
12. For the foregoing reasons, I find no force in the petition, which is hereby dismissed.
13. This order will also dispose of the following appeals/petitions since the facts and legal issues involved in all those cases are identical. {{TABLE}} S. No, R.
0. A. Appellants Respondents
1. 601/1977-78 Mst. Sabina Begum d/o The State Mr. Nasim H. Qureshi through her father and Attorney, White House, Multan.
2. 602/1977-78 Mst. Nighat Begum w/o The State Mr. Nasim H. Qureshi.
3. 603/1977-78 Nasim H. Qureshi son The State of Late Ashiq Hussain Qureshi of Multan.
4. 604/1977-78 Murtaza Hussain The State Qureshi son of Mr. Nasim H. Qureshi White House, Multan. {{TABLE}}
14. The case was heard on 16.1-1978 and judgment was reserved as the counsel for the petitioner in addition to making oral submissions wanted to put in his arguments in writing. The contents of this order may therefore be communicated to the petitioner and his counsel.