' 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 19-2-2001, whereby, the appeal filed by the respondents, Muhammad Fazal and others, was accepted and the judgment and decree passed by the District Judge were set aside by restoring the judgment and decree passed by the Sub-Judge.
2. The necessary facts, giving rise to the present appeal are that the appellant, Manzoor Hussain, and his sister, Mst. Noor Bibi, pro forma-respondent No,7, filed a suit in the Court of Sub-Judge, Bhimber for redemption of mortgage and possession of land measuring 7 Kanals and 8 Marlas, Khewat No,43/43-min, Khata No,466/421, Khasra No,891, situate in village Pathorani, Tehsil and District Bhimber, on payment of Rs,4,800. The written statement in the suit was filed by Muhammad Fazal and others, respondents herein.
3. Muhammad Fazal and others, respondents herein, also instituted a suit for specific performance of contract in respect of the suit land against the present appellant and pro forma-respondents on 31-10-1990. In this suit the written statement was filed by Manzoor Hussain, appellant herein. As the parties and the suit land were common, therefore, the cross-suits were consolidated by the trial Court and after consolidated proceedings, the suit filed by the appellant, Manzoor Hussain, was dismissed, whereas the counter-suit of contesting respondents, Muhammad Fazal and others, was decreed in their favour vide judgment and decree of the trial Court, dated 30-3-1998. The validity of this judgment was assailed through two separate appeals by the present appellant before the District Judge Bhimber on 25-6-1998. The learned District Judge while allowing the appeals of appellant reversed the findings of the trial Court and decreed the suit of present appellant in his favour, whereas the suit filed by Muhammad Fazal and others, respondents, was dismissed vide his judgment and decree, dated 31-8-1998. The contesting respondents, Muhammad Fazal and others availed the right of appeal before the High Court. The appeal filed by the respondents was allowed by the learned Judge of the High Court vide his judgment and decree, dated 29-2-2001.
Consequently the judgment and decree passed by the trial Court in favour of contesting respondents were restored while the judgment and decree passed by the District Judge were set aside. The judgment and decree of the High Court, dated 29-2-2001 have been assailed by the appellant, Manzoor Hussain, by way of leave of the Court.
4. In support of appeal it was vehemently contended by Mr. Zafar Hussain Mirza, the learned counsel for the appellant, that through reliable evidence it is proved on record that the land in dispute was actually mortgaged, therefore, the appellant is entitled, to obtain a decree for possession through redemption of mortgage. The learned counsel further contended that the oral as well as the documentary evidence brought on record fully establish the fact that the land in dispute was mortgaged to the father of respondents for a sum of Rs,4,800 and the appellant on payment of the mortgage money is entitled to redeem the mortgage and get the possession of the land. The learned counsel contended that the alleged agreement-to-sell has been manoeuvred as a defence to the suit filed by the appellant and is an unregistered document which has wrongly been relied upon by the trial Court as well as the High Court. The learned counsel also contended that even if the agreement-tosell is proved to have been executed, the same does not bestow any title of the suit land on the respondents.
5. On the other hand Ch. Muhammad Riaz Alam, the learned counsel for the respondents, has supported the judgment and decree of the High Court. "According to him the respondents have established this fact through evidence that the land in dispute was transferred by the father of the appellant to the father of respondents through an agreement-to-sell. The learned counsel 'further contended that there is no proof available on the record to justify that the land was ever mortgaged with the respondents. The learned counsel pressed into service the submission that the entries in the Khasra Girdawris have rightly been disbelieved by the High Court and the trial Court.
6. We have given our due consideration to the respective arguments of the learned counsel for the parties and have gone through the record of the case. The question which requires determination is as to whether the land in dispute was mortgaged by the father of the appellant to the father of respondents or it was transferred through an agreement-to-sell. It also requires resolution that even if the agreement-to-sell is admitted to have been executed, whether the same would bestow any title of the suit land upon the respondents. The Courts below have recorded conflicting findings on this main issue. Therefore, it would be desirable to have a correct perception of the evidence produced by the appellant and the respondents. The plaintiff-appellant, Manzoor Hussain, in order to prove his case, examined Ghulam Hussain, Retired Subedar Rehman Ali and got his own statement recorded. Apart from the oral evidence, documentary evidence in the shape of copy of Khasra Girdawri was also produced by the plaintiff. In rebuttal. Muhammad Fazal got his own statement recorded and examined Muhammad Anwar and Ghulam Sarwar as his witnesses. The documentary evidence in the shape of "Iqrarnama" Exh.'PA' was also brought on record by Muhammad Fazal, respondent.
7. The learned trial Court according to the pleadings of the parties framed as many as five issues including the one for relief. The trial Court dismissed the suit filed by the appellant, Manzoor Hussain, while the B cross-suit filed by respondents was decreed. However, the District Judge, as stated earlier, reversed the findings of the trial Court and dismissed the suit of respondents while the suit of plaintiff-appellant was decreed. The learned District Judge formed the view that the plaintiff-appellant, Manzoor Hussain, has sought the decree for redemption of mortgage and possession on payment of Rs,4,800, whereas the respondents sought the decree for specific performance of agreement-to-sell, dated 2-4-1978 which was allegedly executed by the father of appellant, Manzoor Hussain, in favour of father of respondents by receiving Rs,47,000. The learned District Judge observed that the defendant-respondents, Muhammad Fazal and others, have not stated anything about the mortgage of the land. Similarly in the agreement-to-sell, dated 2-4-1978 there is no mention of mortgage nor there is mention of the fact that the amount of mortgage was deducted from the amount' of consideration of Rs,47,000. However, in the copy of Khasra Girdawri from Rabbi 1969 to Kharif 1971 there is entry of mortgage on payment of Rs,4,800. Similarly in the copy of Khasra Girdawri from Rabbi, 1972 to Kharif, 1997 which was issued by the office of Tehsildar Bhimber, there is entry of mortgage in the said Khasra Girdawri and in the Khasra Girdawri, Exh.P.A.
The entry of mortgage money of Rs,48,000 is duly mentioned. The High, Court while setting aside and reversing the judgment and decree of the learned District Judge observed that according to the District Judge the presumption of truth was attached to the entries of Khasra Girdawris which was not rebutted by the respondents. The aforesaid observation of the High Court is correct that no presumption of truth is attached to the entries made in Khasra Girdawri but the fact remains that the documentary evidence whether it be in the shape of Khasra Girdawri, has much more weight than the oral evidence. Thus the High Court committed an error by relying upon the oral evidence instead of entries made in Khasra Girdawri. Another important aspect of the case is that in Khasra Girdawri from Kharif 1966 to Kharif 1978 which has been produced by the plaintiff-appellant, in the year 1969, there is an entry of mortgage on payment of Rs,4,800, but these entries were not 'challenged by the respondents. Therefore, after the combined reading of oral evidence produced by plaintiff-appellant, Manzoor Hussain, and the documentary evidence, it becomes crystal clear that the land was mortgaged. By the father of appellant to the father of respondents after receiving Rs,4,800. The respondents failed to rebut the aforesaid evidence produced by the plaintiff.
8. So far as the mortgage of the land on behalf of father of appellant by receiving Rs,4,800 is concerned, the same stands admitted by the respondents in para. No,2 of their written statement but their case is that Allah Ditta, the father of appellant, apart from taking Rs,4,800 received another amount of Rs,42,200 on 2-4-1978 and executed an agreement-to-sell in favour of Hakam Ali, the father of respondents. The agreement-to-sell, dated 2-4-1978 is an unregistered document and only Muhammad Anwar, its marginal witness, has been produced by the respondents, whereas the other witnesses, Shah Muhammad and Fazal Ahmed, are stated to have died. The scribe of agreement-to-sell is stated to be Muhammad Asif, Patwari, whose signatures have been identified by his son, Ghulam Sarwar. The learned District Judge has observed that he has no document or any record with him on which the signature of his father may be present so that he may compare it with the signatures of his father on the agreement-to-sell and the other papers.
He also stated that at the time of writing of agreement-to-sell he was not present. Thus, in the opinion of the learned District Judge, the only one witness Muhammad Anwar stated that the document Exh.P.A. Was written in his presence. Muhammad Fazal as well as Ghulam Sarwar have stated that they recognise the signatures of Muhammad Asif, who is the scribe of agreement-to- sell. Muhammad Asif was Patwari in the Revenue Department and for comparison and identification of his signatures, the best evidence would have been some other officer of Revenue Department or Patwari, who could have better identified and compared the signatures of Muhammad Asif but none of the officers of Revenue Department nor any Patwari was produced by the respondents. Even Muhammad Fazal, one of the plaintiffs in the counter-suit, at the time of execution of document agreement-to-sell, was not present. Therefore it was observed by the learned District Judge that on the mere statement of Muhammad Anwar, witness, it could not be proved satisfactorily that the agreement-to-sell Exh.P.A. Was duly executed. The agreement-to-sell is stated to have been executed on 2-4-1978 but the same was not entered in the Revenue Record and even after the lapse of about twelve/thirteen years, the respondents initiated no proceedings against the plaintiff-appellant on the basis of the said agreement-to-sell. In the aforesaid circumstances, the District Judge disbelieved the execution of the said agreement-to-sell.
9. The learned Judge in the High Court relied upon the statement of Patwari, Malik Hussain, who was summoned by him as a Court-witness. This witness has stated in the cross-examination that it is correct that the mutation of mortgage of Khasra No,891 has not been brought by him, therefore, he could not tell as to whether the mutation regarding the mortgage was sanctioned or not. The record which he has in his possession, there is no such mutation. On the statement of this witness, it was observed by the learned Judge in the High Court that it was a condition precedent that the mutation regarding the mortgage should have been sanctioned in the first instance and the entry to the said effect should have come in the Revenue Record. The aforesaid observation of the learned Judge may be correct but the witness has not stated that the record of mutation is not available. He has simply stated that in the record which he has brought, mutation has not been sanctioned; the record pertaining to mutations has not been brought. But, as stated earlier, since the respondents did not challenge the entries of Revenue Record on which not only the plaintiff- appellant relies but the same are relied upon by the respondents, it could not be said by any stretch of imagination that the entry of mortgage made in Khasra Girdawri was inoperative against the rights of respondents and was unlawful.
10. Even if the execution of agreement-to-sell in favour of father of respondents is admitted to be correct, the same does not bestow any title upon the respondents. In a case reported as Ch. Liaqat Ali v. Mirza Abdul Aziz and 3 others 2001 CLC 1501 it was observed by this Court that the mere execution of an agreement-to-sell does not bestow any title unless and until further steps are taken in pursuance of agreement-to-sell. In a case reported as Abdullah Bhatti and another v.
Muhammad. Din PLD 1964 SC 106 it was observed that the provisions of section 53-A of the Transfer of Property Act does not create any right or interest in violation of provisions of section 17 of the Registration Act, 1908.
11. We are also of the clear view that the respondents even cannot benefit themselves out of the provision of section 53-A of the Transfer of Property Act. In a case reported as Mumtaz Hussain and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 it was observed by this Court that section 53-A of the Transfer of Property Act is merely a shield which can be used in defence and not as a weapon to assert title over the property. It can only be used as a defence in answer to claim of possession by the vendor or any other person claiming through or under him. The right conferred by this section is only available to the defendant to protect his possession. The section does not create a title on the defendant. It merely operates as a bar to the plaintiff asserting his title. It is limited to cases where the transferee had taken the possession in pursuance of agreement-to-sell and against him the transferor is debarred from enforcing any right other than that expressly provided by the contract.
12. In the instant case in pursuance of agreement-to-sell the possession of the suit land was not transferred to respondents as transferees on the basis of agreement-to-sell, rather the revenue entries show that the possession of the suit land was already with the respondents as mortgagees.
Thus, even if the agreement-to-sell be taken as proved, there being no entry of the same in the Revenue Record that the possession of the suit land was delivered to respondents in pursuance of agreement-to-sell, it does not operate as a bar to the plaintiff-appellant for asserting his title; needless to say that originally the title of the suit land vested with the appellant and the same stands even admitted by the respondents.
13. The respondents also raised a plea of adverse possession but the same was repelled by all the Courts and rightly so as the entries in the Revenue Record of respondents are as mortgagees and not as transferees on the basis of agreement-to-sell. Therefore, the question of adverse possession of respondents having matured into ownership does not at all arise in the instant case.
14. Under section 17 of the Registration Act, the documents mentioned in subsection (1), clause (b) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees or upwards, are compulsorily registrable and if they are not registered, then section 49 of the said Act provides as follows:--- "49. Effect of non-registration of documents required to be registered.--- No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents 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."
Even on this score the agreement-to-sell which was of the value of more than one hundred rupees was to be registered compulsorily under section 17 ,of the Registration Act and if the same was not registered, it does not create or confer any title upon the respondents. Thus, even if the execution of the documents, agreement-to-sell, be admitted as correct, it does not confer any title of the suit land upon the respondents.
15. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment and decree passed by IJ the High Court and those of the trial Court and restore the judgment and decree of the District Judge, Bhimber. The plaintiff-appellant, Manzoor Ahmed, shall be entitled to the decree for redemption of mortgage and possession of the suit land on payment of Rs,4,800 to the respondents. If the mortgage money has not already been paid by the appellant, he shall deposit the same with the trial Court on or before 28th February, 2002, failing which his suit shall stand dismissed. The cross-suit filed by respondents, Muhammad Fazal and others, stands dismissed. In the circumstances of the case we pass no order as to costs.