' This Regular Second Appeal is directed against the judgment and decree, dated 8th October, 1976 passed by the learned District Judge, Rahimyar Khan, by virtue of which, he set aside the judgment and decree, dated 29-10-1975 passed by the learned Civil Judge, Rahimyar Khan, through which the suit of the appellant was initially decreed.
2. The facts of the case are that the appellant filed a suit for joint possession to the extent of 16 Kanals and one Marla of land fully described in the plaint against Abdul Ghani and others, respondents. According to the plaint, the appellant was a joint owner of the Khata of the suit-land to the extent of 16 Kanals and one Marla and the respondents were also co-sharers in the disputed Khata. It was alleged that on 25-2-1972 the respondents in collusion with Revenue Authorities got entered a mutation of Sale No,730 by producing a fictitious person before the Revenue Officer and thereafter forcibly occupied the land in dispute. The suit was contested, both on law and facts of the case. It was contended that the suit was not maintainable in its present form and that the appellant had actually sold the suit-land in favour of the respondents through the abovementioned mutation for consideration. It was also stated that respondent No,1 was entitled to retain the possession of the disputed property in view of the provisions of section 53-A of the Transfer of Property Act, 1882.
3. From the pleadings of the parties, the following issues were framed:--
(1) Whether this suit is maintainable in the present form in view of the Preliminary Objections Nds.2 to 4 contained in the written statement filed by the contesting defendant? OP
(2) Has the defendant No,1 purchased the disputed property from the plaintiff with his consent and for consideration who transferred its possession in favour of the defendant No,1 and with what effect?
(3) If Issue No,2 is not proved, whether the defendant No,1 is entitled to retain the possession of the disputed property in view of the provisions of section 53-A of the Transfer of Property Act? OD-1.
(4) Whether this suit has been insufficiently valued for the purposes of court-fee and jurisdiction? If so with what effect and what is the correct valuation thereof? OD-1, 7.
(5) Whether the plaintiff is the owner of the disputed property fully described in the plaint and is he entitled to obtain its possession as per law? OP
(6) Has the plaintiff the cause of action to institute this suit? OP
(7) Relief.
4. Upon Issue No,1, the learned trial, Court held that as the appellant/plaintiff has sought joint possession of the suit-land, the suit was maintainable. Issue No,2 was found against the defendant and it was held that no valid sale of disputed property took place in favour of the defendant.
Regarding the protection of section 53-A of Transfer of Property Act, 1882 claimed by the defendant under Issue No,3, it was held that as a valid sale was not proved, the possession cannot be protected to, the possession cannot be considered to be under the sale. Holding Issue No,4 against the defendant and Issues Nos.5 and 6 in favour of the plaintiff, the suit of the plaintiff was decreed with cost on 29-10-1975 .
5. On appeal, the learned First Appellate Court reappraised the evidence and came to the conclusion that according to the oral evidence produced by respondent No,1, Exh.D.1 was proved despite the statement of Muhammad Bakhsh, the other attesting witness of the agreement to sell.
The First Appellate Court also came to the conclusion that according to the statement of D.W.1, the payment of Rs,100 in advance by respondent No,1 to the appellant had been proved. Muhammad Hanif, Patwari, P.W.4 also stated to have entered the report in his Roznamcha Waqaiti Exh.D.2 about, the disputed Mutation No,730. The First Appellate Court thus, reversed the findings of the trial Court on Issue No,2 but while doing so completely omitted to note the legal requirement of section 54 of the Transfer of Property Act. The findings on Issue No,3 of the First Appellate Court were based upon the findings of Issue No,2 i,e, when Exh.D.1 was proved, the possession obtained by respondent No,1 was protected under section 53-A of the Act. Adverting to Issues Nos.4, 5 and 6, the learned Appellate Court based its decision primarily on its findings on Issue No,2, accepted the appeal of respondent No,1 and set aside the decree of the trial Court.
6. The learned counsel for the appellant has strongly contended that firstly the agreement to sell Exh.D.1 was not proved. In this respect, he has referred to the statement of attesting witness Muhammad Bakhsh P.W.3 who has categorically stated that Exh.D.4 was never written by him in his presence nor it was signed by him. According to the learned counsel, nothing disparaging has been found against his statement and inconsequential statement in cross-examination that he had come to the Court with the plaintiff or that he attends the marriage and death ceremonies of the appellant was not sufficient at all to discredit this witness. Learned counsel further submitted that even if execution of Exh.D.1 is found to have been proved, it can either be claimed to be a completed sale by respondent No,1 or in the -alternative an agreement to sell only. In case, Exh.D.1 is claimed to be a completed sale, it is clearly ineffective in the presence of the provisions of section 54 of the Transfer of Property Act, 1882, according to which, no sale of the immovable property of the value of more than Rs,100 can be made except through a registered sale-deed. If it is not a complete sale but is only an agreement to sell, no right would be transferred without a decree for specific performance obtained in this behalf from a Court of competent jurisdiction.
Thus, according to the learned counsel for the appellant, Exh.D.1 neither in law nor on facts constituted a lawful sale from the appellant in favour of respondent No,1 and was thus, ineffective upon his rights and that his suit was liable to be decreed which was correctly decreed by the trial Court. According to him, the findings of the learned First Appellate Court were erroneous both on law and facts of the case.
7. On the other hand, the learned counsel for the respondents contended that the statement of P.W.3 as an attesting witness denying the execution of Exh.D.1 was immaterial as on the date of the execution of Exh.D.1 i,e, on 25-2-1972, section 68 of the Evidence Act was in the field which require only the evidence of one attesting witness for the purpose of proving its execution and one attesting witness having been produced affirming the execution, document stood proved. He further stated that it was only by virtue of Article 79 of Qanun-e-Shahadat Order, 1984 that the requirement to prove a document by producing two attesting witnesses was introduced for the first time which would not have any retrospective effect. It is further contended that section 53-A of the Transfer of Property Act, 1882, completely protects the rights of respondent No,1 as the possession has been obtained under the sale Exh.D.1 as also proved by copy of Roznamcha Waqaiti Exh.D.2. The learned counsel for the respondents relied upon the cases of NaibSubedar Taj Muhammad v. Yar Muhammad Khan and 6 others 1992 SCMR 1265 and Fazla v. Mehr Din and 2 others 1997 SCMR 837 to support the proposition of the protection of their rights under section 53-A of the Transfer of Property Act, 1882. The learned counsel further relied upon the case of Muhammad Amin and others v. Mian Muhammad PLD 1970 B.J. 5 to contend that if a sale is otherwise proved and if both the parties by mutual agreement decided to have recourse to oral transaction to avoid registration expenses, there was no justification to hold that any one party was at fault. The learned counsel also relied upon the case of Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411, wherein while dealing with law of pre-emption, it was held that keeping in view of the definition of sale under the Punjab Preemption Act, a transaction in violation of section 54 of the Transfer of Property Act, 1882 was not altogether void. The learned counsel for the respondents also placed reliance upon the case of Muhammad Ali and others v. Muhammad Amir PLD 1995 Lah. 124 to contend that the entry recorded in Roznamcha Waqaiti by the Patwari at the instance of the plaintiff and duly signed by him would furnish a legal and complete defence to the defendants to preserve their possession in terms of section 53-A of the Transfer of Property Act, 1882.
8. Arguments heard. Record perused.
9. Upon the issue of maintainability, both the learned trial Court as well as the learned first appellate Court arrived at a concurrent finding that as the appellant/plaintiff has sought the joint possession of the suit-land, therefore, the objection regarding the maintainability of the suit was overruled being without any substance.
10. Issue No,2 has been framed in the following terms:- "Has the defendant No,1 purchased the disputed property from the plaintiff with his consent and for consideration who transferred its possession in favour of the defendant No,1 and with what effect?
OPD-1.
' In order to discharge the onus of this issue, the respondent produced Sardar Ali D.W.1 and Ghulam Nabi D.W.2 who stated to be the scribe and the attesting witness of the agreement to sell Exh.D. I.
According to them, the appellant had got written this document in favour of the respondents affecting the sale of the suit-land in favour of the respondents. Respondent No,1 appeared as D.W.6 and also produced Muhammad Rafique as D.W.5 who stated to have identified the appellant before the Revenue Officer. D.W.4 stated about the payment of balance amount in his presence. It is worthy of note that apart from Ghulam Nabi, D.W.2 there is another attesting witness Muhammad Bakhsh who is shown to have signed Exh.D.1. This Muhammad Bakhsh has appeared as P.W.3 and has categorically stated that the agreement to sell Exh.D.1 was neither written in his presence nor was it signed by him. The cumulative effect of the evidence produced by respondent No,1 upon this issue is that it falls far short of the required standard to discharge the onus.
11. The learned trial Court has considered the legal effect of the applicability of section 54 of the Transfer of Property Act, 1882 according to which no sale of the value of more than Rs,100 can be made without the execution of the registered sale-deed. After finding the insufficiency and inadequacy of the evidence of respondent No,1 upon Issues No,2 and also keeping in view the mandatory requirement of section 54 of the Transfer of Property Act, 1882, the learned trial Court decided Issue No,2 against respondent No, 1 . The finding of the learned trial Court on Issue No,3 flowed from his finding upon Issue No,2 inasmuch as when the execution of the document Exh.D.1 was itself not proved, as a corollary the obtaining of possession under the said agreement to sell also did not arise. In this view of the matter, no protection, as offered by section 53-A of the Transfer of Property Act, 1882 could be extended to respondent No 1 . As a sequel, the learned trial Court decreed the suit in favour of the appellant on 29-10-1975.
12. Although, it is true that under section 68 of the Evidence Act, 1872, only one attesting witness is required .For the purpose of proving the execution of a document and that it shall not be necessary to invoke the provisions of Article 78 of the Qanun-e-Shahadat Order, 1984 which mandates the production of at least two attesting witnesses to prove the execution of such a document, it nevertheless has to be seen whether a witness shown to be an attesting witness of a document, if he denies the execution of the same whether it would not militate against the proof of execution of the said document. In the face of the denial by the appellant Noor Muhammad and also the denial by Muhammad Bakhsh P.W.3, the statement of the other attesting witness D.W.2 would become bereft of evidentiary value particularly when the onus of proof is upon the respondent. The mutation itself is not an instrument of title. Such a mutation in the light of a specific denial by the owner and an attesting witness of the deed would not have any probative value as the presumption stands rebutted. Similarly, an entry recorded in the Roznamcha Waqiati if not proved to have been made at the instance of the plaintiff and also not proved to have been signed by him would also have no evidentiary value.
13. The reliance placed upon Naib-Subedar Taj Muhammad's case and Fazla's case (supra) regarding the protection to person in possession, it is incumbent that the said possession must be in pursuance of an agreement to sell. Independently of the proof of the execution of the agreement to sell, no benefit can be drawn from the provisions of section 53-A of the Transfer of Property Act, 1882.
14. The Mutation No,730 was entered on 25-2-1972. There is no cavil with the proposition that section 54 of the Transfer of Property Act, 1882 applies with full force in the matters of sale and no sale can be validated which is in violation of the said provisions of law. Reliance upon Abdul Karim's case (supra) is not apt in the circumstances of the case as the nature of the right of pre-emption being a right of substitution only the concept of sale in the Punjab Pre-emption Act does not correspond to the mandatory requirement of section 54 of the Act. The alleged oral sale is challenged on the ground of being in violation of section 54 of the Transfer of Property Act, 1882.
15. The upshot of the above discussion is that Exh.D.1 has not been proved by clear and cogent evidence by the respondent. The alleged sale having been made without a registered sale-deed offends against the provisions of section 54 of the Act and is ineffective upon the rights of the appellant. It is also on the record that the appellant had filed a suit for joint possession of 16 Kanals and one Marla of land. The Khata in dispute is a joint Khata. The appellant had not claimed any specific Khasra numbers nor it is proved on the record that possession of any specific piece of land was allegedly given to the respondent. The evidence recorded in this behalf does not prove the handing over if-at all of any specific area or portion out of the joint Khata to the respondents. In this view- of the matter, section 53-A of the Act would also not be attracted. Learned counsel for the respondents made reference to Muhammad Amin's case (supra) to canvass the proposition that a person cannot take advantage of his own wrong and also invoked the principle of pari delicto. The present circumstances of the case as disclosed by the record would, however, show that unlike the above cited case, the execution of the agreement to sell itself was not proved. The other point of distinction in the present case is that the appellant was admittedly seeking joint possession of land and there was nothing on the record to show that an specific portion of the land was given to the respondent by the appellant. In Muhammad Amin's case (supra), it was found that the plaintiff in that case was not in possession of the property in question, even at the time when he had filed the suit in the cited judgment, proprietary rights were conferred upon Mian Muhammad who had then entered into an oral sale of the same land through a mutation in favour of Muhammad Amin.
Although, the impugned mutation in the cited judgment was sanctioned on 31-3-1955, it was not till 8-1-1961 that the plaintiff in the said case had filed the suit. It was in the peculiar circumstances of the said case that it was held that despite the operation of section 54 of the Transfer of Property Act, 1882, the discretion could not be exercised in favour of a person who does not come to the Court with clean hands. In the instant case, there is no element favouring the respondents to deprive the appellant of the exercise of discretion in his favour.
16. In view of the foregoing discussion, the judgment and decree passed by the learned District Judge, Rahimyar Khan, dated 8-10-1976 is against the law and facts of the case. Resultantly, this Regular Second Appeal is accepted and the impugned judgment and decree, dated 8-10-1976 are set aside. The parties to bear their own costs.