' Muhammad Iqbal, who was the defendant before the trial Court has assailed the findings of both the Courts below dated 19-7-2000 passed by the trial Court and that of dated 14-2-2002 passed by the Appellate Court in a declaratory suit brought by the respondent/plaintiff.
2. Briefly stated the facts are that the respondent/plaintiff filed a civil suit for declaration with the averments that he had purchased certain property through an oral sale from respondent No,2 in the year 1987 for a consideration of Rs,10,000 and in consequence of the said agreement to sell he was put into possession of the property. The plaintiff did further allege that after having taken possession of the property in consequence of the abovesaid sale has started levelling of the land and raising of the construction. It was alleged that now it has transpired to him that defendant No,2 had transferred the property in favor of the defendant No,1 through a registered sale-deed dated 24-8-1998 when on this date in view of the above sale-deed favor of the plaintiff, the defendant No,2 was no longer owner of the property. It was alleged that defendant No,1 purchased this property with clear knowledge of the sale in favor of the plaintiff. The defendants contested the suit denying the allegations levelled in the plaint. The trial Court on the pleadings of the parties framed the following issues:-
(1) Whether the, plaintiff has no cause of action and locus standi to bring this suit? OPD
(2) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD
(3) Whether the plaintiff has filed this suit just to harass the ' defendants and defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(4) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? OPD
(5) Whether the registered sale-deed No,1822 dated 24-8-1998 of disputed property is illegal, void and liable to be set aside? OPP
(6) Whether the plaintiff is entitled to get decree as prayed for? OPP
(7) Relief.
3. The trial Court recorded the evidence of the parties and decreed the suit of the plaintiff. The present petitioner/defendant filed an appeal before Appellate Court from where it was dismissed.
Hence the petitioner has filed this revision petition.
4. Learned counsel for both the parties have submitted their respective pleas.
5. Learned counsel for the petitioner has submitted that in view of the sale through a registered sale-deed in his favor from Hussain Asghar there is no property in favor of the plaintiff to be decreed. Apart from it, it is submitted that the form of the suit brought by the plaintiff was not proper. The plaintiff can have the relief for specific performance and the suit for declaration as such was not further proceedable.
6. On the other hand learned counsel for the respondents has supported the judgment and decree of the trial Court.
7. Analysing the submissions of learned counsel for both the parties and scanning the judgments and decrees of the Cotirts below, it is established that the sale in favor of the present petitioner is through a registered sale-deed and registration is itself a notice to the general public. In view of section 50 of the Registration Act which for convenience purpose is reproduced below:-- "Certain registered documerts relating to land to take effect against unregistered documents.---
(1) Every document of the kinds mentioned in clauses (a), (h), (c) and (d) of section 17, subsection
(1) and every document registrable under section 18, insofar as such document affects immovable property or acknowledges the receipt of payment of any consideration in respect of any transaction relating to immovable property shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not: ' Provided that the person in possession of the property under an unregistered document prior in date would be entitled to the rights under section 53-A of the Transfer of Property Act, 1882 (IV of 1882), if the conditions of that section are fulfilled: ' Provided further that the person in whose favor an unregistered-document is executed shall be entitled to enforce the contract under the unregistered document in a suit for specific performance against a person claiming under a subsequent registered document, subject to the provisions of clause (b) of section 27 of the Specific Relief Act. 1877 (I of 1877).
(2) Nothing in subsection (1) applies to leases exempted under the proviso to subsection (1) of section 17, or to any document mentioned in subsection (2) of the same section, or to any registered document which had no priority under the law in force at the commencement of this Act."
8. A registered document takes precedence over an unregistered document and over any other sale. There is another aspect of the matter that the plaintiff appearing as his own witness had admitted that the defendant No,2 in the civil suit mentioned in his plaint had agreed to execute a registered sale-deed in his favor but continued to prolong it on one pretext or the other. The statement of the plaintiff gives a clear indication that the relief claimed by him in the specific performance of the oral agreement to sell alleged to have been in his favor by virtue of which he was also put into possession of the property. The plaintiff till to date has not filed a suit for specific performance. Otherwise the plaintiff has also not submitted any application for amendment in his original plaint to this regard. The plaintiff in the garb of the declaratory suit also avoided to make payment of the requisite court-fee. The only form of the suit which could be was that of the suit for specific performance or in the alternative return of the amount paid by him to defendant No,2.
There was another aspect of the case that whether the defendant No,1 is a bona fide purchaser for consideration and without notice of the sale in favor of the plaintiff but in view of the form of the suit being for declaration as stated above all the requisite legal eventualities arising thereupon could not be raised or disposed of. With this background the judgments of the Courts below are based on misreading and non-reading of evidence on record and are not liable to be maintained, as such are set aside. Therefore, the suit brought by respondent No,1/plaintiff before the trial Court is hereby dismissed. No order as to costs.