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Petitioner: NOOR ULLAH and others VS Respondent: JEHANGIR KHAN and others
Court Name: Peshawar High Court Judge(s): Syed Sajjad Hassan Shah Title: NOOR ULLAH and others vs JEHANGIR KHAN and others Case No.: R.F.A. No,233 of 2007 Date of Judgment:2010-10-29 Reported As: 2011 YLR 1746 Result: Appeal dismissed
JUDGMENT
JUDGMENT SYED SAJJAD HASSAN SHAH, J.---This regular first appeal under section 96 of the C.P.C. directed against the consolidated judgment and decree dated 29-9-2007 passed by learned Civil Judge Tangi, whereby, the Suit No,345/1 filed by the present defendant/respondent No,1 (hereinafter called as respondent No,1) against the appellants/defendants (here-inafter called as appellants) was decreed, whereas, the Suit No,344/1 filed by Hussainullah (plaintiff) the predecessor of present appellants and respondents Nos.2 and 3 against the respondent No,1 (defendant) was dismissed. 2. Briefly stated the facts of the case are that Late Hussainullah the predecessor of present appellants and respondents Nos.2 and 3 filed a Suit No, 344/1 dated 11-5-2000 seeking the decree for perpetual injunction against the respondent No,1 in respect of the property bearing khasra No,2416/1146 recorded at khata No,216/488 ,restraining the respondent to interfere or to raise the construction and also prayed for the recovery of possession of the said property. The respondent contested the suit by filing the written statement dated 20-5-2000. On 15-5-2000 the respondent No,1 also filed a suit in respect of the same property against appellants and predecessor of respondents Nos.2 and 3 and their predecessor in interest, namely Alisanullah deceased, the suit was contested by the defendant No,2 by filing his written statement on 5-6-2000, the respondent moved an application seeking leave of the Court to amend the plaint in Suit No,345/1, same was accepted, where after, filed the amended plaint on 15-6-2006, the defendants contested the suit by filing their separat;'written statements, both the suits were consolidated by the learned trial Court, the following consolidated issues were framed, arising out of the divergent pleas raised in the pleadings of the parties. <u>CONSOLIDATED ISSUES </u>
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(1) Whether the plaintiff has got a cause of action in Suit No,345/1? (2) Whether the plaintiff has got a cause of action in Suit No,344/1 ? (3) Whether the Suits Nos.345/1 and 344/1 are bad time barred? (4) Whether the plaintiff in Suits No. 344/1 and Nos.345/1 are stopped to sue? (5) Whether the Plaintiff in Suits Nos. 345/1 has not affixed the proper court-fee ? (6) Whether the plaintiff in Suit No,345/1 has never remained the owner of flying coach and has never sold out to defendant No,1 and the defendant No, 1 has not executed the deed dated 20-2- 1999? (7) Whether the defendant in Suit No,345/1 are still owner of the disputed property and the plaintiff has interfered in defendant's possession? (8) Whether the plaintiff in Suit No,345/1 forcibly possessed the defendants property and 'raised illegal construction which is liable to be dismental? (9) Whether the plaintiff in Suit No,345/1 sold out flying coach model 1993 bearing No,1634/C N.- W.F.P. to defendant No,1 in lieu of Rs,11,00,000and executed .a sale-deed No,137 dated 20-2-1999 in which the date for payment was fixed as 10 months? (10) Whether the defendant's predecessor in Suit No,345/1 agreed to hand over a plot measuring 2 kanals in case of failure in payment? (11) Whether defendant No, in Suit No,345/1 failed to pay the amount within a stipulated time? (12) Whether defendant in Suit No,344/1 is owner in possession of land measuring 2 kanals vide deed Dated 20-2-1999, therefore, plaintiff's suit is liable to be dismissed? (13) Whether the plaintiff in Suit No,344/1 is entitled to the decree as prayed for? (14) Whether the plaintiff in Suit No,345/1 is entitled to the decree as prayed for? (15) Relief. Both the parties adduced their documentary as well as oral evidence, as they wished to produce, the learned trial Court while seized of the matter, decreed the Suit No,345/1 in favour of the respondent No,1 against the appellants! respondents Nos.2 and 3, whereas, Suit No,344/1 was dismissed, no appeal was preferred by present appellants against the judgment and decree, passed in the said suit. 3. The learned counsel appearing on behalf of the appellants vehemently argued that the respondent No,1, not properly valued the plaint for the purpose of court-fee and jurisdiction, moreover, in alternate, the relief of specific performance was also sought in the amended plaint and the value for the purposes of court-fee and jurisdiction shown as Rs,350 as was recorded in the original plaint. It was further argued that the value of the subject matter of the suit entered in the plaint as Rs,11,00,000 and the respondent No,1 did not assess the value for the purposes of court-fee and jurisdiction according to the market value of the suit property. The learned counsel further argued that the respondent No,1 sought the declaration, but without filing any title deed in support thereof, however, in this regard, an unregistered deed relied upon. As per provisions of law, the unregistered deed does not confer any title in favour of the respondent, thus, suit for the declaration not maintainable and not liable to be decreed. He further argued that the respondent No,1 was not in possession of the suit property, the appellants are in possession of the suit property, however, further agitated that the sale transaction effected from the column of cultivation, whereby, ownership in the suit property could not be claimed. He further argued that learned trial Court returned its findings on all the issues decided against the appellants are unlawfill and not tenable under the law. Learned counsel voiced that the respondent No,1 failed to prove the transfer of flying coach in favour of the respondent No,2 as prescribed under the Motor Vehicles Ordinance. Moreover, he further argued that Issue No,14 had not been properly framed, same was prejudicial to the rights of the appellants and also challenged the execution of document, stating thereby, the respondent No,1 has failed to
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prove the same by the predecessor of the appellants. According to learned counsel, alternate relief could not be decreed in favour of the respondent No,1.' Finally argued that the suit of the respondent No,1 was liable to be dismissed. 4. As against this the learned counsel for respondent No,1 contended that his client had deposited the court-fee Rs,3000, as was required under the law during the trial of the suit. Therefore, this objection was not tenable. Learned counsel further argued that the learned trial Court had ample power to pass the decree as prayed for by the respondent No,l. He further argued that any irregularity could be made good by this Court in terms of section 99 of the. C.P.C. and the appellate Court vested with the same powers, under section 107, C.P.C, as exercised by the trial Court. Therefore, the arguments advanced by learned counsel for the appellants are misconceived; therefore, appeal may be dismissed. 5. Arguments of the learned counsel for the parties considered. Record carefully examined, scanned the entire evidence and perused the judgment of learned trial Court. 6. The objection of learned counsel for the appellants that the plaint is defective as it has not been properly valued for the purposes of court-fee and jurisdiction, therefore liable to be rejected. The appellants during the course of trial, in view of the value of the subject matter of the suit, furnished the court-fee to the tune of Rs,3000, the appellants did not object the filing of the court-fee, since, the requirement of law had already been fulfilled. In this respect, at this stage, the objection could not be entertained as in terms of Order VII Rule 11 after correction of the valuation of court-fee and furnishing the same, within the specified period no adverse action warranted .under the law. Thus, the provisions of Order VII Rule, 11, would not be applicable to the present circumstances of the case. 7. As far as, framing of issues by the learned trial Court is concerned, it was the duty of the parties to suit to be ,vigilant at the time of framing of issues by the learned A trial Court and got framed all the relevant issues in the light of-the pleadings. In any case, the learned trial Court rendered its findings on all the material aspects of the case, it transpires that the parties were conscious of the controversy faced by them, therefore, might have equipped themselves to proceed in accordance with law with regard to their respective stance, obviously, in the instant case till the conclusion of proceedings in the suit, none of the parties comprehended any ,difficulty or any prejudice to their rights by non-framing of the issues. Thus, the learned trial court after having been complied with all legal formality and the controversy resolved on all the issues agitated by the parties, therefore, at this stage it would be neither proper nor in interest of the parties that Issue No,14 is to be refrained and the case be remanded to the trial Court for deciding . afresh. Issue No,14 reproduced as follows:-- "Whether the plaintiff in Suit No,345/1 is entitled to the decree as prayed for". No doubt, the issue was framed in omni bus manner, however, at the cost of repetition, it is reiterated that both the parties were conscious of the burden of proof about all the relief mentioned in the heading of the plaint and the grounds pleaded for grant of the relief. In support of their claim the appellants produced their entire necessary oral and documentary evidence without any complexity. Therefore, they had not been prejudiced by the Issue No,14 as framed, more so, evidence led by the parties, sufficient to resolve the controversy on the existing record, in such eventuality the case cannot be remanded as would not be in conformity with the wisdom laid behind the provision of law, enshrined in Rr.24 and 25 of O.XLI of the C.P.C. to minimize the possible hardship to the litigants and to avoid B unnecessary delay in the disposal of cases. Since, no injustice caused to the appellants, therefore, this objection was not tenable. Reliance placed to a case titled "Anwar Ahmed v. Mst. Nafis Bano through legal heirs" reported as (2005 SCMR 152), wherein, the rule laid .down that the remand of the case can only be ordered, when it becomes absolutely necessary and inevitable, in view of insufficient or inconclusive evidence on record. In
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view of the above discussion the grievance of the appellants regarding the non-framing of issues hold no field as the appellants have not been materially affected by reason of non-franing of issues: 8. Primarily the litigation was initiated at the instance of Hussainullah, the predecessor in interest of the appellants against the respondent No,1 seeking the decree I'm-perpetual injunction that they are owners in possession of disputed property and also had prayed for the recovery of possession of the suit property, the suit was dismissed and no appeal was filed, which shows that their claim was baseless, neither they are in possession of the property nor, having the right to claim the ownership in the suit property, the dismissal of suit filed by the predecessor of the appellants and the claim of respondent No,1 preferred through -Suit No,345/I was decreed, the perception would be that the dismissal of their suit has also cast repercussions on their claim and defence as well. 9. Be it as may be, the Suit No,345/1 whereby, the respondent No,1 sought the decree seeking the declaration against the respondent No,2 as well as Ahsanullah/ Hussainullah the predecessor in interest of the appellants and respondents Nos.2 and 3, regarding the property/plot measuring 2 Kanal, comprised in Khasra No,1144, the detail of boundaries given in the heading of the plaint, acquired through unregistered sale-deed No,137 dated 20-2-1999 and claim preferred that he is owner in possession of the said plot, on payment of sale consideration of Rs,11,00,000,- in this respect the agreement deed was executed and in lieu thereof, the respondent No,1 had given his flying coach on the condition that in case failed to return the sale consideration of flying coach, within a period of 10 months i,e, 20-2-1999 to 20-12-1999, then the respondent No,2 and the predecessor in interest of the appellants would be responsible to transfer 2 kanal of land from the disputed Khasra No,1144 as per boundaries mentioned in the agreement deed and plaint as well, through attestation of sale registered deed or mutation. The appellants and respondents Nos.2 and 3 filed three separate written statements; controverting the claim of the respondent No,1. The execution and transfer of suit land and payment of sale consideration was fully proved by the respondent No, 1. Rasool Shah, Patwari Halqa, was examined as P.W.1., who testified that defendant No,2 recorded as owner in possession to the extent of 127/128 shares in cultivation column pertaining to khasra Nos:1144 and 2416/1146. Again Jan Muhammad Ex-Patwari Halqa was examined as P.W.2, who deposed that he was posted as Patwari of the village where the suit property situated. He further stated that in the year March, 2000 the measurement of the suit property was made at the instance of Asad Khan, who had stated that a dispute decided by him and he accompanied Ghulam Hussain Patwari and was present with him, defendant No,2,his son, Asad Khan and Molana Husainullah and the plaintiff in person were present at the time of measurement.' In cross- examination he testified that the possession of two kanals of landwas delivered on the spot. P.W.3. Fazal Subhan, petition writer, was examined, who deposed that the document dated 20-2- 1999 is in his hand writing and the marginal witnesses of, the deed and the parties to the deed have signed/thumb impressed in his presence. He also produced the extract of his register of petition writer as Exh. P.W.3/1. Abdul Haleem appeared as P.W.4, the marginal witness of the sale-deed Exh.P.W.3/1, testified that he has signed the same vide which flying coach was sold to defendants for sale consideration of Rs,11,00,000. Defendant No,1 agreed to pay to the plaintiff, the sale consideration of flying coach within.the specified period, in case the defendant No,1 failed to pay the said amount, would transfer two kanals of land owned by defendant No,2, as he agreed with the terms and conditions of agreement deed. He further stated that to this effect. the defendant No,2 acknowledged and admitted on his query that he would transfer two kanals of land as agreed upon in favour of the plaintiff, against the sale consideration of flying coach, if defendant No,1 could not pay the said amount to the plaintiff.
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Malik Safiullah P.W.5., the other witness. of Exh.P.W. 3/1 examined, who has testified his signature and the signatures of the witnesses correctly affixed on the said agreement deed and the same was executed by the parties in his presence and was scribed by Mian Fazal Subhan and reiterated about the sale of flying coach and in case of default in payment of sale consideration, promised to transfer two kanals of land in favour of plaintiff-'respondent. Haji Fazal Amin was examined as P.W.7. This witness was also present at the time of the delivery of possession of two kanals of land .by the defendants to the plaintiff and the plaintiff-respondent constructed his residential house. He further stated that he was present at the time of effecting the compromise. Alamgir, was examined as P.W.8, who was also present at the time of demarcation/measurement of the plot and delivery of possession to the plaintiff-respondent. In rebuttal Noorullah, attorney of defendant No,2, deposed as DW-1, denied the claim of the plaintiff- respondent and shown his unawareness about the sale transaction and also denied the above referred sale agreement. The witness in his cross-examination failed to reply any of the question put on behalf of the plaintiff respondent. Again the witnesses of plaintiff were examined as APW-1 to APW-4 after filing of the amended plaint, however, they have repeated the statements already recorded. 10. From the perusal of the agreement deed Exh.P.W.3/1, it is discernable that the flying coach, the full particulars given in the agreement deed, sold to the defendants for sale consideration of Rs,11,00,000, the vendee namely Wheedullah, in person, assured that the sale amount would be paid within a period of 10 months commencing from 20-2-1999 to 20-12-1999, if failed to pay within the said period, the suit property owned by Ihsanullah measuring two kanals, the detail of the same given in the agreement deed, shall be transferred to the plaintiff/respondent and he can take the possession of the said piece of land, they would be responsible to make the transfer vide registered deed or mutation in the name of plaintiff-respondent. The evidence recorded by both the parties scanned and on preponderance of the same, it is not difficult to reach to the conclusion that the agreement deed was duly executed between the parties and the plaintiff-respondent successfully proved the agreement arrived between both the parties by examination of all the attesting witnesses as well as the other witnesses who are in any manner having nexus with the disputed transaction of sale. The suit property is proved to be in possession of plaintiff-respondent right from the date of agreement executed by appellants-defendants . The appellants defendants have failed to rebut the over helming evidence brought on record. The learned trial Court while discussing Issues Nos.9 to 11 recorded the findings to the effect that the agreement deed dated' 20- 2-1999, Exh.P.W.3/1, executed by the appellants-defendants and duly proved by the plaintiff- respondent. The findings so recorded by the learned trial court examined in the light of evidence, no misreading or non-reading or any other illegality or irregularity found in the judgment of the trial Court. Likewise, findings rendered under Issues Nos.8 and 12 by the learned trial Court are also in accordance with the material available on the record. The ownership of the appellant-defendant No,2 duly proved by producing Exh.P.W.l/2 to Exh.P.W.1/4. The findings rendered by the learned trial Court under Issues Nos.1 to 14, are fully supported by the evidence available on record. 11.As far as the objection of learned counsel for the appellants regarding the form of suit is concerned, the plaintiff-respondent on receipt of the sale consideration executed the unregistered document and the same was made as basis of the suit by the plaintiff-respondent. The plaintiff- respondent, although sought the declaration, however, introduced by way of amendment the alternate relief of specific performance of afore-stated agreement. 12.The plaintiff-respondent has every right to seek the specific performance of an agreement as there, is no bar contained under the law, rather section 50 of the Registration Act (XVI) of 1908, expressly provide the remedy as sought by the plaintiff-respondent notwithstanding that section
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53-A of the Transfer of Property Act (IV) of 1882, read with section 12 and onward sections of the Specific Relief Act, made it permissible to seek the specific per-formance of an agreement. For convenience sake, section 50 of the Registration Act, 1908, is reproduced as under:- "S.50. Certain registered documents relating to land to take effect against unregistered documents: (1) ' Provided further that the person in whose favour 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 (I of 1877)." 13.Perusal of provision of the above law leave no room for any further comments regarding the matter in issue that the suit of the plaintiff-respondent was filed in accordance with law and there is no bar to decree the same in favour of the plaintiff-respondent. The provisions contained in section 53-A of Transfer of Property Act (IV of 1882), are also for convenience sake reproduced as under: "S.53-A. Part performance.-- -Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonably certainty, and the transferee, has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or his wiling to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than aright expressly provided by the terms of the contract." A similar question was considered by the august Supreme Court in a case titled "Javaid Iqbal v. Abdul Aziz (PLD 2006 SC 66), wherein the suit was dismissed by the trial Court and appellate court on the grounds that agreement to sell did not create any right, title or interest in immovable property. High Court in exercise of revisional jurisdiction set aside the judgments of both the courts below and remanded the case to the trial court with the direction to treat the suit of the plaintiffs as one for specific performance of agreement to sell and permit the necessary amendment introduced in the plaint to bring the form of suit at par with the order of the Court. The same was objected on the ground that there was no written prayer made for conversion of relief in the suit by the plaintiffs, therefore, High Court could not grant such relief. The objection was repelled and august Supreme Court dismissed the Civil Appeal and the judgment of the High Court was upheld with the following observations:-- "(13) On its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available and not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale Consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the courts below failed to take into account the legal impact and effect of the provisions contained in section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908
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providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, Rule 17, Order VII, Rule 7 and section 151, C.P.C, rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revisional jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary the judgment of the High Court in the peculiar facts and circumstances of the case, on the face of the record, appears to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is therefore, fully justified and not open to any exception." 14. The plaintiff-respondent has the remedy to file the suit for specific performance of an agreement as part performance of the agreement has been made by receiving the sale consideration, executing the agreement deed and delivery of the possession of the suit property. Since these are the requirements whereby the suit for the specific performance of the agreement, can be filed. In this regard reliance placed upon a case titled "Fazla v. Mehr Din and 2 others 1997 SCMR page 837", the relevant para is reproduced as under: "11. These two provisions were added by the Registration (Amendment)…
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