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Petitioner: Arif-uz-Zaman VS Respondent: Mst. Sabir Jan and others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: Arif-uz-Zaman vs Mst. Sabir Jan and others Case No.: R.S.A.No.09/2017 Date of Judgment:2019-01-25 Reported As: 2019 IHC 8 Result: Appeal dismissed
Judgment MIANGUL HASSAN AURANGZEB, J:- Through the instant regular second appeal, the appellant, Arif-uz-Zaman, impugns the judgment and decree dated 12.11.2016 passed by the Court of the learned Additional District Judge (East), Islamabad, whereby respondents No.1 to 8's appeal against the consolidated judgment and decree dated 30.05.2016 passed by the Court of the learned Civil Judge, Islamabad, was allowed and the said judgment and decree dated 30.05.2016 was reversed. 2. The facts essential for the disposal of the instant appeal are that vide allotment letter dated 28.04.1983 (Exh.P .11), plot No.19, Model Village Chak Shahzad, Islamabad ("the suit plot") was allotted by the Capital Development Authority ("C.D.A.") to Muzaf far Khan (predecessor of respondents No.1 to 8). Possession of the suit plot was taken over by Muzaf far Khan on 22.09.1986. 3. The appellant' s case is that on 14.03.1988, an agreement to sell (Exh.P .9) was executed between Muzaf far Khan and Muhammad Arif-uz-Zaman (the appellant) whereby the former agreed to sell the suit plot to the latter for a total sale consideration of Rs.2,08,000/-. The sale consideration was said to have been received in full by Muzaf far Khan, and possession of the suit property was said to have been handed over to the appellant. The terms of the said agreement show that the appellant was to construct a house on the suit plot at his own expense after which Muzaf far Khan was responsible to execute a registered sale deed regardi ng the suit plot in favour of the appellant or his nominee. Simultaneously with the execution of the said agreement to sell, Muzaf far Khan and the appellant are said to have executed a construction agreement (Exh.P .10) which was registered on 15.03.1988. 4. On 14.03.1988, Muzaf far Khan is also said to have executed two general power of attorneys (Exh.P .7 and Exh.P .8) in favour of the appellant authorizing the latter to construct a house on the suit plot and to correspond with the C.D.A. on matters regarding the construction of the house and the issuance of a completion certificate, etc. These general power of attorneys were registered on 15.03.1988.
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5. Vide letter dated 01.06.1988 (Exh.P .15), the appellant informed the C.D.A. about the execution of the power of attorney and requested the C.D.A. to correspond with the appellant on matters pertaining to the suit plot. Vide letter dated 12.07.1989, the C.D.A. informed the appellant that as per the policy , a general power of attorney from the oustees of Islamabad is not acceptable. Nevertheless, C.D.A.' s letters dated 22.11.1999 (Exh.P .17), 30.06.2000 (Exh.P .18), 25.11.2002 (Exh.P .19) and 23.02.2004 (Exh.P .20) show that the C.D.A. corresponded with the appellant regarding the clearance of outstanding dues with respect to the suit plot. 6. It is not disputed that a house was constructed on the suit plot by the appellant. As per the contents of letter dated 02.10.2004 from the Design Wing of the C.D.A., a house on the suit plot was completed on 15.08.1989. It is also not disputed that ever since the year 1988, the appellant has remained in possession of the suit plot. After Muzaffar Khan's demise, the title of the suit plot was transferred in respondents No.1 to 8's name. This was done through C.D.A.'s letter dated 28.09.2006 (Exh.D.3). Vide letter dated 02.11.2007, the appellant requested the C.D.A. to transfer the suit plot to him and cancel the transfer made in favour of Muzaffar Khan's legal heirs. 7. On 06.12.2006, the appellant filed a suit for specific performance, permanent and mandatory injunction against Muzaf far Khan' s legal heirs before the Court of the learned Civil Judge, Islamabad, seeking inter-alia a decree for specific performance of the agreement to sell dated 14.03.1988. Muzaf far Khan' s legal heirs contested the said suit by filing a written statement on 10.09.2007. In the said written statement filed by Muzaf far Khan' s legal heirs, the execution of the said agreement to sell and the construction agreement was denied. 8. On 08.07.2009, Muzaf far Khan' s legal heirs filed a suit for possession, mandatory and permanent injunction against the appellant. In the said suit, Muzaf far Khan' s legal heirs prayed that possession of the suit plot be handed over to them and for the construction raise d on the suit plot to be removed. The appellant contested the said suit by filing a written statement. 9. Vide order dated 03.01.2013, the above-mentioned two suits were consolidated. From the divergent pleadings of the contesting parties, the learned Civil Court framed the following consolidated issues:- "1. Whether the plaintiff is entitled to decree for Specific Performance and Injunction as prayed for? OPP 1-A. Whether the suit of plaintiff for Specific Performance is barred by law? OPD 1-B. Whether the suit of plaintiff for Specific Performance is time barred? OPD 2. Whether the consolidated suit of the defendant is false, frivolous and liable to be dismissed? OPP 3. Whether the defendants are entitled to decree in consolidate[d] suit as prayed for? OPD 4. Whether the suit of plaintiff is false, frivolous and the plaintiffs has no cause of action? OPD 5. Relief." 10. The appellant appeared as PW.2, whereas his brother , Muhammad Touseef-uz-Zaman, gave evidence as PW.1 and Tariq Mehmood as PW.3. Muhammad Arshad (respondent No.7) appeared as DW.1 and Zafeer Ahmed, Sub- Assistant, C.D.A., appeared on behalf of the C.D.A. and produced certain documents. 11. Vide consolidated judgment and decree dated 30.05.2016, the learned Civil Court decreed the suit for specific performance, etc. instituted by the appellant and dismissed the suit for possession, etc. instituted by Muzaffar Khan's legal heirs. Muzaffar Khan's legal heirs preferred civil appeals No.20/2016 and 21/2016 against the said judgment and decree before the Court of the learned Additional District Judge, Islamabad. Vide judgment and decree dated 12.11.2016, the said appeals were allowed; the suit for specific performance, etc. instituted by the appellant was dismissed whereas the suit for possession, etc. filed by Muzaffar Khan's legal heirs, was decreed. The said judgment and decree passed by the learned Appellate Court has been assailed by the appellant in the instant regular second appeal. 12. Learned counsel for the appellant, after narrating the facts leading to the filing of the instant appeal, submitted that the consolidated judgment and decree dated 30.05.2016 passed by the learned Civil Court was strictly in accordance with the law and the facts of the case; that the suit for possession, etc. instituted by Muzaffar Khan's legal heirs was grossly time barred; that even though on 10.09.2007, Muzaffar Khan's legal heirs had filed a written statement to the appellant's suit for specific performance, etc., they did not file the suit for possession, etc. until 08.07.2009; that as far back as 1988, the appellant had paid the entire sale consideration for the suit plot to Muzaffar Khan; that the appellant had remained in possession of the suit plot since 1988; that since the appellant had been
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given possession of the suit plot in part performance of the said agreement to sell dated 14.03.1988, he was entitled to be given the benefit of Section 53-A of the Transfer of Property Act, 1882 ("the 1882 Act"); that a house was constructed by the appellant on the suit plot with his own funds; that the appellant had corresponded with the C.D.A. regarding the clearance of outstanding dues with respect to the suit plot; that at no material stage, did Muzaffar Khan's legal heirs seek the cancellation of the agreement to sell dated 14.03.1988, registered general power of attorneys dated 14.03.1988 or the registered construction agreement dated 14.03.1988; that although Muzaffar Khan's legal heirs had pleaded that the said agreement to sell dated 14.03.1988 was the result of "fraud and forgery" but they failed to give any particulars of fraud as required by Order VI, Rule 4, C.P.C.; that a presumption of truth was attached to the registered documents relied upon by the appellant; that Muzaffar Khan, during his lifetime, did not file a suit for possession against the appellant; and that it was obligatory upon Muzaffar Khan's legal heirs to have transferred the suit plot to the appellant after the issuance of the completion certificate dated 02.10.2004 by the C.D.A. Learned counsel for the appellant prayed for the judgment and decree passed by the learned Appellate Court to be set-aside and for the consolidated judgment and decree passed by the learned Civil Court to be restored. 13. On the other hand, learned counsel for respondents No.1 to 8 defended the judgment and decree passed by the learned Appellate Court by submitting that the appellant had been unable to prove the execution of the agreement to sell dated 14.03.1988; that the appellant did not produce the two attesting witnesses of the said agreement to sell in accordance with Article 79 of the Qanoon-e-Shahadat Order, 1984; that none of the appellant's witnesses had deposed whether the marginal witnesses of the said agreement were dead or alive; that the said agreement could not have been read in evidence by the learned Civil Court; that no explanation, whatsoever, had been given by the appellant for not producing the two attesting witnesses of the said agreement; that the said agreement could not have been executed by Muzaffar Khan since the suit plot was non-transferable until the construction of a house thereon; that since the execution of the said agreement to sell has not been proved, the appellant was not entitled to the benefit under Section 53-A of the 1882 Act; that the registered power of attorneys dated 14.03.1988 were not coupled with interest and had not empowered the appellant to sell the suit plot; that the appellant had also failed to prove the execution of the said power of attorneys by producing their marginal witnesses; that there is no evidence of the sale consideration for the suit plot having been received by Muzaffar Khan; that the receipt (Exh.P.1) did not bear Muzaffar Khan's signature; that the appellant, in his evidence, had admitted that Muzaffar Khan was not present when the said receipt was written; that the appellant had also admitted that the entire sale consideration had been paid to one Maqsood Ahmed Qureshi; and that no power of attorney had been executed by Muzaffar Khan authorizing Maqsood Ahmed Qureshi to receive the sale consideration. Learned counsel for respondents No.1 to 8 prayed for the appeal to be dismissed. 14. I have heard the contentions of the learned counsel for the contesting partie s, and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 1 1 above and need not be recapitulated. 15. Although it is well settled that findings of fact cannot be interfered with by the High Court in a second appeal, in the case of Karim Bakhsh through L.Rs and others Vs. Jindwadda Shah and others (2005 SCMR 1518), it has been held inter-alia that when the findings of the two Courts below were at variance, the High Court could appreciate the evidence in order to determine which of the two decisions was in accordance with the evidence on the record. In cases where the findings of an Appellate Court are not supported by evidence on the record and the same are found to be without logical reasoning or arbitrary or capricious, the same could be interfered with in a second appeal. Reference in this regard may be made to the law laid down in the case of Abbas Ali Shah and others Vs. Ghulam Ali and another (2004 SCMR 1342). Remaining within the bounds of these principles, I ventured to examine the evidence on the record to determine which of the two varying judgments and decrees passed by the learned Courts below was sustainable. 16. The appellant, in his suit for specific performance, etc., had clearly pleaded the factum as to the execution of the agreement to sell dated 14.03.1988. However , Muzaf far Khan' s legal heirs, in their written statement, denied the execution of the said agreement. Furthermore, it was pleaded that the said agreement was the result of "forgery and fraud" . Such denial by Muzaf far Khan' s legal heirs made it obligatory upon the appellant to prove the execution
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of the said agreement in accordance with the law, i.e. Article 17 read with Article 79 of the Qanoon-e-Shahadat Order , 1984 ("the 1984 Order"). 17. Through an agreement to sell, immovable property does not create any interest or charge on such property but creates a right to obtain another document conferring title in such property. Such an agreement is not compulsorily registerable. In an agreement to sell, immovable property can be oral or in writing. If such an agreement is in writing it has to be executed in accordance with the requirements contained in Article 17(2)(a) of the 1984 Order which provides that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly. It is well settled that an agreement to sell immovable property, if reduced into writing, has mandatorily to be attested in terms of Article 17(2)(a) of the said Order. Article 79 of the said Order provides that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence. It is also well settled that in order to prove the execution of an agreement to sell immovable property, the two attesting witnesses of such an agreement must be called for the purpose of proving its execution. In this regard reference may be made to the following case law:- (i) In the case of Farzand Ali Vs. Khuda Bakhsh (PLD 2015 SC 187), the appellants had produced only one of the attesting witnesses of the agreement to sell in question. No explanation had been advanced by the appellants for the vital omission to produce the second attesting witness of the agreement in order to prove its execution. It was held that such an omission was fatal to the appellant' s case. Furthermore, it was held as follows:- "[I]t is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the [Qanoon-e-Shahadat Order, 1984]." (ii) In the case of Farid Bakhsh Vs. Jind Wadda (2015 SCMR 1044 ), the Hon'ble Supreme Court interpreted Article 79 of the Qanoon-e-Shahadat Order , 1984, in the following terms:- "This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner . The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such." (iii) In the case of Hafiz Tassaduq Hussain Vs. Muhammad Din (PLD 2011 SC 241), it was held inter-alia that an agreement to sell immovable property was required by Article 17(2)(a) of the Qanoon-e-Shahadat Order, 1984, to be attested by two men, or one man and two women. Furthermore, it was held that where such an agreement is not proved in accordance with Article 79 of the said Order, the same cannot be read in evidence. In this regard, paragraph 8 of the said report, is reproduced herein below:- "8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complet e prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory
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provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order , 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner , it has to be done in that way and not otherwise." (iv) In the case of Rafaqat Ali Vs. Mst. Jamshed Bibi (2007 SCMR 1076), it was held as follows:- "According to Articles 17 and 79 of Qanun-e -Shahadat Order , 1984, petitioners had to produce two attesting witnesses of the agreement in question. As mentioned above, petitioners had produced only one witness to prove the agreement to sell, therefore, all the Courts below were justified to non-suit the petitioners as law laid down by this Court in various pronouncements. See Suleman Ali's case 2000 YLR 1983 , Maqsood Ahmad's case PLD 2003 SC 31 , Qazi Muhammad Saqib Khan's case 2003 MLD 131 ." (v) In the case of Mst. Rasheeda Begum Vs. Muhammad Yousaf ( 2002 SCMR 1089 ), it has been held as follows:- "11. An agreement to sell immovable property is a contract enforceable I by law. Section 54 of the Transfer of Property Act expressly provides that a contract of sale does not, of itself, create any interest in or charge on the immovable property which constitutes its subject-matter . As a matter of fact an agreement to sell only creates a right to obtain another document conferring title in respect of the immovable property mentioned therein and for that very reason it does not require registration. There is also no legal provision to the effect that an agreement to sell should only be in writing. Be that as it may, while determining the question whether an agreement to sell is required by law to be attested by witnesses a line of demarcation must be drawn between the agreements of sell executed before and after promulgation of Qanun-e-Shahadat Order , 1984. Unquestionably , an agreement to sell involves future obligations, therefore, if reduced to writing and executed after coming into force of Qanun-e- Shahdat Order , 1984, it is required by sub-Article (2)(a) of Article 17 thereof to be attested by two male or one male and two female witnesses, as the case may be. "(Emphasis added) (vi) In the case of Muhammad Arif Vs. Mahmood Ali (2003 MLD 954), only one of the two marginal witnesses of an agreement to sell gave evidence to prove its execution. Since no explanation had been given for not producing the second marginal witness, it was held by the Hon'ble Lahore High Court that since the execution of the agreement to sell had not been proved in accordance with the provisions of Article 79 of the Qanoon-e- Shahadat Order, 1984, it could not be relied upon as evidence. The Hon'ble Judge who authored that said judgment rose to grace the Hon'ble Supreme Court. Therefore, the said judgment deserves reverence and respect. 18. It is an admitted position that the two attesting witnesses of the agreement to sell dated 14.03.1988, namely, Muhammad Ashraf son of Mansaf Khan, and Maqsood Anjum Qureshi son of Muhammad Yaqoob Qureshi, had not been produced by the appellant in order to prove the execution of the said agreement. Learned counsel for the appellant could not come up with any explanation for this monumental blunder on the appellant's part. Learned counsel for the appellant did not even know whether the two attesting witnesses of the said agreement were dead or alive. Since no explanation had been given for not producing the attesting witnesses of the said agreement, the presumption would be that if such witnesses were produced, their testimony would have been adverse to the appellant. Therefore, it can safely be concluded that the appellant
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had not discharged his burden of proving the execution of the agreement to sell dated 14.03.1988 in accordance with the law. The appellant cannot seek the specific performance of an agreement, the execution whereof he has not been able to prove. 19. On account of being in possession of the suit plot, the appellant has sought protection of Section 53-A of the 1882 Act. For ease of reference, the said section is reproduced herein below:- "53A. Part performance. Where any person contracts to transfer for consideratio n 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 reasonable 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 is willing 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 therefore 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 a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." (Emphasis added) 20. Section 53-A was inserted in the 1882 Act through the Transfer of Property (Amendment) Act, 1929, and is said to have imported a modified form of the equity of part performance. It is well settled that a party can take shelter behind Section 53-A of the 1882 Act only when the following…
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