2018 C L C 511
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
ZARGHOON SHAH and others ----Petitioners
Versus
DILAWAR KHAN and others ----Respondents
C. Ps. Nos. 298 and 299 of 2010, decided on 20th November, 2017.
Civil Procedure Code (V of 1908) ---
----S. 12(2) & O.XIV ---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of
1908), Ss. 17(d) & 49--- Contract Act (IX of 1872), S.28---Petitioner was aggrieved of order
passed by two courts below whereby judgment and decre e passed in his favour was set aside by
Trial Court in exercise of powers under S.12(2), C.P.C. and order was maintained by Lower
Appellate Court ---Validity ---Lease agreement in question was not registered and such agreement
for purpose of tenure was to be binding upon initially for a period of 11 months whereafter
relationship between parties was to be regulated in terms of the Transfer of Property Act, 1882---Trial Court as well as Lower Appellate Court failed to consider the case in view of S.107 of Tran sfer of Property Act, 1882 read with Ss.17(d) & 49 of Registration Act, 1908 as well as S.28
of Contract Act, 1872--- Trial Court without framing issues and providing opportunity to parties
with regard to legal and factual aspects related to lease in questi on decided application under
S.12(2), C.P.C. filed by respondents ---High Court set aside the orders passed under S.12(2),
C.P.C. as same required determination by Trial Court accordingly ---High Court remanded the
matter to Trial Court for decision afresh ---Constitutional petition was allowed in circumstances.
Muhammad Aamir Rana for Petitioner.
Syed Akhtar Shah for Private Respondents.
Naseer Ahmed Bangulzai, Additional A.G. for Official Respondents.
Date of hearing: 30th October, 2017.
JUDGMENT
MUHAM MAD EJAZ SWATI, J. --- Since both the petitions arising out of common
orders and besides common question of facts and law are involved in both the petitions, therefore, are being disposed of through this common judgment.
2. The petitioner No.3 Muhammad Azam (in C.P. No. 298 of 2010) was owner of the
property bearing Khasra Nos.470 to 481, 12 Qittas, Khatooni No.174 situated in Ward No.46,
Tappa Urban Tehsil Quetta total measuring 23551 sq.ft. (old Khasra No.9814/6030, Khewat No.26, Khatooni No.41- 40, War No.16, Tappa Urban Tehsil, Quetta, who leased out the suit
property to predecessor -in-interest of private respondents vide Ajara Nama dated 31st August,
1960, which was for a period of 20 years. It was alleged by the private respondents that another
lease agr eement dated 6th February, 1995 was arrived at between the petitioner No.3
Muhammad Azam and predecessor of the respondents and after novation of previous agreement,
the parties executed the lease agreement dated 6th February 1995. The relevant whereof is reproduced herein below:
"iv. That at the time of selling the property by the 1st party, he shall sell the same at the rate of the year 1960, because there was a deep pit on the property, which has been filled up by the members of the 2nd party after much laboring.
v. That the 1st party shall be bound not to sell the property to any other person or party except the 2nd party.
vi. That if the 2nd party does not intend to purchase the property then the cost of structures and buildings shall have to be paid by the 1st party to the 2nd party."
3. The aforesaid agreement was not registered, however, in Clause (8) of the aforesaid
agreement, it is mentioned that this lease is for 99 years from the date hereof. The petitioner No.3 had sold out the suit property to one Allah Dad Khan, against which, the private respondents filed Suit No.33 of 2000 against the petitioner No.3, which was decreed on 13th September, 2003. The relevant whereof is reproduced hereinbelow:
"The defendant No.3 is hereby directed to reverse the entries from the name of defendant No.2 to defendant No.1 and defendant No.1 is hereby directed to comply with the provisions of agreement dated 6- 2-95 and shall not sold (sic) out the property to some
other person before concerning with the plaintiffs."
It was averred in the instant petitions that in suit No.33 of 2000. the private respondents
had filed a forged and fabricated lease dated 6th February 1995, therefore, it was not registered, as the petitioner No.3 never consented the same. It was further averred in the instant petitions that since the petitioner No.3 had fallen ill, so he could not challenge the judgment/decree dated 13th September 2003. It is the case of the petitioners that Clause (2) of the agreement provides that "whenever, the 1st party becomes in need of the leased property, party No.2 i.e. respondents N os.1 to 14 shall be bound to receive price of
construction of the house and shops according to the existing market rates".
4. In view of the above Clause of the agreement, the petitioner No.3 filed a suit for
possession through specific performance against the private respondents and during pendency of
the suit, the petitioner No.3 gifted the suit property to the petitioner No.2 Abdul Manan Khan vide gift deed dated 16th August 2007 and also attorned the private respondents in this regard. On this, the suit was withdrawn vide order dated 23rd August 2008 passed by the Senior Civil
Judge -I, Quetta.
5. The petitioner No.2 Abdul Manan Khan filed a suit bearing No.77 of 2008 against the
petitioner No.3 and respondent No.5 Tehsildar, Quetta, which was decreed vide order/decree
dated 30th April, 2008 passed by the Senior Civil Judge -I, Quetta. The relevant whereof is
reproduced herein below:
"The suit is decreed in favour of plaintiff declaring that the plaintiff is exclusive owner of the property measuring 23551 S q.ft, under old Khasra Numbers 9814/6013, Khewat
No.26, Khatooni No.41/40, which had been awarded new Khasra Nos.402481, Khewat No.295, Khatooni No.174, situated in Ward No.46, and in Jama bandi of new Khasra Numbers the total area of the property is 23274 Sq.ft. and by way of passing injunction
the defendant No.2 is directed to mutate the property in the name of the plaintiff in Revenue record without any delay."
6. The petitioner No.1 Zarghoon Shah has also filed a suit against the petitioner No.2 Abdul
Manan Khan and Tehsildar City, Quetta with the averments that the property in dispute was
gifted by the petitioner No.2 in his favour vide gift deed dated 11th October 2008.
7. The Senior Civil Judge -I, Quetta vide judgment/decree dated 26th December 2008
decreed the suit in favour of the petitioner No.1. The private respondents filed an application
under section 12(2), C.P.C. for setting aside of the judgment/decree dated 26th December 2008, which was contested by the petitioners on the ground that there wa s no restriction in the so- called
agreement with regard to gift.
8. The Senior Civil Judge -I, Quetta (hereinafter the "trial Court") without framing issues
and providing opportunity of producing evidence allowed the application vide order dated 14th
Septem ber, 2009 (hereinafter the "impugned order") and instead of reviving the suit set aside the
decree dated 26th December 2008 and cancelled the mutation No. 609. The petitioners assailed the order dated 14th September 2009 by way of filing Civil Revision Pet ition before the District
Judge, Quetta (hereinafter the "appellate Court"). The appellate Court after notice and hearing the parties, vide order dated 15th March, 2010 (hereinafter the "impugned order") also dismissed the Civil Revision Petition. Both the impugned orders passed by the Courts below have been
assailed in the instant Constitutional Petitions.
9. Learned counsel for the petitioners contended that the private respondents alleged that the
property in dispute was leased out to them vide lease agr eement dated 6th February 1995, which
instrument was neither registered nor could be construed a lease for more than one year; that the stipulation in lease in question with regard to owner of the property is violation of statutory provisions and was void and not enforceable, as the same makes absolute restriction for enforcing the right of the petitioners; that the petitioner No.3 under the law was entitled not only to sell his property but his such right has also been guaranteed under the Constitution of Islamic
Republic of Pakistan, 1973; that in these circumstances, the decree dated 13th September 2003 passed by the trial Court was also in violation of law and the Constitution, which also cannot be sustained; that in rejoinder to application under section 12(2), C.P.C. several legal as well as factual questions were raised with regard to lease in question, but the trial Court without framing issues and providing opportunity of evidence set aside the decree dated 26th December, 2008; that while passing the impugned order dated 14th September, 2009, the trial Court while setting
aside the decree has not revived the suit, but without providing opportunity to the petitioners also
cancelled the mutation entries in favour of the petitioners, which aspect of the matter is contrary
to law and natural justice; that the appellate Court has also failed to consider the above legal aspects of the matter and thus non- suited the petitioners and deprived them from their valuable
rights in the property in dispute.
Learned counsel for the private respondents contended that the suit property was initially
given on Ajara vide agreement dated 31st August, 1960, which was duly registered and as per
aforesaid Ajara, the property in question was given to the predecessor in interes t of the private
respondents for a period of 20 years; that another agreement dated 6th February, 1995, the petitioner No.3 extended the lease period for 99 years; that the stipulation of subsequent lease agreement and the judgment/decree dated 13th Septem ber 2003, the petitioner No.3 had no right
to sell his property to any person in any manner without consent of the private respondents, as he had also received rent for 99 years from the private respondents: that the subsequent gift by the petitioner No.3 to the petitioner No.2 and thereafter the transfer of the property through gift by the petitioner No.2 in favour of the petitioner No.1 was also against the subsequent lease agreement and decree dated 13th September 2003 passed by the competent Court of la w; that the
decree dated 13th September 2003 was neither challenged by the petitioner No.3 nor the same has been modified, therefore, the petitioners are bound by the decree of the Court; that the
petitioners obtained the decree dated 26th December 2008, c oncealing the facts related to
subsequent lease as well as the decree dated 13th September 2003, therefore, while considering
the above aspects of the matter, the trial Court rightly set aside the decree and cancelled the mutations; that as per decree of t he Court dated 13th September 2003 and subsequent lease
agreement and transfer of the property in dispute to any person is not permissible, therefore, the question of revival of the suit does not arise.
The learned Additional Advocate General contended th at since the matter related to settle
property in between the private parties and no government interest is involved, therefore, the matters are to be decided in accordance with law.
10. In the instant case, the private respondents by way of filing applica tion under section
12(2), C.P.C. had sought setting aside of the judgment/decree dated 26th December 2008 passed by the Senior Civil Judge -I, Quetta on the ground that as per unregistered lease agreement dated
6th February, 1995, was executed between the parties, which is in the nature of perpetuity, wherein an important condition was to the effect that the petitioner No.3 (lesser/owner) will not sell out the property in question to a third party, however, if the lesser desires to sell out the property, the n the lessees will be entitled to purchase the property in question at the rate of 1960,
however, the lesser will be entitled to sell out the property in question after payment of cost of structure and building to the lessees. The lesser has sold out the property in question to one Allah Dad Khan on 11th May, 1998 regarding which a suit was filed by the private respondents for specific performance against the petitioner No.3, which was decreed vide judgment/decree dated 13th September, 2003, whereby the mut ation No. 295 was ordered to be cancelled and the
petitioner No.3 was directed to comply with the terms and conditions of lease agreement dated 6th February, 1995.
11. Considering the above said grounds, the trial Court accepted the application under secti on
12(2), C.P.C. filed by the private respondents and the appellate Court also dismissed the revision
petition filed by the petitioners. It appears that the private respondents had based their claim on
lease in question and asserted that it was a lease in perpetuity. In order to explore that present lease is a lease in perpetuity i.e. for 99 years, in this respect, we have examined the provisions of the Transfer of Property Act (TPA), 1882. The lease has been defined in section 105 of the TPA, which reads as under: --
"Lease defined. --- A lease of immovable property is a transfer of a right to enjoy such
property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing or
value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
With respect to how lease is made. Section 107 of TPA prescribes as follows:
Leases how made .---A lease of immovable property from year to year, or for any term
exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument
or, where there are more instruments, than one each such instrument shall be executed by
both the lessor and the lesse e.
Provided that the Provincial Government may, from time to time, by notification in the
official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or an y class of such
leases, may be made by the unregistered instrument or by oral agreement without delivery of possession. "
12. The lease of perpetuity is mentioned in section 105 of TPA. According to Oxford
Dictionary, Perpetuity means, the state or quality of losing forever, therefore, lease in perpetuity
can be transfer of immovable property, which is irreversible or un- returnable, where a lease is
one in perpetuity or otherwise stands simplified by section 17 of the Registration Act, 1908 (the Act, 1908), which provides that certain instruments put compulsorily registerable and subsection
(d) of section 17 of the Act, 1908 provides "a lease of immovable property for year to year, or for any terms exceeding one year, or reserving a yearly rent". The effect of non- registration of such
instrument is provided under section 49 of the Act, 1908 which reads as follows:
"Effect of non -registration of documents required to be registered. No document required
to be registered under this Act or under any earlier law p roviding 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."
It is clear from section 107 of TPA that a lease of any property beyond one year could
only be effected by a registered instrument. It is settled law that where the law requires an act to
be done in a particular manner, it is to be done accordingly and not otherwise, if an act done in violation of law, the same shall have no legal sanctity. Article 23 of the Constitution of Islamic Republic of Pakistan, 1973 provides that "every citizen having right to acquire, hold and dispose of property in any part of Pakistan subject to the Constitution and any reasonable restriction imposed by law in the Public interest."
13. From the above, it appears that if the lease agreement is not registered, the lease
agreement for the purpose of tenure is only to be binding upon, initially for a period of 11
months, whereafter the relationship between the parties would be regulated the terms of the Act.
14. In the instant case, the trial Court as well as the Revisional C ourt had failed to consider
the case in view of section 107 of TPA read with sections 17 (d) and 49 of the Registration Act,
1908 as well as section 28 of the Contract Act and without framing issues and providing opportunity to the parties with regard to l egal and factual aspect related to lease in question
decided the application under section 12(2), C.P.C. filed by the private respondents, therefore, the impugned orders with regard to application under Section 12(2), C.P.C. cannot be sustained, thus, without touching merits of the case, the matter related to application under section 12(2), C.P.C. filed by the private respondents, requires determination by the trial Court accordingly. Whereas, the judgment/decree dated 13th September, 2003 is concerned, si nce the said judgment
was passed by the trial Court without considering the above legal aspects of the matter, therefore, the trial Court is required to decide the fate of the application under section 12(2), C.P.C. filed by the private respondents without being prejudiced to the judgment/decree dated 13th September
2003.
In view of the above, Constitutional Petitions Nos.298 and 299 of 2010 are partly
allowed, the impugned order dated 14th September 2009 passed by the learned Senior Civil
Judge -I, Quetta and order dated 15th March, 2010 passed by the District Judge, Quetta arising
out of Constitutional Petitions Nos. 298 and 299 of 2010 are set aside and the applications under section 12(2), C.P.C. filed by the private respondents are deemed to be pending before the trial Court, who after framing issues and providing opportunity of adducing evidence to the parties
and keeping in view the directions made hereinabove, shall decide the same in accordance with
law possibly within a period of six months.
MH/187/ Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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