2023 C L C 374
[Balochistan]
Before Muhammad Ejaz Swati, J
ALMAS MANDOKHAIL ----Petitioner
Versus
AINUDDIN and others ----Respondents
Civil Revision No.63 of 2016, decided on 12th March, 2021.
(a) Registration Act (XVI of 1908) ---
----Ss.17 & 49---Transfer of Property Act (IV of 1882), S.54--- Specific Relief Act (I of
1877), Ss.42, 39 & 54---Suit for declaration ---Contract for sale--- Documents of which
registration is compulsory ---Effect of non -registration of documents ---Scope ---Plaintiff filed
a suit for declaration, cancellation and permanent injunction on the basis of an agreement ---
Trial Court decreed the suit whereas Appellate Court dismissed the suit ---Validity ---
Unregistered agreements allegedly executed by one of the defendants in favour of another
defendant and that defendant in favour of the father of plaintiff did not per se create any interest in the property much less any title to it ---Agreement did not create right of
ownership in the suit land rather it only created right to seek specific performance of the
terms and conditions of the agreement ---Sections 17 & 49 of the Registration Act, 1908,
required that any document purporting to create any right, title or interest in a property of the value more than one hundred rupees required compulsory registration--- Transfer of
immovable property by way of sale could only be through a deed of conveyance (duly stamped and registered as required by law) ---Contract of sale which was not registered deed
of conveyance (deed of sale) fell short of the requirement of Ss.54 & 55 of Transfer of Property Act, 1882 and did not confer any title, nor transfer any interest in the immovable property--- Claim of plaintiff was based on an unregistered sale deed, which did not confer
any title in the suit property--- Suit for declaration of title on the basis of purported
agreements filed by the plaintiff was not maintainable ---Judgment and decree passed by
Appellate Court warranted no interference--- Revision petition was dismissed.
(b) Transfer of Property Act (IV of 1882) ---
----Ss.54, 5 & 53- A---"Sale" defined ---Sale how made---Contract for sale ---"Transfer of
property" ---Part performance--- Scope ---Section 54 of the Transfer of Property Act, 1882,
provides that a contract for sale of immovable property is a contract that a sale of such property shall take place ---Word "convey" in S. 5 of the Transfer of Property Act, 1882 is
used in the wider sense of ownership---Ownership passes from one person to another only after execution of conveyance--- Protection provided under S. 53- A of the Transfer of
Property Act, 1882 to proposed transfer is a shield only against the transferor in respect of
cases falling under S.53 -A of the Transfer of Property Act, 1882---Said section has nothing
to do with ownership of the proposed transferor who remains full owner of the property till it
is legally conveyed by executing a registered sale deed in favour of the transferee.
(c) Transfer of Property Act (IV of 1882) ---
----S.54 ---Contract for sale--- Sale how made--- Scope ---Transfer of immovable property by
way of sale can only be through a deed of conveyance (duly stamped and registered as required by law) ---Contract of sale which is not registered deed of conveyance (deed of sale)
would fall short of the requirement of Ss. 54 & 55 of Transfer of Property Act, 1882 and will not confer any title nor transfer any interest in immovable property---Contract of sale, whether with possession or without possession, is not a conveyance as S. 54 of the Transfer of Property Act, 1882, provides that sale of immovable property can be made only by registered instrument.
Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 and Muhammad Iqbal
and others v. Mst. Baseerat and others 2017 SCMR 367 ref.
(d) Specific Relief Act (I of 1877) ---
----S.42 ---Suit for declaration ---Scope ---Section 42 of the Specific Relief Act, 1877,
provides that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right of property.
Obaidullah Quresh for Petitioner.
Abdul Rasheed Awan for Respondent No.8.
Muhammad Ayub Khan, Assistant Advocate General for Official Respondent.
Date of hearing: 4th March, 2021.
JUDGMENT
MUHAMMAD EIAZ SWATI, J. ----The defendants Nos.1 to 6 now respondents
Nos.2 to 7 are brothers and sisters, sons and daughter of (late) Muhammad Azam Khan. After the demise of Muhammad Azam Khan a house bearing Khasra No.315 measuring 1108 sq. ft. Khatooni No.47/61, 60 situated at Mohal and Mouza Ward No.36 Tappa Urban- III, Tehsil
City District Quetta (bearing municipal No.6 -5/10 Abdullah Jan Lane Quaid- Abad Quetta)
(the house in question) was transferred in favour of legal heirs of late Muhammad Azam i.e. respondents Nos.2 to 7, vide Intiqal -e-Virasat dated 26- 03-1994 (Ex.P/1) and the respondents
Nos.2 to 7 became owner/co- sharers of the house in question according to their respective
shares. Respondent No.2 (Mouzam Iqbal) vide registered relinquish deed dated 27- 03-1994
Ex.P/3- Ex.P/4 relinquished his share in favour of his brothers and sisters and in his respect
mutation of gift dated 5 -5-1994 Ex.P 2 was carried out in the revenue record. The remaining
co-sharers through their general lawful attorney sold the house in question to respondent
No.1/defendant (Ainuddin) vide mutation dated 16- 07-2017 Ex.D/1.
2. The petitioner filed a suit for declaration cancellation of the mutation, transfer of
mutation and permanent injunction against the respondents (defendants), that the respondent
No.2 (Mouzam Iqbal) vide sale agreement deed dated 11- 05-1994 Ex.P 10 sold out the house
in question to respondent No.8/defendant (Tariq Mehmood) and respondent No.8 further sold the house in question to the father of the petitioner/plaintiff namely Haji Mousa vide sale agreement dated 27 -03-1995 in consideration of Rs.480000/ - out of which the father of the
plaintiff, paid Rs.200000 (two lac) to the respondent No.8 through cheque, while the remaining amount of Rs.150000/ - agreed to be paid on 01- 04-1995 and possession of the
house in question was handed over to the father of the plaintiff, who subsequently paid the remaining amount to the respondent No.8. It was further alleged that father of the plaintiff in the year 1997 through an affidavit given the house in question to the plaintiff.
3. The respondents Nos.2 to 7 were proceeded against ex -parte. The respondent No.8,
while filing written statement submitted that no cause of action or relief has been disclosed against him, however, he conceded the contents of the plaint. The respondent No.1 i.e. defendant No.8 contested the suit by way of filing written statement. After framing issues and recording evidence the learned Judicial Magistrate -IX/Civil Judge, Quetta (the trial
Court) vide judgment/decree dated 10- 04-2015 decreed the suit in favour of the
petitioner/plaintiff. On appeal filed by the respondent No.1 the learned Additional District Judge -VII, Quetta (the appellate Court) vide impugned judgment/decree dated 04- 02-2016,
while allowing the appeal set -aside the judgment/decree passed by the trial Court and
dismissed the suit.
4. Learned counsel for the petitioner contended that house in question was purchased
through sale deed in the year 1995 and vacant possession of the house in question was handed over to the father of the petitioner and petitioner is enjoying the possession being owner; that there was no denial or rebuttal of the sale agreement Ex.P/10 between Mouzam Iqbal and Tariq Mehmood and the conceding written statement filed by Tariq Mehmood further supports the claim of the petitioner; that the relinquished deed was executed by the respondent Mouzam Iqbal to frustrate the sale agreement and to escape from his liabilities; that despite of the protection under Section 53- A of the Transfer of property Act (TP Act),
the right of the petitioner had not been protected by the appellate Court; that findings of the impugned judgments/decree reflect misreading and non- reading of the evidence.
5. Learned counsel for the respondent No.8 contended that respondent No.8 had filed
conceded written statement and supported the claim of the petitioner.
6. Having heard the learned counsel for the parties and perused the evidence on record,
as there are conflicting judgments of the Court, therefore, evidence on record required scrutiny. The plaintiff/petitioner has filed a suit for declaration,) cancellation and permanent injunction on the basis of agreement Ex.P/6 and Ex.P/10. Section 42 of the Specific Relief Act provide that any person entitled to any legal character or to any right as toll any property, may institute a suit against any person denying or interested to deny his title to such
character or right to property. Unregistered agreements Ex.P/6 and Ex.P/10 allegedly
executed by the respondents No.2 in favour of the respondent No.8 and respondent No.8 in favour of father of the petitioner do not per se create any interest in the property much less any title to it as such, above agreement does not create right of ownership in the suit land in favour of the petitioner and it only create right to seek specific performance of the term and
condition of the agreements.
7. Be that as it may, section 17 and Section 49 of Registration Act required that any
document purporting to create any right, title interest of the value more than Rs.100/ -
requires compulsory Registration. Section 54 of the Transfer of the property Act (TP Act)
provide that a contract for sale of immovable property is a contract that a sale of such property shall take place with reference to the word "convey" the word convey in section 5 of the TP Act is used in the wider sense of ownership that only execution of conveyance ownership passes from one person to another. Protection provided under Section 53- A of TP
Act to propose transfer is a shield only against the transferor in respect of cases falling under Section 53 -A of the TP Act. It has nothing to do with the ownership of the proposed
transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee.
8. It is thus clear that a transfer of immovable property by way of sale can only be by a
deed of conveyance (duly stamped and registered as required by law). A contract of sale which is not registered deed of conveyance (deed of sale) would fall short of the requirement of Section 54 and 55 of TP Act and will not confer any title, nor transfer any interest in immovable property. According to the TP Act an agreement of sale, whether with possession or without possession is not a conveyance as section 54 of the TP Act provided that sale of
immovable property can be made only by registered instrument. Reference in this respect is to be made to case titled Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 and Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 367.
9. In the instant case the claim of petitioner is based on an unregistered sale deed, which
will not confer any title, nor transfer any interest in the house in question.
10. Besides, Section 7 of TP Act provide as under: -
"Persons competent to transfer. ----Every person competent to contract and entitled to
transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, an either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force."
According to the above provision of law, the compliance of transfer is subject to two
conditions that either the person making it should have/has clear title or is authorized by the person so competent.
11. In the instant case as per Ex.P/1 i.e. Intiqal -e-Virasat, shares of house in question
devolved upon the legal heirs of late Muhammad Azam including respondent No.2 Mouzam Iqbal on 26- 03-1994, who vide registered relinquish deed Ex.P/3, Ex.P/4 dated 27- 03-1994
relinquished his right in the property left by his father including house in question in favour
of his brothers and sisters and in this regard mutation of gift dated 02- 06-1994 was carried
out in the revenue record, admittedly on 11- 05-1994, when the plaintiff alleged execution of
the agreement Ex.P/10 by the respondent No.2 (the vendor) with respondent No.8 (the vendee), the vendor was neither co- sharer in the house in question, nor was duly authorized
by the principles i.e. respondents Nos.3 to 6 to contract, as the vendor was not vested with
any rights in the property. It is well established that a person can transfer only that which he
himself possesses. The vendor having no vested right in the house in question, on 11- 05-
1994, which was already relinquished on 27- 03-1994, has nothing to convey to the vendee.
In the circumstances, suit for declaration of title on the basis of purported agreements
Ex.P/6 and Ex.P/10 filed by the petitioner, was not maintainable, thus the impugned judgment/decree passed by the appellate Court warrant no interference by this Court in exercise of its revisional jurisdiction under section 115, C.P.C.
In view of the above, Civil Revision Petition No.63 of 2016 is dismissed. Parties are
left to bear their own cost.
SA/31/Bal. Revision Petition dismissed.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,
let us know.