MUHAMMAD BAKHSH through. Representatives and 5 others vs MUHAMMAD

' The judgment and decree dated 2-12-1990 of the learned Additional District Judge, Jhang, has been assailed in this revision petition, whereby the judgment and decree dated 4-4-1990 of the learned trial Court decreeing the suit of the petitioner for specific performance was set aside and the suit was dismissed. The facts of the case are noted hereunder.

2. Nawazish Ali Khan, deceased, represented by his legal heirs, i.e. Respondents Nos.2 to 6, owned land measuring 11 Marlas. On 4-3-1978, through an unregistered document, he sold the aforesaid land in favour of Muhammad Bakhsh, the petitioner, for a consideration of Rs.7,600, (Exh.P-3), with the recital that possession of the said land was delivered to the petitioner and whenever the petitioner desired a registered document shall be executed. It may be noted here that in Exh.P-3, the aforesaid 11 Marlas of land has only been described by boundaries without any Khasra number.

Vide sale-deed registered on 9-4-1986, Mst. Haseena Mai, alienated an area measuring 2 Marlas in favour of Muhammad Jameel, respondent No.1 and vide registered sale-deed dated 22-2-1989 said Muhammad Jameel sold 1-1/4 Marla in favour of respondents Nos.7 to 9.

3. The petitioner filed a suit for specific performance which was contested by respondents Nos.1, and 7 to 9. They averred that respondents Nos.2 to 6 jointly owned the property in dispute in which Mst. Haseena Mai, as daughter of Nawazish. Ali Khan, owned 7/40 share and out of the land in her "Hissedari" possession, she sold two Marlas in favour of respondent No.1 from whom respondents Nos.7 to 9 had purchased the said land. The case of respondent No.1 was that possession of the land sold by Mst. Haseena Mai in his favour was delivered to him on which he constructed three shops. However, the plaintiff forcibly occupied the said shops on which he not only got a criminal case registered but also filed a suit for restoration of possession.

4. Necessary issues were framed and the suit was tried. The learned trial Court found in favour of execution of the agreement. Accordingly, vide judgment dated 4-4-1990, the suit filed by the petitioner was decreed. It .Was held that respondents Nos.7 to 9 were not bona fide purchasers for value.

5. Against the judgment and decree aforesaid Muhammad Jameel, respondent No.1, filed an appeal while respondents Nos.7 to 9, vendees from, him filed cross-objections. The appeal of Muhammad Jameel was allowed, the suit of the petitioner was held to be incompetent on the sole ground that transaction in his favour was a completed sale. The agreement, Exh.P-3, was directed to be impounded and a .Penalty of Rs.1,520, imposed. I was informed by the learned counsel that the penalty was paid as directed. The cross-objections of respondents Nos.7 to 9 were, however, dismissed as incompetent.

6. The learned counsel for the petitioner contended that in accordance with a covenant in Exh.P-3, a registered document had yet to be executed and, therefore, the suit of the petitioner could not be dismissed. The learned counsel for the respondents, however, maintains that irrespective of the maintainability of the suit, .Exh.P-3 was not duly proved as none of the marginal witnesses was examined, it was vague inasmuch as that there was no description of the property by Khasra number and it was not established that Mst. Haseena Mai had sold- land in favour of respondent No.1 out of the 11 Marlas statedly purchased by the petitioner. Therefore, irrespective of the reasoning of the leaned first Appellate Court, the conclusion of the learned Additional District Judge is unexceptionable.

7. The submissions of the learned counsel for the parties have been considered. Section 50 of the.

Registration Act provides that against any unregistered document a registered document shall have precedence with regard to the same property. However, the first proviso to the said section provides to the holder of an unregistered document protection of section 53-A of the Transfer of Property Act, while the second proviso expressly provides to such a person a remedy to file a suit for specific performance against a person claiming under a subsequent registered document. It will be appropriate to re-produce the aforesaid proviso to section 50:- "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, 1877 (I of 1877)."

The learned first Appellate Court completely omitted from consideration the said provision and, therefore, the suit of the petitioner could not have been dismissed on the ground that it was incompetent.

7. The, other questions arising in the case were not considered and determined by the learned first Appellate Court. The first and the foremost being whether Exh.P-3 was duly proved, whether the land transferred by respondent No. 6 in favour of respondent No. 1 was part of the 11 Marlas sold by Nawazish Ali Khan in favour of the petitioner and whether defendants Nos.7 to 9 were bona fide purchasers for value.

8. Since the learned first Appellate. Court has not recorded its views on the above questions, I thought it appropriate to remit the case to the learned first Appellate Court rather than to decide these questions myself.

9. Accordingly, this revision petition is allowed. The impugned judgment and decree dated 2-12- 1990 of the learned trial Court are set aside with the result that the appeal of respondent No.1 shall be deemed to be pending before the learned first Appellate Court to be decided afresh in accordance with law. No order as to cost.