MUHAMMAD AZEE Versus ZOHRA KHANUM

The facts of the case are that Dr. Abdul Qayyume, predecessor‑in. interest of the respondents is all4ged to have entered into an agreement for sale of his agricultural land measuring 11 kanals 7 marlas, bearing Khasra numbers 3487, 3488 and 3489 ; K hata No. 271 ride jamabandi 1967‑68, situated in the estate of Baghbanpura, Lanore, on 9‑2‑1970, with the appellants. The total consideration price was fixed as Rs. 1,54,700 out of which sum of Rs. 54,700 is alleged to have been paid to the vendor as earnest money through a receipt alleged to have been executed by him. The recital of the agreement also shows that vacant possession of the land was handed over to tae appellants on the same date. However, the vendor, Dr. Abdul Qayyume, expired before the completion of the contract and his successors‑in‑interest, respondents in this case, denied the execution of the agreement as well as the receipt in question by Dr. Abdul Qayyume. Consequently the appellants filed a suit for possession of the land is question through specific performance of the agreement, as mentioned above.

2. Alongwith the suit the appellants also filed an application for grant of ad interim injunction restraining, the respondents from disturbing their possession over the suit land and from mortgaging, selling, alienating and transferring the same in any manner ; and further from raising any construction thereon till the decision of the case. The learned trial Court has already granted the prayer made by the appellants in their application, except with regard to the restraint to be put on the respondents for disturbing their possession over the land as well raising any construction thereon. It has been observed by the learned trial Court that since the appellants have admitted the possession of the respondents over the suit land, therefore, question of restraining the respondents from interfering with the possession of the appellants does not arise. The appellants have challenged the validity of the finding of the learned trial Court only in respect of the possession over the property in dispute. ,

3. It has been contended by the learned counsel for the respondents that since the suit for possession of the land has been filed by the appellants in the lower Court, therefore, by way of implication they have admitted that they are not in possession of the property. He has drawn the attention of this Court to the nature of the suit as mentioned in the title thereof as well as the prayer made therein. The suit has been described to be for possession of the property in question and decree for possession of the property through specific performance of the contract has been prayed for. It is contended that if the appellants had been in possession of the property then there was no need to make prayer for possession thereof. According to the learned counsel, in that case the only relevant relief to be claimed would have been for registration of the sale deed conferring the proprietary rights upon the appellants.

4. The learned counsel for the respondents has also tried to rely upon the Khasra Girdawari for the period 11‑10‑1968 to 26‑3‑1972 as well as jamabandi for the year 1967‑68 in order to show that the respondents have been in possession of the suit land throughout and as such the plea of the appellants that possession of the land was delivered to them at the time of the execution of the agreement cannot be accepted.

5. 1 am afraid, the first contention raised by the learned counsel for the respondent has no force in the circumstances of the case. The contents) of the plaint show that the appellants have asserted their possession on the basis of the agreement alleged to have been entered into between the parties, but the relief with regard to possession has been claimed on the basis of their that will be derived by them on the performance of the agreement. The present possession of the appellants, if any, is under the agreement a: referred to above and that vrill be only for the period prior to the transfer of the title in the property while on the transfer thereof the appellants would b entitled to possession not under the agreement but on the basis of the' title. The possession, if any delivered to the appellants, would enure for the period of agreement and not beyond that. They are, therefore, obliged to seek relief by way of possession through specific performance in the present case on account of the transfer of title in the property in their favour. In this view of the matter it cannot be said that since the appellants have sued for possession, therefore, by implication they were not delivered the possession of the property. On the contrary, the appellants are obliged to seek the relief of possession through specific performance on the basis of title in the property by sale of the same. It has been held to be so in Muhammad Sharif v. Lahore Improvement Trust ( P L D 1971 9 C 460 ). In that case the appellant before the Supreme Court purchased a piece of land from the respondent, Lahore Improvement Trust by entering into an agreement for the sale of the same. He paid the earnest money and the balance purchase price was payable in four equal instalments. Possession of the land was delivered to him and he paid three instalments thereafter. Before the last instalment was paid, his allotment was cancelled. Consequently he filed a suit for specific performance of the contract of sale coupled with a prayer for possession. The suit was, however, dismissed by the learned trial Court not to have been filed within time. It is pertinent to note that the appellant before the Supreme Court had asserted in his plaint that on the basis of the contract he was delivered the possession, but at the same time he had also made a prayer for possession through specific performance. The learned lower appellate Court accepted the appeal of the appellant and set aside the judgment and decree of the learned trial Court. This judgment was however upset by a learned Single Judge of the High Court. His appeal before the Supreme Court succeeded, as indicated by the report referred to above. It was found by the Supreme Court that the appellant was within his right to pray for possession of the land through specific performance in spite of the fact that B he had been delivered possession by the Improvement Trust on account of the contract entered into between the parties. The relevant part of the judgment of the Supreme Court is reproduced below

"There is yet another aspect of this matter. The plaintiff's possession as asserted in the plaint was attributed to the contract of sale, but the relief as regards possession was claimed in the plaint not under the contract of sale but on the basis of title that would be derived by him on the performance of that contract. It is pertinent to note that the plaintiff's alleged possession under the contract could only be for the period prior to the conveyance and that on the completion of the conveyance he would be entitled to possession not under the contract but on the basis of his title."

6. The above discussion would show that the contention of the learned counsel for the respondents that since the appellants had prayed for possession of the property in their suit, therefore, they cannot be deemed to be in possession thereof has no substance.

7. The record of the case shows that the learned trial Court has relied upon the statement of the learned counsel for the appellants made on 30‑7‑1970, for holding that possession of the respondents was admitted by the appellants. ' The statement is to the effect that if the respondents agreed, without prejudice to the case of the appellants, that they would not sell the property till the next date of hearing and whatever portion of the four‑wall they would complete they would demolish the same on the confirmation of the stay order then the appellants would have no objection for the adjournment of the arguments in the case. It has been contended that the learned trial Court has rightly concluded in view of the statement as referred to above that the respondents were in possession of the property. I am afraid, this view does not find support from the language of the statement. The statement of the learned counsel for the appellants shows that the case was likely to be adjourned to some date anti its adjournment was being opposed by the learned counsel. He,! however, later on agreed on the condition, without prejudice to the merits of his case, that the respondents would not sell the property in question and also would demolish that part of the four‑wall, which they would complete meanwhile, on the confirmation of the stay. It means that the factum of the possession of the respondents over the suit property was not admitted by the appellants. It is not denied that both the parties have filed affidavits in regard to the execution of the agreement as well as factum of possession. The learned trial Court has. however, not adverted to them for the purpose of concluding as to which of the parties is actually in possession. It has merely relied upon the statement of the learned counsel, as referred to above which otherwise does not support the conclusion arrived at by the learned trial Court. Its finding in this regard, therefore, cannot be sustained and the same is hereby set aside.

It may, however, be observed that according to law a mere recital in any document is not conclusive evidence of the delivery of possession as held in Ghulam Hassan and others v. Sarfraz Khan and others ( P L D 1956 S C (Pak.) 309 ) and Shamshad All Shah and others v. Syed Hassan Shah and others (P L D 1964 S C 143). In the latter case, Mo. Hussan Bano, the donor. had declared in the instrument of gift that she had delivered the possession of the gifted property to the beneficiaries. This tact was, however, challenged by the other party and by producing evidence it was proved to be so and found to be correct by the Supreme Court. It was, therefore, held that a mere recital in any document with regard to delivery of possession cannot be deemed to be a conclusive proof in respect thereof. Similarly in the present case mere recital in the agreement to the effect that the possession was delivered to the appellants at the time of the agreement cannot be deemed to be conclusive proof in regard to the delivery of possession.

8. The question as to which of the parties was in possession of the property at the time when the suit was filed requires inquiry and probe which cannot be made in the present proceedings. The prayer with regard to preservation of the alleged possession of the appellants over the suit property, as made in the application for grant of gad‑interim injunction also cannot be decided without adverting to the merits and demerits of the evidence produced by the parties with regard to the factum of possession.

9. The appeal is. therefore, accepted and the cage is remanded to the learned District Judge, Lahore to be entrusted to the competent Court for, fresh decision of the point involved in accordance with law and in the light of the observations made above, after hearing the parties. There will be no order as to costs. Status quo in regard to the land in question will be maintained till the decision of the point involved by the trial Court.

S. A. H.

Appeal accepted.