Mst. MUKAMAL JAN Versus ALI ASGHAR
AZHAR SALEEM BABAR, J.--- The above titled second appeal has been filed against the decree and judgment of learned District Judge Neelum dated 29.09.2014.
2. Stated facts are that Khan Muhammad predecessor-in-interest of real respondents herein filed a suit against Abdul Rasheed and others appellants herein for declaration-cum- perpetual injunction in the Court of Senior Civil Judge Authmuqam on 27.09.2004. It was averred that the suit-land comprising Khasra No. 47 old 118 new measuring 2 kanals situated in village Palri Tehsil Authmuqam was purchased by the plaintiff through oral sale in 1959 for consideration of Rs.500/- and possession of the land was also handed over to them. Thereafter, the plaintiff is owner in possession of the suit-land. It was contended that in 2004 defendant No.1 claimed the suit-land without any legal justification whereupon a Jirga was convened wherein the defendant agreed that if the plaintiff paid Rs.20,000/- more he will execute sale-deed in his favour and the plaintiff accepted the condition and got executed agreement-to-sell dated 07.06.2004. It was further alleged that the plaintiff is owner of the land and has made huge improvements over the suit-land. It was stated that the defendants even after execution of agreement-to-sell dated 07.06.2004 has refused to execute sale-deed in favour of the plaintiff.
3. The defendants contested the suit by filing written statement wherein it was stated that the plaintiff has no cause of action and the suit has been filed with mala fide intention. It was alleged that the suit land was handed over the defendants on ghala batai. The other claim of the plaintiff has also been refused.
4. Mst. Mukamal Jan also filed a counter suit for declaration and possession of the suit-land in the same Court against Ali Asghar and others predecessor-in-interest of Khan Muhammad regarding the same land. It was averred that the suit-land after the death of their father was transferred to them vide mutation No.278. It was contended that predecessor-in-interest of the plaintiff died 32 years ago due to Cancer at Karachi. It was contended that the suit-land was handed over to the predecessor-in-interest on ghala batai. It was further contended that in the year 2004 Khan Muhammad sent a message to them that he wants to perform Hajj and asked them come to Muzaffarabad to receive his share and the plaintiff after receiving Rs.20,000/- as her share, gave him a receipt. However, Khan Muhammad instead of receipt got executed agreement and obtained signature and thumb impression of the plaintiff by practicing fraud. Hence, the agreement dated 07.06.2004 is illegal arbitrary and ineffective against the rights of plaintiff.
5. Defendants contested the suit by filing written statement wherein they refuted the claim of plaintiff and submitted that the predecessor-in-interest of the defendants purchased the suit-land through oral sale in the year 1959 for consideration of Rs.500/- and thereafter in the year 2004 Khan Muhammad executed agreement-to-sell in favour of defendant after receiving further amount of Rs.20,000/- as consideration. However, despite that he refused to execute the sale-deed in favour of defendants. Learned trial Court framed following issues:--
6. The trial Court after framing issues directed the parties to lead evidence in support of their rival claims. Learned trial Court vide judgment and decree dated 05.06.2013 dismissed the suit filed by Khan Muhammad for want of proof, whereas decreed the suit filed by Mukamal Jan. Feeling dissatisfied, Ali Asghar and others predecessor-in-interest of Khan Muhammad went in appeal before the District Judge, Neelum. Learned District Judge vide impugned judgment and decree dated 29.09.2014 accepted the appeal and decreed the suit filed by Ali Asghar and others, hence, this second appeal.
7. I have heard learned counsel for the parties and perused the record. It has been argued on behalf of appellant that the Court below has overlooked the provisions of Transfer of Property Act. It has been explained that there is no provision of oral sale in the Transfer of Property Act, so a decree on the basis of oral sale is not sustainable. It has further been argued that agreement-to-sell dated 07.06.2004 is purported to have been executed by Abdul Rasheed but the 1st Appellate Court has decreed the suit to the extent of Mukamal Jan as well. It has been argued that the appellant is not a party to the agreement dated 07.06.2004, so the impugned decree against the appellant is bad in law. It has also been argued that the Court below has overlooked the evidence led by the appellant. It has been stated that under the Registration Act a document worth Rs.100/- or more is liable to be registered but agreement-to-sell dated 07.06.2004 has not been registered, so it has no evidentiary value. It has further been emphasized that agreement-to-sell dated 07.06.2004 could not be proved by the respondents. In this regard it has been explained that a single witness of agreement recorded his statement in the trial Court who also did not support the contents of agreement. Learned counsel has stated that the appellant proved her version before the trial Court through cogent evidence but the 1st Appellate Court mis-read the evidence on record and dismissed the appellant's suit without any justification.
8. On the other hand, learned counsel for the respondents has argued that a suit for specific performance of contract can be validly filed on the basis of oral sale. 2007 SCR 310 relied. He further argued that a sole witness is enough to prove a document. 1994 CLC Lahore 1811 relied. It has been argued that revenue record verifies the version of the respondents. He further explained that entries in Khasra-gardawri of the year 1959 onwards support the version that the respondents are in possession of land on the basis of oral sale. It has been emphasized that entries in revenue record being old document, has presumption of truth according to Qanun-e-Shahadat Order, 1999 MLD 824 and 2007 PCr.LJ 246 relied.
9. Dispute between the parties revolves around the point that whether the suit-land was purchased by Khan Muhammad (being represented by respondents Nos.1 to 9 as legal heirs). It has also to be resolved that what is the effect of agreement-to-sell dated 07.06.2004? Stance of appellant has also to be evaluated that whether the suit-land was given to Khan Muhammad on temporary basis and whether the appellant is entitled to decree for possession on the basis of ownership.
10. It may be refreshed here that Khan Muhammad predecessor of the respondents herein filed a suit in the trial Court on 27.09.2004 which has been dismissed vide decree dated 05.06.2013. On the other hand suit filed by the Mukamal Jan has been decreed on 05.06.2013 and she has been held entitled to possession of the suit-land on the basis of ownership. Learned court below has discussed the evidence at length in regard to issues Nos.2 and 3. Issue No.2 relates to contents of oral sale for a consideration of Rs.500/- in the year 1959 whereas issue No.3 relates to agreement-to-sell dated 07.06.2004. Khan Muhammad predecessor of respondents herein has prayed in his suit that a declaratory decree along with perpetual injunction be issued on the basis of oral sale executed by Abdul Rehman for a consideration of Rs.500/- in the year 1959 and as a consequential relief, further prayed that defendants be directed to execute sale-deed as per agreement-to-sell dated 07.06.2004. In my humble view both the prayers are mutually destructive. The respondent/plaintiff produced documentary and oral evidence in support of the version that Abdul Rehman predecessor of the appellant herein had orally sold the suit-land for a consideration of Rs.500/- to Khan Muhammad predecessor of the respondents herein. Entries in revenue record support the version of respondents in this regard. However, document of agreement-to-sell dated 07.06.2004 has turned the situation otherwise. The respondents can either claim ownership on the basis of oral sale or they can claim decree for specific performance of agreement dated 07.06.2004. It hardly needs to explain that the respondents prayed for declaratory decree on the basis of oral sale but on the other hand prayed for decree for specific performance of agreement. So, on the one hand, the respondents prayed for a declaratory decree regarding ownership of land on the basis of oral sale but at the same time they have requested for a decree for specific performance of contract, which is obviously not a title document. It cannot be disputed that a suit can be validly filed on the basis of oral sale.
11. The trial Court has wrongly concluded that concept of oral sale is stranger to the provisions of Transfer of Property Act. According to Contract Act an agreement whether oral or written, can be validly executed. This view finds support from 2007 MLD 1722 Lahore.
12. The respondents claim a decree for specific performance of contract dated 07.06.2004 which is later in sequence. The respondents are stopped by conduct to claim ownership of the land on the basis of oral sale of the year 1959. It may be stated here that agreement-to-sell dated 07.06.2004 does not mention any oral sale executed by Abdul Rehman. This agreement is an independent contract which has to be valued in view of evidence on record. Khan Muhammad son of Gulab Khan has signed the agreement-to-sell along with its executor Abdul Rasheed son of Abdul Rehman. Abdul Rehman or for that matter the respondents herein are therefore bound by the terms of agreement-to-sell dated 07.06.2004.
13. Disputed agreement-to-sell dated 07.06.2004 bears signatures of Malik Muhammad Shafi and Arif Hussain Dar as marginal witnesses. It has been argued on behalf of appellant that alleged agreement-to-sell is not a registered document, so it has no evidentiary value. The agreement is misconceived because a non-registered document can also be executed between the parties and can be implemented by the Court. Agreement-to-sell dated 07.06.2004 is part of record of trial Court as Exh."PC" and Arif Hussain Dar has verified the contents of this document in his statement as court witness. The document has been executed in favour of Khan Muhammad son of Gulab Khan who also appeared before the trial Court as witness on 09.04.2011. Khan Muhammad has also verified the contents of agreement-to-sell Exh. "PC". Moreover, Ali Asghar son of Khan Muhammad recorded his statement as witness on 30.07.2008. He stated that document Exh."PC" was written and signed by the parties in his presence. In this way at least two witnesses have supported the fact that Abdul Rasheed executed a document on 07.06.2004 whereby he agreed to sell land measuring 02 kanals under survey No.47/118 situated in Village Parli Tehsil Authmuqam to Khan Muhammad for a sum of Rs.20,000. It has further been mentioned in the agreement that executor has already received considera-tion money amounting to Rs.20,000/-. Agreement-to-sell dated 07.06.2004 therefore stands proved as required by the Qanun-e-Shahadat Order, 1984.
14. It has been argued on behalf of the appellant that Mukamal Jan is not a signatory of the purported agreement-to- sell dated 07.06.2004 but the 1st Appellate Court has decreed the suit to the extent of her share as well. A perusal of agreement-to-sell Exh. "PC" transpires that it has been executed by Abdul Rasheed in favour of Khan Muhammad for a sum of Rs.20,000/- Abdul Rasheed son of Abdul Rehman executed this document as owner of the suit-land. A perusal of copy of Misl-e-Haqiat of year 1989-90 transpires that Mukamal Jan is owner of land in question to the extent of 27 shares whereas Abdul Rasheed is owner of the land to the extent of 189 shares. Obviously, Abdul Rasheed could have executed an agreement-to-sell to the extent of his share only. It may be stated here that Mukamal Jan and Abdul Rasheed inherited the suit land measuring 02 kanals from Abdul Rehman deceased. Mukamal Jan is not a party to the disputed agreement-to-sell and this document does not even mention her name. The 1st appellate Court has overlooked this aspect of the matter and has decreed the whole suit land for the respondents.
In light of what has been discussed above, it is concluded that the respondents have proved the contents of agreement-to-sell dated 07.06.2004. Abdul Rasheed son of Abdul Rehman being executor of the deed is bound to register sale deed in favour of the respondents to the extent of his share. The appeal is partially accepted and the impugned decree is modified in the terms that Abdul Rasheed son of Abdul Rehman shall execute sale-deed in favour of respondents regarding land under survey number old 47 new 118 to the extent of his share measuring 1 kanas 15 marlas within a month, failing which the sale-deed shall be registered through Nazar of the Court of Senior Civil Judge Authmuqam. Mukamal Jan the appellant is held entitled to decree for possession to the extent of her share in the suit-land measuring 5 marlas.
ZC/4/HC(AJ&K) Appeal disposed of.