ABDUL SHAKOOR Versus FAZAL DIN
ORDER
Section 45 of the Transfer of Property Act defines contract of sale as:‑‑
"A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself create any interest in or charge on such property. "
2. Section 42 of the Land Revenue Act, 1967 lays down procedure for making records. It states:‑‑
"Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of estate, who shall‑‑---
(a) record such report in the Roznamcha to be maintained in the prescribed manner;
(b) furnish a copy of the report so recorded, free of cost, to the person making the report.
3. It has been held by the Honourable Supreme Court of Pakistan in their judgment reported in 1994 SCMR 1188:‑‑
"Needless to emphasize, that the agreements to sell do not create title in themselves and so long as regular sale‑deed is not executed between the parties or decree for specific performance not obtained, the title vests in the transferor. This document, in consequence, is of no help to the respondents to confer title on them."
4. In 1989 SCMR 949, it was held:‑‑----
"Contract for sale of immovable property is a contract that sale of such property should take place on terms settled between parties but it would not by itself create any interest in or charge on such property. "
5. Instructions issued to the subordinate revenue field staff relating to Register Haqdaran‑e‑Zamin, reproduced at Chapter 7, para.4 of Land Records Manual state:‑‑
6. Abdul Shakoor and Muhammad Ramzan submitted, as claimed by them, many applications for correction of entries of Register Haqdaran Zamin and Register Girdawari from the year 1974‑75 till the latest Revenue Record in respect of Khasra Nos.1362 and 1367, Khata No.326, Khatooni No.384, situated in village Bahadurpura, Tehsil and District Kasur. Fazal Din, etc., the respondents before D.C./Collector, Kasur were entered in respect of the aforesaid two Khasra numbers as tenants before the year 1974. From the year 1975‑76, in column No.8 of Register Haqdaran Zamin, the status of the respondents was recorded as "Ba taswer Begh". The application of Abdul Shakoor, etc. for correction of entries of Khasra Girdawari and Register Haqdaran Zamin was turned down by District Collector vide his order, dated 4th February, 1990 for the following reason:‑‑--
"The respondents were tenants in the year 1974‑75 and subsequently the entries‑were changed but the petitioners/owners of the land kept quiet for a considerable period of 10/11 years. They neither applied for correction of said entries nor filed any suit for payment of share .of the produce. This clearly shows that the contention of the petitioner is an afterthought and they have tried to back out from the agreement, dated 16‑10‑1971."
7. Abdul Shakoor then filed an appeal which was again dismissed by Additional Commissioner (Revenue), Lahore Division vide his order, dated 7th of September, 1991. The ground for dismissal was as under:‑‑
"The record shows that there was an agreement to sell the abovesaid property on 16‑10‑1971 executed in favour of the respondent. In view of the abovesaid agreement the entries of ' Batassawar Bai' was incorporated in the Revenue Record for the year 1975‑76. This entry was never challenged by respondents till 1986. It is apparent that the appellant kept quiet for a considerable period of 10/11 years. They never applied for the correction of the said entries nor filed any suit for payment of share."
The ground was repetition of the basis of the order of District Collector.
8. Abdul Shakoor, etc. have filed this revision petition with the prayer that the two orders of Additional Commissioner and D.C./Collector be set aside.
9. I have heard the learned counsels for the parties. The respondents claim that they had acquired certain right in their tenancy on the basis of agreement to sell. The entries were changed in accordance with the facts of the case by the Revenue functionaries and they were shown as being in occupation of the land in the manner of Ba taswer Begh. It has been contention of the respondents as reproduced by their counsel that long standing entries of Revenue Record were rightly refused to be changed by D.C./Collector and Additional Commissioner.
10. As stated in para. 1, agreement to sell does not create any title in favour of the prospective transferee. No charge or right, therefore, is created on the basis of this instrument unless agreement is completed between the parties or decree obtained in a suit for specific performance. Since no right or title is created, the prospective acquiror of right cannot even invoke the provisions of section 42 of Land Revenue Act for an entry being recorded in Roznamcha Waqiati and Register of Mutations. In any case with the best of efforts I have not been able to find out any description of occupation of land as " Ba taswer Begh ". The perception of the Patwari or Tehsildar that a right is created on the basis of an agreement to sell in favour of someone cannot be allowed to subsist by an entry in the Revenue Record. Such an entry is not only assumption of authority by Revenue Functionaries to confer complete or incomplete title without permission of the parties and determination by the Civil Court but also against the provisions of law/rules. The two Courts, A therefore, erred in rejecting the request of the petitioners for correction of the entries on the ground that such entry led existed in the Revenue Record for a long period. The laws, rules, and instructions of the Board do not recognize any description such as " Ba taswer Begh '. This entry, therefore, cannot be allowed to stay in the Revenue Record. It is, therefore, ordered that the entries made relating to the instant case in the Revenue Record and also Khasra Girdawari be allowed to be deleted. With the aforesaid observation, the revision petition is accepted and the two orders, dated 4th February, 1990 of D.C./Collector and 7th September, 1991 of Additional Commissioner are set aside.
11. A copy of this order be sent to Secretary (Revenue), Board of Revenue, Punjab for framing suitable instructions for guidance of revenue functionaries that term such as '' Ba taswer Begh. or " Ba taswer Malkiyat ought not to be recorded in any of the Revenue document/Record.
H.B.T./17/Rev Revision accepted.