MUHAMMAD YOUSIF Versus WALI MUHAMMAD SHAH

1. This second appeal arises out of concurrent findings of the two Courts below. Briefly the facts are that the present appellant had filed Civil Suit No.194 of 1971 against the respondent and one Syed Qutb Ali Shah Hussaini the then Chief Administrator of Auqaf Sindh for possession and compensation. The case of the plaintiff is that he was a tenant in Dadan Shah Colony, Hyderabad of a plot which at that time was unnumbered at the monthly rent of Rs.8 which he paid to Munshi of Syed Dadan Shah and that the plaintiff had purchased the superstructure over the said plot from one Ali Nawaz and thus he came in possession of the same in July 1965. According to the plaintiff he was approached by the defendant in the month of October 1970 as he had old friendly connections and requested the plaintiff that he should allow him to occupy the said premises temporarily as the son of the respondent was ill and he wanted him to be treated at Hyderabad. The plaintiff handed over the vacant possession to the respondent but subsequently the respondent refused to return the same. In the meanwhile another development had taken place as in the year 1969, the Auqaf Department had taken over the entire property of Dadan Shah which was a Waqf property vide Notification No.l/154 August 1967 dated 13‑5‑1969 w.e.f. 2‑10‑1969. The appellant claims to have been paying the rent to the Auqaf Department after their assumption of the plot. As the respondent did not return the premises in dispute to the plaintiff, he filed the said suit for possession, compensation and permanent injunction. The respondent contested the suit and filed his written statement. The case of the respondent is that he was the tenant of Syed Dadan Shah and is in possession of the plot in dispute in his own right title and interest. The respondent further pleaded that the Auqaf Department had regularised his occupation by executing a lease‑deed with him on 23‑2‑1971 and also that a certificate to that effect was issued by the Manager, Auqaf Department.

2. On the pleadings of the parties the following issues were settled by the trial Court:

(1) Whether the plaintiff purchased the superstructure over plot in question from Ali Nawaz on 22‑5‑1965?

(2) Whether the plaintiff is regularly paying the monthly rent to authorised agent of Sayed Dadan Shah?

(3) Whether the possession of the suit plot was given to defendant by previous Mutwali or by the plaintiff?

(4) What is the legal effect of documents issued by the Auqaf Department to the defendant on the basis of receipt produced by defendant?

(5) Whether the plaintiff is entitled to possession of plot in question and compensation as claimed by him.

(6) What should the decree be?

3. The plaintiff examined himself, one Mushtaq, a mason, Hussain Bux, witness of agreement of sale and Abdul Rahim, a Clerk of the H.M.C. As against this the respondent examined himself and three witnesses, namely, Hote Khan, Bux Ali and Muhammad Rahim. Both the parties have produced documents. The learned Vth Extra Joint Civil Judge, Hyderabad, after hearing the arguments of the advocates was pleased to dismiss the suit. Being aggrieved the present appellant preferred Ist Appeal No. 18 of 1977 which was also dismissed by the II Additional District Judge, Hyderabad after hearing the advocates for the parties. Hence this second appeal.

4. I have heard the learned counsel for the parties. Mr. S. Madad Ali Shah, Advocate for the appellant has submitted that this is a case of misreading and non‑reading of the evidence and that the judgments of the two Courts below are based on inferences and surmises and the same should be set aside and the suit of the appellant should be decreed. He has submitted that the Courts below have erred in excluding the agreement of sale (Exh.76) from consideration on the ground that the same was not registered as required by law. He has further submitted that the two Courts below have misread the evidence of material witnesses i.e. Hussain Bux, the witness of agreement (Exh.76) and Mushtaq, the mason, who had carried out the repairs of the house in dispute for which a proper permission was granted by the H.M.C.

5. I have considered the above submissions of the learned counsel and have perused the record of the two Courts below. The first point taken by the learned counsel is with regard to agreement (Exh.76). This agreement (Exh.76) is executed on a stamp paper Rs.2 on 28‑5‑1965. The contents of this agreement show that the same is not an agreement. of sale but is a complete contract of sale. An agreement of sale would require a promise to do something or would contain some provision for compliance of certain acts in future, whereas the present agreement shows that the entire transaction is completed. In these circumstances, this agreement would require registration under section 17 of the Registration Act as the value of the subject‑matter is more than Rs.

100. Section 54 of the Transfer of Property Act provides as under:‑‑

6. "54. ` Sale defined '.‑‑`Sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.

7. Sale how made : ‑Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

8. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

9. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

10. Contract of sale .‑‑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.

11. It does not, of itself create any interest in or charge on such property."

12. The consequence of non‑registration of such document is that the same is not to be received in evidence by virtue of the provisions of section 49) of the Registration Act which reads as under:‑‑

13. "49. Effect of non‑registration of documents required to be registered.‑‑No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall‑‑

(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or

(b) confer any p6wer to adopt, unless it has been registered.

14. In this view of the matter it is concluded that the two Courts below have rightly declined to consider this agreement of sale (Exh.76) in the evidence. Mr. Shah, learned advocate for the appellant has argued that this agreement could be used for the collateral purposes to prove that the appellant had purchased the superstructure and was owner thereof. It may be observed that if this document (Exh.76) is treated as an agreement to sale, then it is an established law that an agreement of sale does not create any vested right. Even a perusal of the evidence of P.W. Hussain Bux the attesting witness of this agreement would not confirm the contents of the agreement. Hussain Bux in his evidence has stated that he can only sign his name. This witness does not say that he is a literate person or that he had himself read the document (Exh.76) or even that the said document was read out to him. In his evidence he does not say that the document contained any recital with regard to handing over of the possession to the appellant by the said Ali Nawaz as alleged. In these circumstances, the position of P.W. Hussain Bux is merely that of marginal witness who can at the most be said to be witness of signing of the document by the parties and not the contents thereof as held in the case of Malik Riaz Ahmed and others v. Mian Inayatullah and others 1992 SCMR 1488. In the present case this document, therefore, would not have any binding effect as far as present respondent or Auqaf Department are concerned as neither of them is a party to this agreement (Exh.76).

15. Now other question which arises is as to whether the present appellant had been in possession of the said plot or superstructure thereon. The learned counsel for the appellant has laid much emphasis on the fact as claimed by him that he had been granted permission by H.M.C. to carry out repairs of the house and that the said repairs were carried out by a mason Mushtaq, who has been examined by him as a witness. A perusal of the permission granted by H.M.C. (Exh.91) shows that a permission has been granted to the appellant for repair of his property but the details of the property or the number of the plot has not been mentioned. P.W. Mushtaq, mason, who has been examined, has in his evidence stated that he carried out the repairs of the house of appellant. However, in his examination‑in‑chief he does not state as to where that house was situated. On the contrary in his cross‑examination he states that the appellant used to reside in the hospital of Dr. Abbasi. This witness was examined on 5‑8‑1976. Also the agreement of sale (Exh.76) shows the appellant to be the resident of Abbasi Hospital in the year 1965. It was, therefore, for the appellant to have proved that he had received the possession of the plot or superstructure in dispute but there is no such evidence brought on record by him. On the contrary his own witness P.W. Hussain Bux in the last lines of his cross‑examination has stated that prior to the possession of the respondent the house was in possession of Hansi Bi, nurse, and prior to that the house was in possession of one Hote Khan. This Hote Khan has also been examined as a defence witness by the respondent and he has supported the case of the respondent saying that he was in occupation of the said house and also that the said Hansi Bi was in occupation thereof. This evidence on the face of it belies the contention of the appellant that he had ever received the possession of the plot or house in dispute.

16. The other factor to be considered in the case is as to whether the appellant paid rent to Syed Dadan Shah. The case of the appellant as pleaded in his evidence is that he used to pay the rent to Syed Dadan Shah through his Munshis namely, Muhammad Rahim and Shamsuddin but he has not examined any one of them. While this Muhammad Rahim Munshi was examined by the respondent as his witness who has confirmed that he had been receiving the rent from the respondent and issued the receipts Exh. 105/5, 6, 7, 8 and 9. Thus even this fact has not been proved by the present appellant. As regards the orders passed by the Auqaf Department it may be observed that it is an admitted position that the Manager, ALqaf Department had issued a certificate in favour of present respondent and also executed a lease‑agreement with him. However, subsequently on a miscellaneous application the Administrator of Auqaf held the present appellant to be the tenant without terminating the lease or tenancy of the present respondent and without holding the respondent to be in an unauthorised occupation. This order of the Administrator of Auqaf was also confirmed by the Chief Administrator Auqaf but the same is shown to have been passed on an oral admission of P.W. Muhammad Rahim the Munshi of Syed Dadan Shah, who has denied this fact. No statement in writing of said Muhammad Rahim has been produced. However, the respondent had filed Suit No.68 of 1975 challenging the said orders of the Auqaf in which suit plaint was rejected but the case has been remanded by this Court in Revision Application No. 125/1984. It may also be observed that the name of the Chief Administrator, Auqaf was deleted from the suit by an order passed on 20‑11‑1976 on (Exh.119), on an application moved by the plaintiff under Order I, rule 10, C.P.C. with the prayer that the name of the defendant No.2, who had been improperly joined as party be struck off.

17. In view of the above discussion I find no merit in the contentions raised by the learned counsel for the appellant. Consequently, the appeal is dismissed with no order as to costs.

18. AA./M‑1879/K Appeal dismissed.