HIKMAT KHAN Versus SHAMSUR REHMAN

1. SAEEDUZZAMAN SIDDIQUI, J: ‑‑The above appeal through leave of this Court is filed by the appellant to call in question the order of a learned Single Judge of Peshawar High Court dated 6‑1‑1990 whereby the Civil Revision Application filed by the appellant to challenge the judgment of Additional District Judge, Peshawar, confirming the judgment and decree of the trial Court in a suit for declaration and possession, was dismissed and the judgment and decree of trial Court was affirmed. The leave granting order in the case is as follows:‑‑

2. "The petitioner seeks leave to appeal against the judgment of the High Court dated 6‑10‑1990.

(2) The facts, in brief are that Gul Muhammad sold the house in question to the petitioner for a consideration of Rs.6,000 through an unregistered sale‑deed on 13‑3‑1975. The possession of the house was also delivered to him. Gul Muhammad subsequently sold the same house on 6‑6‑1979 for a consideration of Rs.20,000 to the respondent. The second sale was made through a registered sale‑deed. Shams‑ur‑Rehman instituted a suit in the Civil Court to the effect that he was the owner of the said house on the basis of the registered sale‑deed. He also sought possession of the disputed house on the basis of the above‑cited registered sale‑deed.

(3) The suit on contest was decreed in favour of Shams‑ur‑Rehman. The appeal against the aforesaid judgment filed by the petitioner was dismissed by the Additional District Judge. The Civil Revision of the petitioner was also dismissed by the High Court. The question for consideration before the High Court was whether section 53‑A of the Transfer of Property Act could override the mandatory provisions of Section 17/49 of the Registration Act. Reliance was placed on Habibur Rehman v. Mst. Wahdania and others PLD 1984 SC 424. The High Court noted the finding of the first appellate Court which is to the effect that "Consequently, I hold that appellant No.1 (Hikmat Khan petitioner) cannot claim any title as owner in the suit property on the basis of unregistered sale‑deed but he would, however, as a charge on the property for the amount i.e. Rs.6,000 paid by him in connection with purchase of the suit house recoverable from Gul Muhammad Vendor." The High Court dismissed the Revision Petition on the ground that mere fact that views of lower Courts may be questionable but it does not give rise to case for exercise of the revisional jurisdiction.

(4) Learned counsel for the petitioner has submitted that the facts of Habibur Rehman's case are distinguishable and the earlier decision of this Court was not considered in this case. In Mst. Ghulam Sakina v. Umar Bakhsh (PLD 1964 SC 456) it has been held that "section 49 of ? the Registration Act, no doubt, provides that if a document, which is ? compulsorily registered, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53‑A of the Transfer of Property Act makes an exception to this and provides that "where a person obtains possession of or continues to remain in possession of a property under a document in writing which, though compulsorily registrable, has not been registered, then neither the person transferring the property nor any one claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property." The point for consideration is whether a person in possession of the property purchased through an unregistered document would not be protected on the principle enunciated in section 53‑A of the Transfer of Property Act. Leave is granted. Security Rs.5,000.

(5) The respondent has since taken possession of the suit house in execution of the decree. He will not further alienate the property in suit nor will change the character of the property."

3. The respondent/plaintiff filed Suit No.6611 before the Civil Judge, Peshawar, seeking declaration of title and possession in respect of House No.671, Bostanabad No.3, Aslam Colony, Shahdhand, Peshawar. The respondent claimed to have purchased the suit property from its owner Gul Muhammad through a registered sale‑deed dated 6‑6‑1979. The appellant resisted that suit and pleaded that the suit property was purchased by him through an unregistered sale‑deed dated 13‑3‑1975 and was in possession of property as owner thereof. He also pleaded that he had instituted a suit against the previous owner Gul Muhammad in respect of the suit property which was decreed in his favour on 22‑11‑1980 and the property has also been mutated in his favour vide Mutation No.11529. The trial Court decreed the suit of respondent holding that the respondent had duly acquired title of the property through a registered document and as such the unregistered document in favour of appellant could not prevail over the registered document. Consequently, the ex parte decree, dated 22‑11‑1980 in favour of appellant by the Civil Court and the mutation bearing No.11529 by the revenue authorities in his favour in respect of the suit property were held as ineffective. The judgment and decree of the trial Court has been affirmed in the 1st Appeal by the Additional District Judge, Peshawar and by a learned Single Judge of the Peshawar High Court in a Civil Revision through the impugned judgment, respectively. The learned counsel for the appellant contended before us that the Courts below failed to appreciate that the appellant was in possession of the suit property persuant to an agreement of sale and as such his possession over it was fully protected under section 53‑A of the Transfer of Property Act and no decree for possession could be passed in the suit in favour of respondent who admittedly claimed title to the property through its previous owner Gul Muhammad. The learned counsel for the respondent on the other hand while supporting the judgments and decree of the Courts below contended that the sale of the suit property in favour of appellant by Gul Muhammad was bogus and fictitious as the appellant before sale of the property had admitted before the respondent that he was occupying the suit property as a tenant.

4. The contention of the learned counsel for the respondent has not impressed us at all. The fact that the property was earlier sold by Gul Muhammad to appellant through an unregistered document is an admitted position in the case as borne out from the following observation of the learned Single Judge in the impugned judgment:‑‑

5. "10. Both the Courts have come to the concurrent finding of fact and the first appellate Court has held as under:‑‑

6. 'Consequently, I hold that appellant No.‑I. (Hikmat Khan petitioner) cannot claim any title as owner in the suit property on the basis of unregistered sale‑deed but he would, however, as a charge on the property for the amount i.e., Rs.6,000 paid by him in connection with purchase of the suit house recoverable from Gul Muhammad vendor.'

11. The revision filed against the concurrent judgments based on concurrent finding of two Courts below. Mere fact that view of lower Courts may be questionable, but, it does not give rise to case for exercise of the revisional jurisdiction."

7. The only point on which the appellant was held disentitled to resist the suit of respondent was dealt with in the impugned judgment as under:‑‑

8. "The only question that falls for determination is whether section 53‑A of T.P.A. could override the mandatory provisions of section 17/49 of the Registration Act. The learned counsel for the respondent relied on Habibur Rchman and another v. Mst. Wahdania and others (PLD 1984 SC 424) which dealt with this question wherein it was held vide Head Note 'B' that no equitable doctrine such as provided in section 53‑A, Transfer of Property Act, 1908, can override the specific provisions of section 49, Registration Act, so as to make an unregistered document create title, if the same requires registration under section 49, Registration Act, 1908."

9. There can be no cavil with the proposition that an unregistered document if it is compulsorily registrable under the Registration Act, cannot create title. However, section 53‑A of the Transfer of Property Act, which is an exception, confers right on a person, who is holding possession of the property under an unregistered written document which required compulsory registration, to protect his possession against the vendor and all persons acting through or under him. It is true that section 53‑A of the Transfer of Property Act cannot be utilized by a person in possession of immovable property under an unregistered document which is compulsorily registrable under the Registration Act, as an weapon of offence to assert his title over the property but it is undoubtedly a complete defence in answer to a claim of possession by the vendor or any other person claiming through or under him. The case of Habibur Rehman v. Mst. Wahdania (PLD 1984 SC 424) referred by the learned Single Judge in the impugned judgment is quite distinguishable. In that case the appellant who claimed to have acquired the title in respect of an immovable property under an unregistered document which was compulsorily registrable under the Registration Act, had sought declaration in a suit with regard to his title to the property. It was in these circumstances that this Court observed in the above case that the appellant could not claim title to the property on the basis of an unregistered document on the strength of section 53‑A of the Transfer of Property Act.

10. In the case before us, the appellant had pressed into service the equitable provisions of section 53‑A of the Transfer of Property Act in his defence to protect his possession.over the suit property which he admittedly acquired on the basis of the unregistered deed executed by the previous owner in his favour before the alleged execution of the registered sale‑deed in favour of respondent. In these circumstances, the following principles laid down by this Court in the case of Taj Muhammad v. Yar Muhammad Khan 1992 SCMR 1265 were attracted:‑‑

11. "(6) Section 53‑A of the Transfer of Property Act enunciates equitable principle to protect the rights of such purchasers who have entered into agreement and in pursuance thereof obtained the possession of the immovable property and have further either performed their part of the agreement or are agreeable to perform the same. In such circumstances, mere non‑registration of a deed which requires registration under section 17 of the Registration Act, will not deprive him of the benefit which he is entitled to protect by virtue of section 53‑A of the Transfer of Property Act. It is true that section 53‑A does not confer or create any right but it provides a defence to a transferee to protect his possession. Reference can be made to the cases of Kalimuddin Ansari v. Director, Excise and Taxation, Karachi and another PLD 1971 SC 114 and Sri Kalulam Subranmanyam and another v. Kurra Subba Rao PLD 1948 PC 52. Section 53‑A debars a transferor from enforcing any right other than rights specifically provided by the contract against a transferee who in part performance of a contract has taken possession. Reference may be made to the cases of Abdullah Bhai and others v. Ahmed Din PLD 1964 SC 106 and Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456. In the present case, the agreement itself recites that the appellant in part performance of the agreement had been put in possession of the property. The appellant is, therefore, entitled to the protection of his possession. Likewise, the respondent No.1 and his sons (respondents 2 to 4) cannot enforce any right against the appellant except the rights which have been specifically mentioned in the contract. We, therefore, allow the appeal, set aside the judgment of the Court below and decree the suit filed by the appellant in the aforestated terms with no order as to costs.?

12. In view of the above discussed legal position the judgment and decree of the Courts below cannot be maintained. The learned counsel for the respondent during the course of his submissions attempted to argue that the sale in favour of his client was protected under the proviso to section 53‑A of the Transfer of Property Act as he had purchased the property without notice of the sale in favour of the appellant. The argument is devoid of any merit. The possession of the appellant over the suit property at the time the appellant allegedly purchased the property from Gul Muhammad, was admitted by him before the Court. This constituted sufficient notice to the respondent with regard to the rights claimed by the appellant in respect of the suit property. The respondent neither pleaded before the Courts below that he was a bona fide purchaser without notice of the claim of the appellant nor any such issue was raised in the suit. In these circumstances the contention of the learned counsel cannot be entertained. The appeal is accordingly allowed and the judgments and decree of the Courts below are set aside the suit of the respondent is dismissed. There will be no order as to costs.

13. A.A./H‑157/S ???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.