HABIBUR REHMAN AND ANOTHER vs Mst. WAHDANIA AND OTHERS

1. ' NASIM HASAN SHAH, J.-This appeal by leave of this Court is directed against the judgment, dated 7-3-1975 passed by the Peshawar High Court, whereby Civil Revision. No, 26 of 1975, preferred by the appellants herein, was dismiskd.

2. ' The facts giving rise to this appeal are that the suit property measuring 29 Kanals 16 Marlas of land was initially mortgaged by the ancestor , of Mst. Wandania etc. To Khanzada, the father of the appellants for a sum of Rs, 396 for a period of 12 years. A mutation to this effect was sanctioned on 4-7-1942. It seems that the equity of redemption was sold by Mst. Wandania (respondent No, 1 herein) subsequently to Naimatullah, respondent No,

4. Naimatullah filed a petition on .25-2-1960 under section 10 of the West Pakistan Redemption and Restitution of Mortgage Lands Act against the appellant alleging that he was owner of the suit property. In this connection, he submitted that the land was under mortgage since 4-7-1942, which still subsisted, and as such the land was liable to be restituted to him without payment of the mortgage amount. This petition was resisted by the appellants on the ground that they had already acquired the proprietary rights in the land.

3. According to them, Mst. Wandania had executed a deed of sale sometimes in. 1941 transferring the equity of redemption in their favour and further submitted that since they were in possession of the mortgage land they did not bother to ask for getting the restitution of the suit land recorded in their name. It was contended that even otherwise they were in adverse possession of the suit land for over 12 years and as such, the respondent No, 4 had no right to ask for the restitution of the suit land to him.

4. ' The Assistant Commissioner/Collector, Swabi, after recording evidence of the parties, accepted the petition of respondent No, 4 and ordered the restitution of the suit land in his favour without payment of mortgage amount or any part thereof vide order, dated 28-11-1971. The appeal to the Additional Commissioner, Peshawar, against the said order failed. The appellant, thereupon, instituted a declaratory suit in the Court of the Civil Judge, Swabi, praying for a declaration to the effect that the appellants were full owners of the suit land on account of the sale to them by .Mst.

5. Wandania (respondent No, 1) on an unregistered document of sale and the order of restitution of the suit land without payment of mortgage money passed by the Assistant Commissioner/Collector, Swabi, dated 28-1-1971 in favour of Naimatullah, respondent No, 4, was illegal and without jurisdiction. Alternatively, it was prayed that they should be deemed to have become owners of the suit land by adverse possessions. The suit was contested by Naimatullah, respondent No, 4, who contended, that the suit land was sold to him by Mg. Wandania and denied the various allegations made by the appellants in the plaint. The pleas of the parties resulted in nine issues being framed, of which Issues Nos, 4, 5 and 6 are of relevence here, namely :-

(4) Whether the documents attached to the plaint are not related to the suit land, are fictitious, fraudulent and are inadmissible in evidence for want of registration ?

(5) Whether the plaintiffs are owners in possession of the suit land' through purchase from defendant No, 1 ?

(6) Whether the plaintiffs have matured title to the suit land through adverse possession and the reights of Defendants Nos, 1 to 3, if any, had extinguished ?

6. ' On Issues Nos, 4 and 5, the learned trial Judge observed that the unregistered sale-deed, on which the appellants had relied for the claim and ownership of the suit property, did relate to it and that the appellants had proved its execution.

7. ' On Issue No, 6, the learned trial Judge held that the appellants were in possession of the suit land as mortgagees ; therefore, no case of adverse possession was proved as the plaintiff had not obtained possession of the suit land through the sale-deed and the sale-deed could not be acted upon. Moreover, the deed was bad for want of registration it being for the value of Rs, 704 and, therefore, compulsorily registrable under section 17 of the Registration Act. Since it had not been registered, the said sale-deed did not create any rights, or title in favour of the appellants in respect of the suit property, within the meaning of section 49 of the Registration Act. On this view of the matter, the learned trial Court dismissed the suit of the appellants with costs vide its order, dated 31-7-1971.

8. ' Aggrieved by the judgment and decree of the trial Court, the appellants filed an appeal in the Court of the District Judge, Mardan. The learned District Judge agreed with the findings arrived at by the trial Judge and dismissed the appeal vide order, dated 4-1-1975. The pellants, thereupon, filed a revision petition in the Peshawar High Court, Peshawar. However, the revision petition was summarily dismissed by the learned Chief Justice of the said Court vide his order, dated 7-3-1975.

9. ' Dissatisfied with the above order of the High Court, the appellants moved a petition for special leave to appeal in this Court. The only point, which was taken by the learned counsel before this Court, was that the Courts below were wrong in thinking that the plaintiff could not take advantage of section 53-A of the Transfer of Property Act, even if he was in possession of an immovable property in pursuance of an unregistered deed. Reliance for this submission was placed on the decision of the Division Bench of the Lahore High Court in hnayatullah v. Shah Muhammad wherein the view was taken that section 53-A of the Transfer of Property Act was not only available to a defendant but also to a plaintiff. As there was no authoritative decision of this Court on this question of law. Leave was granted to settle it authoritatively.

10. ' The appeal has come up for hearing today and we observe that the provisions of Transfer of Property Act are not applicable to the area wherein the land in dispute is situate. Hence of first question, which arises is whether the principles of section 53-A of Transfer of Property Act, can at all, be held attracted in the facts or circumstances of this case ?1 ' There is no dispute that the sale-deed being of immovable property and the transaction having been reduced into writing and the value of it being more that Rs, 100 the same was compulsorily registrable under section 49 of the Registration Act. The said deed therefore did not create any valid title in favour of the appellants. The question therefore, is whether an equitable doctrine, such as the one contained in section 53-A of Transfer of Property Act can override the specific provisions of section 49 of the Registration Act, with the result that an unregistered document even though it requires registration, becomes operative and has the effect of nullifying the provisions of the Registration Act ? This question has been dealt with by a Full Bench of the Lahore High Court in the case of Mt. Shankri and others v. Milkha Singh , and it was held that this was not possible.

11. We have carefully perused the above decision and are inclined to agree with the view expressed in the said judgment. It has been held therein that no equitable doctrine can override of the specific provisions of sections 49 of the Registration Act, so as to make an unregistered documents, create title, if it requires registration. The view expressed by the learned Judges of the Lahore High Court was based on the high authority of the Privy Council in Arif v. Jadunath Majumdar Bahadur . We are also in respectful agreement with the dictum contained in the aforementioned judgment of the High Court and do hereby endorse it. In this view of the matter, no reliance can be placed on the provisions of section 53-A of the Transfer of Property Act.

12. However, we consider that the appellants can legitimately claim to have a charge on the property for the amount paid by them as purchase' money for the property, namely Rs, 704. In this connection, we would like to point out that the position of a purchaser, who has been let into possession by his vendor under an unregistered document pursuant to an oral agreement to sell under the mistaken belief that the transaction is complete, whereas, in fact it is incomplete, for want of registration of the instrument purporting to effect the transfer, must be regarded to be a purchaser under a contract for sale which has yet to be completed. Consequently, the purchaser cannot, in these circumstances, claim any title as owner in the property, whether as a legal or as an equitable owner but he would, however, have a charge on the property for the amount paid by him towards the purchase of the property in question.

13. ' The result is that this appeal succeeds to the extent that the appellants will have a charge on the property in the amount of Rs, 704 which was paid by them towards the purchase of the property and shall not be liable to be dispossessed until the said lien is discharged by payment of the aforesaid amount by the respondents to them. However, the appeal fails as to the main question agitated in the appeal by the appellants. Since the success is divided, the parties are left to bear their own costs. PLD 1961 Lah. 372 AIR 1941 Lab. 407 AIR 1931 P C 79