2006SCMR315

[Supreme Court of ]

Present: Khan, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

MIR AKBAR----Petitioner versus

SHER BAHADUR and others----Respondents

Civil Petition No.493-P of 2004, decided on 1st December, 2005.

(On appeal from the judgment, dated 12-5-2004 passed by the , Peshawar in Civil Revision No.40 of 1997).

Per Nasir-ul-Mulk, J.; Sardar Muhammad Raza Khan, J. agreeing; Mian Shakirullah Jan, contra----

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.VI, R.17 & O.VIII, R.1---Constitution of Pakistan (1973), Art.185(3)---Recovery of possession---Written statement, amendment of---Effect---Plaintiffs sought possession of suit property on the basis of registered sale- deed executed in the year, 1929, while defendant claimed to be the owner on the basis of unregistered sale-deed executed in favour of his predecessor-in-interest, in the year, 1902---Suit was concurrently dismissed by Trial Court and Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit filed by plaintiffs on the ground that in first written statement the defendant raised the plea of adverse possession while in amended statement he claimed to be the owner on the basis of unregistered sale- deed executed in favour of his predecessor-in-interest---Validity---Genuineness of the deed of the year, 1902 was open to doubt as in the first written statement filed by defendant plea of adverse possession was taken and neither the sale-deed was mentioned nor defendant pleaded that he had become owner by purchase---Defendant had filed amended written statement six months later in which for the first time he claimed that his forefather had purchased the house through unregistered deed in the year, 1902---Such plea appeared to be an afterthought, because had the property been purchased by the predecessor-in-interest of defendant, he should at least have mentioned so in his first written statement even if he had not been in possession of the deed at the time--- Defendant in his first statement had taken the plea of adverse possession only--- Witnesses mentioned in the deed of year, 1902 could not have been alive at the time of recording of evidence, however no other supporting evidence was produced to prove the document---Supreme Court did not believe that the deed of year, 1902 pressed into service by defendant was genuine, and even if so, could not have precedence over the registered deed of year, 1929---Plaintiffs and not the defendant were the owners of the suit house---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused.

Mushtaq Ahmad v. The State 2004 SCMR 530 ref.

Per Mian Shakirullah Jan, J. (Minority view)---

Civil Procedure Code (V of 1908)---

----O. VI, R.17 & O.VIII, R.1---Amended written statement---Effect---When once amended written statement is filed, with permission of Court, and issues are re-examined and the deficiency in framing of issues is made up by framing additional issue, in the light of amended written statement and the permission or grant of leave is not challenged, the same then attains finality---Previous averments made in written statement, which is superseded by subsequent written statement, and even when no question was asked from defendant about the necessity or ground of second written statement, cannot be taken a ground for knocking out the defendant.

Document---

----Appeal to Supreme Court---Scope---Validity of document---Determination--- Jurisdiction of Supreme Court---Trial Court and lower Appellate Court found document in question as a genuine document while High Court did not interfere in such finding--- Effect---Question of validity of such document could not be raised before Supreme Court.

Ghulam Muhammad and others v. Malik Abdul Qadeer Khan and others PLD 1983 SC 68 rel.

Specific Relief Act (I of 1877)---

----S. 8---Registration Act (XVI of 1908), S.17---Transfer of Property Act (IV of 1882), S.53-A---Constitution of Pakistan (1973), Art. 185(3)-Recovery of possession--- Preference of registered document over unregistered document---Protection of part performance---Plaintiffs sought possession of suit property on the basis of registered sale- deed executed in the year, 1929, while defendant claimed to be the owner in possession on the basis of unregistered sale-deed executed in favour of his predecessor-in-interest, in the year, 1902---Suit was concurrently dismissed by Trial Court and Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit filed by plaintiffs--- Validity--- View of High Court about preference of registered deed over unregistered deed, when the possession was held to be that of the defendant and he was also held by High Court to be entitled to the improvements and it was plaintiffs who were enforcing their right against defendant, was not in consonance with the judgment of Supreme Court in case titled Ali Rehman v. Fazal Mehmud and 8 others, reported as 2003 SCMR 327--- Most important ingredient of S.53-A, of Transfer of Property Act, 1882, was transfer of possession in favour of transferee--- If such pronounced and tangible act of transfer of physical possession was in favour of transferee, the equity must favour him and he be allowed to defend his possession even on the basis of unregistered deed---In order to examine the question prevailed with High Court in the light of the judgment of Supreme Court, and also to examine the question so raised, in the light of record to be made available at the time of hearing of appeal, it was a fit case for grant of leave.

Ghulam Muhammad and others v. Malik Abdul Qadeer Khan and others PLD 1983 SC 68 and Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327 ref.

Haji Muhammad Zahir Shah, Advocate Supreme Court for Petitioner.

Jan Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 20th April, 2005.

JUDGMENT

NASIR-UL-MULK, J.--- The petitioners seek leave to appeal from the judgment and decree of the Peshawar High Court, dated 12-5-2004 by which the civil revision filed by the respondents, Sher Bahadur and another, was allowed, the concurrent findings of the trial and the Appellate Court set aside and consequently, the suit of the respondents/plaintiffs was decreed as prayed for. By the impugned judgment and decree the petitioner/defendant was ordered to hand over vacant possession of the suit house to the plaintiffs within a period of three months, who in turn were held entitled to improvement made in the suit house to the value of Rs.36,668.

2. The suit for possession was brought by the respondent in the Court of Civil Judge, Swabi on 4-4-1983 by Sher Bahadur and another for possession of a house measuring 6 Marlas, 1 Sarsai, in occupation of the petitioner/defendant. The plaintiffs claimed that their predecessor-in-interest had purchased the house through registered sale-deed on 4-1- 1929. That the defendants were inducted in it as tenants on payment of Khakshora and rendering services, who had about a year earlier refused both. The defendants filed two written statements, one on 15-6-1983 and the other on 6-12-1983.In the first statement the defendants denied having paid Khakshora to the plaintiffs or were tenants but averred that they remained in adverse possession for more than 12 years as owners. In the second statement the defendants pleaded ownership by purchase on the basis of unregistered sale-deed of the year 1902. The trial Court thereafter framed additional issue regarding this claim of the defendants. After recording of evidence the trial Court found the defendants to be owners of the suit house on account of the unregistered sale-deed coupled with the defendants possession of more than 70 years. These findings were upheld by the District Judge. The High Court in the impugned judgment however, accorded preference to the registered sale-deed of 4-1-1929 recorded in favour of the plaintiffs predecessor-in-interest, over the unregistered deed of 1902 on which reliance was placed by the defendants.

3. The learned counsel appearing for the petitioner submitted that the petitioners have proved the purchase of the house through the unregistered sale-deed of 1902. He pointed out that the Registration Act of 1908 had not come into force at the time when the said sale-deed was executed, which accounts for its non-registration. He further submitted that admittedly the petitioners have remained in possession for over 70 years and there was no evidence to show that they had remained in possession as tenants as neither payments of Khakshora nor rendering services by them to the plaintiffs had been proved. The learned counsel cited Mushtaq Ahmad v. The State 2004 SCMR 530 to advance the proposition that unregistered sale agreement followed by delivery of possession will have precedence over registered deed regarding the same immovable property.

4. The learned Advocate-on-Record, appearing for the respondent on notice submitted that the document of 1902 was fabricated and that is why it was not mentioned in the first written statement filed by the defendants. He further submitted that the registered sale- deed is to be given preference over the unregistered deed produced by the defendants, whose authenticity is ever otherwise doubtful.

5. It seems that the parties are not in dispute that both the deeds of the years 1902 and 1929 pertain to the same suit house, although in the earlier deed instead of house, a vacant site is mentioned. The controversy relates to the genuineness of the sale-deed of 1902 and in case it is authentic whether it can have precedence over the registered deed of 1929. The learned counsel for the petitioner was obviously right in pointing out that the unregistered deed of 1902 was executed prior to the enactment of the Registration Act of 1908. However, it escaped his notice that laws relating to registration of documents were in force even prior to the Registration Act of 1908. The two enactments preceding the said Act were the Indian Registration Act of 1877 and 1871. The 1877 Act, which was in force in the year 1902 carried provisions regarding compulsory and optional registration of documents similar to the ones in the Registration Act, 1.908. The argument that the deed of 1902 was not registered as there was no statutory law for registration of document is thus, without foundation.

6. There are two provisions in the Registration Act, 1908 relating to precedence, or otherwise, of a registered document relating to immovable property over unregistered document or oral agreement about the same property. Section 48 of the Act pertains to competition between registered document and oral agreement, and provides that the former shall have precedence unless the oral agreement or declaration is accompanied with, or followed by, delivery of possession and the same constitutes a valid transfer under the law. The competing claims under a registered and unregistered document regarding the same immovable property are provided for by section 50 of the Act. This section also confers priority on the registered over an unregistered deed, with two exceptions mentioned in the provisos to the section. Firstly, that a person in possession of the property under an unregistered deed prior in time to the registered deed would be entitled to the rights under section 53-A of the Transfer of Property Act, 1882, if the conditions of that section are fulfilled. And secondly, the person in whose favour an unregistered document is executed shall be entitled to sue for specific performance against a person claiming under subsequent registered document, subject to the provisions of clause (b) of section 27 of the Specific Relief Act, 1877. As regards the first exception, section 53-A of the Transfer of Property Act relates to part performance of a contract to transfer immovable property and provides that a transferor is debarred from enforcing any claim against the transferee who has taken, or has been in possession of the property and who has performed or is willing to perform his part of the contract, even though agreement between the parties had not been registered. The present case obviously would not be covered under section 53-A of the Transfer of Property Act as it is not the case of the petitioner that the contract was not fully performed. The petitioner's case would therefore, not fall under the first proviso to section 50: The second provisos on a cursory glance is inapplicable to the petitioner's claim as it only entitles a person claiming under an unregistered document to sue for specific performance of the agreement. The judgment of this Court in Mushtaq Ahmad v. The State relates to the application of section 48 of the Registration Act which determines priority between registered deed and an oral agreement, whereas the priority to be determined in the present case is between two documents. The relevant statutory provision for resolving controversy in this case is section 50, under which, as already stated, precedence cannot be given to the unregistered deed of the petitioner over the registered deed of the respondent, even though prior in time.

7. Having said that, the very genuineness of the deed of 1902 is open to doubt. In the first written statement filed by the defendants plea of adverse was taken and neither the sale- deed was mentioned nor did the defendants plead that they had become owners by purchase. It was six months later that the defendants filed amended written statement in which for the first time they claimed that their forefathers had purchased the house through unregistered deed in the year 1902. This plea appears to be an afterthought. Had the property been purchased by the defendants predecessor-in-interest they should at least have mentioned so in their first written statement, even if they had not been in possession of the deed at the time. The defendants, rather in their first statement had taken the plea of adverse possession only. True that the witnesses mentioned in the deed of 1902 could not have been alive at the time of recording of evidence, however, no other supporting evidence was produced to prove the document. In such circumstances it is difficult to believe the genuineness of the 1902 deed.

8. From the above narration, we have no hesitation in holding that the deed of 1902 pressed into service by the petitioner/defendant was not genuine, and even if so, cannot have precedence over the registered deed of 1929. Thus, the plaintiffs/respondents and not the petitioner/defendant are owners of the suit house. Interference with the judgment and order of the High Court is, therefore, not warranted. The petition is dismissed and leave refused.

(Sd.) Sardar Muhammad Raza Khan, J. (Sd.) Nasir-ul-Mulk, J.

I am unable to agree and will write separate note.

(Sd.) Mian Shakirullah Jan, J.

MIAN SHAKIRULLAH JAN, J.--- I have gone through the judgment written by my learned brother (Mr. Justice Nasir-ul-Mulk,, J.), but with utmost respect, I am unable to agree with the view taken by him and also conclusion arrived at.

2. The facts have already been given in the judgment and need not to be recapitulated except where they are deemed necessary.

3. The contest between the parties, the petitioner/defendant and the plaintiff/respondents (hereinafter referred to as the petitioner and respondents respectively), is over title of a house. The respondents claim, through a suit for possession, is their ownership on the basis of a registered sale-deed dated 4-1-1929 and the petitioner while denying the claim of the respondents, has asserted, inter alia, adverse possession in their first written statement and their ownership on the basis of unregistered sale-deed executed in the year 1902, in the subsequent amended written statement. The learned trial Court in consequence of the amended written statement, re-examined the issues and in view of the deficient issues, an additional issue was framed. The relevant issues which were focus of discussion of the trial Court are issue No.7 and additional issue No.1 which are as under:

"(7) Whether the plaintiffs are owners of the suit house on the basis of a registered deed dated 4-1-1929, and the defendants, are tenants under the plaintiffs."

Additional issue

(1) Whether the defendant has purchased the suit house through sale-deed dated year 1902."

4. The learned Civil Judge held the unregistered deed, relied by the defendant as Exh.D.W.2/1 executed in the year 1902 and which is for property valuing less than Rs.100, as valid deed and found the defendants as owner in possession since then and held that there was no question of tenancy of the defendants and the issues were decided accordingly and the suit was dismissed.

5. The learned Appellate Court,' the Additional District Judge while concurring with the findings of the trial Court on the aforesaid issues dismissed the appeal of the respondents. The High Court accepted the revision petition mainly on ground that the registered document takes precedence over the unregistered sale-deed with a passing reference about the deed that it being related to "Sufaid Daga" i.e. an open space and not to a house. However, while decreeing the suit of the respondents, the petitioners were held to be entitled to the costs of Rs.36,668 for improvements/construction made, in the disputed property, on the basis of the report of the Local Commissioner.

6. The learned counsel for the petitioner while challenging the judgment of the High Court has contended (i) that the deed executed in the year 1902 is prior to the enforcement of the Registration Act, 1908 and the registration of the deed was not required at that time (ii) and while relying on the judgment of this Court reported Mushtaq Ahmed and others v. Muhammad Saeed and others 2004 SCMR 530 (supra) submitted that preference cannot be given to a registered deed when the transaction exhibited in the deed is also supported by the delivery of possession. The learned Advocate-on-Record appearing on behalf of the respondents, while supporting the judgment of the High Court, has contended that the petitioner in his first written statement has taken a plea of adverse possession but in their subsequent amended written statement, he has taken quite a different plea i.e. the purchase of property through an unregistered sale-deed executed in the year 1902 and the learned counsel derived a conclusion from it that the deed is a fictitious one.

7. When once an amended written statement is filed, with permission of the Court, and the issues are re-examined and the deficiency in framing of issues is made up by framing additional issue in the light of the amended written statement and the permission or grant of leave is not challenged the same then attained finality. Previous averments made in the plaint, which is superseded by the subsequent written statement, and even when no question was asked from the defendant about the necessary or ground of second amended written statement, cannot be taken a ground for knocking out the defendant and particularly when the application for seeking permission for filing of amended written statement and these order of the Court thereto is not available on the record before us at this stage (petition stage), in order to see what were the grounds taken in the application for filing of the amended written statements and the reasons which weighed with the Court for allowing the same. Since the document has been executed very long before in the year 1902 by the forefathers (the grandfather) of the petitioner and they could not guess the raising of any claim by any person after a period of over 3 quarters of a century when the original parties to the deed are not alive and after launching of a search to trace out the document would be a burdensome job as who from the legal heirs of the executant has kept the document with him, required some time and which necessitated the filing of amended written statement, after filing the first one in time. However, the significant aspect in this regard is that the question of validity of document cannot be raised before this Court, which is question of fact, and the two Courts below i.e., the trial Court and the Appellate Court held the document as genuine and valid and which fact was not interfered with by the High Court, in this respect reliance can be placed in Ghulam Muhammad and others v. Malik Abdul Qadeer Khan and others PLD 1983 SC 68, where it was held:--

"... If the party having raised a point in the memorandum of appeal or revision does not press the same at the time of hearing normal presumption is that the same was not intended to be pressed and thus was given up. Learned counsel also attempted to argue that once the point is taken in the memorandum of appeal it should be presumed that it must have been urged at the time of hearing unless it is noted in the judgment that the same was given up or was not pressed. This is not essential in every case. The factual aspect of the question can be concluded by reference to the judgment in question. The other points are noted therein. The presumption would thus be that the point in question, if raised, would also have been noted. On the other hand there is well-known practice that if a serious dispute is intended to be raised in this behalf, there must be some material at least in the form of an affidavit of the person arguing the matter showing that the point was pressed. In that case, a further serious question might arise whether such assertion would be given preference to the contents of the judgment. After hearing the learned counsel we do not consider it necessary to reopen the question of limitation as the same was not pressed, in the High Court..."

8. The reply to the question relating to the document Exh.D.W.2/1 containing "Sufaid Daga", therein, as noted in the impugned judgment, is found in the judgment itself by granting costs of construction to the petitioner i.e., construction has been made by the petitioner after its purchase.

9. Now we are left with the only question, which is also a legal one, is the preference of a registered over unregistered deed, though the latter executed prior in time and also accompanied by possession. Section 17 of the Registration Act, 1908 prescribes the documents which are compulsorily registrable, provided, inter alia, the value of the property is Rs.100 or upwards as per clause (b) of subsection (1) of section (ibid). Rest of the deeds are registrable at the option of the parties under section 18 of the Act. According to section 48 the registered documents shall take effect against the oral agreement relating to a property, unless the agreement or declaration has been accompanied or followed by delivery of possession. According to section 49 no document, which is required to be registered under the Act, i.e. compulsorily registrable shall, inter alia, create any right or title to or in immovable property unless registered. However, this section does not include the deeds, which are registrable at the option of the parties e.g., the one for the property relating to less than Rs.100. Since the document in question is for Rs.99, less than Rs.100 has validly created a title of the petitioner in the property. Section 50 envisages that every document which is registrable under section 17 or 18 relating to immovable property etc. and if registered, shall take effect against every unregistered document relating to the same property subject to certain proviso, one of which is, that when a person holder of the unregistered document prior in date and is in possession of the property under the said document, would be entitled to the rights under section 53-A of the Transfer of Property Act, 1882. Section 53-A, which relates to the part performance of a contract relating to the transfer for consideration of any immovable property by writing envisages that the transferor or any person claiming under him shall be debarred from enforcing against the transferee any right in the property, provided the transferee in part performance of the • contract takes possession of the property. Section 53-A of T.P. Act has been made applicable to section 50 of the Registration Act through proviso to the section. The proviso, provides an exception to the section which postulates that rigors of the section i.e. preference to' the registered document over an unregistered document, would not be applicable to the document of the kind mentioned in the section with reference to different clauses of section 17 and of section 18 and which documents conclusively determine i.e. by creating or extinguishing the rights in, title to in the property, of a person. In other words the transferee would be entitled to the rights prescribed in section 53-A with certain conditions therein, that it should be a written document with part performance of the contract, may be in the form of delivery of possession etc., but would not mean that the document should also be relating to a contract. Had this been the intention, then there was no need to provide such a proviso to section 50 as section 53-A of the T.P. Act was sufficient enough to cater for such-like eventualities i.e., the document relating to a contract.

10. The view of the High Court, about the preference of registered deed over unregistered deed, in the circumstances of the case when the possession has been held to be that of the petitioner and they were also held by the High Court to be entitled to the improvements, and it is the respondents who are enforcing their right against the petitioner, is also not in consonance with the judgment of this Court reported in Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327. In the cited case the deed was held to be sale-deed as evident from the judgment, which is as under:--

"(2) According to Ali Rehman plaintiff/appellant, the suit house was sold by Fazal Mehmud in favour of Ali Rehman for a sum of Rs.60,000 on the basis of two agreements dated 1-5-1985 and 14-7-1985."

And it was held in para. No.6:--

"(6) After examining the provisions of two independent laws , we are of the view that if the equitable doctrine contained in section 53-A of the Transfer of Property Act is not followed in the given circumstances, it would render section 53-A of the Transfer of Property Act as redundant. This cannot be the intention of Legislature because the Legislature is not supposed to enact a law which becomes redundant from the very date of its enactment and that at the time of insertion of section 53-A of Transfer of. Property Act the Legislature was not aware of the existence of section 49 of Registration Act..." and also further observed:--

"(10) The most important ingredient of section 53-A of the Transfer of Property Act is the transfer of possession in favour of the transferee. If such pronounced and tangible act of transfer of physical possession is in favour of the transferee, the equity must favour him and he be allowed to defend his possession even on the basis of unregistered deed." (emphasis supplied).

11. In order to examine the question prevailed with the High Court in the light of the judgment of this Court, referred to above, and also to examine the question so raised, in the light of the record to be made available at the time of hearing of the appeal, it is a fit case for the grant of leave.

M.H./M-342/SC Leave refused.