PLJ 2021 Peshawar (Note) 115
Specific Relief Act, 1877 (I of 1877)--
----Ss. 12, 42 & 54--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration, specific performance and permanent injunction--Dismissed—Appeal--Dismissed--Oral agreement--Competency of suit--Oral sale was not supported by witnesses--Witnesses were not identified parada nashin lady--Failing of petitioners to established oral sale and payment of sale transaction concurrent findings of facts--Challenge to--Suit for declaration is not competent because very foundation of suit i.e. oral agreement of years 1982 has been expired and cannot operate any legal binding--Witnesses produced in support of oral sale were not able to state exact date and time of alleged oral sale--Identity of Mst. Bacha Zarina has not been established during evidence--None of witnesses claimed that he by himself had counted currency notes-- Persons before whom alleged payment was made, did not make any effort to verify her identity through any means--Petitioners have failed to establish oral sale, payment of sale transaction and identity of parda observing lady--Counsel for petitioners has not been able to point out any error in concurrent findings of facts recorded by two Courts--There is no misreading and non-reading of record and law nor there is an error in exercise of jurisdiction by Courts below--Decrees of concurrence passed by two Courts below about dismissal of petitioners’ suit are quite justified and clearly unexceptionable--Revision petition dismissed. [Para 5, 6, 7, 17 & 18] A, B, C, D, E, I & J
2019 SCMR 880, 2018 SCMR 2080 and PLD 2019 SC 677 ref.
Execution of sale-deed--
----Duty of Vendee--Sale deed executed by Pardanashin lady, it is prime duty of vendee to prove that lady fully comprehended terms and conditions of sale transaction, thus was in knowledge of transfer of her ownership rights. [Para 8] F
Requirement of law--
----Beneficiary is bound under law to bring on record all available evidence to show that onus of proof was placed on him was fully discharged as required by law. [Para 8] G
Transfer of Property Act, 1882 (IV of 1882)--
----S. 9--Transfer of immovable property--Where writing is not expressly required by law, a transfer of immovable property can be made without writing. [Para 10] H
Mr. Tilla Muhammad, Advocate for Petitioners.
Date of hearing: 4.10.2019.
PLJ 2021 Peshawar (Note) 115
Present: Ahmad Ali, J.
KABAL KHAN and 12 others--Petitioners
versus
RAHMANZAY and others--Respondents
C.R. No. 303-P of 2019, decided on 4.10.2019.
Judgment
Through the instant Civil Revision petitioners have called in question the vires of judgment/decree dated 15.01.2019 of the learned Additional District Judge Katlang District Mardan, whereby their appeal filed against judgment/decree dated 29.09.2018 of the learned trial Court of Civil Judge-II Katlang, was dismissed.
2. A brief account of the facts of present Civil Revision is that the petitioner filed a suit against respondents for the grant of decree for declaration, specific performance of the oral agreement and grant of permanent injunction. Petitioners in their plaint contended that their predecessor-in-interest namely Afridi Khan had purchased the property, detailed in the headnote of the plaint, from his sister Mst. Bacha Zarina in the year 1982 through the oral sale but the effect of the same was not given in the revenue record. They prayed for correction of revenue record, in alternate they prayed for the decree of specific performance of the said oral agreement and also prayed for the grant of permanent mandatory injunction directing revenue staff to rectify the entries in revenue record and also to restrain respondents from alienating the suit land on the basis of said wrong entries. The suit of petitioners was processed in accordance with law by the learned trial Court where respondents contested the suit and finally the same stood dismissed vide Judgment/Decree dated 29.09.2018 by the learned Civil Judge-II Tehsil Katlang, District Mardan. The appeal of petitioners was also dismissed vide judgment/decree dated 15.01.2019 and present revision has been preferred against the concurrent finding of the two Courts below.
3. Learned counsel for the petitioners argued that Mst. Bacha Zarina, being the sister of Afridi Khan had agreed to sell her property in lieu of Rs. 50,000/- to him in the year 1982. Being siblings, there was a relation of faithfulness and affection between them, therefore, the sale was not given effect in the black and white; however, possession was delivered to said Afridi Khan, the predecessor in interest of petitioners; and since then till date, the property has been coming in possession of petitioners. He maintained that the petitioners proved their case by producing witnesses and they firmly stood the test of cross-examination. Both the Courts below have arrived at erroneous conclusion of the case and therefore, they are entitled to the decree as prayed for.
4. Arguments heard and record minutely sifted.
5. It is the case of petitioners that their predecessor-in-interest namely Afridi Khan had purchased 06 Jareeb land in lieu of
Rs. 50,000/- from Mst. Bacha Zarina in the year 1982 through the oral sale. PW-5 in his cross-examination stated that Mst. Bacha Zarina died in the year 1985 and his father Afridi Khan died in the year 2011, whereas, the suit in hand was filed on 07.03.2015. It is an undeniable fact on the face of the record that Afridi Khan, who remained alive for about 26 years after the death of Mst. Bacha Zarina never claimed the ownership of suit property nor opted to approach the Court of law. The alleged oral sale was struck in the year 1982 and the suit was filed in the years 2015, but petitioners slept over the same for about 33 years before approaching the Court. Law favours the vigilant and not indolent. Petitioners were not vigilant in asserting their rights by filing suit. There is nothing to suggest that petitioners had performed any overt act to keep the said agreement alive. Hence, the suit for declaration is not competent because the very foundation of the suit i.e. oral agreement of the years 1982 has been expired and cannot operate any legal binding. Reliance is placed on the case titled Ainuddin and others v. Abdullah and another (2019 SCMR 880).
6. The witnesses produced in support of the oral sale were not able to state the exact date and time of the alleged oral sale. This fact also proved through the witnesses of the plaintiff that Mst. Bacha Zarina was a parda observing lady and a lady in Burqah was present who was introduced by Afridi Khas as Bacha Zarina and she received Rs. 50,000/-. Thus, the very identity of Mst. Bacha Zarina has not been established during the evidence. None of the witnesses claimed that he by himself had counted the currency notes.
7. As Mst. Bacha Zarina was a pardanashin lady thus, the burden of proof to establish the oral sale laid on petitioners but they failed to discharge such burden. Persons before whom the alleged payment was made, did not make any effort to verify her identity through any means. The witnesses of purported oral sale also did not take simple precautions, such as enquiring from the said lady about her family members and the reason why her other relatives within prohibited degree or husband were not present. Since an illiterate parda observing lady intended to divest her entire property in favour of her brother Afridi Khan, every precaution should have been taken to ensure that the parda clad person who was produced before the witnesses was actually the purported vendor. Petitioners have failed to establish the oral sale, payment of sale transaction and identity of the parda observing lady. Reliance is placed on the reported case of apex Court, titled Wali Muhammad Khan and another v. Mst. Amina and others (2018 SCMR 2080).
8. In order to prove the sale deed executed by Pardanashin lady, it is the prime duty of vendee to prove that the lady fully comprehended the terms and conditions of the sale transaction, thus was in the knowledge of the transfer of her ownership rights. Vendee should have to prove that the lady was accompanied by her close relative having no clash of interest, sale transaction was completed before witnesses and the sale consideration was fixed and paid to her and that she was aware of the piece of land being sold to vendee. From the evidence produced by petitioners, it transpired that the episode of alleged sale was a one-man show where Afridi Khan, produced a lady in burqa before witnesses, stated the purchase of six jareebland in lieu of Rs. 50,000/-, paid the amount to the lady and thus everything was done. In this entire episode of oral sale, the role of vendor lady looks like a robot who silently received the purported sale amount and went inside the house. It was held in the reported case titled Mst. Nishata v. Muslim Khan alias Musali etc. NLR 2011 Civil 507 (Peshawar) that execution of documents by illiterate pardanashin ladies, the beneficiary must establish by furnishing strong and most satisfactory proof that not only document was executed but the illiterate pardanashin lady had fully understood what was contained in the document. Absence of duress, protest, lack of misunderstanding or want of comprehension would not in itself be the real proof of true understanding mind of the executant. The intent and purpose of law is that evidence should be brought on record to prove that documents were read over and explained to executant. The beneficiary is bound under the law to bring on record all the available evidence to show that onus of proof was placed on him was fully discharged as required by law.
9. It is manifest that the petitioners had claimed that Afridi Khan had purchased the suit property orally from Mst. Bacha Zarina for the consideration of Rs. 50,000/-. Admittedly, the value of the sale consideration has exceeded Rs. 100/-. Since petitioners had claimed oral sale and the value exceeded Rs. 100/- the proviso to Sections 9 and 54 of the Transfer of Property Act have taken the lead role in this case. Section 9 of the Transfer of Property Act 1882 deals with oral transfer and it reads as follows:
9. Oral transfer.--A transfer of property may be made without writing in every case in which a writing is not expressly required by law.
10. With regard to the scope and amplitude of Section 9, writing was not necessary under the law for the validity of any transfer whatsoever, and in all ancient systems of law, transfer of possession was the only requisite to the transfer of title. The Transfer of Property Act, 1882, makes writing necessary in the case of a sale of tangible immovable property of the value of Rs. 100/- or upwards, or the sale of a reversion or other intangible thing. Section 9 of the Transfer of Property Act itself contemplates that where writing is not expressly required by law, a transfer of immovable property can be made without writing.
11. What is the sale, how the sale made and what is the contract for sale of immovable property has been explained in Section 54 of the Transfer of Property Act. Section 54 of the Transfer of Property Act reads as follows:
54.”Sale” defined.--”Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
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.
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.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for 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.
It does not, of itself, create any interest in or charge on such property.
12. Hence, it is thus clear from Sections 9 and 54 of the Transfer of Property Act that where writing is expressly required by law, the transfer of tangible immovable property shall be made in writing and not by oral. It is also made clear under Section 54 of the Transfer of Property Act that where such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards is made, it could be made only by a registered instrument. Reliance is placed on 2015 CLC 385 (Balochistan) titled Bakhtiar v. Nasrullah and 12 others.
13. It is also important to note here that the present suit is filed for declaration of title, specific performance of oral agreement and injunction. Obviously, the legal title has not been passed on to the plaintiff. The counsel for petitioners during the course of arguments had emphasized the possession of petitioners over the suit property contending it as part performance of the contract.
14. In what situations will be the doctrine of “part performance” as enunciated in Section 53-A of the Transfer of Property Act, 1882 serve as a valid defense? It is incumbent on the party invoking the provisions of Section 53A of the Transfer of Property Act to establish before the Court that all the requirements of this section, and not only some of them, have been satisfied. Where the document in question is unavailable, it would still be necessary to adduce evidence to satisfy, the Court that there existed a contract and, more importantly, so that the Court may ascertain with reasonable certainty as to what were the terms of that contract. Equally necessary for the protection under this section to be made available, the defendant will have to be willing to perform the terms of the contract as required. In the absence of everyone of these requirements being satisfied and where the burden of proof is not adequately discharged, the applicability of Section 53-A of the Transfer of Property Act will be impermissible.
15. There is no cavil with the proposition that petitioners even cannot benefit themselves out of the provision of Section 53-A of the Transfer of Property Act. Section 53-A of the Transfer of Property Act is merely a shield that can be used in defense and not as a weapon to assert title over the property. The right conferred by this section is only available to the defendant to protect his possession. The section does not create a title on the plaintiff. Guidance derived from PLD 1964 Supreme Court 106 titled Abdullah Bhai and others v. Ahmad Din. Reliance is also placed on the reported cases titled Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165 Supreme Court (AJ&K) and Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 Supreme Court (AJ&K).
16. The oral agreement to sell was required to be documented in the revenue record through mutation within a reasonable time. Limitation starts form the date of the refusal, but in absence of any refusal too it becomes the duty of beneficiary to make efforts to safeguard his rights and if no such efforts are made that after the lapse of three years he barred by the law of limitation to file suit for specific performance of the agreement. Herein the present case, on one hand, no date of refusal has been mentioned in the plaint to calculate the limitations, whereas, on the other, there is inordinate delay of about 33 years, hence, the limitation would not start from the refusal for the simple reason that it is equal responsibility of one asserting his rights to step in the Court within the scope of limitation even where there is no refusal on the part of the other party or suit at least would have been filed after the death of Mst. Bacha Zarina died in 1985. Reliance is placed on Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others (PLD 2019 Supreme Court 677).
17. Learned counsel for petitioners has not been able to point out any error in the concurrent findings of facts recorded by the two Courts. There is no misreading and non-reading of the record and law nor there is an error in the exercise of jurisdiction by the Courts below.
18. The decrees of concurrence passed by the two Courts below about the dismissal of the petitioners’ suit are quite justified and clearly unexceptionable.
19. There is no case made out at all for the exercise of revisional jurisdiction. Hence, dismissed in limine.
(Y.A.) Petition dismissed
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