Unregistered sale agreement with possession | unregistered sale deed case law in Pakistan | unregistered sale deed valid or not valid | Installment per makan bech kar case kar ke makan wapis lene main nakam.

Plaintiff ne dawa kia declaration And permanent injunction ka on behalf of unregistered sale deed
Yeh ke plaintiff ne makan khareeda 1971 main installment pe. Or installment pay karta raha or installment poori hone ke baad malik ne aik sale deed ( stamp paper) kar dia magar registery na karwa kar di.
Registery na hone ki wajah se installment pay karne wale ne court se declaration mang li.
Ju ke dawa decree hu gia.
Bechne wale ne dubara appeal ki ju ke accept hu gai or dawa remand hu gia.
Trial Court ne dawa phir decree kar dia.
Appeal hoi jiss ke khalaf or appellate court ne dubara case remand kar dia.
Third time dawa decree hoa tu iss baar appellate court ne case remand karne ki bajai bechne wale ke haq main decree kar dia
Jiss ke baad khareedne wale ne High court main revision file ki.
Or High court ne Appellate court ka faisla setaside kar ke trial court ka faisla bahal kar dia or decree in favour of kharidar bahal hi gai.
Jiss ke baad sale karne wale ne Supreme Court main appeal file ki jiss ka faisla neeche article ke hai.
Supreme Court ne qarar dia ke 1971 se qabza khareedar ke pass hai ju ke vested right hai ju ke technicalities ki banyad per wapis nahi lia ja sakta.
Or bechne wala khud mana hai ke us ne sale deed kar ke di hai.
Or nuqta yeh ke supreme court ke faislo main bian hoa pehle ,bechne wale ke nam per hai jaga or registery ko unregistered sale deed per foqiat hasal hai. Yaha apply nahi hota .
Supreme Court ne appeal dissmiss kar di or kharidar ko makan mil gia.

IN THE SUPREME COURT OF PAKISTAN

(APPELLATE JURISDICTION)

PRESENT:

MR. JUSTICE MUNIB AKHTAR

MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI

CIVIL APPEAL NO. 226-P OF 2018

(On appeal against the judgment dated

17.04.2018 passed by the Peshawar High

Court, Circuit Bench, Chitral in Civil Revision

No. 352/2008)

Rehmat Wali Khan and another

… Appellants

Versus

Ghulam Muhammad and others

…Respondent(s)

For the Appellants:

Mr. Asif Hameed Qureshi, ASC

(Via video link from Peshawar)

For the Respondent (1):

Mr. Muhammad Aamir Malik, ASC

Syed Rifaqat Hussain Shah, AOR

For Respondents (2-6):

Ex-parte

Date of Hearing:

11.04.2023

JUDGMENT

SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal under

Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973,

the appellants have assailed the judgment dated 17.04.2018 passed by the

learned Single Judge of the Peshawar High Court, Circuit Bench Chitral

whereby the Civil Revision filed by the respondents was allowed, the

judgment and decree of the learned Appellate Court dated 12.11.2007

was set aside and the judgment and decree of the learned Trial Court

dated 26.08.2006 was restored.

Briefly stated the facts of the case are that predecessor-ininterest of the respondents namey Daud Ghulam filed a suit for

declaration and permanent injunction in the PATA Court of EAC, Mastuj

against the appellants claiming ownership of the land measuring 2 ½

CIVIL APPEAL NO. 226-P OF 2018

-: 2 :-

chakorum situated in Boni, Tehsil Mastuj, District Chitral on the basis of an

unregistered deed dated 08.06.1978. The learned Trial Court vide

judgment and decree dated 04.11.1999 decreed the suit. The appellants

filed appeal before the District Judge, Chitral, which was partly accepted

and the case was remanded back to the Trial Court. The learned Trial Court

again decreed the suit vide judgment and decree dated 09.07.2004.

Feeling aggrieved by this judgment, both the parties filed separate

appeals, which were again remanded to the learned Trial Court for a

decision afresh. The learned Trial Court re-heard the parties for the third

time and again decreed the suit vide judgment and decree dated

26.08.2006. Being aggrieved, the appellants filed two appeals before the

learned Appellate Court, which were accepted vide judgment dated

12.11.2007 and decree in favour of the respondents was set aside. This led

to filing of Civil Revision No. 352/2008 before the learned Peshawar High

Court by the respondents. The learned High Court vide impugned

judgment allowed the Civil Revision, set aside the judgment of the

Appellate Court and restored that of the learned Trial Court dated

26.08.2006. Hence, this appeal.

At the very outset, learned counsel for the appellants

contended that the alleged sale deed dated 08.08.1978 was an

unregistered document, therefore, it did not confer any title on the

respondents. Contends that the suit filed by the respondents was barred

by time but the learned High Court did not consider this aspect of the

matter. Contends that the appellant No. 2 Mir Nawaz was a bona fide

purchaser from appellant Rehmat Wali on the basis of registered sale deed

dated 22.10.1988, as such, his rights are protected under the law. Lastly

contends that the impugned judgment is the result of mis-reading and

non-reading of evidence, therefore, the same may be set at naught.

On the other hand, learned counsel for the respondent No. 1

has defended the impugned judgment by stating that the learned High

Court has passed a well reasoned judgment, which is based on correct

CIVIL APPEAL NO. 226-P OF 2018

-: 3 :-

appreciation of the evidence available on the record, therefore, the same

needs no interference.

We have heard learned counsel for the parties at some

length and have perused the available record with their able assistance.

This case has a chequered history. There is no denial to this

fact that the matter is lingering on since 1989 and it was twice remanded

back to the learned Trial Court due to one reason or the other and the suit

of the respondents was thrice decreed by the learned Trial Court. In the

instant round of litigation, the judgment of the learned Trial Court was set

aside by the learned Appellate Court. Probably, it was due to this reason

that the learned High Court has exhaustively examined the evidence to

come to a definite conclusion. It was the claim of the predecessor-ininterest of the respondents namely Daud Ghulam that he was doing

private business as motor mechanic and was living in Karachi to earn

livelihood for the last 36 years. The appellant No. 1 Rehmat Ali sold the

suit land to the said Daud Ghulam on installments and possession was also

handed over to him in the year 1971. Daud Ghulam regularly paid the

installments and after the completion of the installments, Rehmat Ali

executed an un-registered sale deed dated 08.08.1978 in favour of the

said Daud Ghulam, predecessor-in-interest of the respondents. During trial

proceedings, the appellant Rehmat Ali, vendor, not only admitted the

execution of the sale deed but also admitted the payment of sale

consideration. He also admitted that the possession of the suit property

had also been delivered in consequence of the sale transaction. During the

course of arguments, learned counsel for the appellants had argued that

the appellant No. 2 Mir Nawaz was a bona fide purchaser from appellant

Rehmat Wali on the basis of registered sale deed dated 22.10.1988 (which

was subsequent in time), as such, his rights are protected under the law.

However, we do not tend to agree with the learned counsel. In the case of

Sardar Arshad Hussain Vs. Mst. Zenat-un-Nisa (2017 SCMR 608) the

question whether the un-registered sale deed can be given preference

over the registered one when on the basis of un-registered sale deed

CIVIL APPEAL NO. 226-P OF 2018

-: 4 :-

possession of the property has also been given, came up for consideration

before this Court and this Court while relying on earlier judgments of this

Court on the subject candidly held as follows:-

“A registered deed reflecting transfer of certain rights qua a property

though will have sanctity attached to it regarding its genuineness, and a

stronger evidence would be required to cast aspersions on its correctness

but cannot be given preference over an un-registered deed vide which

physical possession of the property has also been given. Subsection (1) of

section 50 of the Registration Act, 1908 also provides that a registered

document regarding transfer of certain rights in an immovable property

will have effect against every un-registered document relating to the

same property and conferring the same rights in the property as shown in

the registered document but the law has also provided certain exceptions

to the above said provisions of law. If a person being in possession of an

un-registered deed qua transfer of certain rights in property along with

possession of the same he can legally protect his rights in the property

and even a registered deed subsequent in time will not affect his/her

rights. The first proviso to section 50 of the Registration Act, 1908

provides so that such rights in the property can be protected under

section 53-A of the Transfer of Property Act, 1882. Reliance in this regard

can well be placed on the cases of Fazla v. Mehr Dina and 2 others (1999

SCMR 837) and Mushtaq Ahmad and others v. Muhammad Saeed and

others (2004 SCMR 530).”

(underlined to lay emphasis)

Learned counsel for the appellanta had also argued that the

suit filed by the predecessor-in-interest of the respondents was barred by

time. However, we have noted that neither the appellants ever tried to get

an issue framed on this point nor this question was ever considered by the

courts below. Therefore, the same cannot be raised before this Court at

this stage. Even otherwise, when pursuant to the un-registered sale deed,

the respondents were put in possession of the suit land in the year 1971, a

vested right had been created in their favour, which cannot be taken away

merely on the basis of technicalities. In the case of Syed Hakeem Shah Vs.

Muhammad Idrees (2017 SCMR 316) the sale consideration was totally

paid and possession was also delivered to the vendee/transferee but the

registered document could not be executed. This Court held that “Section

53-A of Transfer of Property Act, 1882, in itself creates a right in favour of

transferee to retain possession. Such right comes into existence when

CIVIL APPEAL NO. 226-P OF 2018

-: 5 :-

transferor put the transferee in possession in part performance of the

contract/sale deed. Right created by Section 53-A in favour of the

transferee in possession can be termed as an equitable title which he held

in the property. Where the transferee continued to enjoy a right then the

statute of limitation cannot take away such right as the law of limitation is

not meant to take away an existing right. Right created under Section 53-A

of the Transfer of Property Act, 1882 is an existing right and is not

extinguished by any length of time. Law of limitation does not come in the

way of a transferee in possession when he as a plaintiff, filed his own suit

to preserve his right to retain possession that was granted to him under

Section 53-A of the Transfer of Property Act, 1882.” In this view of the

matter, we are of the view that the learned High Court has correctly

appreciated the material aspects of the case and the conclusions drawn

are in line with the guidelines enunciated by this Court on the subject.

Learned counsel for the appellants has not been able to point out any legal

or factual error in the impugned judgment, which could be made basis to

take a different view from that of the learned High Court.

For what has been discussed above, this appeal having no

merit is dismissed with no order as to costs.

JUDGE

Islamabad, the

11th of April, 2023

Approved For Reporting

Khurram

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