PLJ 1996 Karachi 61

Present: RANA BHAGWAN DAS, J. Mst. PARVEEN BEGUM and another-Plaintiffs

versus

Mst. SHAH JEHAN and another-

Defendants Suit No. 587 of 1985, dismissed on 21.12.1995.

(i) Qanun-e-Shahadat, 1984(P.O. lOof 1984)--

-—Art. 102 & 103-Declaration and permanent injunction-Suit for-Whether defendants can be allowed to lead evidence in contradiction of contents of written agreement-Question of-Under Articles 102 and 103, when terms of a contract have been reduced to writing, no oral evidence can be given in contradiction of terms of such contract, grant or other disposition of property-Held : Defendants are not legally entitled to adduce evidence contrary to terms of a written document i.e. agreement to sell and acknowledgment receipt in respect of consideration. [P. 641 A

PLD 1986 SC 519 rel.

(ii) Specific Relief Act, 1877 (I of 1877)--

—S. 42-Declaration and permanent injunction-Suit for-Whether plaintiffs are entitled to declaration of their ownership under agreement to sell as well as protection of their possessory rights-Question of-Proviso to Section 42 bars declaration where plaintiff being able to seek further relief than mere declaration of title, omits to do so-Agreement to sell executed by Defendant No. 1 in favour of plaintiffs does not by itself create any right on interest in or any charge on .property-Since plaintiffs
are not entitled to declaratory relief relating to ownership of property in suit, they would not be entitled to a consequential relief of permanent injunction to protect their possession-Held : Grant of declaration under Section 42 and relief of injunction under Section 54 of Specific Relief Act being equitable reliefs and discretionary with court, plaintiffs are not entitled thereto-Suit dismissed. [Pp. 64 to 67] B, C, D, E, F, G & H

PLD 1968 Kar. 222, PLD 1978 Lah. 113, PLD 1986 Lahore 399, PLD 1981 SC (AJK) 79, PLD 1987 SC (AJK) 93,1982 SCMR 1178 and 1983 SCMR 988 ref.

Mr. MaroofAli Khan, Advocate for Plaintiffs. Mr. Asghar Hussain, Advocate for Defendants. Date of hearing : 14.12.1995.

judgment

Plaintiffs have filed this suit for declaration and permanent injunction on the strength of agreement to sell in respect of plot bearing No 12/1-C Area Liaquatabad hereinafter referred as the plot in suit.

2. By an agreement dated 8 4.1985 defendant No. 1 agreed t,n sell the plot in suit in favour of plaintiffs for consideration of Rs. 75,000/- which was paid by their father Muhammad Rafi and they obtained vacant and physical possession of half of back portion of the plot. In order to affirm the bsolute sale of the plot in suit defendant No. 1 executed an affidavit in this effect and acknowledgment receipt for payment of consideration on the same day which was attested by her son Muhammad Arif Advocate as witness.

3. It is averred that on the same day, defendant No. 2 agreed to sell out plot No. 11/1-C Area in favour of their mother Mst. Musharaf Begum and their brother Muhammad Sarfraz for a sum of Rs. 1,27.000/- and received Rs. 15.000/- as part payment with the promise to execute a registered sale deed within one month. It is maintained that the plaintiffs paid property tax in respect of the plot in suit for the year 1984 85 on 27.4.1985 and approached the Excise & Taxation Authorities to mutate their names as owners in their records but they refused to do so until the defendant No. 1 confirmed the sale in writing and produced photocopy of her National Identity Card. Accordingly their father approached the defendants and requested them for assistance but they avoided to do so on one or the other pretext. Apprehending some foul play on the part of defendants in relation to agreement to sell in respect of plot No. 11/1-C Area plaintiffs'
father sent a letter dated 2.5.1985 to defendant No. 2 asking him to execute the sale deed in their favour, their mother and brother but the said defendant through his advocates Asghar Hussain Akhtar & Co. vidf letter dated 11.5.1985 replied that no sale agreement had been executed by him. Thereafter he approached and persuaded defendant No. 2 a number of times to honour the commitment but the latter demanded Rs. 1,00,GOO/- over and above the consideration already agreed for completion of the deal in respect of the plot in suit. Subsequently plaintiffs received notice dated 29.8.1985 from defendant's advocate requiring them to pay a sum of Rs. 1,00.000/- over and above Rs. 75,000/- to defendant No. 1 failing which they would not recognise the sale in respect of the plot in suit. Apprehending interference with their possession and title plaintiffs brought this suit seeking the following reliefs:

(a) That it may be declared that the defendant No. 1 is not entitled to demand Rs. 1,75,000/- as price of plot No. 12/1- C Area Liaquatabad at Karachi, sold under deed executed on 8.4.1985 from the plaintiffs and the plaintiffs have acquired all rights of the defendant No. 1 in the said plot by the said deed.

(b) That the defendants or anybody else claiming any right through them be restrained permanently from interfering with the plaintiffs possession and title over the said plot by issuance of a mandatory injunction.

4. In her written statement defendant No. 1 admitted the execution of agreement for sale of the plot in suit with a reservation that the consideration was settled at Rs. 1.7-5.000/- and not Rs. 75,000/-. She added that at the time of receipt of Rs. 75.000/- and affidavit was executed in which the sale price was intentionally not mentioned. It is her case that in order to save income tax and wealth tax plaintiffs wanted to show lesser amount in the sale deed and after receiving Rs 75.000/- from them as advance payment alf area of back portion of the plot was handed over to them. According to this defendant she agreed to hand over remaining half portion of the plot to the plaintiffs after receipt of balance amount of Rs. I,0f0,000/- whereafter change of ownership \>y delivery of necessary documents would take place. She added that on 10.4.1985 father of the plaintiffs took a sale deed showing consideration as Rs. 75,000/- to her and he wanted to obtain her signature
thereon but since he was not ready to pay balance amount of Rs. l.OO.OOO/- sale deed was returned with a direction to get a fresh sale deed prepared showing consideration as Rs. 1,75,000/-. This defendant further urged that the tile documents in respect of the plot and construction thereon remained with her but in the mean-time plaintiffs unauthorizedly occupied remaining half portion of the plot in suit by breaking open locks of the intervening door for which no action was taken as she wanted to complete the sale transaction on receipt of balance amount of Rs. l.OO.OOO/-.

5. Defendant No. 2 who is husband of defendant No. 1 filed written statement through his son and attorney Muhammad Arif in an evasive manner expressing least concern with the plot in suit and the transaction of sale.

6. Pleadings of the parties were reflected in the following issues.

(i) Whether defendant No. 1 has agreed to sell the property in dispute for Rs. 75,000/- ?

.£

(ii) Whether the plaintiffs are entitled to relief?

7. In support of their case plaintiffs examined their father/ attorney Muhammad Ran" whereas the defendants examined their son/ attorney Muhammad Arif. .

8. At the close of evidence learned counsel for the parties submitted the notes of written arguments but the suit could not be disposed of for one or the other reason. Learned counsel for tiie plaintiffs is reported to be out of country while Mr. Asghar Hussain Advocate did not like to advance any argument in addition to the notes of written arguments.

9. I have had the privilege of going through the material evidence on record and the notes of written arguments. My findings are as under for the following reasons :

Reasons.

10. Issue No. 1: From the evidence on record it transpires that the plot in suit was initially allotted to one Muhammad Suleman son of Muhammad Hassan by the Rehabilitation department who raised construction over it for his occupation. It further appears that he had obtained a loan of Rs. 18,000/- on different occasions from Mst. Shah Jehan "*~ Begum and on her demand for repayment of the amount surrendered his right and interest in the plot in suit alongwith construction of shops and residential portion thereon in her favour by executing a Surrender Deed dated 16.10.1966. A perusal of the agreement to sell Ex. 1/3 dated 8.4.1986
executed by the defendant No. 1 in favour of the plaintiffs tends to indicate that she had agreed to sell the plot in suit in their favour for a consideration of Rs. 75,000/- and acknowledged the receipt of consideration in presence of the witnesses. It further transpires that after the deal between the plaintiffs and defendant No. 1 the latter changed her mind and wanted extra payment of Rs. 1,00,000/- over and above the consideration agreed upon between the parties resulting in exchange of notices between the parties. Notwithstanding the variation in -respect of the sale consideration I am of the view that in view of the legal bar contained in Sections 91 and 92 of the Evidence Act corresponding to Article 102 & 103 of the Qanoon-e-Shahadat, 1984 defendant No. 1 cannot be allowed to lead evidence in contradiction to the written terms of a document Crux of the above provisions of law and consistent view of the courts has been that when the terms of a contract have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to writing, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of the property, or of such matter except the document itself and no evidence of any oral agreement or statement shall be admitted as between the parties to any instrument or their representatives-in-interest for the purpose of contradicting, varying, adding to, or subtracting from its forms. In view of this position in law, I am of the considered view that the defendants are not legally entitled to adduce evidence contrary to the terms of a written document i.e. agreement to sell and the acknowledgement receipt in respect of the consideration (Refer PLD 1986 Supreme Court 519).

11. Most crucial point for consideration however is whether in the given circumstances, the plaintiffs are entitle 1 to a negative declaration of the nature asked for by them and a declaration of their ownership as well as protection of their possessery rights.

12, Under the provisions of Section 42, Specific Relief Act, any person entitled to any legal character or to any right as to any property, may nstitute a suit against any person denying or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in suck suit ask for any further relief. It may be observed that proviso to, this section bars such declaration whereby the plaintiff-being able to seek further relief than mere declaration of title omits to do so. It would seem that the law authorises a person to seek enforcement of his right to any property by | instituting a suit against the person denying his right or title.

13. Sale Agreement Ex. 1/3 executed by defendant No. 1 in favour of the plaintiffs, however does not by itself create any right or interest in 01 any charge on the property. On principle as well as on authority, therefore, in my view this agreement does not create any interest in the propeity in suit much less a valid and lawful title to it in favour of the plaintiffs. To my mind, agreement to sell, on the face of it. does not create a right of ownership in the plot in suit in favour of the plaintiffs and it only creates a right to seel* specific performance of the agreement subject to all just and legal exceptions. Obvious reason for this proposition is that under the provisions of Section 17 and 49 of the Registration Act, every document purporting to create any right, title or interest of the value of Rs. 100/- and upwards requires
compulsory registration. Even otherwise Section 54 of the Transfer of Property Act apart from other things postulates that 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 subject to fulfilment of all other legal obligations. It does not of itself, create any interest in or charge on such property. As a necessary corollary, it follows that the agreement between the parties would not confer any right, title or interest in the property in suit in favour of the plaintiffs.

14. In Alavi Sons Ltd. u. The Government of East Pakistan and others (PLD 1968 Karachi 222.) Norrul Arfin-J (as the then was) dealing with a claim for declaration held that the phrase "legal character" has been used, in the sense of "status"; which is constituted by the attributes which the law attaches to a person in his individual and personal capacity and which, according to Holland, is referable to such legal conditions as O) sex, (2) minority, (3) 'patria potestas' and 'manus', (4) coverture, (5) celibacy, (6.) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) slavery, (10) profession, (11) civil death, (12) illegitimacy, (13) heresy, M4) foreign nationality and (15) hostile nationality. According to Salmond, the term "status" is usually confined to personal legal condition for, personal
capacities and incapacities, or compulsory as opposed to conventional personal conditions.

In this sense, the expression will include personal rights and burdens to the exclusion of the proprietary relations, contractual capacities and incapacities, or legal conditions imposed upon a person by law without, his own consent as opposed to the condition which he has acquired himself by agreement, such as the position of a slave. A declaration that the plaintiff has not committed breach of the terms of a contract is a declaration neither with regard to any legal character, nor any right to or in any property.

The plaintiffs' remedy could have been either a suit for recession of the contract, or for specific performance if so permitted, or for damages for its breach."

15. In the case of Abdur Rehman Mobashir and others v. Syed Amir All Shah Bokkari and others (PLD 1978 Lahore 113) a Division Bench of the Lahore High Court dealing with the issue relating to grant of declaratmy relief in terms of section 42 of the Specific Relief Act, 1877 held thai this section applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it cannot apply to a case where only the entitlement to legal character or the property of the defendants is denied by the plaintiffs.

16. In Zafar Ahmed v. Mst. Hajran Bibi (PLD 1986 Lahore 3991 the view taken was that where plaint revealed that there was a mere agreement to sell, plaintiff could not maintain his suit for declaration on basis of such agreement as it did not create any right, title or interest in property. Only proper mode of redress for plaintiff would be a suit for specific performance c ' said agreement.

17. In Muhammad Afsar Khan v. Custodian of Evacuee Property (PLD 1981 S.C. (AJ & K) 79), it was held that a person who has contracted to buy land is not owner of any interest in the land and is, therefore, not entitled to have a decree of title. An agreement to sell does not create any interest in the property and such an agreement even if presumed to be genuine and proved, lacks to create any interest in the property. Same view was reaffirmed in Mst. Resham Jan and other? v. Muhammad Latif and another (PLD 1987 S.C. (AJ & K) 93).

18. In the case reported as-Dr. Fakir Muhammad v. Major Ameer Muhammad (1982 S.C.M.R. 1178) it was held by the Honourable Supreme Court that is well settled that in a suit under Section 42 of the Specific Relief Act declaration can be sought either regarding the plaintiffs right to any legal character or with regard to any right as to property claime by him. It was further held that in a suit under section 42 Specific Relief Act, plaintiff is required to ask-for all other reliefs open to him. The relevant prayer for consequential relief i.e. specific performance of agreement being not made in the plaint, Supreme Court upheld the dismissal of the suit by the High Court. •

19. Having held as above that the plaintiffs are not entitled to the declaration prayed for let us see whether they are entitled to the relief of permanent injunction as prayed in the plaint. It may be pointed out that since the plaintiffs are not found to be entitled to declaratory relief relating to ownership in respect of the property in suit, ordinarily they would not be entitled to a consequential relief of permanent injunction to protect their possession.

20. It is admitted position that in part performance of the contract they had received vacant and physical possession of half of the back portion of the plot in suit whereas defendant No. 1 pleaded that though she had neither parted with the documents-of title nor the shops as well as two rooms which remained in her possession and were agreed to be handed over to them after the payment of balance amount of Rs. 1,00,000/-. she further stated that father of the plaintiffs had approached Councillor of the area who after hearing the parties had directed plaintiffs' father to pay Rs. 1,00,000,'- to her and prepare a sale deed for Rs. 1,75,000/- but he did not abide by the decision. According to her subsequently the plaintiffs obtained unauthorised . occupation of the remaining half of the back portion by breaking open the locks of the intervening door for which no action was taken. From the evidence of the plaintiffs' father and attorney, it transpires that there are two
shops constructed on back portion of the plot in suit which were let put on rent to tenants and even upper storey built over the shops is in occupation of a tenant who are paying rent to defendant No. 1 and not the prospective purchasers. This would show that the plaintiffs witness wrongly and dishonestly claimed that the plaintiffs had received physical possession of the plot in suit on the date of agreement. This being the factual position-and the plaintiffs found to be not entitled to the plot in suit as owners, I am of the view that it would neither be just nor fair and equitable to grant a decree for permanent injunction in favour of the plaintiffs who according to the
defendants forcibly occupied remaining portion on the back of the plot in suit.

21. It is true that in the case repotted as Muhammad Bux v. Ziaullah and others (1983 S.C.M.R. 988) it was held that section 53-A of the Transfer of Property Act does not confer a title on vendee and creates no real right except one of defending possession but merely creates right of estoppel j between proposed transferee and transferor. To my mind, right to protect possession acquired in pursuance of an agreement to sell may be agitated as a shield byway of defence but not by way of claim or assertion adverse to-tht- rights of the real owner. In this view of the matter, I am inclined to hold that the plaintiffs are not entitled to the relief of injunction as prayed.

22. Apart from what has been stated above, grant of declaration under Section 42 and relief of injunction under Section 54 of the Specific „ Relief Act being equitable reliefs and discretionary with the Court, the plaintiffs are not entitled thereto in the present suit which is dismissed with no order as to costs.

(ZB) Suit dismissed.