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Second Appeal No. 394 of 1969, heard on 29th October, 1.981.

‑‑ S. 42‑Declaratory suit‑Maintainability‑Agreement, basis of plaintiff‑respondent's suit, itself showing possession of land delivered to appellants‑Certified copy of order passed by executing Court and other documents exhibited also showing same fact‑Agreement creating interest in immovable property but not stamped‑Held, suit for declaration not maintainable.

‑‑ O. III, r. 2‑Attorney, authority of‑Appellants giving power of attorney for only conducting Court proceedings and not authorsing him to enter into any agreement creating interest in land‑Held, such agreement executed by attorney not binding on appellants.

Arif Hussain for Petitioner No. 1.

Maqbool Ahmad Khan for Appellants.

Date of hearing: 29th October, 1981.

This second appeal is directed against the judgment and decree of Additional District Judge, Sukkur, dated 17‑9‑1969 whereby he reversed the decree of the trial Court dismissing the suit of respondent for declaration and permanent injunction. The facts relevant to the appeal are as follows:‑--------

The appellant purchased 3493 Sq. feet of land out of Survey No. 1604/2 situated in Old Sukkur by virtue of two registered sale deeds dated 21‑12‑64 and 15‑1‑1965. The vendor. Muhammad Soomar (who is now dead and will be referred hereinafter as the deceased) delivered possession of only 2494 Sq. feet out of the total area of 3493 sold to appellants. On account of failure of the deceased to deliver possession of an area of 999 Sq. feet, the appellants brought Suit No. 160/62 against the deceased in which a preliminary decree was passed in the first instance on 10‑10‑1968 and a Commissioner was appointed to ascertain flow touch area out of the area sold to appellant was delivered to them pursuant to the sale. The Commissioner appointed by the Court in his report dated 12‑12‑1963 stated that an area of 999 Sq. feet was delivered less to the appellants and the said area was shown to be in possession of the deceased. On the basis of the above report of Commissioner, a final decree was passed in favour of the appellants for possession of the area of 999 Sq. feet and/or in the alternative for payment by the deceased to the appellants the proportionate price of 999 Sq. feet. As the final decree was not complied with the appellants applied for execution of the decree and on 2‑4‑1965 the executing Court issued the writ of possession which was duly executed. On 17‑4‑65 the executing Court while disposing of the execution application of the appellants passed the following order:‑---------

"Writ of possession has been returned executed. The possession of the suit property has been given to the decree‑holder as per endorsement of the bailiff. Let satisfaction to that effect be recorded and note be made in the decree. The execution application stands disposed of."

It appears that after the disposal of the execution application, on 25.4.65 an agreement was entered into between one Imam Ali Shah who acted as attorney of the appellants, and the present respondent and under this agreement out of the, area of 999 Sq. feet which the appellants had got possession of from the Court, an area of 519 Sq. feet was given to the respondent in consideration of settlement of an alleged dispute between the appellants and respondent. It was stated in the agreement that the appellants shall have no right, title or interest in respect of the area of land measuring 519 Sq. feet and by virtue of this document the respondent had become the lawful owner in possession and enjoyment of the said area of 519 Sq. feet. The appellants it appears did not abide by the agreement and denied the alleged title of respondent whereupon the respondent filed Suit No. 166/66 for declaration and permanent injunction. The declaration sought in the suit was to the effect that under the agreement dated 25‑4‑65, the respondent was given an area of 519 Sq. feet out of plot bearing No. 68/604/2 situated in Old Town, Sukkur and that the appellants had no right or interest in the said plot of land. A permanent injunction was asked for against the appellants restraining them from interfering with the possession and enjoyment by the respondent of the area given to them under the aforesaid agreement dated 25‑4‑1965. The appellants resisted the suit and took plea that Imam Ali Shah who had executed the agreement dated 25‑4‑1965 had no authority on behalf of the appellants to sign or execute such an agreement. Objection was also raised that the document dated 25‑4‑1965, being one creating interest in immovable property required compulsory registration and in the absence of registration no such right, title or interest could be claimed by the respondent. A further objection as to the maintainability of the suit under section 42 of the Specific Relief Act was also pressed. The trial Court framed the following issues in the suit:‑---

"(1) Whether the suit is barred under section 42 of the Specific Relief Act

(2) Whether the agreement in suit is without consideration and is void as being unregistered and executed without authority

(3) Whether Imam Ali Shah was attorney of the defendants and was authorised to execute the agreement on their behalf

(4) To what relief, the plaintiff is entitled

The trial Court found against the respondents on all the above issues and dismissed the suit. On appeal, the First Appellate Court disagreed with the trial Court on Issues Nos. 1 and 2 and reversed the finding of trial Court on these issues and decreed the suit of respondent in terms of prayers 1 and 2 of the plaint.

Mr. Arif Hussain, the learned counsel for the appellants has challenged the judgment and decree of the First Appellate Court on the ground that findings arrived at by the First Appellate Court on Issues Nos. 1 and 2 were in total disregard of the evidence on record and were based on misreading of evidence. The first Appellate Court on Issue No. 1 held that the respondent was in possession of 999 Sq. feet of land out of which he surrendered some portion to the appellants and therefore he was entitled to remain in possession of the remaining portion thereof as the property was his ancestral property and therefore, the bar contained in section 42 of the Specific Reliefs Act did not apply. This finding of the First Appellate Court does not find support from the evidence on record. The document dated 25‑4‑1965 which was the basis of the suit of respondent itself show, that the possession of the area of 999 Sq. feet was delivered to the appellants in execution of the decree passed in Suit No. 160 of 1962. The certified copy of the order passed by the executing Court in execution of decree of Suit No, 160 of 1962 also show that possession of 999 Sq. feet of land decreed in favour of appellants was delivered through the process of the Court. On the face of this documentary evidence I failed to see how the first appellate Court reached the conclusion that the area of 999 Sq. feet was formerly in possession of the respondent and that under the agreement (Exh. 45‑A) they surrendered certain area to the appellants. The conclusion reached by the First Appellate Court is based not ‑only on complete misreading of the document Exh. 45‑A but was also arrived at in' total disregard of Exhs. 41 to 43 which are the report of Commissioner appointed under the preliminary decree passed in Suit No. 160 of 1962, execution application and the order of the executing Court passed thereon recording satisfaction of decree respectively. The First Appellate Court also failed to notice that the document Exh. 45‑A was in the nature of a deed creating interest in the immovable property which could not take effect in view of section 49 of the Registration Act. I accordingly reverse the finding of the First Appellate Court on Issue No. 1 and hold that the suit for declaration was not maintainable on the basis of document Exh. 45‑A.

On Issue No. ‑2, the First Appellate Court reached the conclusion that the agreement Exh. 45‑A executed between the parties was fully acted 'upon and therefore the objection as to its non‑registration and payment of consideration became irrelevant. It was further found by the First Appellate Court that the respondent acting bona fade upon the agreement lost and surrendered a piece of land which they were not bound to surrender without recourse to a Court of law and accordingly overruled the objection that the attorney who acted on behalf of appellants had no authority to act on their behalf. The agreement Exh. 45‑A was found by the First Appellate Court as having its effect not on its legal or formal value but on the fact that it has been acted upon by the parties and even oral settlement could have been as binding as the document Exh. 45‑A. The above findings given by the first appellate Court are not wholly misconceived but .are also contrary to the document relied upon by the respondent. Besides, the first appellate Court in arriving at the above findings completely overruled the certified copy of power of attorney (Exh. 51) executed by appellants in favour of Imam Ali Shah. A perusal ‑of power 4f attorney will show that, it was given only for the purposes of conducting the Court proceedings and did not authorise him to enter into any such, agreement. In these circumstances there is no difficulty in holding that the agreement dated 25‑4‑65 executed on behalf of the appellants on the basis of the above power of attorney was not binding on appellants as the attorney did not have the requisite authority to execute the above agreement. Similarly the agreement could not be taken into consideration for the reason that it purported to create interest in immovable property over the value of Rs. 100, and therefore it required compulsory registration. I accordingly reverse the finding of the First Appellate Court on Issue No. 2 also.

The result of the above discussion is that the appeal is accepted. The judgment and decree of the, First Appellate Court is reversed and that of the trial Court is restored. The appellants will be entitled to costs throughout.

K.M.A Appeal accepted.

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