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Civil Petition No. 773 of 1976, decided on 22nd May, 1984.

(On appeal from the Judgment dated 19th May, 1976 of the Lahore High Court in R. S. A. No. 367 of 1963).

Constitution of Pakistan (1973)-

---Art. 185 (3)-Transfer of Property Act (1V of 1882), S. 53-A Possession-Leave to appeal-Granted to consider question of law of considerable importance that various Benches of High Courts have expressed a view different from that expressed by Privy Council in AIR 1940 P C 1.

Prabodh Kumar Das and others v. Dantmara Tea Co. Ltd. A 1 R 1940 P C I ; Mst. Shankari v. Milkha Singh A I R 1941 Lah. 407; Inayatullah and others v. Shah Muhammad and others P L D 1961 Lah. 372; The Pakistan Employees Co-operative Housing Society Ltd., Karachi v. Mst. Anwar Sultana and others P L D 1969 Kar. 474 and Carrier Telephone Industries Ltd., Islamabad v. Messrs Sohail Brothers and another P L D 1970 Lah. 1116 ref.

Ch. Asghar Ali Bhatti,

Advocate Supreme Court and Iqbal Ahmad Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing : 22nd May, 1984.

-One Mst. Janno, the mother of the respon dents 1 and 2 owned 11/96 share in a joint Khata measuring 127 Kanals 2 Marlas situate in village Raman, Tehsil and District Bahawalpur. The petitioner allegedly purchased the share of Mst. Janno from her in the year 1939 for a sum of Rs. 600. The sale was witnessed by document which was neither stamped nor was got registered. Mst. Janno, it may be mentioned, was the first cousin of the petitioners. However, before any mutation of sale could be sanctioned in favour of the petitioners, Msr. Janno died in the year 1949. After her death, the mutation of inheritance of Mst. Janno was, on the other hand, sanctioned in favour of her two sons namely, respondents 1 and 2.

Nevertheless, the petitioners, who had entered in possession of the land and were continuing in possession thereof also and mutation of sale entered in their favour in the year 1960 but the name was not attested.

On the other hand, respondents 1 and 2 on the basis of the entries of the mutation, which were carried on in Jamabandi, started asserting their rights in the land whereupon the petitioners filed a suit against the respondents for a declaration and permanent injunction on 1-11-1960. In support of their claim, the petitioners produced sale-deed Exh. P. A. and Khasra Girdawari evidencing their possession. The suit was mainly contested by the respondents on the following issues :--

(3) Whether Mst. Janno, mother of defendants Nos. 1 and 2 had sold her 11/96 share of the Khata to the plaintiffs for. Rs..600

(4) Whether the plaintiffs had been in possession for the last 21 years as owners and

(5) Whether the plaintiffs had been in adverse possession for 12 years as against defendants Nos. 1 and 2

The learned trial Judge did not rely upon the sale-deed Exh. P. A. as it was neither stamped nor registered. He also 'held the other issues against the petitioners and dismissed their suit vide judgment and decree dated 31-3-1962. The petitioners filed an appeal before the learned District Judge, Bahawalpur, who, vide his judgment dated 1-3-1963, reversed the findings of the trial Court on the aforesaid issues and decreed the suit. Respondents Nos. 1 and 2 filed a second appeal in the Lahore High Court (R. S. A. 307/63) which was accepted by the learned Single Judge vide judgment dated 19-5-1976 and the suit of the petitioners was dismissed. The learned Single Judge mainly relied upon the judgment of the Privy Council in Prabodh Kuwar Das and others v. Dantmara Tea Co. Ltd. (A I R 1940 P C 1) wherein it was observed :-

"In their Lordships opinion, the amendment of the law effected by the enactment of section 53-A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lord ships agree with the view expressed by Mitter, J. in the High Court that "the right conferred by section 53-A is a right available only to the defendant to protect his possession". They note that this was also the view of their late distinguished colleague, Sir Dinshah Mulla, as stated in Edition 2 of his treatise on the transfer of Property Act at p. 262. The section is so framed as to impose a statutory bar on the transferee ; it confers no active title on tile transferee.

Mr. Asghar Ali Bhatti, submits that the above observations of the Privy Council were examined by the High Court in Mst. Shankari v. Milkha Singh (A I R 1941

Lah. 407) and after the Independence, various Benches of the High Court of West Pakistan have expressed a view different from that expressed by their Lordships of the Privy Council. In this connection, he has relied upon Inayatullah and others v. Shah Muhammad and others (P L D 1961 Lah. 372), The Pakistan Employees Co-operative Housing Society Ltd., Karachi v. Mst. 4nwar Sultana and others (P L D 1969 Kar. 474) and Carrier Telephone Industries Ltd., Islamabad. v. Messrs Sohail Brothers and another (P L D 1970 Lah. 1116).

A question of law of considerable importance arises for consideration in this case. We would, therefore, grant leave to appeal.

Security Rs. 1,000

The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any.

S.Q. Leave granted.

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