Present:
Mr.Justice Faisal Arab &
Mr.Justice Muhammad Ali Mazhar.
C.P.No.D-222 of 2006
1.
For Katcha
Peshi
2.
For orders on
CMA-565/2006
08.12.2010.
Mr.Muhammad Saleh Bhutto
for the petitioner.
Mr.Sarfraz A. Akhund for
respondent No.1(a).
Mr.Imtiaz Ali Soomro,
Assistant Advocate General.
O R D
E R
FAISAL ARAB, J. The petitioners filed civil suit No.6/2003 for
specific performance of the contract and permanent injunction against the
respondents’ predecessor-in-interest. It is the case of the
petitioners that their predecessor-in-interest Muhammad Ishaque purchased city
survey No.B-1693 and 1694 from Muhammad Eisa in the year 1969 under an agreement
to sell and pursuant to such agreement possession was also handed over to
Muhammad Ishaque. Muhammad Ishaque did not file any suit for specific
performance of contract in his lifetime. Subsequently, after the death of Muhammad
Eisa, his son again sold the said survey numbers to one Abdul Raheem in 1981 in
spite of earlier agreement in favour of Muhammad Ishaque. The petitioners being
successor-in-interest of Muhammad Ishaque having threatened by dispossession from
Abdul Raheem then filed suit for specific performance of contract and permanent
injunction in the year 2003.
In the written statement an objection has
been taken that as the sale transaction is claimed to be of 1969 and suit for
specific performance of contract was filed in the year 2003, therefore, it is
barred by time under Article 113 of the Limitation Act. An application under
Order VII rule 11 was moved in this regard which was dismissed. Revision was
preferred that was allowed and plaint was rejected under Order VII rule 11 CPC.
The order of rejection of plaint is under challenge in the present
Constitutional Petition.
We have noticed that petitioners’
suit is based on the agreement dated 13.3.1969, contents whereof show that the
possession was also handed over to Muhammad Ishaque i.e. the predecessor-in-interest
of the petitioners. In paragraph 14 of the plaint the petitioners have sought
protection of their possessory rights created under Section 53-A of the
Transfer of Property Act in addition to the relief of specific performance. It
was contended that in view of such factual background plaint ought not to have
been rejected and petitioners should have been given full opportunity to
establish their case and seek protection of their possession as envisaged by Section
53-A of the Transfer of Property Act.
Learned counsel for the respondent, on the
other hand, has argued that the plaint, on the face of it, was barred by time
and provisions of Article 113 of the Limitation Act were fully attracted. He
contended that where time for performance is not specified in the agreement to
sell even then the limitation starts from refusal of the performance of the
contract and filing of Constitutional Petition in 1998 ought to have been taken
as starting point of limitation when the petitioners were threatened with
alleged dispossession. In support of his contention he relied upon the case
Nur-ul-Haq v. Ibrahim Khalil (2000 SCMR 1305).
We have noticed that the petitioners are
basing their case primarily on the right created by law in favour of a transferee-in-possession
as envisaged under Section 53-A of the Transfer of Property Act and to seek
protection of such right there is no period prescribed under the Limitation
Act. This right becomes exercisable whenever the transferee-in-possession is
threatened with dispossession. Once a person is put in possession under an agreement
to sell then he is entitled to seek protection of his possessory right under
the provisions of Section 53-A of the Transfer of Property Act against his
unlawful dispossession. Thus, this protection provided under section 53-A of
Transfer of Property Act acts as a shield which protection is not lost by
efflux of a period of time.
In the case of Muhammad Nawaz Magsi v.
Illahi Bux (2010 CLC 407) one of us (Faisal Arab,J) held as under:
“14. Section
53-A of Transfer of Property Act in itself creates a right in favour of a
transferee to retain possession. Such right comes into existence when
transferor puts the transferee in possession in part performance of the
contract. The right created by Section 53-A in favour of the transferee in
possession could be termed as an equitable title which he holds in the
property. Hence where a transferee is enjoying possession of a property
pursuant to an agreement to sell and such right is threatened by the transferor
or a person claiming under him or even by a stranger then the transferee becomes
entitled to defend his existing right in a Court of law. While defending so, it
matters not whether he goes to the Court as a plaintiff or is sued as a
defendant. Normally suit is filed against the transferee in possession either
by the transferor or a person claiming under him who threatens the transferee
his enjoyment of possession. Faced with such a situation, the transferee in
possession defends his possession by virtue of section 53-A of the Transfer of
Property Act. However, there can be a situation, where instead of transferor or
a person claiming under him files a suit against the transferee in possession,
the transferor or a person claiming under him creates such a situation which
threatens the transferee his possession and compels him to seek protection of
the Court. In such a situation, the transferee brings his own suit against the
transferor or the person claiming under the transferor in order to defend his
right to retain his possession. Even as a plaintiff, the relief that is sought
by a transferee in possession from the Court under section 53-A of the Transfer
of Property Act is perseverance of possession of his property. Thus in both the
positions i.e. plaintiff or defendant, the transferee in possession is
defending his equitable title that he has already acquired in the property
under his possession by virtue of section 53-A of Transfer of Property Act. Why
a transferee in possession should wait for an action to be brought against him
by the transferor or any person claiming under the transferor or a stranger to
exercise his right to retain possession under section 53-A of the Transfer of
Property Act. Why not the transferee in possession when threatened should
himself establish in a Court of law the legality of his possession by filing
his own suit. If the right to seek protection under section 53-A of the
Transfer of Property Act is construed to be only available to a transferee if
he is sued as a defendant in a suit then it would create an anomalous
situation. It would then mean that it is the capacity in which a transferee in
possession finds himself in a suit i.e. as a plaintiff or a defendant, which
would determine wither the protection under section 53-A of the Transfer of
Property Act is to be extended to him. This does not appeal to reason. The
right conferred upon a transferee in possession under Section 53-A should not
depend upon how he is described in a suit i.e. plaintiff or a defendant. This
cannot be the object of the lawmakers. Statutory protection granted under
section 53-A of the Transfer of Property Act is available to a transferee in
possession and it matters not whether he is a plaintiff or a defendant in a
suit. His status as a plaintiff or defendant in a suit will be of no legal
consequence while deciding his entitlement under section 53-A of the Transfer
of Property Act. In any of the two capacities, the transferee in possession is
defending his right to retain possession, which he is already enjoying. When
the transferee files his suit, he is doing nothing but defending his existing
right of possession, which he is already enjoying by virtue of section 53-A of
the Transfer of Property Act. The right of a transferee in possession granted
under section 53-A of Transfer of Property Act can be availed by him whether he
files his own suit or is sued as defendant. Therefore, a transferee in
possession can always file suit of his own seeking the relief of permanent
injunction in order to preserve his equitable title i.e. the right to enjoy
possession of the property in the wake of any threat either from the transferor
or any person claiming under him or even a stranger. Reliance is placed in the
case of Ahmed Mujtaba Khan versus Iqbal Shah reported in 1990 CLC 1381 and a
Division Bench case of Inayat Ullah v. Shah Mohammad reported in PLD 1961 Lah.
372 where it has been held that a transferee of immovable property can defend
his right guaranteed to him under section 53-A of Transfer of Property Act,
whether he defends this right in his capacity as a plaintiff or a defendant.
15. It
may also be mentioned here that though for filing a suit for specific
performance of a contract, the prescribed period of limitation is three years
but as the applicant has filed his suit on the basis of agreement to sell which
is coupled with transfer of possession and has also sought the relief of
permanent injunction, the statute of limitation would not come in his way.
Where a plaintiff continue to enjoy a right then the statute of limitation
cannot take away such a right as the law of limitation is not meant to take
away an existing right (i.e. a right already being enjoyed). It only bars
remedy to gain one’s lost right. The right created under section 53-A
of Transfer of Property Act is an existing right (already being enjoyed) and is
not extinguished by any length of time. There cannot be any expiry date for
enjoyment of a right conferred upon a transferee in possession under section
53-A of the Transfer of Property Act. Therefore, the law of limitation does not
come in the way of a transferee in possession when he as a plaintiff, files his
own suit to preserve his right to retain possession that is granted to him
under section 53-A of the Transfer of Property Act.”
In the
circumstances the petitioners should have been given full opportunity to establish
in evidence that the sale agreement was executed in favour of their
predecessor-in-interest namely Muhammad Ishaque and that possession was also handed
over to him. We find no justification for rejection of the plaint in summary
manner as was done in the present case. We, therefore, set aside the impugned
order and revive the suit to its original position so that the matter may be
decided expeditiously on merits. The issues have already been framed. Let the
trial Court proceed to record evidence expeditiously and decide the suit within
a period of one year.
This petition is allowed in the above
terms.
JUDGE
JUDGE
N.M.