22/12/2025
"Unregistered document neither creates any title nor right or interest in suit property ---Suit for declaration on the basis of such document is neither permissible nor maintainable."
🔴 2024 M L D 90 [Lahore]
🕵Before Ch. Muhammad Iqbal, J
KHALID MEHMOOD and others---Appellants
Versus
SARDARAN BIBI and others---Respondents
R.S.A. No. 261 of 2016, heard on 8th June, 2022.
🔹(a) Registration Act (XVI of 1908)---
----S. 17---Transfer of Property Act (IV of 1882), S. 118---Specific Relief Act (I of 1877), S. 42---Qanun-e-Shahadat (10 of 1984), Arts. 17, 79 & 129(g)---Suit for declaration---Unregistered document---Exchange deed---Proof- Appellants/defendants were aggrieved of judgments and decrees passed by Trial Court and Lower Appellate Court declaring respondents/plaintiffs as owner of suit land---Validity---Unregistered deed of exchange comprising immovable property of value of more than Rupees 100/- per se was not admissible in evidence---Exchange deed was not a registered document, whereas under S. 17 of Registration Act, 1908, it was compulsorily, registerable document and without its registration, it could not be considered as a valid document---Suit for declaration on the basis of unregistered exchange deed was barred under S. 42 of Specific Relief Act, 1877---Respondents/plaintiffs did not produce marginal witnesses of exchange deed to negate ex*****on of same without advancing any trustworthy reason in such regard---Such flaw amounted to withholding of best evidence and presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 operated against respondents/plaintiffs---No land was transferred in favor of predecessor-in-interest of appellants/defendant by predecessor-in-interest of respondents/plaintiffs, nor any document was produced by respondents/plaintiffs in such regard therefore, exchange of property in favour of predecessor-in-interest of respondents / plaintiffs was not proved---High Court in exercise of appellate jurisdiction set aside judgments and decrees passed by two Courts below as the same suffered from misreading and non-reading of evidence as well as misapplication of law and suit filed by respondents/plaintiffs was dismissed---Second appeal was allowed, in circumstances.
Jawala v. Waryaman and another AIR 1927 Lahore 90; Muhammad Hussain and others v. Mukhtar Ahmad and 2 others 2007 YLR 2228; Mokim Mondal and another v. Ali Miah Pradhan and others PLD 1967 Dacca 591; Mst. Salaman v. Bashir Ahmad and another 2007 YLR 2440; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137; Jehangir v. Mst. Shams Sultana and others 2022 SCMR 309; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Hayat Muhammad and 8 others v. Tajuddin and another 1994 SCMR 1188; Manzoor Hussain v. Haji Khushi Muhammad 2017 CLC 70; Tahir Hussain v. Ghulam Faruque and 7 others PLD 1978 Kar. 182; Haji Nazeer Ahmed v. Raja Muhammad Saeed Khan and 11 others PLD 2010 SC(AJ&K) 47 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 rel.
Mst. Waris Jan and another v. Liaqat Ali and others PLD 2019 Lah. 333; Messrs Digital Link (Pvt.) Ltd. through Authorised Officer and others v. Messrs Hangzhou Hikvision Digital Technology Co. Ltd. and others 2020 CLC 2108 and Sui Northern Gas Company Limited v. Data Steel Pipe Industries (Pvt.) Limited and others 2021 CLC 892 ref.
🔹(b) Specific Relief Act (I of 1877)---
----Ss. 42 & 49---Registration Act (XVI of 1908), S. 17---Declaration of title---Unregistered deed---Effect---Unregistered document neither creates any title nor right or interest in suit property as envisaged in S. 49 of Specific Relief Act, 1877---Suit for declaration under S. 42 of Specific Relief Act, 1877 on the basis of such document is neither permissible nor maintainable.
Gohar Rehman v. Riaz Muhammad 2011 YLR 888 and Hashmat Ali v. Mst. Rashidan Bibi and 2 others 2004 YLR 3140 rel.
🔹(c) Qanun-e-Shahadat (10 of 1984)---
----Arts. 17 & 79---Agreement---Proof---Non-production of required number of marginal witnesses is non-compliance of mandatory provision of law which is fatal.
Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 rel.
Anwaar Hussain and Mian Muhammad Rizwan for Appellants.
Shah Nawaz Khan Niazi for Respondents.
Date of hearing: 8th June, 2022.
🔴 JUDGMENT
🕵CH. MUHAMMAD IQBAL, J.---Through this Regular Second Appeal, the appellants have challenged the legality of judgment and decree dated 18.12.2012 passed by the learned Civil Judge, Shakargarh who decreed the suit for declaration filed by the respondents and judgment and decree dated 27.04.2016 passed by the learned Addl. District Judge, Shakargarh who dismissed the appeal of the appellants.
2. Brief facts of the case are that the respondents/plaintiffs filed a suit for declaration against the appellants/defendants contending therein that predecessor-in-interest of the respondents namely Muhammad Munshi and predecessor-in-interest of the appellants/ defendants namely Bashir Ahmad were joint owners of property measuring 01-Kanal situated in Shakargarh fully described in the headnote of the plaint. They exchanged their properties through exchange deed dated 20.08.1995, whereby it was agreed that Bashir Ahmad would give his property measuring 10-Marlas situated at Shakargarh to Muhammad Munshi in return Muhammad Munshi would give his property measuring 01- Kanal 05-Marlas situated at Mouza Gujrat to Bashir Ahmad. Muhammad Munshi predecessor-in-interest of the respondents on the basis of exchange deed took possession of the property measuring 10-Marlas situated at Shakargarh. The said exchange deed was renewed by both the parties through novation exchange deed dated 02.12.1996. That Bashir Ahmad and Muhammad Munshi both have died. After the death of Bashir Ahmad, his legal heirs' appellants/defendants Nos.1 to 7 further transferred the property measuring 10-Marlas to appellant No.7/ defendant No.8 Muhammad Nawaz through registered sale deed dated 24.08.2007, as such, said sale deed is illegal in the presence of exchange deed and liable to be cancelled. Appellants/defendants filed contesting written statement and denied the ex*****on of alleged exchange deed. From the divergent pleadings of the parties, the learned trial court framed the issues, recorded pro and contra evidence and vide judgment dated 18.12.2012 decreed the suit for declaration filed by the respondents. Against the said judgment and decree, appellants filed appeal which was also dismissed by the learned appellate court vide judgment and decree dated 27.04.2016. Hence, this appeal.
3. I have heard the learned counsel for the parties at full length and gone through the record with their able assistance.
4. The real controversy between the parties revolves around issue No.9, which is reproduced as under:-
"1. Whether the plaintiffs are entitled to the decree for declaration along with permanent injunction through specific performance of contract as prayed for? OPP.
Onus to prove the above issue was upon the respondents/plaintiffs. Nazar Din (marginal witness of Exh.P1) appeared as PW1 who stated that Bashir Ahmad and Munshi both are brothers and they purchased land measuring 20-Marlas in Shakargarh. They were owners of land measuring 10-Marlas each. They executed exchange deed of land measuring 10- Marlas. Bashir Ahmad gave land measuring 10-Marlas to Munshi in Shakargarh whereas Munshi gave land measuring 01-Kanal and 05-Marlas of Mouza Gujrat. Further deposed that:-
That on exchange deed (Exh.P1) he imposed his thumb impression and land measuring 10-Marlas was sold by children of Munshi. In cross-examination he deposed that Munshi was his nephew. That plaintiff No.1 is his daughter-in-law and other plaintiffs are his grand-children. That Munshi has died and Bashir Ahmad also died. Further deposed that:-
Amanat Ali appeared as PW2 who deposed that he knows the parties of the lis. Bashir and Munshi both are real brothers and they were owners of land measuring 10/10 Marlas each in Mouza Shakargarh. They executed exchange deed and Bashir told them that he received Rs.42,000/- and exchange deed Exh.P1 was executed. He imposed his thumb impression and put the signatures. In cross-examination he deposed that:-
Qaisar Shahzad (one of the plaintiff) appeared as PW3 who stated that Munshi and Bashir both were real brothers and they were owners of land measuring 10 Marlas each in Shakargarh. They entered into an exchange transaction (Ex.P-2) according to which Bashir gave land measuring 10-Marlas to Munshi and in return Munshi gave land measuring
01-Kanal 05-Marlas as well as Rs.42,000/- in cash to Bashir. They are owners of the suit land. In cross-examination he deposed that:-
Ch. Muhammad Anwar Advocate Shakargarh appeared as PW4 who deposed that he wrote Exh.P2. In cross-examination he deposed that he did not now the parties. It is correct that he did not know the parties of Exh.P2.
Conversely, Shahid Mahmood appeared as DW1 who deposed that Bashir Ahmad was his father who has died in the year 1998. That his father has neither executed any exchange deed with his uncle Munshi nor received any amount, as such, suit is false. The exchange deed is forged and fabricated document, as Ex.P-1 did not contain the signatures of his father. They sold land measuring 10-Marlas to defendant No.8 Muhammad Nawaz. Muhammad Nawaz appeared as DW2 who supported the version of the respondents/defendants.
5. Perusal of oral as well as documentary evidence shows that the respondents/plaintiffs filed suit on the basis of alleged exchange deed (Exh.P2) dated 20.08.1995 but as per law an unregistered deed of exchange comprising immovable property valuing more than Rs.100/- per se is not admissible in evidence. Reliance is placed on the case titled as Jawala v. Waryaman and another (AIR 1927 Lahore 90). However, as per record the exchange deed (Exh.P2) is not a registered document, whereas under section 17 of the Registration Act, 1908 it is compulsorily register-able document and without its registration as per law it could not be considered as a valid document and suit for declaration on the basis of unregistered exchange deed is barred under section 42 of the Specific Relief Act, 1877. Reliance is placed on the case titled as Muhammad Hussain and others v. Mukhtar Ahmad and 2 others (2007 YLR 2228). Beside above, Exh.P2 exchange deed was produced by the respondents/plaintiffs as secondary evidence which is not a registered document. It is settled law that document which is not a registered it could not be produced as secondary evidence. Reliance is placed on the case titled as Mokim Mondal and another v. Ali Miah Pradhan and others (PLD 1967 Dacca 591), wherein it is held that:-
"As has already been observed above and found by the learned Courts below, the alleged deed of exchange was unstamped and unregistered and came to be missing from the custody of the Police. Accordingly the original document could not be produced and therefore the defence adduced secondary evidence to prove this contract. The first question that therefore arises is whether secondary evidence to prove an unregistered and unstamped deed of exchange is admissible in law. In this connection, reference may be made to the case of the Rajah of Robbili v. Inuganti China Sitarasami Garu (I). Therein it was held by their Lordships, of the Judicial Committee that secondary evidence cannot be given of a document which has not been properly stamped, as under the provisions of the Stamp Act such a document is only admissible in evidence. when the Collector has assessed and charged the penalty on the production of the original writ and if when he has written an endorsement upon the writ submitted to him. Therefore, it would not be open for the plaintiff in this case to adduce secondary evidence of the written agreement even upon payment of the penalty. It was further observed therein:
"The provisions for due payment of a penalty made in Act I of 1879 for the case of deeds either unstamped or insufficiently stamped do not apply when the deed so affected has not been produced; and accordingly secondary evidence of its contents cannot be given."
6. Furthermore, if a document is required to be compulsorily register-able but same was not got registered, such document would be inadmissible in evidence and it could not be relied upon for conferring rights and interest of the parties, even if same was allowed to be produced or exhibited in evidence. Reliance is placed on the case titled as Mst. Salaman v. Bashir Ahmad and another (2007 YLR 2440).
7. As far as the argument of the learned counsel for the respondents under section 62 of the Contract Act, 1872 is that when parties to a contract agree to substitute a new contract in place of previous one, then performance of original contract is dispensed with, suffice it to say that in this case, the appellants/defendants categorically denied that their father had never executed agreement or received any consideration amount, as such, provision of Section 62 of the Act ibid is not attracted in this case but the respondents miserably failed to prove the second agreement, which they were bound to prove. Similar controversy was earlier resolved by this Court in a judgment titled as Mst. Waris Jan and another v. Liaqat Ali and others (PLD 2019 Lahore 333), wherein it was held that Novation of contract is substitution of the contract in existence, either between the same parties or between newly added parties with mutual understanding to discharge the old contract. When an agreement was substituted, both such agreements were supported to be read together to form a complete subsisting agreement. The relevant portion of the said judgment is reproduced as under:-
"The novation of contract, according to House of Lords, is that where there being a contract in existence, some new contract is substituted for it either between the same parties or between different parties, the consideration mutually being the discharge of the old contract. It is now well settled that when an agreement is substituted, both the agreements are supposed to be read together to form a complete subsisting agreement. Thus, to prove a novation, four elements must be shown, that is, (a) the existence of a previous valid agreement; (b), the agreement of the parties to cancel the first agreement; (c) the agreement of the parties that the second agreement replaces the first one; and (d) the validity of the second agreement. From a legal standpoint a novation is a form of affirmative plea and the party who canvasses a novation has the burden of proving it by clear satisfactory evidence. The plaintiff was, therefore, required to prove the terms and conditions of sale, which as per para 2 of the plaint, were reduced to the form of agreement dated 30th May, 2007. Article 102 of the Qanun- e-Shahadat, 1984 forbids proving the contents of writing otherwise than by writing itself The best evidence about the contents of a document is, therefore, the document itself and it is the production of the document that is required by law in proof of its contents."
Reliance is placed on the cases titled as Messrs Digital Link (Pvt.) Ltd. through Authorised Officer and others v. Messrs Hangzhou Hikvision Digital Technology Co. Ltd. and others (2020 CLC 2108) [D.B] and Sui Northern Gas Company Limited v. Data Steel Pipe Industries (Pvt.) Limited and others (2021 CLC 892).
8. A suit for declaration was filed on the basis of Iqramama dated 18.07.1996 and in alternate suit for specific performance of agreement to sell qua the suit property was prayed. The deed of agreement is admittedly an unregistered document which would neither created any title nor right or interest in the suit property as envisaged in section 49 of the Specific Relief Act, 1877, as such, suit for declaration under section 42 of the Act ibid on the basis of such document is neither permissible nor maintainable. Reliance is placed on the case titled as Gohar Rehman v. Riaz Muhammad (2011 YLR 888) and Hashmat Ali v. Mst. Rashidan Bibi and 2 others (2004 YLR 3140).
9. Moreover, respondents/plaintiffs filed suit on the basis of alleged exchange deed (Exh.P2) dated 20.08.1995. Under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it is the duty of the beneficiary/respondents to prove the alleged exchange deed by producing the marginal witnesses but the respondents have failed to produce the same. The non-production of the required marginal witness is non-compliance of the aforesaid mandatory provisions of law which is fatal for the case of the respondents. Reliance is placed on cases cited as Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044).
10. Furthermore, the respondents/plaintiffs did not produce the marginal witnesses of exchange deed (Exh.P.2) to negate the ex*****on of the same without advancing any trustworthy reason in this regard which flaw is amounting to withholding of the best evidence, as such, presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 clearly operates against them. Reliance is placed on the cases titled as Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137) and Jehangir v. Mst. Shams Sultana and others (2022 SCMR 309).
11. It is the primary duty of the respondents/plaintiffs firstly to prove the alleged exchange deed dated 20.08.1995 through concrete and solid evidence by producing both the marginal witnesses but basic document was not proved through adducing requisite number of witness or evidence, even otherwise alleged agreement/exchange deed is an unregistered agreement which is devoid of creating any enforceable right. It is well settled law that mere an agreement does not create any right, title or interest until proved. Reliance in this regard can be placed on the cases titled as Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), Hayat Muhammad and 8 others v. Tajuddin and another (1994 SCMR 1188). PWs categorically stated that no consideration was paid in their presence. Neither any document produced by the respondents/plaintiffs which proves that any consideration amount or transaction of land measuring 01-Kanal 05-Marlas was executed by their father in favour of Bashir Ahmad predecessor-in-interest of the appellants/defendants.
12. So far as the agreement (Exh.P.1) is concerned. Perusal whereof shows that it does not bear signatures of the parties on the first page, as such, it cannot be considered as a valid document. A such like controversy has been resolved by this Court in a judgment cited as Manzoor Hussain v. Haji Khushi Muhammad (2017 CLC 70), relevant portion whereof is reproduced as under:
6. Notwithstanding above, it is settled principle of law that where a contract is reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof is also dependent upon the ex*****on of the contract by both the contracting parties i.e. by signing or affixing their thumb impression. So that it should reflect and establish their "consensus ad idem", which obviously is the inherent and basic element of the meeting of the minds, which connotes the mutuality of assent, and reflects and proves the intention of the parties thereto [See Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187)]. In the present case, the first page of the document (Ex.P-l) is signed by the deed-writer only whereas its second page which bears the signatures of the vendor, vendee and deed writer does not contain the terms and conditions of sale. Although the parties and the witnesses should execute the document at the end, but parties must also sign each page if the document is written out on more than one page. [See N.S. Bindras' Conveyancing Draftsman and Interpretation of Deeds, 7th Edition, Delhi Law House, Delhi, 2008 at page 322]. This was not done and, therefore, appellant was required to bring on record the evidence to connect the two pages of the document (Ex.P-1) with each other. The appellant had not produced any evidence to connect the two pages of the document (Ex.P-1) with each other and this deficiency does not establish "consensus ad idem". Thus, on the basis of such type of document, which is non compliant to the said principle of law, a decree for specific performance could not be issued. This view finds support from the case of Zafar Iqbal and others v. Mst. Nasim Akhtar and others (PLD 2012 Lah. 386) which has been approved by the Hon'ble Supreme Court of Pakistan in Civil Petition No. 391-L of 2012 vide order dated 22.3.2013.
(emphasis supplied)
In view of above, it can also easily be held that the respondents/plaintiffs also failed to prove the ex*****on of, the alleged agreement (Exh.P.1) through any trustworthy and confidence inspiring evidence.
13. According to Section 118 of the Transfer of Property Act, 1882 the word "Exchange" is defined as under:-
"118. Exchange defined. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an 'exchange'.
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."
As per definition of exchange deed reproduced above, no land was transferred in favour of Bashir Ahmad by Munshi/brother nor any document produced by the respondents/plaintiffs how can they say that their father exchanged the property measuring 01-Kanal 05-Marlas in favour of respondents/ plaintiffs. The controversy regarding exchange has been resolved in a case titled as Tahir Hussain v. Ghulam Faruque and 7 others (PLD 1978 Karachi 182) [D.B] wherein it is held that:-
"Now "exchange" has been defined in section 118 of the Transfer of Property Act in the following terms:
"When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being mentioned only, the transaction is called exchange.
The transfer of property in completion of an exchange can be only in the manner provided for the transfer of such property by sale."
The bare reading of the cited provisions makes it clear that the essential character of a transaction of exchange is a mutual transfer of the ownership of property by two persons. Thus, where there is a transfer of ownership by one of the parties only, and not by the other the transaction is not an exchange, as there is no mutual transfer of ownership ......"
In a case titled as Haji Nazeer Ahmed v. Raja Muhammad Saeed Khan and 11 others (PLD 2010 SC(AJ&K) 47), the Hon'ble apex Court held that:-
"7...... therefore, it is abundantly clear that through the alleged exchange-deed properties were never exchanged, therefore, no exchange was practically effected. Exchange is defined under section 118 of the Transfer of the Property Act in the following words:-
"When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being mentioned only, the transaction is called exchange.
A transfer of property in completion of an exchange can be only in the manner provided for the transfer of such property by sale".
This statutory provision clearly lays down that to make a transaction exchange, the mandatory legal requirement is to mutually transfer ownership of one thing for ownership of another thing and if it is proved that the ownership of a thing is not transferred to other person, then it cannot be called exchange."
14. In view of above, it can conveniently be observed that the respondents/plaintiffs miserably failed to prove the issue No.1 through any trustworthy, corroborative, reliable and convincing evidence which material facts have not been taken into consideration by the two courts below who by committing misreading and non-reading of the evidence illegally decided issue No.1 in favour of the respondents/plaintiffs, as such, the findings of the learned Courts below on this issue are hereby reversed and issue No.1 is decided against the respondents/plaintiffs.
15. As discussed above, the decisions of the learned Courts below suffer from blatant misreading and non-reading of the evidence as well as mis-application of law, as such, the same are not sustainable in the eyes of law and are liable to be set-aside and this Court is well within jurisdiction to reverse the illegal and perverse concurrent findings. Reliance is placed on the cases titled as Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24).
16. Resultantly, this Regular Second Appeal is allowed. Judgment and decree dated 18.12.2012 passed by the learned Civil Judge, Shakargarh and judgment and decree dated 27.04.2016 passed by the learned Additional District Judge, Shakargarh are hereby set aside and the suit for declaration filed by the respondents /plaintiffs is hereby dismissed. No order as to costs.
MH/K-25/L Appeal allowed.
