Sale consideration

2023 CLC 812 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.12Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79Suit for specific performance of agreement to sellSale considerationProofScribe of documentStatusApplicants/plaintiffs sought specific performance of agreement to sell regarding suit property in their favourSuit and appeal were concurrently dismissed by two Courts belowValidityOnus was on applicants/plaintiffs to prove sale transaction in respect of suit property, which they had failed to provePlea of applicants/plaintiffs that scribe of document was also witness to entire proceedings had no forceMandatory requirement as envisaged in Arts.17 & 79 of Qanun-e-Shahadat, 1984, were not complied withNo sale consideration was given as claimed by respondents/defendants, disproving claim of applicants/plaintiffs

Suit filed by applicants/plaintiffs for specific performance was a frivolous litigation and was also barred by limitation

High Court in exercise of revision jurisdiction declined to interfere in judgments and decrees passed by two Courts below as there was no material irregularity and illegality existed in judgment of Lower Appellate Court

Revision was dismissed in circumstances.

2019 CLC 1710 PESHAWAR-HIGH-COURT Judicial Precedent

S. 54SaleSale considerationScope

Sale consideration was an essential component of a valid sale.

2017 CLCN 12 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 12Qanun-e-Shahadat (10 of 1984), Arts. 72, 78, 79 & 84Contract Act (IX of 1872), S. 10Specific performance of agreement to sellProof of agreement to sellRequirementsSale considerationMode of paymentProofNon-signing of agreement to sell and non-production of original agreement to sellEffectStatement beyond pleadings and statement of interested witnessesAdmissibility

Plaintiff filed suit for possession through specific performance claiming that predecessor-in-interest/father of defendants/father-in-law of plaintiff on basis of agreement to sell and affidavit sold out suit property to him, and after paying whole consideration, he obtained possession thereof, but after his death, his legal heirs refused to execute sale deed under said agreement

Defendants contested the suit on ground that said agreement to sell and affidavit were fraudulent, forged and fabricated, and their father had neither sold out suit property to plaintiff nor received any consideration

Trial court decreed the suit

Contentions raised by defendants were that plaintiff had failed to prove both execution of the agreement and mode of payment and proved the execution of the agreement through marginal witnesses

Validity

Plaintiff did not disclose date of transaction of sale, payment of consideration and names of witnesses neither in plaint nor in examination-in-chief

Plaintiff also did not disclose his relation with the parties neither in plaint nor in agreement to sell

Plaintiff's witnesses did not mention mode of payment nor described suit property as mentioned in the agreement to sell, they were contradictory and did not support plaintiff's version

Plaintiff did not file suit in lifetime of the vendor and did not mention name of any witness or mode of payment

Witnesses who were employees of plaintiff were not trustworthy being interested witnesses

Statements of plaintiff's witnesses could not be considered as the same were beyond scope of pleadings

Plaintiff alleged to have paid payment regarding suit property but he could not prove such payment through any written receipt nor through any other mode, nor did he mention names of witnesses in whose presence the amount was paid

Agreement to sell was unilateral as it was not signed by plaintiff

Unilateral agreement which was not signed by plaintiff was not mutually enforceable

Agreement to sell and affidavit were not produced by plaintiff himself, but the same were produced by stamp-vendor, which created serious doubt as to in what capacity the stamp-vendor retained said documents in his custody and produced in court

Measurement of suit property mentioned in agreement to sell was excessive than mentioned in the exhibit

Trial Court while passing impugned judgment and decree could not grant excess land

Judgment and decree of trial court was set aside and suit dismissed

Appeal allowed in circumstances.

2016 MLD 1027 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Suit for declarationSale considerationEvidence of scribePardahNasheen lady, status of

Plaintiff filed suit for declaration to the effect that she was owner in possession of suit property and defendant had no connection with the same

Plaintiff averred that defendant being her attorney in litigation against her sons had obtained her thumb impression on a blank stamp paper with an assurance that a compromise was to be executed with her sons

Defendant did not deny her claim of ownership but alleged that she had sold the property in his favour by a sale deed

Suit was dismissed but appeal against was accepted

Validity

Payment of sale consideration was not proved

During cross-examination of plaintiff, no question was put to her regarding receipt of payment

In case of absence of payment of sale consideration, no sale could be proved

Scribe deposed that plaintiff had not appeared before him and no money exchanged the hands in his presence

Defendant's witness deposed that he took scribe to house of plaintiff to obtain thumb impression but he showed his ignorance about contents of deed though it was read over to him

Defendant failed to prove payment of sale consideration and the fact that thumb impression were obtained for sale transaction

Plaintiff had established defendant as her attorney in litigation against her sons

Appellate Court had rightly accepted the appeal

Revision was dismissed.

2016 YLRN 55 PESHAWAR-HIGH-COURT Judicial Precedent

S. 13Talbs, performance ofSale considerationWaiver by pre-emptorScopePlaintiff had superior right of pre-emption as father of plaintiff was co-owner/co-sharer in the suit propertyDefence of defendant was based on 'waiver' by pre-emptor

Right of pre-emption would not be lost by refusal to buy before sale or even by previous notice to sale prior to actual sale

Pre-emptor could not be deemed to have waived off his right when there was an offer in general terms by vendee or even vendor of his intention to sell property to a stranger

Neither any notice to sell was on record in the present case nor any fix amount had been given by the vendor

Mere oral assertion of vendor was not sufficient to saddle pre-emptor with knowledge of sale transaction for which corroborative evidence was required to dislodge a claimant of his statutory right

Sale consideration mentioned in the deed being genuine one was determined as sale consideration of the suit land

Judgments and decrees passed by both the courts below were based on misreading and non-reading of material evidence on record which were set aside

Suit filed by the plaintiff was decreed and he was directed to deposit remaining pre-emption amount before the Trial Court within thirty days failing which his suit should stand dismissed

Revision was accepted, in circumstances.