Agreement to Sell

Respondent/plaintiff claimed to be owner in possession of suit property on the basis of agreement to sell executed in his favour

Both the Courts below decreed suit and appeal in favour of respondent/ plaintiff and against petitioners/defendants who were legal heirs of subsequent purchaser of suit property

Validity

Respondent/plaintiff was able to prove execution of agreement to sell, therefore, the suit should have been converted into suit for specific performance and relief could also be accordingly moulded

Agreement to sell was executed on 8-01-2010 and suit was brought by respondent/plaintiff on 17-05-2010, which was within prescribed period of limitation and there was no hindrance in converting form of suit from declaration to that of specific performance and molding the relief from a decree of declaration of title to one for specific performance of agreement to sell

Predecessor-in-interest of petitioners/defendants who was subsequent purchaser had sufficient notice of agreement to sell, which was earlier entered and executed between respondent/plaintiff by the owner of suit property

Such agreement could validly be executed against petitioners/ defendants

Mere fact of attestation of subsequent mutation could not be deemed sufficient to defeat agreement to sell

Petitioners/ defendants failed to point out any illegality or irregularity sufficient for setting aside judgments and decrees passed by two Courts below

High Court in exercise of revisional jurisdiction modified judgments and decrees and converted the relief from declaration and perpetual injunction to one for specific performance of contract

Revision petition was allowed accordingly.

Suit for declaration cannot be maintained nor can a declaration of title be given on the basis of an agreement to sell.

The claim on the basis of S.43 of the Transfer of Property Act 1882 ('the Act 1882') can only be justified on proof of payment of consideration; which important element of consideration was not proved with the required degree in the present case

Equity favours the claimant who has paid the price whereas, in the present case, the bargain, genuineness of revenue record and consideration remained disputed

Section 43 of the Act 1882 incorporates the doctrine known as feeding of estoppel

Petitioners/ plaintiffs failed to establish from the record that any payment was made by them

Thus, in the absence of proof of excess payment, it would be inequitable, unfair and unjust that the relief sought by the petitioners/ plaintiffs be granted

Revision, filed by plaintiffs, was dismissed.

Person in whose favour such an agreement is executed cannot claim a decree of title and even if the agreement includes an acknowledgment of receipt of earnest money or partial payment, it merely grants a right to seek execution of another document, the sale deed, until the same is duly executed and registered and the title formally transferred.

Even where the defendant in his written statement alleges the agreement and his signatures over the same as fake and fictitious but has not specifically challenged the agreement in question either by way of criminal proceedings or through a civil suit, a simple denial of a document being fake and fictitious is not legally sufficient unless the same facts are proved and established on the record.

Article 79 of the Qanun-e-Shahadat, 1984 outlines the procedure for proving the execution of a document required by law to be attested

According to this provision, if a document must be attested by law, it cannot be used as evidence until at least two attesting witnesses have been called to prove its execution

This provision aims to ensure the authenticity and validity of attested documents by requiring the testimony of witnesses who can confirm their execution

However, there is an exception to this rule

It is not necessary to call an attesting witness to prove the execution of any document (except for a will) that has been registered in accordance with the provisions of the Registration Act, 1908

This means that for registered documents, the registration itself serves as sufficient proof of execution, and the testimony of attesting witnesses is not required unless the execution of the document is specifically denied by the person who purportedly executed it

In cases where the execution of the document is disputed, attesting witnesses must be called to provide evidence to resolve the matter.

Section 53-A of the Transfer of Property Act, 1882, provides protection to a transferee who has taken possession of a property based on a partially performed contract

This protection is available even if the contract itself is not fully registered or legally enforceable, as long as the transferee has acted in good faith and partially performed the terms of the agreement

This is commonly referred to as the "doctrine of part performance"

However, in the present case, the respondent/ plaintiff's inability to prove possession since the year 1982 and the lack of any mention of possession in the agreement to sell precluded the application of S. 53-A

Since the agreement did not explicitly provide for the delivery of possession, and the respondent/plaintiff (vendee) could not substantiate his claim of possession through evidence, no protection under S. 53-A could be extended

The respondent/plaintiff's (vendee) failure to prove possession from the date of execution of agreement to sell in 1982 and the absence of an explicit provision in the agreement regarding possession negated the applicability of the doctrine of part performance under S. 53-A of the Transfer of Property Act, 1882

Court below acted with material irregularity

Present civil revision petition was allowed, in circumstances.

Article 17 of the Qanun-e-Shahadat, 1984 addresses the competence of witnesses and the required number of witnesses for different types of matters

In matters relating to financial or future obligations that have been reduced to writing, Art. 17(2)(a) specifies that the document must be attested by two men, or one man and two women

For all other matters, Art. 17(2)(b) grants the court the discretion to accept or act on the testimony of one man or one woman, or any other evidence deemed appropriate given the circumstances of the case

The presence of multiple witnesses serves as a safeguard against potential fraud or false testimony

Article 79 of the Qanun-e-Shahadat, 1984 further stipulates that if a document is required by law to be attested, it cannot be used as evidence until at least two attesting witnesses are called to prove its execution

This provision is intended to verify the authenticity of attested documents by requiring the testimony of persons who can confirm that the document was duly executed in their presence

The failure to call both attesting witnesses renders the document inadmissible, as it undermines the credibility of the document's execution

The provisions encapsulated within Arts. 17 & 79 of the Qanun-e-Shahadat, 1984, are endowed with retrospective effect

These provisions are applicable to cases wherein the evidence was recorded subsequent to their enforcement, notwithstanding that the transaction transpired prior to their promulgation

Article 79 of Qanun-e-Shahadat, 1984 unequivocally stipulates that a document mandated by law to be attested, cannot be admissible as evidence unless two attesting witnesses are summoned to substantiate its execution, contingent upon their being alive, subject to the court's jurisdiction, and competent to provide testimony

The omission to summon the second attesting witness contravenes the explicit mandate of Art. 79 of the Qanun-e-Shahadat, 1984 and consequently impairs the credibility of the document's execution

In summation, the provisions enshrined in Arts. 17 & 79 of the Qanun-e-Shahadat, 1984, possess retrospective applicability

The non-compliance with the requirement of summoning both attesting witnesses culminates in the document being inadmissible in evidence.

Suit of the plaintiff / respondent was concurrently decreed on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit by recording his statement (statement-in-question)

Validity

Appellant never assailed the proceedings and the statement-in-question by initiating appropriate proceedings rather denied the same in an oblique manner while filing written statement in the suit instituted by the respondent from which the present second appeal had emanated, which could not denude the earlier proceedings of its genuineness and/or existence unless the same was held to be fraudulent by the said Court

Proceedings carried out in prior suit particularly statement-in-question still held the field and existed in judicial record

In such situation, it was for the Court to look into peculiar facts and circumstances of each case and also the conduct of the parties and their credibility while appreciating the evidence available on record

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

Suit of the plaintiff / respondent was concurrently decreed on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit

Validity

As the agreement had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court (statement-in-question), the non-production of both the marginal witnesses was not fatal to the case of the respondent

Moreover, in terms of Art. 91 of the Qanun-e-Shahadat, 1984 ('the Order, 1984'), presumption of genuineness was attached to documents forming part of the judicial proceedings

Statement-in-question (having been exhibited in the present case) pertaining to the agreement was recorded during the judicial proceedings that took place in the a prior suit and fell under the purview of Art. 91 read with Art. 81 of the Order, 1984 and its effect could not be brushed aside lightly

Thus, the suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Art. 79 of the Order, 1984 in cases which fall within the purview of Art. 81 which is an exception to the rule contained under Art. 79 of the Order 1984

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

Suit of the plaintiff (respondent / vendee) was concurrently decreed on the basis that execution of agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit

Validity

For the purposes of proof of a document falling under the purview of Art. 17 of the Qanun-e-Shahadat, 1984 ('the Order 1984'), two attesting witnesses must be examined as per requirement of Art. 79 of the Order, 1984

However, the rigors and clutches of the said requirement envisaged under Art. 17 read with Art. 79 of the Order 1984 subside where the execution of a document is admitted

In such a situation, the plaintiff is not bound to produce both the marginal witnesses in order to prove the execution of the agreement

Though, the documents were required to be attested by two witnesses but where the executant admits the execution of the document, then in terms of Art. 81 of the Order, 1984 such document can be used against him though it was required by law to be attested

Article 81 of the Order, 1984 is an exception to the general rule that where a document is required by law to be attested, the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution

As the agreement in the present case had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court (statement-in-question), the non-production of both the marginal witnesses was not fatal to the case of the respondent

Thus, the suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Art. 79 of the Order, 1984 in cases which fall within the purview of Art. 81 which is an exception to the rule contained under Art. 79 of the Order, 1984

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

Suit of the plaintiff / respondent was concurrently decreed, on the basis that agreement-to-sell was admitted by the defendant (appellant / vendor) in a prior suit by recording his statement (statement-in-question)

Assertion of the appellant was that the statement-in-question did not belong to him and his signature and thumb impression had been forged and fabricated by playing fraud upon the Court

Held, that said assertion was belied by the report of Finger Expert Bureau which was also available on the record and was duly corroborated by testimony of Inspector Police Finger Expert Print Bureau, Punjab, as a witness of plaintiff; according to which the thumb impression available on the agreement was identical to the specimen thumb impression marked (as D, D/1 and D/2)

Thus, mere assertion of the appellant (that he did not appear in the prior suit and had not recorded any statement nor affixed his thumb impression on the order sheet of the prior suit) could not be relied upon nor the same was sufficient and cogent to rebut the presumption of truth attached to judicial proceedings

Sanctity of highest order was attached to judicial proceedings and to outweigh the same, strong and unimpeachable evidence was to be produced

Appellant had failed to bring on record any such evidence

Both the Courts below had correctly appreciated the controversy while decreeing the suit of the respondent

Regular second appeal, being merit-less, was dismissed.

Petitioner /plaintiff in the plaint of his suit categorically pleaded his readiness and willingness to perform his part of agreement to sell, yet he throughout failed to satisfy the test of law

To substantiate his bona fide claim, the petitioner should have filed an application with the Trial Court for depositing the balance sale consideration

Thus, the findings of the Trial Court with respect to silence of the petitioner to substantiate his readiness and willingness could not be interfered with

No material illegality or irregularity having been noticed in findings contained in the impugned judgments and decrees passed by the Courts below, the same were maintained

Civil revisions were dismissed, in circumstances.

Respondent (vendee) paid earnest money and possession was handed over to him, with the remaining sale consideration to be paid in instalments

Despite full payment, the title was never transferred, constraining the respondents (vendees) to institute a suit for specific performance

The appellants (vendors) contested the suit, claiming that the respondents (vendee) were tenants and that the suit was barred by limitation

Suit was decreed by the Single Judge against which present appeal was instituted

Held: In evidence the respondents (vendees) submitted relevant receipts of payments of sale consideration to the appellants (vendors) and all such receipts were on the letter head of the company being run by appellants (vendors) and were signed by its late proprietor and he was the same person who had signed the agreement to sell

Regarding the signature of the late proprietor/signatory, the respondents (vendees) had got the same examined from the handwriting expert in terms of Art. 84 of Qanun-e-Shahadat, 1984

Said expert deposed positively that the receipts contained signatures of late proprietor who had also signed the agreement to sell

Such receipts were in bulk amount and could not be considered mere payments of rent by respondents (vendees)

Only ground taken by appellants (vendors) to defeat validity of such receipts was that they did not bear any date

Mere non-mention of date on the receipts did not invalidate the same or made them redundant in the eyes of law when otherwise contents thereof were established and the payments made through them were not specifically rebutted or refuted by the appellants (vendors) except the plea that they were made in respect of rent regarding which no evidence was put forth

The benefit of S. 53-A of the Transfer of Property Act, 1882 was also available to the respondents (vendees) as they were put in possession at the time of sale agreement

Single Judge while decreeing the suit took into consideration all pieces of evidence adduced by parties, implication of relevant laws such as Art. 113 of Limitation Act, 1908 and S. 53-A of Transfer of Property Act, 1882 and concluded, duly supported by reasons, in favor of the respondents (vendees) and there was no justification to reverse the same

Appeal being without merit, was dismissed, in circumstances.

Benefit of the S. 53-A of the ibid Act becomes due in favor of the vendee when he is put in possession of the suit property at the time of the sale agreement

Four conditions/pre-requisites for seeking benefit of the S. 53-A ibid are that: (i) The contract must be in writing, signed by or on behalf of the transferor; (ii) The transferee should be in possession of the immoveable property covered by the contract; (iii) The transferee had done some act in furtherance of the contract; (iv) The transferee had either performed his part of the contract or was willing to perform his part of the contract.

Claim of the petitioners (plaintiffs/ vendees) was that respondent/vendor having absconded, for being involved in a woman's abduction case, sold the suit-property through his son and son-in-law

Validity

Burden was on thepetitioners to prove sale but they failed to prove as to exactly when and where the respondent agreed to sell his land to them

Petitioners could not furnish evidence as to when the respondent was nominated in abduction case and who the alleged abducted woman was

There were contractions in the evidence produced by the petitioners regarding alleged payment of partial sale consideration; through whom sale was agreed upon; and name of the witnesses of the agreement

Even the name of the son of the respondent was not disclosed who allegedly received partial sale consideration

It did not stand to reason that instead of his own son, son-in-law of the respondent was much worried about the sale of his land for the purpose of compromise

It was unbelievable that the son-in-law or even the son of the respondent ( alleged vendor) managed to sell the land without having been authorized by the respondent to do so

Appellate Court had rightly reversed the judgment and decree passed by the Trial Court which did not warrant interference by the High Court in its revisional jurisdiction

Revision filed by the plaintiffs was dismissed, in circumstances.

Held, that an entry of possession in Khasra Girdawri could not be read as evidence of the title of the petitioners /plaintiffs, as against said entry, the respondent was recorded as owner of the suit-property in the record-of-rights

Record revealed that, on the application of the respondent, demarcation was conducted in which the petitioners were found to have encroached his (respondent's) land

Respondent had examined concerned Girdawer as one of his witnesses also

Whenever there was a conflict between the entries in Khasra Girdawri and the record of-rights, the latter would prevail

Appellate Court had rightly reversed the judgment and decree passed in favour of petitioner/plaintiffs by the Trial Court, which did not warrant interference by the High Court in its revisional jurisdiction

Revision filed by the plaintiffs was dismissed, in circumstances.

Suit can be refused to be decreed even if the agreement has been proved as it is a discretionary relief and said discretion can be exercised on equitable terms.

Petitioner/vendor instituted suit for specific performance of agreement to sell while the respondent instituted suit for partition regarding the suit-property; suit filed by the petitioner was dismissed whereas suit filed by the respondent was decreed and he (respondent) was directed to return the earnest money (of Rs.27,00,000/-) to the petitioner

Appeal filed by the petitioner was also dismissed by the Appellate Court

Plea of the petitioner was that time was not of the essence in the agreement contending that in the cases of immoveable properties mere mentioning of the date in an agreement was not sufficient to construe the intention that the time was of essence

Validity

Contents of the agreement-in-question revealed that the parties specifically agreed that the remaining payment of Rs. 3,800,000/- (thirty eight hundred thousand rupees) was required to be made by a final date (cut-date), which was followed by a stipulation that upon failure of the same, the earnest money of Rs. 2,700,000/- (twenty seven hundred thousand rupees) would be forfeited

There was nothing in the agreement-in-question suggesting that when entering into the agreement real intention of the parties was that time should not be an essential clause so that the petitioner could get support from second part of S. 55 of the Contract Act, 1872

Intention of the parties to ensure the performance of obligations within the given time was further evident from the answer of the petitioner in his cross-examination by virtue of which he not only admitted existence of cut-date but also that he was not present on said cut-date

Unmistaken language of the agreement-in-question and close reading of evidence left no doubt that the time, as postulated, was of essence

In the present case, though the suit was filed soon after the final date settled by the parties for payment of remaining consideration but the petitioner instead of depositing the remaining consideration at the time of filing of the suit, admittedly caused a frustrating delay of about three and half years from institution of the suit for depositing of remaining consideration or in making such request to the Trial Court, in regard of which , he made admission while adducing his evidence

Petitioner had even failed to demonstrate his willingness and/or capacity to perform the agreement as per the agreed terms, by failing to deposit remaining consideration or by making the request to the Trial Court after three and half years of institution of the suit

No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below

Revision was dismissed, in circumstances.

Claim of the plaintiffs was that the predecessor-in-interest of the defendants entered into agreement to sell with regards to the suit-property with them (plaintiffs)

Suit was decreed in favour of the plaintiffs, which judgment was maintained by the Appellate Court

Validity

Both the Courts had failed to exercise vested jurisdiction as per mandate of law, which had resulted in miscarriage of justice as the plaintiffs / respondents were seeking relief under Specific Relief Act and overwhelming as well as unimpeachable evidence was required to prove their stance, but they failed because they did not produce the marginal witnesses of the alleged original agreement to sell and even did not produce any evidence as to when, at what place and in whose presence the bargain with regards to sale of the disputed property took place, which culminated into execution of alleged agreement to sell

In such circumstances, the discretionary relief of specific performance could not be extended to the respondents/plaintiffs

High Court set-aside the impugned judgments and decrees passed by both the Courts below, consequently suit of the respondents/plaintiffs for specific performance stood dismissed

Revision, filed by the defendants, was allowed accordingly.

Claim of the plaintiffs was that the predecessor-in-interest of the defendants entered into agreement to sell with regards to the suit-property with them (plaintiffs)

Suit was decreed in favour of the plaintiffs, which judgment was maintained by the Appellate Court

Validity

Plaintiffs / respondents pleaded that the defendants / petitioners had redeemed the suit property and intended to sale out the same, but while appearing in the witness box, one of the witnesses plaintiffs during cross-examination deposed that he did not know as to when the property was redeemed and further stated that when suit was instituted the property was still mortgaged with the Bank but the plaintiffs did not implead the concerned Bank in the array of the defendants

Document i.e. exhibited agreement to sell had been maneuvered only to deprive the petitioners(defendants) of their valuable rights

Both the Courts below had misread and non-read evidence of the parties and had committed material illegalities and irregularities

High Court set-aside the impugned judgments and decrees passed by both the Courts below, consequently suit of the respondents/plaintiffs for specific performance stood dismissed

Revision, filed by the defendants, was allowed accordingly.

Claim of the plaintiffs was that the predecessor-in-interest of the defendants entered into agreement to sell with regards to the suit-property with them (plaintiffs)

Suit was decreed in favour of the plaintiffs, which judgment was maintained by the Appellate Court

Validity

Admittedly, the plaintiffs/respondents did not agitate the matter before any forum or issued any legal notice to the predecessor-in -interest of the defendants / petitioners for performance of his part of alleged agreement in his life time despite the fact that he (predecessor)remained alive for a considerable period of five years after execution of alleged (exhibited) agreement to sell, which cast doubt about the veracity and authenticity of the same

Document i.e. exhibited agreement to sell, had been maneuvered only to deprive the petitioners(defendants) of their valuable rights

Both the Courts below had misread and non-read evidence of the parties and had committed material illegalities and irregularities

High Court set-aside the impugned judgments and decrees passed by both the Courts below, consequently suit of the respondents/plaintiffs for specific performance stood dismissed

Revision, filed by the defendants, was allowed accordingly.

Appellant was aggrieved of execution proceedings on the plea that he was owner of mortgaged property on basis of agreement to sell in his favour

Validity

Executing Court had power under S. 47, C.P.C., to determine questions arising out between the parties to the suit

Appellant had come in picture after passing of judgment and decree hence was a stranger in the findings

In terms of O. XXI, R.60, C.P.C., release of property from attachment could be allowed only in case the objector/claimant had a title or right over it

Appellant had no valid title in his favour and there was a registered document whereby judgment debtor was the sole owner of the subject property

High Court declined to interfere in execution proceedings

Appeal was dismissed, in circumstances.

Civil Court allowed/decreed the suit instituted by third party purchaser to the extent of relevant prayer in the said suit i.e. "the recovery of an amount as compensation along with mesne profit @ 15% per annum w.e.f agreed date of payment till final realization of the amount"

Appellants ( two in number), who were defendants in suit being first purchasers (vendees), assailed the said judgment and decree

Validity

Mere agreement to sell does not invest a purchaser with title in the property so as to enable him to sell it further

It is only when a document of title / sale deed / allotment letter is executed in a purchaser's favour that he is empowered to convey title

An agreement to sell is not a document which, by itself, creates a title in the immovable property

Agreement to sell only creates a right to obtain another document i.e., a sale deed in favour of the person in whose favour the agreement to sell is executed

Practice of selling immovable property by persons who neither have title in such property nor are in a legal position to have title in such property transferred in their favour, needs to be deprecated in the strongest terms

Such transactions lead to wasteful litigation and consume the Courts' public time

Thus, plaintiff/ respondent could not expect the Court to pass a decree for the specific performance of the Second Agreement in his favour

Civil Court was wise in turning down plaintiff's prayer for a decree for specific performance of the second agreement and allowing his prayer for compensation

Appeal, filed by the defendants, was dismissed with costs throughout.

person seeking specific performance has to establish that he is enthusiastic and vehement to act upon his obligations as per the contract but the opponent is refusing or denying its execution.

On the basis of a sale agreement, no legal character or right can be established to prove the title of the property unless the title is transferred pursuant to such agreement to sell, but in case of denial or refusal by the vendor to specifically perform the agreement despite the readiness and willingness of the vendee, a suit for specific performance may be instituted in the court, but suit for declaration on the basis of a mere sale agreement is not the solution for appropriate relief.

Petitioner/vendee in his evidence admitted that at the time of the agreements he did not know who the owner of the entire property was and did not check whether "F" was the absolute owner of the property

Property was not partitioned by metes and bounds which meant that no specific portion of the property was earmarked for signifying the specific share or location which could be dealt with independently, including the sale of an individual share out of the joint property

Petitioner filed his suit after 13 years of the execution of the agreements, and at least two years after it came into his knowledge that the whole property was not owned by "F"

Neither any legal proceedings were initiated by the petitioner during the life time of "F" for properly transferring the title of the property pursuant to the alleged sale agreements, nor did he offer any plausible reason which may justify his act or omission of nor approaching a court of law for the implementation of the agreements at the relevant time

Appellate Court rightly reached the conclusion that the agreements were not proved and that the co-owner "A" never signed the agreements

Petitioner was claiming the title merely on the strength of the agreement to sell by one co-owner while the other co-owner never signed any such agreement

In the alleged agreements no proper description or even exact location of the suit property was mentioned, instead the description of the property was jotted down in the plaint rather than in the alleged agreements

Petition for leave to appeal was dismissed and leave was refused.

Rational for requiring the vendee to deposit balance sale consideration in Court explained.

For the grant of a decree (of specific performance) plaintiff has to not only prove the agreement to sell by producing two marginal witnesses but also the receipt/proof of payment of the consideration amount (averred to be paid)

When the evidence of payment of earnest money/partial consideration amount is in oral form which is in contradiction to the sale agreement, it should be pleaded so, and it must be proved through strong and consistent with the other documentary evidence on record

Where the execution of the document has categorically been denied by the vendors then it is obligatory upon the plaintiff party to seek the signatures/thumb impression

When the evidence brought forward by a party to prove the execution of the document (agreement to sell) is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage.

Court will refuse to specifically enforce a contract where it suffers from uncertainty.

Agreement to sell does not create any title or claim over the property; it also does not create ownership in the land and, as such, a person in whose favour such an agreement is made cannot claim a decree of title on the basis of incomplete sale consideration

Even if such an agreement contains an acceptance of receipt of an earnest or partial payment of the total sale consideration, it does not need to be registered because all it does in lieu of is grant the right to get another document i.e. sale deed

Unless the sale deed is registered and title is transferred, the possibility always exists that the agreement to sell might be terminated in the event of breach of any provision contained therein.

Suit for specific performance instituted by predecessor of the respondents was decreed in his favour, which judgment was maintained by the Appellate Court

Contention of the petitioner/ defendant was that agreement contained a default clause (consequence whereof was cancellation of agreement and forfeiture of earnest money), thus the time was essence of contract; and that the plaintiff (predecessor of the respondents) was neither willing nor had finances to pay balance consideration within agreed time

Validity

Time/date for performance was, admittedly, extended for 5 and 1/4th months from the date of performance earlier agreed upon

Primary case of the petitioner/defendant was that a legal notice was issued by him to the plaintiff (predecessor of the respondents) after two months of extension of time/date of performance, calling for the performance of the conditions of contract but default persisted, however, the said fact, being relevant in the context of the controversy, was not proved by him (petitioner)

Even a copy of the said notice (allegedly sent after two months of extension of time/date of performance) was not produced in evidence, leading to adverse inference

Conversely, case of the respondents' predecessor was that the petitioner was required to perform reciprocal obligations, which performance was delayed, whereupon a legal notice was delivered after more than one year of said extended date (time) and on next date suit was instituted

Reply to the said notice by the petitioner, was brought on record in evidence; and factum of legal notice (having been sent )was admitted in said reply

Extension in the time for performance against part-consideration of Rupees one million was admitted

There was a presumption that time was not always the essence of the contract in agreement relating to the sale of immovable property unless intentions contrary thereto were proved

In the present case, fundamental plea of the petitioner was that legal notice was issued after two months of extension of time/date of performance, to convey intent that non-performance would result in cancellation of the contract and forfeiture of the amounts already paid but factum of the said notice was not proved

Said failure coupled with the factum of extension of time for performance were critical facts which convinced the Courts below to dismiss plea that time was the essence of the contract

Balance consideration was paid during the proceedings before the Trial Court

Absence of willingness and non-availability of funds on the part of plaintiff (predecessor of the respondents) were not proved through convincing evidence by the petitioner/defendant

No illegality or infirmity having been noticed in the concurrent findings of both the Courts below, revision petition was dismissed, in circumstances.

Agreement to sell as a whole has to be considered and read.

Appellant/vendee filed suit for possession through specific performance of agreement to sell against respondents for non-performance of the same

Appellant was directed by the Trial Court to deposit the remaining sale consideration, who failed to comply with such direction despite availing numerous opportunities including a last opportunity

Trial Court dismissed appellant's suit

Appellant contended that he was ready to make the requisite payment and that it was in the best interest of justice if one opportunity be granted to the appellant

Validity

Wisdom behind ordering a vendee to deposit the remaining sale consideration was not only to see the vendee's bona fides/seriousness about fulfilling his contractual obligation but also to safeguard the rights of the vendor, therefore, any such order of deposit would definitely allure to the benefit of both the parties

Perusal of the record transpired that appellant from the very beginning had been applying delaying tactics in order to obviate the deposit of remaining sale consideration

Trial Court passed an order of deposit of remaining sale consideration in view of the Hamood Mehmood's case (2017 SCMR 2022) whereafter, successive opportunities were granted to the appellant to do the needful including last opportunity but even then he did not bother to do the needful

Appeal was dismissed accordingly.

Evidence on the record reflects that the plaintiff/alleged vendee failed to prove the proper execution of the agreement and payment of sale consideration and this very fact had also been admitted by him in his cross-examination

Besides the plaintiff after more than nine years which was barred by time and he failed to give any plausible reason for such delay in filing his suit

High Court had dismissed the suit for specific performance in toto

When the suit was held to fail for want of proof and also being barred by time then orders of the trial Court and Appellate Court burdening the alleged vendor to pay double the sale consideration to the alleged vendee, stood automatically set aside

Petition for leave to appeal was dismissed and leave was refused.

To prove the agreement to sell, respondent-vendee appeared as a witness and reiterated all facts that had been narrated in the plaint; he was subjected to lengthy cross-examination which did not shake his testimony

Marginal witness, the stamp vendor and the petition writer were also produced as witnesses by the respondent-vendee

All said witnesses stood firm on their testimony and duly supported the case of the respondent

On the other hand, the appellant-vendor opted to appear as the sole witness; he never produced any corroborative evidence to show that possession had forcibly been taken from him nor could he establish that the agreement to sell which constituted the basis of the suit for specific performance was forged

If appellant-vendee was forcibly dispossessed of his property, question was as to why he did not initiate any proceedings for retrieval of possession of the same before any forum

Appellant-vendee admitted that he had worked as a Patwari in the Revenue Department, therefore, it was not believable that despite having been forcibly dispossessed he did not initiate proceedings before any forum and no explanation had been offered as to why he silently accepted forcible possession of his property

Lack of action on part of appellant-vendee lent support to the stance of respondent that possession was voluntarily handed over to him as part performance of the agreement and on receipt of a substantial portion of the sale consideration of the property

On basis of the case record it stood established that a sum of Rs.6,25,000 had been paid by respondent as part payment of the sale consideration and a sum of Rs.3,75,000 remained outstanding which was also deposited in the Trial Court on directions of the High Court

Suit for specific performance of an agreement was rightly decreed

Appeal was dismissed.

Agreement to sell an immovable property squarely falls within the provision of S.17(2) of Qanun-e-Shahadat, 1984 and has to be compulsorily attested by two witnesses

Such requirement is a sine qua non for validity of agreement

For proof of such agreement, it is mandatory that two witnesses must be examined by parties as per Art. 79 of Qanun-e-Shahadat, 1984.

Respondent alleged to have paid Rs.3,00,000/- as earnest money and agreed to pay rest of the amount on attestation of mutation

Allegedly it was settled that in case of failure on part of petitioner/defendant, he would pay an amount of Rs.6,00,000/- to respondent; whereas in case of failure on part of respondent, he would pay Rs.3,00,000/- to petitioner

Respondent No.1 had allegedly refused to transfer property and receive remaining amount

Respondent prayed for recovery of Rs.3,40,000/- in the alternate

Mother of petitioner/defendant No.2 submitted application under O.VII, R.11 of Civil Procedure Code, 1908 which was allowed on ground that she was the owner of property but neither she had entered into any agreement with plaintiff nor she had given any power of attorney to her son/petitioner

Suit was concurrently decreed to the extent of alternate prayer

Validity

Respondent had produced scribe who deposed in cross-examination that no sale consideration had been paid in his presence

Respondent appeared as witness and deposed in cross-examination that amount was paid at time of scribing of agreement

Marginal witness deposed that respondent had paid amount in his presence in his baithak and thereafter they proceeded to the petition writer for scribing of deed

Civil suits had to be decided on basis of preponderance of evidence and respondent was required to prove his case through cogent, coherent, reliable and convincing evidence

Neither the payment of sale consideration was proved nor witnesses were consistent

No denial of the fact that petitioner was neither owner of property nor he was legally appointed special attorney of his mother/defendant

Defendant (mother) was struck off from the panel of defendants but such order of Court was not assailed by respondent

Person could not transfer title better than his own

Respondent stressed for allowing his application for examination of thumb impression of petitioner

Opinion of expert was the weakest type of evidence which could only be considered as corroborative piece of evidence

Statements of witnesses were not in line with each other, hence respondent could not be held entitled for an alternate decree

Revision petition was allowed and suit was dismissed accordingly.

Respondent/plaintiff alleged that he had purchased the land through agreement to sell dated 07-07-1992 with its owner against consideration of Rs.250,000/- and paid Rs.200,000/- as earnest money; that the owner had died on 21-08-1992; and that the legal heirs of the deceased refused to perform part of the agreement to execute the sale deed

Suit was decreed on 04-12-1993

Petitioner (widow of the deceased) along with other respondents submitted application under S.12(2) which was allowed on 31-03-2001

Respondent's suit was dismissed by Trial Court on 24-04-2009 and his appeal was allowed by appellate Court on 09-02-2011

Validity

Petitioner as witness deposed before that no agreement was executed by her husband/deceased in favour of plaintiff nor he received any consideration; that plaintiff committed fraud; that after death of her husband, respondent told her to accompany him for some help and took her with him; that he told her that he had transferred the land in her name and forcibly got her thumb impressions; that she refused to impose thumb impression; that she filed application under S.12(2) of C.P.C.; that the stamp paper was a forged document; that her husband was an educated person; and that she was an illiterate woman

Neither respondent nor his witnesses had described the exact date of the execution of alleged agreement to sell in evidence

One marginal witness of said agreement was produced and nothing had been disclosed qua the second marginal witness

Mandatory provisions of Arts. 17 & 79 of Qanun-e-Shahadat, 1984, had not been complied with

Respondent, therefore, had failed to prove the execution of the said agreement

Respondent did not make any effort to prove the alleged agreement to sell through the mode prescribed under Art. 80 of Qanun-e-Shahadat, 1984

Court's order dated allowing petitioner's application under S.12(2) was challenged by respondent but the same remained intact by appellate Court and attained finality

Revision petition was allowed accordingly.

Petitioner/plaintiff instituted suit for specific performance of contract against respondents before Trial Court while plaintiff/ petitioner asserted that first respondent/defendant had sold out subject property to petitioner/plaintiff but instead of performing part of contract first respondent alienated suit property to second respondent

Suit was contested by respondents with the pleas that neither alleged sale was ever offered nor consideration was received

Suit was decreed by Trial Court

Appellate Court reversed the said verdict and dismissed the suit of petitioner

Held, that agreement to sell could not be treated as deed of title ,which in case of denial, being document of financial obligation and future liability was required to be proved in terms of Art.79 of Qanun-e-Shahadat, 1984

As per contents of written statement, respondents explicitly disputed very origin of alleged agreement to sell while raising serious allegations in the sense that it was forged, fabricated and fictitious document and maneuvered by practicing fraud, thus heavy onus rested upon beneficiary/petitioner to establish its genuineness

Alleged sale agreement revealed that persons 'G' & 'S' had witnessed it, but surprisingly only 'G' was examined, whereas 'S' despite availability was withheld, thus per compulsory requirement of Art. 79 of Qanun-e-Shahadat, 1984, document remained unproved

Requirements under Art. 79 of Qanun-e-Shahadat, 1984 were mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) could not be used as evidence

Testimony of scribe of document could not be used to consider it as statement of marginal witness and when deed writer neither signed agreement to sell as attesting witness nor alleged transaction finalized before him, therefore writer's evidence lacked any importance

Sole marginal witness 'G' was not only real brother of petitioner/plaintiff, rather he did not utter a single word that either purported deal was settled or token amount was paid in his presence

No more supporting witness appeared on behalf of petitioner/plaintiff, thus the available evidence was meager, insufficient and inconsistent

Requisite document was tendered in evidence but was not proved per stern compliance of law, thus, plaintiff had to suffer

Civil Revision was dismissed, in circumstances.

Agreement to sell, per se, would not create title/interest/charge on property, nor would it create ownership in land under the agreement

Person in whose favour such an agreement was made could not claim a decree of title

Such agreement would only create a right to obtain another document and did not require registration though containing acknowledgment of the receipt of earnest/part payment of the price

Decree giving title on the basis of such an agreement to sell was required to be recalled

Agreement to sell did not amount to actual transfer of any interest in the property, nor did it create any right/title/interest in immovable property

When a person was put into possession in part performance of the contract, he could use such document as a shield to protect his possession and not as a sword to claim the title

No declaration could be granted on the basis of agreement to sell except grant of decree for specific performance.

Respondents filed their joint written statement while sale agreement was admitted by them with the condition mentioned in the plaint

Trial Court partially decreed the suit of appellant

Respondents filed appeal which was allowed and the judgment and decree of Trial Court was dismissed

Held, that relationship between the parties started when they signed an agreement to sell, where all four parties of contract agreed to sell four plots to appellant

Appellant was given four months time to make the payment of balance sale consideration whereafter the sellers were to appear before the Registrar to conclude the transaction according to agreement to sell

Out of four sellers, one seller "S" expired few days after the agreement, so the transaction was restricted in respect of three plots only

Seller/respondent had only approached the concerned Mukhitiarkar for sale certificate

Admitted position that the appellant paid two sums of money to cater for the expenses incurred in obtaining the sale certificate on the request of the seller

Trial Court decreed the suit and directed the appellant to deposit the balance sale consideration with the Nazir of the Trial Court within two months

Such payment was also made in the form of pay order, which sum was available with the Nazir of the Trial Court

Upon an execution application Nazir was directed to proceed with the formalities of executing the transfer in favour of appellant in respect of three plots

When Executing Court initiated the final act, first Appellate Court delivered its judgment which had been objected by both the appellant and respondents

Respondents had the stance that appellant did not perform his part of contract within the stipulated time

Trial Court considered the aspect that since price of the properties mentioned in agreement to sell had been increased and gave direction to the appellant to add sum to the agreed price which was complied with by the appellant and respondents and balance was deposited with the Nazir of Trial Court

Appellant made substantial payment to the seller in respect of three plots of the suit property and delay was solely attributed to the seller as thus took un-necessary time to obtain sale certificate and even asked for some advance in respect of such certificate ,which was not provided for in the sale agreement

Appeal was allowed and judgment and decree of appellate Court was set-aside and judgment and decree of Trial Court was upheld and the Executing Court was directed to proceed with the matter in accordance with law.

Out of total consideration some amount was paid by respondent and part payment was agreed to be paid as per the terms of agreement

Respondent filed suit for declaration, specific performance and permanent injunction

Petitioner filed suit for cancellation of the sale agreement

Trial Court had decreed the respondent's suit and dismissed the suit filed by petitioner

Appellate Court also dismissed the appeal filed by petitioner

Petitioner contended that the Appellate Court had not passed the speaking judgment; that Courts below had grossly ignored the case-law; that time was the essence of the contract; that respondent failed to pay balance sale consideration up to the specified date/time/place; that he also failed to deposit the remaining consideration on the first date of hearing of his suit; and that Courts below failed to consider the limitation in filing the suit

Validity

Both the courts below had dealt with petitioner's issue very elaborately, thus could not be lightly interfered with

Petitioner had failed to point out any perversity/illegality in impugned judgments/decrees passed by Courts below

Petitioner agitated the grounds at the revision stage, which had already been exhausted by him and properly adjudicated by the competent forums

Petitioner's plea as to respondent's suit been time-barred, had also been taken care of by Appellate Court

Date of performance was effected from the execution of the sale agreement, while in his cross-examination, petitioner had admitted that no time limit was fixed for performance of payment of balance amount

Balance amount was to be paid at the time of execution of sale deed

Petitioner also admitted his thumb impression over the payment receipt which factum prima facie showed his admission of receiving certain amounts

Revision petition was dismissed accordingly.

After publication of notice in the newspaper, an advocate submitted unsigned memo of appearance, marked his presence on behalf of defendant but subsequently disappeared resulting into ex parte proceedings against him and the decree in absentia of defendant qua his property was passed

Defendant on his return to Pakistan tabled application for its setting aside asserting that said person was not his agent; that agency in between them had never been constituted; that his correct/current address was not mentioned in the plaint and that he had not directed any counsel to represent him

Trial Court and Appellate Court allowed the application under S.12(2), C.P.C., read with O.IX, R.13, C.P.C.

Validity

Copy of CNIC and passport of defendant provided enough proof that his address mentioned in the plaint was absolutely diverse and different to that mentioned in the public record issued much prior to filing of the suit

Such an evidence was enough to shift the onus towards the plaintiff, beneficiary of the ex parte decree, to rebut the same

Not a single process was issued on the address of defendant given in said documents which under the law bore presumption of regularity and correctness

Appearance of an advocate on behalf of defendant was concerned, firstly, there was no backing of law that an advocate could represent a litigant by submitting such memo; secondly, it was never signed by defendant, thus, he could not be bound by it; thirdly, said advocate was the best person to be summoned to confirm that defendant being in knowledge of the suit proceedings had directed him to appear on his behalf, which was not done

Revision petition was dismissed with costs, in circumstances.

Defendants acknowledged the agreement to sell and denied allegation of breach of promise contending that ownership rights were not bestowed upon them

Contesting defendant claimed exclusive ownership of the property

Trial Court decreed the suit whereas Appellate Court dismissed the suit

Validity

Agreement to sell revealed that the defendants had represented themselves as haqdaranin the agreement but no reference to any document of ownership was made

One of the conditions of the agreement, material for the purposes of adjudication, was that the plaintiff would be entitled to seek enforcement of the agreement by resorting to court upon default on the part of the defendants to execute deed after acquiring ownership rights in the property, which core condition remained unfulfilled throughout

Enforcement of agreement to sell was subject to a contingency till defendants acquired ownership

Right to sue was not available to the plaintiff in the facts of the case

Revision petition, being without merits, was dismissed, in circumstances.

Right to obtain specific performance of a contract was a statutory right, which in essence was a "vested right of action" which enabled a person to approach court for enforcement

Question before High Court was whether any such person could approach a court or exercise such right of action when it was subject to or conditioned with the happening of an event and such contingency/condition remained unachieved/ unfulfilled

Held; no such right could be exercised unless contingency or condition was fulfilled.

Under Art. 17 of the Qanun-e-Shahadat, 1984, an agreement pertaining to financial or future obligations, if reduced to writing, must be attested by two men and under S.79 of the Qanun-e-Shahadat, 1984 such agreement could not be used as evidence until two attesting witnesses had been called for the purpose of proving its execution

Proviso to Art. 79 was not relevant to an agreement not being a registered document.

Agreement not specifying details about 'metes and bounds' and khasra number, khewat number etc. of the property nor its sale consideration

Held, that Trial Court had totally ignored the law on the subject of specific performance while decreeing the suit on the basis of such an agreement

Trial Court ought to have given convincing reasons for decreeing the suit by allowing specific performance and for ignoring all the deficiencies in the agreement as well as in the plaint.

Plaintiff had produced only one attesting witness of agreement to sell whereas he was to produce two marginal witnesses of sale agreement

Alleged sale agreement was not prepared in the presence of marginal witnesses

Sale agreement of more than Rs. 100/- required registration under S. 17 of Registration Act, 1908

Agreement to sell of immovable property did not create any right or interest on such property

Execution of such agreement did not ipso facto create a charge on immovable property

Execution of an agreement to sell was not a document of truth

Plaintiff had not deposited the balance sale consideration of agreement to sell

Party who had sought enforcement of agreement to sell must deposit the balance sale price before the Trial Court but no such application had been filed on behalf of plaintiff

Plaintiff was bound to prove alleged sale transaction of suit land, execution of sale agreement, paying of earnest money to the defendant

Mere tendering sale agreement in evidence did not enhance its evidentiary value

Plaintiff was bound to prove the existence of facts which had been asserted in the suit

Findings recorded by the Trial Court were based on proper appreciation of evidence

Appeal was dismissed in circumstances.

Scribe of the deed was to be considered as witness of alleged transaction in the present case as he knew the seller earlier

Plaintiff had established agreement to sell through two witnesses and had offered a plausible justification for non-production of one of the marginal witnesses being close relative of defendant

Agreement to sell had been established, in circumstances

No mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below

Person who purchased property which was the subject matter of a lis could not put forward the plea of a bona fide purchaser

Revision was dismissed, in circumstances.