Immovable Property

2017 PTD 805 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 8Punjab Urban Immovable Property Tax Act (V of 1958), S.3(2)Constitution of Pakistan, Arts.142, 260 & Fourth Schedule, Federal Legislative List, Entry 50TaxationProvincial authorityImmovable propertyLuxury House Tax, vires ofDouble taxationPetitioners were aggrieved of levy of tax under Punjab Finance Act, 2014, on Luxury HousesPlea raised by petitioners was that levy of such tax was ultra vires the ConstitutionValidity

Provincial Legislature was given exclusive powers under Art.142 of the Constitution, on the subjects not included in Federal Legislative List

Language of Entry No.50 of Federal Legislative List gave the Parliament power to levy taxes on capital value of assets and specifically excluded Parliament to levy taxes on immovable property

Provincial Assembly was vested with exclusive power to levy taxes on immovable property

Federal Legislature, under Entry 50 of the Fourth Schedule to the Constitution, read with Art.142(c) of the Constitution, could tax only capital value of assets

Provincial Legislature was made competent to tax remaining all aspects of immovable property

Interpretation of any legislative entry in Constitution itself had to be broad and liberal

Definition of "taxation" available in Art.260 of the Constitution manifested that competence of Province to tax an immovable property could not be given restricted meaning

Taxation included imposition of any tax or duty, whether general, local or special

High Court declined to interfere with Luxury House Tax levied by Provincial Government

Constitutional petition was dismissed accordingly.

2016 YLR 748 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 54Immovable propertyBona fide purchaser without noticeDetermination

Although defendants-subsequent purchasers had opted not to issue public notice before purchase of suit plot, but they could not have traced forgery, as record of Housing Authority showed alleged entitlement of defendant to sale

Defendants-subsequent purchasers were, therefore, bona fide purchaser without notice.

2015 CLC 1042 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

O. VII, Rr.2 & 3High Court (Lahore) Rules and Orders Volume I Chap. 1-C, Part CPleadingsRequirementsImmovable propertySuit filed by the plaintiff carried certain inherent defectsDescription of suit property was neither mentioned nor appended with the plaintCivil suit on uncertain boundaries and without revenue record with regard to immovable property was not maintainableNo decree on the basis of uncertain and unidentified boundaries was executableObject of partition or determination of inherited rights could not be determined without description of propertyDecree could not be awarded on the basis of ambiguous pleadingsFrivolous, ambiguous and baseless suit/lis should be buried on its inceptionImpugned judgments passed by both the courts below, were set aside and suit was dismissed

Revision was accepted, in circumstances.

2015 PLD 75 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 12Contract Act (IX of 1872), S.55Suit for specific performance of contractImmovable propertyTime essence of contractScopeSuit filed by plaintiff was decreed in his favourAppellant court accepted the appeal filed by defendant and set aside the decree of Trial Court

Plaintiff had given notice to defendant after expiry of the last date of performance-Last date of performance, so given, was not the essence of contract

Ordinarily in a suit for specific performance of immoveable property time was not essence of the contract except when specifically mentioned in the contract

Defendant himself had received the money and extended the period and had not given any notice for termination of the contract on the basis that the time was essence of the contract

Plaintiff, however, could not perform his part of the contract

Without notice by the defendant time could not be taken as essence of the contract

Appellant court fell in error while holding that the last date for extending the contract was essence of the contract

Revision petition was accepted.

2011 PLD 221 SUPREME-COURT Judicial Precedent

S. 5Civil Procedure Code (V of 1908), O. XXII, R. 19Execution of decreeRecovery of dowerImmovable propertyDescription, non-mention of

Dispute was with regard to immovable property claimed by wife as dower, description of the same was not mentioned in Nikahnama

Effect

For such purpose one could refer to O.XXII, R.19, C.P.C. mandating that decree for recovery of immovable property would contain its description sufficient for its identification

Such was only possible if property was sufficiently described in plaint or in evidence

Identification of immovable property was necessary for execution of decree by Executing Court as it could not go beyond terms of decree

Agriculture land measuring 100 Kanals claimed by wife as part of her dower was not identifiable

Describing property in terms of area in a particular village, without giving its exact location, would not be sufficient description for grant of decree for its recovery

Decree granted in such ambiguous terms would be incapable of exercise of execution, it was on such premises that all the three Courts below had consistently held that on account of lack of proper description of 100 Kanals of agricultural land, no decree could be granted to wife for its recovery

Even money decree in alternative could not be awarded in absence of identity of property as there existed no basis for evaluation

As regards claim of wife of 2 Kanals house, its market value at the time of marriage had been mentioned in Nikahnama

Though the house was not sufficiently described in Nikahnama but it had been evaluated therein, wife could be granted a decree based on such evaluation and all the Courts below overlooked such aspect of the matter

To compensate wife for inflation in currency and increase in real property, interest could be granted on the decree for recovery of Rs. 700,000 from the date of Nikahnama.

2011 PLD 221 SUPREME-COURT Judicial Precedent

S. 5Recovery of dowerImmovable propertyProofDescription, non-mention of

Dispute was with regard to immovable property claimed by wife as dower, description of the same was not mentioned in Nikahnama

Effect

If property / house mentioned in Nikahnama on account of lack of sufficient description leading to its identification then its price, if mentioned in Nikkahnama, could be awarded then in the same way value of other property (agriculture), the price of which had not been mentioned in documentation/Nikkahnama, could also be granted if evolvement of a mechanism for determination of value was possible, as the same was not in conflict with any provision of law rather in consonance with established principles for determining the value of property, then the same could be resorted to.

2011 PLD 221 SUPREME-COURT Judicial Precedent

S.5Recovery of dowerImmovable propertyProofDescription, non-mention ofOral evidence

Claim of wife to the extent of recovery of possession of immovable property as dower was rejected by the Courts below on the ground that no description of the property was given in Nikahnama

Plea raised by wife was that she was entitled to house measuring 2 Kanals and 100 Kanals of agricultural land

Validity

Regarding the house, there was oral evidence in the shape of statements of witnesses and wife herself and in a document brought on record by husband it was clearly recorded about a house situated in a specific village measuring 2 Kanals, of which market value was given as Rs. 700,000

No successful suggestion was made to wife by husband when she was subjected to cross-examination by specifying entries made in Nikkahnama to be incorrect except a general suggestion and not specific in respect of the house and agriculture land

Against denial of husband about entries in respect of house and agricultural land, there was sufficient evidence both quantitative and qualitative, in favour of wife, who was entitled to receive as dower a house measuring 2 Kanals or its market value, she was also entitled to agriculture land measuring 100 Kanals because of overwhelming evidence

In view of absence of particulars of 100 Kanals of land, Supreme Court directed Trial Court to appoint commission by directing a member of Revenue Hierarchy to determine average price of per Kanal agriculture land in village in question and after such determination wife would be entitled to receive 100 Kanals of land or its market value so determined

Judgment and decree passed by High Court was set aside and suit of wife was decreed accordingly

Appeal was allowed.

2011 PTD 808 INLAND REVENUE APPELLATE TRIBUNAL OF PAKISTAN Judicial Precedent

S.3Scope of taxImmovable property

Construction of immovable property even for its supply was not a taxable activity under the Sales Tax Act, 1990 and the charge of Sales Tax was confined to supply of goods only.

1958 PLD 270 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Immovable Property -Ownership and possession-Possession is either actual or constructive.