2023 S C M R 815
[Supreme Court of Pakistan]
Present: Sayyed Mazahar Ali Akbar Naqvi, Muhammad Ali Mazhar and Shahid Waheed, JJ
Rao ABDUL REHMAN (DECEASED) through legal heirs---Petitioner
Versus
MUHAMMAD AFZAL (DECEASED) through legal heirs and others---Respondents
Civil Petition No. 1133-L of 2016, decided on 16th January, 2023.
(Against the judgment dated 15.02.2016 passed by Lahore High Court, Lahore in Civil Revision No. 997/2010)
(a) Specific Relief Act (I of 1877)---
----Ss. 12 & 42---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Proof---Suit for specific performance and declaration---Property in question was measured as 10 Marlas and was jointly owned by "F" and "A" in equal shares---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.
(b) Specific Relief Act (I of 1877)---
----Ss. 12 & 42---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Suit for specific performance and declaration---Scope---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.
Muhammad Yousaf v. Munawar Hussain and others 2000 SCMR 204 ref.
(c) Specific Relief Act (I of 1877)---
----S. 12---Transfer of Property Act (IV of 1882), S. 54---Agreement to sell---Suit for specific performance---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.
(d) Constitution of Pakistan---
----Art. 189---Judgments of the Supreme Court---Binding effect---Prospective in nature---Judgments of the Supreme Court unless declared otherwise operate prospectively.
Pakistan Medical and Dental Council and others v. Muhammad Fahad Malik and others 2018 SCMR 1956; Sakhi Muhammad and another v. Capital Development Authority, Islamabad PLD 1991 SC 777 and Pir Bakhsh and others v. The Chairman, Allotment Committee and others PLD 1987 SC 145 ref.
(e) Contract Act (IX of 1872)---
----S. 10---Contract---Terms and conditions of contract---Where an effective and enforceable contract is not structured by the parties, it is not the domain or province of the Court to make out a contract for them, and the lis would be decided on the basis of terms and conditions agreed and settled down in the contract.
(f) Specific Relief Act (I of 1877)---
----S. 12--- Decree for specific performance---Scope---Decree for specific performance may not be passed if the substratum of the contract suffers from shortcoming or legal infirmities which renders the contract unacceptable and unenforceable.
(g) Words and phrases---
----'Caveat emptor'--- Meaning, connotation and scope.
Broom's Legal Maxims (Tenth Edition), Chapter IX, (page 528); Black's Law Dictionary (Sixth Edition), page 222; Words and Phrases (Permanent Edition), Volume 6A (Pages 8 and 9); Wood v. Ross, Tex. Civ. App., 26 S.W. 148, 149; Kain v. Weitzel, 50 N.E.2d 605, 607, 72 Ohio App. 229; Sherwood v. Salmon, 2 Day, 128, 136; Burwell's Adm'rs v. Fauber, Va., 21 Grat. 446, 463; Major Law Lexicon (Fourth Edition), (page 6035-see page number); Gour Kishan v. Chunder Kishore, per Gart T CJ, (1876) 25 SUTH WR 45 (46) and Bahar Shah and others v. Manzoor Ahmad (2022 SCMR 284 ref.
(h) Appeal---
----Inconsistency between the findings of Trial Court and the Appellate Court---In such a case findings of the Appellate Court must be given preference in the absence of any cogent reason to the contrary.
Amjad Ikram v. Mst. Asiya Kausar 2015 SCMR 1; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others 2013 SCMR 1300 ref.
Agha Muhammad Ali, Advocate Supreme Court for Petitioner.
Jam Khursheed Ahmed, Advocate Supreme Court for Respondents Nos. 2 to 5.
Date of hearing: 16th January, 2023.
JUDGMENT
MUHAMMAD ALI MAZHAR, J.---This civil petition for leave to appeal is directed against the judgment dated 15.02.2016 passed by the learned Lahore High Court, Lahore in Civil Revision No.997 of 2010 whereby the revision application filed by the petitioner was dismissed.
2. The transient features of the case are that Muhammad Feroz (deceased) and Muhammad Afzal (respondent No. 1) were the owners of 10 Marlas according to Khewat No. 621, Khatuni No.579, Qilla Numbers 15/3, 16/2/2/, 16/3/1 in the land situated at village Bherowal, Tehsil Phalia, District Mandi Baha-ud-Din. ("Suit property"). On 19.03.2008, the petitioner filed Civil Suit No.59/2008 for declaration with an alternate prayer for decree of specific performance of an agreement to sell dated 30.11.1993. In the aforesaid suit the petitioner pleaded that he entered into an agreement to sell with Muhammad Feroz (decd.) for the aforesaid property in lieu of sale consideration amounting to Rs.1,60,000/- out of which Rs.70,000/- was paid in the presence of witnesses as earnest money while the remaining amount was agreed to be paid on 18.01.1994, subject to which the sale deed would be executed. It was further alleged that on 17.01.1994 the respondents received the remaining consideration, thus completing the sale and executed another agreement on the same date i.e. 17.01.1994 with the condition that a registered deed and/or mutation in favour of the petitioner would be executed at the petitioner's desire. The petitioner demolished the old structure constructed on the property. It was further contended that after the death of Muhammad Feroz (vendor) his heirs resiled from the agreement to sell, hence the petitioner filed a civil suit. The suit was contested by the respondents and they filed written statements to the effect that both the agreements to sell are forged and the suit is also time-barred. On the contrary, the evidence led by the respondent No.2 divulges that due to registration of FIR against the respondents in a murder case, they left the village and during their absence, the petitioner encroached upon the plot. After recording the evidence, the Trial Court decreed the suit to the extent of declaration, but declined the relief of specific performance of the alleged agreements. The respondents filed an Appeal which was accepted by the Appellate Court and as a consequence thereof, the judgment of the Civil Court was set aside. Being aggrieved, the petitioner filed a Civil Revision in the Lahore High Court which was dismissed vide Judgment dated 15.02.2016.
3. The learned counsel for the petitioner argued that the transaction was completed after the vendors had received the sale consideration and handed over the possession of the suit property to the vendee and since then the petitioner was in peaceful possession of the property in dispute. It was further contended that the learned Additional District Judge as well as the learned High Court failed to appreciate the evidence. He further argued that the non-signing of the agreement by the vendee was of no consequence when the agreement was signed by the vendor. It was further contended that the sale agreements were proved in evidence despite the fact that the marginal witnesses had died, but the Appellate Court and High Court ignored the evidence available on record. Finally, the learned counsel averred that the learned High Court relied on the dictum laid down by this Court in the case of Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), which was subsequently revisited by this Court in the case of Muhammad Sattar and others v. Tariq Javaid and others (2017 SCMR 98), hence the reliance placed by the learned High Court on Farzand Ali case was ill-founded.
4. The learned counsel for the respondents, while supporting the judgment of the learned Appellate Court and High Court, argued that the judgment and decree passed by the learned Trial Court was against law and facts. He further argued that the learned Trial Court failed to appreciate the evidence, including the documents of Mutations Nos. 2301 and 130 dated 23.02.2008 and 18.04.1974. He further argued that due to the registration of a criminal case, the respondents were out of the village and also denied having handed over possession of the suit property to the petitioner. He further argued that when the respondents had run away from the vicinity, then the question of receiving the remaining sale consideration did not arise. He further argued that no agreement was signed by the respondent No.1 who is a co-owner of the property in question, hence in his absence the alleged agreement was otherwise not enforceable and the learned Trial Court itself declared that the agreements were not proved, but under misconception of law granted the declaratory decree which was rightly set aside by the learned Appellate Court.
5. Heard the arguments. The gist of the evidence led in the Trial Court reflects that the petitioner adduced evidence as PW-1 and produced Muhammad Abdullah and Matloob Ahmad as PW-2 and PW-3. The alleged agreements were produced as Ext.P/1 and Ext.P/2 along with some other documents, including a copy of the Khasra Girdawari as Ex.P/9 and a copy of the record of rights from 2004-2005 as Ex.P/10, whereas from the respondents'/defendants' side, Zafar Iqbal appeared as DW-1 and Sultan Ali as DW-2. They produced Mutation No.130 dated 18.04.1974 as Ex.D/1 and Mutation No.2361 dated 23.02.2008 as Ex.D/2, along with a copy of the record of rights from 2004-2005 as Ex.D/3. The learned Trial Court decreed the suit with regard to declaration alone but declined the decree of specific performance. The property in question was measured as 10 Marlas and was jointly owned by Muhammad Feroz and Muhammad Afzal in equal shares. The petitioner in his evidence admitted that the agreement was entered into 1993, but he did not know who the owner of the entire property was and did not check whether Muhammad Feroz was the absolute owner of the property measuring 10 Marlas, but it was an admitted fact that Muhammad Feroz was the owner of 5 Marlas only. It is also a matter of record that the petitioner claimed to be unaware that the respondents were proclaimed offenders but admitted that they had slipped away. The Civil Suit was filed after 13 years of the execution of the agreements, and at least two years after it came into the knowledge of the petitioner that the whole property was not owned by Muhammad Feroz (decd.). The learned Appellate Court after scanning and reevaluating the entire evidence, rightly reached the conclusion that the agreements were not proved and, in addition, it was further observed that the co-owner Muhammad Afzal never signed the agreements mainly for the reason that the respondents were involved in a murder case, hence they had escaped from Bherowal and during that period, the petitioner illegally occupied the property without ascertaining the proper description of the property as well as its ownership and maintained silence for more than thirteen years. The learned counsel for the petitioner failed to identify any mis-reading or non-reading of evidence or any other material defect in the impugned judgment.
6. It is clear from the chronology of the case that in order to effectively implement or execute the agreements dated 30.11.1993 and 17.01.1994, the petitioner filed the suit for declaration and in alternate decree for specific performance on 19.03.2008, at which point Muhammad Feroz (vendor) had already died. Neither any legal proceedings were initiated by the petitioner during the life time of Muhammad Feroz 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 not approaching a court of law for the implementation of the agreements at the relevant time. According to section 54 of the Transfer of Property Act 1882, "sale" means the transfer of ownership in exchange for a price paid or promised or part paid and part promised which is made in the case of tangible immovable property of the value of one hundred rupees and upwards or in the case of a reversion or other intangible thing, can be made only by a registered instrument with further rider that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties but it does not, of itself, create any interest in or charge on such property. Whereas under Section 42 of the Specific Relief Act, 1877, a person entitled to any legal character or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief, but according to the attached proviso, no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so. The expression "legal character" has been understood to be synonymous with the expression status. A suit for mere declaration is not permissible except in the circumstances mentioned in section 42 of the Specific Relief Act. The claim of mere declaration as to alleged title does not suffice. It is clear that in the present lis, the 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 so it is quite strange that the learned Trial Court, though it dismissed the suit for specific performance on the ground that agreements to sell were not proved, but concomitantly decreed the suit to the extent of declaration which is on the face of it a glaring and patent legal and factual error that was rightly corrected by the learned Appellate Court. 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. This Court in the case of Muhammad Yousaf v. Munawar Hussain and others (2000 SCMR 204), held that the agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance.
7. Under section 22 of the Specific Relief Act, the exercise of jurisdiction by the Court for decreeing the suit for specific performance of contract is discretionary in nature in which the Court is not bound to grant such relief, but in tandem the discretion is not to be exercised arbitrarily but should be based on sound legal principles after analyzing and gauging the circumstances, inter alia, whether the contract is such which gives an unfair advantage to the plaintiff over the defendant or the performance of the contract encompasses some hardship on the defendant which he could not foresee or whether its non-performance would embroil some hardship to the plaintiff and whether the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. The 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 delaying its execution. So far as the limitation period for the institution of a lawsuit against non-performance is concerned, the starting point of limitation under Article 113 of Limitation Act, 1908 for institution of legal proceedings enunciates two limbs and scenarios. In the first segment, the right to sue accrues within three years if the date is specifically fixed for performance in the agreement itself whereas in its next fragment, the suit for specific performance may be instituted within a period of three years from the date when plaintiff has noticed that performance has been refused by the vendor but in both scenarios, the right to sue has not been left open ended. In the present case, according to the petitioner the cause of action accrued when legal heirs of Muhammad Feroz declined to acknowledge the alleged agreements signed by their predecessor, therefore, the suit was not time barred. Obviously, the first part of Article 113 of the Limitation Act refers to the exactitudes of its application when time is of the essence of the contract, which means an exact timeline was fixed for the performance of obligations arising out of the contract/agreement hence, in this particular situation, the limitation period or starting point of limitation will be reckoned from that date and not from date of refusal, however, if no specific date was fixed for performance of agreement and time was not of the essence, then the right to sue will accrue from the date of knowledge about refusal by the executant. Ref: Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933).
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