IN THE HIGH COURT OF SINDH AT KARACHI

 

 

H.C.A. No.378 OF 2016

[Samiullah Soomro v. Haroon]

 

 

PRESENT:

            Mr. Justice Arshad Hussain Khan

                                      Mr. Justice Amjad Ali Sahito       

 

 

Appellant                               :           Through Mr. Muhammad Nasir,

Advocate  

 

Respondent                           :           Nemo

 

Date of hearing                     :           06.05.2026

 

Date of order                         :           06.05.2026

 

 

O R D E R

ARSHAD HUSSAIN KHAN J;                 This High Court Appeal has been preferred by the appellant-Samiullah Soomro, being aggrieved by and dissatisfied with the judgment dated 19.10.2016 and decree dated 14.11.2016 passed by a learned Single Judge of this Court in Suit No.1178 of 2010 whereby the appellant's suit for specific performance of an agreement to sell and permanent injunction, in respect of poultry farm land measuring four acres situated at Naclass No.77, Deh Gangiaro, Bin Qasim Town, Karachi (the “subject land”), was dismissed with no order as to costs.

 

2.         The facts leading to this appeal are that the appellant claimed to have entered into a sale agreement in respect of the subject land with the respondent on 03.09.2007 for a total sale consideration of Rs.32,00,000/- (Rupees Thirty-Two Lacs only). The appellant asserted that a substantial portion of the sale price, amounting to Rs.28,00,000/- (Rupees Twenty-Eight Lacs only), was paid to the respondent, leaving a balance of Rs.400,000/- (Rupees Four Lacs only) to be paid at the time of the execution of the transfer documents. It was further alleged that despite the appellant being in peaceful vacant possession and ready to perform his contractual obligations, the respondent failed to execute the final sale deed, initially citing a government ban on land transfers and subsequently the respondent through some unknown persons attempted to dispossess the appellant and despite persistent efforts, the respondent failed to perform his part of agreement, hence the appellant filed Suit No.1178 of 2010, which was eventually dismissed by the impugned judgment.  

3.         Learned counsel for the appellant submits that the impugned judgment and decree are illegal, perverse, and based on hypothetical reasoning without any substantive foundation. It is argued that the learned Single Judge failed to appreciate that the respondent had personally appeared before the Court on 27.07.2010 and unequivocally admitted execution of the agreement, merely stating that the original property documents were lost. It is further contended that the learned Single Judge erred in observing that once the respondent expressed willingness to perform his part of the agreement, the cause of action for specific performance ceased and the parties ought to have filed a compromise application. Counsel submits that this reasoning is wholly misconceived and contrary to settled principles of law. It is further submitted that the learned Single Judge erroneously treated the statement of the learned Assistant Advocate General as conclusive, despite the fact that no record was produced to substantiate such statement. Reliance on unverified assertions, without supporting evidence, is wholly misplaced and offends the settled principle that judicial findings must rest on cogent material. Counsel stresses that the impugned judgment thus suffers from serious legal infirmities and is liable to be set aside. Lastly counsel for the appellant prays that the impugned judgment and decree be set-aside and instant Appeal be allowed as prayed for.

4.         We have heard learned counsel for the appellant and carefully perused the material available on record.

5.         Upon perusal of the record, it appears that the appellant/plaintiff entered into a sale transaction in respect of the subject land, which admittedly constituted Government Na-Class land leased out for a period of thirty years for poultry farming purposes by the District Officer (Revenue), City District Government Karachi, during the years 1984-85, initially in favour of one Muhammad Rafiq son of Shah Muhammad. Subsequently, in the year 2002, the leasehold rights for the unexpired portion of the lease period were transferred in the name of Mr. Haroon Abdul Sattar (respondent herein), subject to payment of the remaining lease amount.

It is the case of the appellant that thereafter the said Haroon Abdul Sattar entered into a sale transaction with the appellant in the year 2007 in respect of the subject land for a total sale consideration of Rs.32,00,000/-, out of which a sum of Rs.28,00,000/- was allegedly paid, whereupon possession of the property was also handed over to the appellant. According to the appellant, despite receipt of a substantial portion of the sale consideration, the respondent failed to execute the requisite transfer documents or to have the property mutated in favour of the appellant, compelling the appellant to institute the underlying suit for specific performance and permanent injunction in July, 2010. The record further reflects that upon issuance of notices and summons, the respondent appeared before the learned trial Court on 27.07.2010 and stated that the original documents had been lost, though he expressed willingness to perform the agreement. Thereafter, neither the respondent nor anyone on his behalf appeared before the Court, as a consequence whereof he was proceeded against ex-parte. Since the respondent was the sole defendant in the matter, the proceedings continued ex-parte. Ultimately, vide impugned judgment dated 19.10.2016, the learned Single Judge, after hearing learned counsel for the appellant, dismissed the suit.

6.         The record further reflects that, during the ex-parte proof proceedings, the appellant failed to produce the original title documents or even the formal agreement to sell. The appellant primarily relied upon a mere receipt and did not examine any marginal witnesses to the alleged transaction, despite such examination being a mandatory requirement under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 for proving documents pertaining to transfer of immovable property.

7.         This Court observes that the relief of specific performance, being equitable and discretionary in nature, cannot be granted unless the existence of a lawful and enforceable contract is established through strict proof. A mere verbal statement or an alleged expression of willingness attributed to the respondent at an earlier stage cannot substitute, dispense with, or override the mandatory legal requirement of proving the agreement by means of cogent, trustworthy, and legally admissible evidence, which, in the present case, is manifestly absent.

 

8.         Besides above, the record also remains silent regarding the mode of payment allegedly made towards the sale consideration, namely whether the same was paid through cash, cheque, or pay order. Moreover, the record does not reflect that, after allegedly obtaining possession of the property in the year 2007, the appellant ever called upon the respondent to perform his part of the alleged agreement or took any concrete steps for enforcement thereof within a reasonable time. Likewise, there is no material available on record to demonstrate that, at the time of entering into the alleged transaction, the original title documents were ever shown or produced before the appellant.

9.         This Court further observes that the lease of the subject land was admittedly a temporary lease for a period of thirty years, which, by its very nature, did not confer any proprietary or ownership rights upon the lessee. In the absence of any express authority under the terms of the lease or the governing law, the lessee was not competent to enter into any sale transaction in respect of the subject land. Consequently, the respondent himself had no lawful authority to alienate or transfer the land in question. It is also significant to note that the appellant is a practicing Advocate of this Court and, therefore, cannot be presumed to be unaware of the legal position governing leasehold rights and restrictions on transfer of Government land. Despite such knowledge, the appellant admittedly entered into the alleged transaction and subsequently instituted the suit seeking specific performance, including a prayer that, in the event of failure on the part of the respondent to execute the transfer documents, the Nazir of this Court be directed to execute the sale deed. Such conduct, in the peculiar facts and circumstances of the case, casts serious doubt upon the bona fides of the appellant.

10.       In view of the foregoing discussion, we are of the considered opinion that the findings recorded by the learned Single Judge are founded upon a proper appreciation of the law as well as the peculiar facts and circumstances of the case. The appellant has failed to establish any lawful or equitable basis warranting the grant of the discretionary relief of specific performance in his favour. Consequently, we find no substance in the grounds urged in the present appeal. Accordingly, the impugned judgment and decree are maintained and the instant High Court Appeal is dismissed, with no order as to costs.

            Instant High Court Appeal stands disposed of alongwith pending application(s).

JUDGE

JUDGE

 

 

 

 

 

Naveed PA