2016 SCMR 1925
2019 CLC Note 46
Oral agreement was to be pleaded in the suit with full details i.e. specific date, time and place of agreement between the parties and witnesses of the same as well as earnest money paid under the said agreement.
Suit Of Contract on Basis of Oral Agreement/contract, decreed.*
Sec.12 SRA, Art. 103 QSO 1984, Sec. 5, Contract Act 1872.
2019_YLR_223*
2016_YLR_100_Sindh*
*2014_SCMR_1217*
*2002_SCMR_326*
*2012_MLD_1873*
*2011_SCMR_1009*
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2020 M L D 1230
[Peshawar]
(a) Transfer of Property Act (IV of 1882)-----Ss. 9, 53-A & 54---Oral agreement to sell---Transaction with Pardanasheen lady---Requirements--- Burden of proof---Procedure--- Oral agreement to sell---Limitation---Commencement of.
Predecessor-in-interest of plaintiffs remained alive for twenty six years after execution of alleged oral agreement to sell but he never claimed the ownership of suit property nor approached the Court of law. Present suit had been filed after thirty three years from the alleged agreement to sell. Plaintiffs were not vigilant in asserting their right by filing the present suit. Nothing was on record that plaintiffs had performed any overt act to keep the agreement to sell alive. Alleged oral agreement to sell had expired in circumstances. Witnesses produced on behalf of plaintiffs had failed to state the exact date and time of alleged oral agreement to sell. Executant of alleged agreement to sell was Pardanasheen lady and her identity had not been established during evidence of plaintiffs. Burden of proof to establish oral sale was on the plaintiffs who had failed to discharge the same. No family member of executant of agreement to sell was present at the time of its execution. Every precaution should have been taken to ensure that the pardanashin person who was produced before the witnesses was actually the purported vendor. Plaintiffs had failed to establish the oral sale, payment of sale consideration and identity of parda observing lady. Vendee to prove sale deed on behalf of Pardanasheen was required to establish that lady had comprehended the terms and conditions of sale transaction. Plaintiffs should have proved that lady was accompanied by her close relative having no clash of interest and sale transaction was completed before witnesses and sale consideration was fixed and paid to her and she was aware of the piece of land being sold to vendee. Absence of duress, protest, lack of misunderstanding or want of comprehension would not itself be the proof of understanding of the executant. Evidence should have been brought on record that documents were read over and explained to the executant. Where writing for transfer of tangible immovable property was necessary then same should be made in writing and not orally. When transfer of tangible immovable property of valuing one hundred rupees and upward was made then it could be made only by a registered instrument. Where no document was available even then evidence should be produced to satisfy the Court that there existed a contract so that Court might ascertain with reasonable certainty as to what were its terms. Defendant for the protection of section 53-A of Transfer of Property Act, 1882 should be willing to perform the terms of contract as required. Where burden of proof had not been discharged then Section 53-A of Transfer of Property Act, 1882 would not apply in the matter. Oral agreement to sell was required to be documented in the revenue record through mutation within a reasonable time. Limitation to enforce oral agreement to sell would start from the date of refusal but in absence of any such refusal too it was duty of beneficiary to make efforts to safeguard his right. If no such efforts were made then after lapse of three years the beneficiary of oral sale would be barred by the law of limitation to file suit for specific performance. No date of refusal on the part of defendant to enforce alleged oral agreement had been mentioned in the plaint in the present case. Plaintiffs should have filed suit within limitation even if there was no refusal on the part of defendants. Neither mis-reading or non-reading of evidence nor any error in concurrent findings had been pointed out in the impugned judgments passed by the Courts below. Revision was dismissed in limine, in circumstances.
Ainuddin and others v. Abdullah and another 2019 SCMR 880; Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR 2080; Mst. Nishata v. Muslim Khan alias Musali and others PLD 2011 Pesh. 23; Bakhtiar v. Nasrullah and 12 others 2015 CLC 385; Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165; Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 and Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 677 rel.
(b) Administration of justice---
----Law favours vigilant and not the indolent.
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: 2020 Y L R 2398
[Lahore (Multan Bench)]
Specific Relief Act (I of 1877)---
---S. 12---Suit for specific performance of agreement to sell---Oral agreement---Interested witness---Non-availability of independent advice to an infirm lady---Effect---Suit for specific performance of oral agreement to sell filed by petitioner was concurrently dismissed by the Trial Court and Appellate Court---Validity---Petitioner was required to specifically state in the plaint the time, date and place where the agreement was executed and the name of witnesses in whose presence the said transaction was agreed between the parties---Plaint did not reveal as to when and where the agreement was entered between the parties---First witness was the husband of petitioner while the other was the friend of her husband, therefore, both were interested witnesses---Petitioner had failed to establish as to how a huge amount of partial payment was paid by her to the deceased-lady (respondent) and where she had kept the said amount---Petitioner had failed to explain as to what was the need and what independent advice was available to the deceased lady for making such a transaction in favour of her sister and that too orally and in the absence of any independent witness--- Petitioner could not substantiate her claim for specific performance of the oral agreement and the judgments passed by courts below dismissing her suit concurrently were well founded and warranted no interference by High Court---Revision petition was dismissed.
Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.
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: Oral agreement / Supreme Court Judgments
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2010 SCMR 988 SUPREME-COURT
Side Appellant : RASOOL BAKHSH NAICH
Side Opponent : Syed RASOOL BAKHSH SHAH
Ss. 8 & 27(b)---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Two rival suits in field in respect of suit-land, one by prior vendee alleging written agreement to sell in his favour and delivery of its possession, and other by subsequent vendee alleging oral agreement to sell in his favour---Prior vendee in support of written agreement examined vendor, scribe and attesting witnesses thereof and produced Khasra Girdawri regarding his possession over suit-land---Validity---Vendor as witness had affirmed to have entered into written agreement to sell with prior vendee and received sale consideration---Subsequent vendee during cross-examination could not create any dent in credibility of vendor---Prior vendee had proved delivery of possession by producing Khasra Girdawri and examining witnesses---Prior vendee by producing such evidence had discharged initial cries to prove execution of agreement and delivery of possession indicating his lien over suit-land-Subsequent vendee had neither pleaded nor proved in affirmative lack of knowledge or notice of such prior written agreement nor had alleged same to be fake---Nothing on record to show that subsequent vendee had made any enquiry regarding such prior written agreement or lien over suit-land---Factum of possession of prior vendee over suit-land was sufficient notice to subsequent vendee that there was a prior lien and charge thereon---Suit filed by prior vendee was decreed and that filed by subsequent vendee was dismissed in circumstances.
2009 SCMR 451 SUPREME-COURT
Side Appellant : Mst. REHMU
Side Opponent : Mst. AMINA BIBI
S. 12---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of oral agreement to sell---Plaintiff had failed to produce trustworthy, cogent and independent evidence to prove payment of the earnest money and that she was willing and ready to perform her part of agreement---High Court, after legally appreciating the evidence on record and taking into consideration every aspect of the case, had rightly affirmed the findings of the first Appellate Court---Plaintiff could not point out any misreading or non-reading of evidence on record justifying interference by Supreme Court in the judgment---No legal infirmity having been found in the impugned judgments sufficient to reverse the concurrent findings arrived at by both the Appellate Courts, Supreme Court dismissed petition for leave to appeal.
2005 SCMR 766 SUPREME-COURT
Side Appellant : KHURRAM SHAFI
Side Opponent : Mst. INAYAT BIBI
--S. 550---Specific Relief Act (I of 1877), Ss.12 & 54---Custody of vehicle on Superdari---Police intercepted vehicle from petitioner---Suit filed by petitioner was dismissed, wherein he had prayed that vehicle be not taken from him---Petitioner sought Superdari of vehicle on the ground that he had purchased same through oral agreement from respondent owner---Magistrate granted Superdari of vehicle to petitioner, which order was upheld by Revisional Court, but was set aside by High Court in Constitutional petition---Validity---Civil Judge while dismissing suit observed that petitioner had not produced any agreement to sell to have been made between parties with regard to vehicle; and as question of title was in dispute, suit for permanent injunction was not maintainable, rather he should have filed suit for specific performance of agreement---Petitioner had not challenged such judgment before any higher forum, which had attained finality---Petitioner had not brought a single document worth consideration on record as to substantiate his claim---Impugned order did not suffer from any illegality or legal infirmity warranting interference---Supreme Court dismissed petition and refused leave to appeal in circumstances.
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