Muhammad Shafi VS Ahmad Nawaz

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Civil Revision No. 1049-D of 2011

Muhammad Shafi and another Versus Ahmad Nawaz

JUDGMENT

Date of hearing 07.10.2026 Revision- Mr. Javed Ahmad Khan, learned Petitioners by Advocate.

Respondent by Malik Aftab Hussain Awan, learned Advocate.

Sultan Tanvir Ahmad J:- Ahmad Nawaz instituted suit dated 01.06.2009 (the “suit”) seeking declaration and permanent injunction with respect to the property as detailed in the pleadings (the “suit property”), on the strength of iqrarnama dated 08.03.1995 (the “iqrarnama”) allegedly written in a panchayat. It is averred in the suit that the entire amount of consideration has been paid, whereas, Muhammad Shafi (seller) has refused to recognize his rights. Another suit filed by Muhammad Shafi titled “Muhammad Shafi etc. versus Ahmad Nawaz” was also pending. The two suits were consolidated and issues were framed, which included the issue of maintainability and entitlement of Ahmad Nawaz for the sought declaration. The learned trial Court dismissed the suits filed by both sides. They filed appeals No. 448/ADJ/2010 dated 14.12.2010 and 451/ADJ/2010 dated 21.12.2010. The learned Appellate Court vide judgment and decree dated 28.06.2011 dismissed the suit of Muhammad

Shafi (seller) and decreed the declaratory suit on the basis of the iqrarnama in favour of Ahmad Nawaz.

2.In addition of the present civil revision, Muhammad Shafi (seller) also challenged the dismissal of his suit vide civil revision No. 1050-D of 2011. The said civil revision has been withdrawn and it was accordingly dismissed.

3.Mr. Javed Ahmed Khan and Malik Aftab Hussain Awan, learned counsel for the parties, besides factual controversies have put-forth the question regarding maintainability of the suit for declaration on the basis of the iqrarnama. According to Mr. Javed Ahmad Khan only the suit for specific performance of alleged iqrarnama was maintainable. They have argued the case at length and relied upon different precedents. While answering this question, the factual disputes raised by the learned advocates will also be discussed.

4.Section 42 of the Specific Relief Act-1877 (“SRA- 1877”) confers power to the Court to make declaration of status or right. Any person entitled to any legal character or to right as to any property can institute such suit against a person who denies or is interested to deny the plaintiff”s title to the claimed character or right. The learned Courts have repeatedly discussed the scope of declaratory suit and the provisions of section 42 of SRA-1877. Learned Sindh High Court in Ilyas Ahmed1 case reached to the conclusion that in the event of non-creation of any vested right, no relief can be sought under section 42 of SRA-1877, which allows a person entitled to any legal character or any right to property to institute a suit in respect of his title to such legal character or “Ilyas Ahmed Versus Muhammad Munir and 10 Others” (PLD 2012 Sindh 92)

right to property. I would like to reproduce paragraph No. 20 of this judgment, which is as under:-

“20. So far as the relief of declaration is concerned, it has been claimed by the plaintiff in a negative form and not to safeguard his legal character or right to property, which entitlement is denied by the defendant but the plaintiff has prayed for declaration that the defendants Nos. l and 4 to 11 have no right or entitlement in the suit property, which is not permissible. Being fortified by the dictums referred to by ,the learned counsel for the defendant No.1 supra, I have reached to an irresistible conclusion that in the event of non-creation of any vested right no relief can be sought under section 42 of the Specific Relief Act. Under the provisions of section 42 of the Specific Relief Act a person entitled to any legal character or to any right to property can institute a suit for declaratory relief in respect of his title to such legal character or right to property. The expression, legal character has been understood as synonymous with the expression status. Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It, cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it can not apply to a case where only the entitlement to the legal character or the property of the defendant is denied by the plaintiff. Section 42 would be attracted to a case in which the plaintiff approaches the court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved the suit is not maintainable. In the present suit, the plaintiff has not approached this court for a declaration of his own right to property or his right to a legal character but has challenged the defendant pretension to a legal character and to right to property. Section 42 does not permit an unrestricted right of instituting all kinds of declaratory suit at the will and pleasure of the parties, right is strictly limited. Suit for mere declaration aliunde is not permissible under the law, except in the circumstances mentioned in Section 42, therefore, the suit in question is also barred by Section 42 of the Specific Relief Act.” (Underlining is added)

The Honourable Supreme Court of Pakistan, in Muhammad Jameel2, observed that declaration under section 42 of SRA-1877 can be granted only for pre-existing right and new right cannot be created. Their lordships also made reference to Muhammad Siddique3 and Abdul Razaq4.

5.Learned Balochistan High Court in the Naimatullah5 case while discussing the relevant provision has observed that an unregistered agreement can neither create any title nor right, as required under section 42 of SRA-1877. Section 54 of the Transfer of Property Act 1882 (“TPA-1882”) was also discussed and the following was concluded:- “...Since, the same does not create any right and or an interest in immovable property, therefore, suit for declaration on the basis thereof is not maintainable under section 42, the Specific Relief Act, 1877. The Hon'ble apex Court in the case of Shah Muhammad v. Atta Muhammad, (2005 SCMR 969) has held as under:

An agreement to sell being not a document of title cannot form the basis for the grant of a declaration under section 42 of the Specific Relief Act..."

There are a series of judgments including cases titled “Muhammad Younis”, Zafar Ahmad” and “Mohammad Nawaz”6, whereby, the declaration has been refused, holding that a person can seek declaratory decree where his legal character or right to the property is already existing, which is denied or there is threat of such denial. In these cases, the “Muhammad Jameel and Others Versus Abdul Ghafoor” (2022 SCMR “Muhammad Siddique (Deceased) through LRs and others V. Mst. Noor Bibi (Deceased) through LRs and others” (2022 SCMR 483) “Abdul Razaq v. Abdul Ghaffar and others” (2020 SCMR 202) “Naimatullah and Others Versus Mir Jamal and Others” (2024 CLC 75) “Muhammad Younis and another Versus Mst. Muhammad Bibi and 6 Others” (PLJ 2002 Lahore 203 (DB), “Zafar Ahmad Versus Mst. Hajran Bibi” (PLD 1986 Lahore 399) and “Mohammad Nawaz Versus Mian Muhammad Anwar Abbasi and Others” (PLD 1982 Baghdad-ul- Jadid 33)

decree was sought on the basis of agreement to sell and this Court time and again observed that an agreement does not confer proprietary rights to the purchaser. Therefore, declaratory decree is not envisaged by law.

6.The law is settled that suit for mere a declaration aliunde is not permissible under the law, except in the circumstances mentioned in section 42 of SRA-1877. The only proper mode of redressal for the petitioner on the strength of an agreement to sell, can be the suit of specific performance of the agreement and obligations of the respective parties.

7.In the present case, the learned Appellate Court somewhat remained under the impression that the iqrarnama conferred those rights, which are protected and enforced them under section 42 of SRA-1877. The learned Appellate Court, reached to the conclusion in the following words:- “...I am fortified on this point by following the wisdom as laid down in 1997 CLC 520. The respondent was required to file the suit for specific performance when the sale was completed...”

Law laid down in “Muhammad Farooq”7 case, in the above reproduced conclusion of the learned Appellate Court, has been referred. I have gone through the said judgment, however could not find any relevance of the precedent with the proposition at hand. This judgment is regarding the provisions of Order XXXIX Rules 1 and 2 of the Code of Civil Procedure-1908. It has no nexus with the proposition. On the face of it, the conclusion arrived at by the learned Appellate Court is erroneous. It is frequently discussed by the Courts that while relying on the judicial precedents, the “Muhammad Farooq & Company (Pvt.) Limited Versus Messrs Pakistan Tobacoo Company Limited and another” (1997 CLC 520)

Judges should not merely make reference to head notes rather they should go through the body, ratio and obiter in the precedents. Otherwise, the possibility of unsupported and mistaken conclusion cannot be precluded.

8.In the present case, Ahmad Nawaz has claimed that he has paid the entire consideration. The consideration of the suit property is alleged as Rs. 2150/- per marla fixed in March, 1995. The total property is 36-marlas, therefore, the settled consideration was Rs. 77,400/-. The iqrarnama was produced as Exh.D1. On the front of it, the time period for payment of total consideration is not given, however, at its back, Rs. 36,000/- is written as paid and the cut-off date was fixed as 26.08.1995. This part of the iqrarnama is signed by Muhammad Shafi (seller). There are other stipulations regarding payment of the remaining consideration. One for payment of Rs. 3,500/- by Abdul Haq (DW-1) to Rana Hafeez (PW-2). The second is dated 24.02.2003 regarding payment of Rs.20,900/- by Abdul Haq (DW-1) to Rana Hafeez (PW-2). The third one, dated 11.10.2003, with respect to return of Rs. 20,900/- by Hafeez Ullah to Abdul Haq. These three transactions are not signed by the seller i.e. Muhammad Shafi. Notably the third transaction is regarding the return of amount on 11.10.2003.

9.As discussed above, the first part at the back of the iqrarnama, which was written on 01.07.1995 is signed by Muhammad Shafi, when the last date for payment of remaining consideration was settled as 26.08.1995. This part, dated 01.07.1995, is not disputed by the witnesses. From the reading of Exh. D1 it is not clear if the payment(s) after the settled date was received or this period was extended, at the desire of the promisee as envisaged under section 2(d) of the

Contract Act-1872, leaving this Court to look into the oral evidence.

10.Abdul Haq, appeared as DW1. He admittedly is signatory of the iqrarnama and his signatures are available as Exh. D1/2, Exh.D1/3, Exh. D1/4, Exh.D1/5. He also signed it on 11.10.2003 while receiving Rs. 20,900/-. During examination he admitted that on 01.07.1995, the last date for payment of remaining consideration was fixed as 26.08.1995. He denied the suggestion that by this date, the remaining payment was not made, however, this denial is in clear contradiction with the stipulation at the back of the iqrarnama, where his signatures are present as Exh. D1/5. Then a specific question was again put to him vis-à-vis the failure to pay the consideration within the agreed time period and its effect as cancellation of the iqrarnama. In response, he stated that the matter was delayed due to reluctance by Muhammad Shafi (seller) to accept the payment. Here he contradicted his earlier statement, whereby, he denied a suggestion. He admitted that Rs. 3500/- was not paid to Muhammad Shafi. He also admitted that Rs. 20900/- was not paid to Muhammad Shafi on 24.02.2003. After stating this, he tried to explain the things at his own, without demonstrating it with clarity if Rana Hafeeez who received payment was appointed as an agent by Muhammad Shafi or he was receiving the amounts at his desire and that too after date settled for payment of entire consideration.

11.Ahmad Nawaz appeared as DW-2 and admitted that the amount of Rs. 3,500/- and Rs. 20,900/- were not paid directly to Muhammad Shafi. He also kept on explaining certain things at his own and then admitted that Adbul Haq (DW-1) returned the amount of Rs. 20,900/- to Rana Hafeez (PW-2) on 24.02.2003. Another witness namely

Ghulam Mustafa was produced as DW-3, who stated that he has no knowledge regarding payments of Rs. 3500/- and Rs. 20900/-. No other witness was produced to bring the matter to precision.

12.At this juncture, Malik Aftab Hussain Awan, learned counsel for the respondent has made two requests; first one relates to section 53-A of TPA-1882 and second is power to modify the relief or to permit amendment in the prayer clause of the suit. In Altaf Anjum8 case this Court was dealing with similar scenario. Besides settling that agreement to sell does not create or confer any right except to file a suit for specific performance, the Court has also considered the provision of section 53-A of the TPA-1882. Needless to state that in the said case, the possession was also with the purchaser. Reproducing the following extract of the judgment will be beneficial:-

“...It is settled now that an agreement to sell with regard to immovable property does not create or confer any right except to file a suit for specific performance and even a decree granted in a suit for specific performance in favour of plaintiff is a declaration of maturity of his right to get the property and the rights confer upon the decree holder in execution of the decree and not through mere passing of decree. In these circumstances, I am clear in my mind that on the basis of mere contract of sale of immovable property, even though the possession under the agreement has been transferred, the transferee cannot protect his possession or defend the possession if the suit for recovery of possession is filed by the owner i.e. the other party to the agreement on the basis of section 53-A of the Transfer of Property Act, 1882. I am of the view that the protection given under section 53-A of the Act (ibid) is available to the person with whom there is an instrument of transfer but having any legal defect in it, only in that case the possession can be protected. The further condition for taking benefit of section 53-A of the Transfer of Property Act, 1882 is that a transferee has to perform “Altaf Anjum Versus Bushra Begum and 2 Others”(2017 CLC 1368)

his part of contract. Admittedly the petitioner/defendant has not performed his part of contract, neither he is willing to perform his part, as the agreement is dated 11.11.2003 and the' suit for possession has been filed by the plaintiff/respondent No.1 on 29.01.2005 and till today the petitioner- defendant has not filed a suit for specific performance. There is no doubt in my mind that he has neither performed his part of contract nor he is willing to perform his part, therefore, he cannot take benefit of section 53-A of the 'Transfer of property Act...”

(Emphasis Supplied)

13.There is hardly any cavil that section 53-A ibid is never interpreted as conferring a title on the vendee. It creates no real right. It merely confers the right of estoppel between the proposed transferee and transferor. The same serves as shield and not as a sword. Here I would like to reproduce the following extract from “Muhammad Bakhsh”9 case:- “...It does not confer any active title or right of action on transferee except in defence of his rights under the deed. It follows, therefore, that such vendees who are in breach of section 54 of the Transfer of Property Act cannot on the strength of section 53-A of the Transfer of Property Act use such inchoate transactions as spring-board for claiming rights in altogether different property, on the strength of being owners or co-sharers.”

Same view has been adopted by this Court in case titled “Jamal Din alias Muhammad Jamal”10.

14.I have meticulously thought about moulding the relief and / or to convert the suit for declaration into suit for specific performance, keeping in view the command of law settled by the Honourable Supreme Court of Pakistan in case titled “Javaid Iqbal”11. Admittedly, there are ample powers with the Courts to convert the suit for declaration into one for “Muhammad Bakhsh Versus Zia Ullah and Others” (1983 SCMR 988) “Jamal Din alias Muhammad Jamal Versus Mst. Mahmooda Begum

(2002 CLC 361)

“Javaid Iqbal Versus Abdul Aziz and another” (PLD 2006 SC 66)

specific performance, even without seeking any amendment but only when the facts and circumstances of the case so require. The Supreme Court has upheld the judgment of this Court exercising the revisional jurisdiction observing that it is perfectly justified that the suit cannot fail merely for the reason that some relief which was available and not been claimed. In the said case, total sale consideration was paid and shield of section 53-A of TPA-1882 was available. However, in the case at hand the willingness and capacity to pay the consideration within the specified time period is not proved with the required degree of cogency. It is an admitted fact that the alleged part payment was made much after the fixed date, to a third party, who eventually returned the same. The evidence of the witnesses of Ahmad Nawaz is not in harmony with stipulations given at the back of the iqrarnama. Only witness Abdul Haq gave evidence as to the said clauses that too having contradiction and deficient of any confidence. The other witness DW-3 admittedly is not the witness of the aforesaid clauses. Some weaknesses in the evidence of the other-side have been relied upon by the learned counsel for the respondents. The benefit of alleged infirmities cannot be given to the Ahmad Nawaz, in the circumstances of the present case. The consideration, timely payment thereof and its evidence remained significant in this case.

15.There is another aspect of this matter. For Ahmad Nawaz it was important to stand by and discharge burden as to issue No. 6, however, his learned counsel has not pressed this issue before the learned trial Court. This fact is noted by the learned trial Court in paragraph No. 14 of the judgment dated 08.11.2010, which was never then discussed by the learned Appellate Court.

16.For the aforesaid facts as well as in the circumstances of the case and reasons recorded above, I am of the view that the learned Appellate Court has arrived at an incorrect conclusion, therefore, judgment and decree dated 28.06.2011 is set-aside.

17.This civil revision is allowed, with no order as to costs.

(Sultan Tanvir Ahmad) Judge Approved for reporting.

Announced in open Court on 21.10.2026.

Judge J.A. Hashmi/- s