ABDUL AZIZ vs ABDUL KAREEM S — 2023 YLR 104 KARACHI-HIGH-COURT-SINDH

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ABDUL AZIZ VS ABDUL KAREEM S. 41---Specific Relief act (I of 1877), S. 27(b)---Buying property without public notice----Respondents filed suit for cancellation against one of their brothers (respondent No. 2)---Respondents moved an application to implead appellant as party and consequently appellant was arrayed as defendant in the suit---Trial Court dismissed the suit---Respondent filed appeal before appellant Court---appellate Court allowed the appeal---Held, that sale deed of appellant as being enjoyed by appellant could not be set-aside automatically as the defence of the appellant was protected being buyer without notice of any dispute; it had to be proved independently through impartial evidence, failing whereof S.41 of the Transfer of Property act, 1882 would protect the title of appellant---Section 27(b) of the act,1877, was for enforcing performance against those who acquired title with knowledge of pervious agreement/contracts, whereas S.41 of the act, 1882, protected title for those who acquired title without knowledge of pervious litigation----Case in hand, was a case of cancellation of sale deed so S.41 of the act, 1882, was more appropriate for application---Buying property without public notice might be irregularity but could not always be kept at par with mala fide---Prima facie, there was no evidence that appellant had knowledge of title dispute between his predecessors---Question of limitation as applicable to suit, challenging first sale deed being registered instrument, might also be taken into consideration by the appellant Court as it was claimed that registration of a document itself was a notice and knowledge to the respondents---Case was remanded to appellant Court for re-hearing and for passing a speaking order specifically with reference to referred law.

ABDUL AZIZ vs ABDUL KAREEM S — 2023 YLR 104 KARACHI-HIGH-COURT-SINDH

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