ABDUL WAHEED KHAN vs KHUSH MUHAMMAD BHUTTO S — 2026 CLC 299 KARACHI-HIGH-COURT-SINDH

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ABDUL WAHEED KHAN VS KHUSH MUHAMMAD BHUTTO S.53a---Doctrine of part performance---Protection to buyer / vendee under an agreement to sell of immoveable property, availability of---applicability, scope and limitations---applicability of S. 53a of the Transfer of Property act depends upon the following factors;(i) There is a contract in writing signed by the transferor in respect of an immovable property; (ii) From the writing, transfer can be ascertained with reasonable certainty; (iii) In part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract, and (iv) The transferee has performed or is willing to perform his part of the contract---If all these conditions are satisfied, then even if the contract is not registered, the transferor or any person claiming under him cannot enforce any right in respect of the property of which the transferee has taken possession except such right, which a transferor is entitled to enforce by virtue of the contract. Citation Name: 2026 CLC 299 KARACHI-HIGH-COURT-SINDHBookmark this Case ABDUL WAHEED KHAN VS KHUSH MUHAMMAD BHUTTO S.100---Second appeal---Scope, restrictions and limitations---Under S. 100 of C.P.C. a second appeal to the High Court lies only on any of the following grounds: (i) the decision being contrary to law or usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having the force of law; and (iii) a substantial error or defect in the procedure provided by C.P.C. or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits---The scope of second appeal is thus restricted and limited to these grounds, as S. 101, C.P.C. expressly mandates that no second appeal shall lie except on the grounds mentioned in S. 100, C.P.C.---Notwithstanding such clear provisions on the scope of second appeal, sometimes the High Courts deal with and decide second appeals as if those were first appeals; High Courts thus assume and exercise a jurisdiction which they do not possess, and thereby also contribute to unjustified prolongation of litigation process which is already chocked with high pendency of cases---A High Court cannot, in such case, enter into the exercise of re-reading and re-appraisal of evidence, in second appeal, and reverse the findings of facts of the first appellate court, much less the concurrent findings of facts reached by the trial court as well as the first appellate court---It has, in second appeal, no jurisdiction to go into the question relating to weightage to be attached to the statements of witnesses, or believing or disbelieving their testimony, or reversing the findings of the courts below just because the other view can also be formed on the basis of evidence available on record of the case. Citation Name: 2026 CLC 299 KARACHI-HIGH-COURT-SINDHBookmark this Case ABDUL WAHEED KHAN VS KHUSH MUHAMMAD BHUTTO Ss.8 & 12---Suit for recovery of possession of immoveable property---Subsequent belated suit seeking specific performance of agreement to sell by vendee---Failure to prove full sale consideration---Absence of receipts or proof---Effect---The respondent filed civil suit seeking possession of the suit property along with arrears of rent---Trial Court decreed the suit in his favour which decision was upheld in appeal---The appellant / defendant challenged the concurrent findings in the present second appeal, contending possession was delivered to him under an agreement to sell dated 05.09.2006, consideration for which was partly paid, with subsequent payments accepted by the respondent, whereas, respondent denied full payment, asserted ownership, and argued that appellant's possession was unauthorized---Held: Appellant / defendant failed to point out any material irregularity, misreading or non-reading of the evidence---It was unconscionable for the appellant to maintain possession of the subject property in light of the fact that the respondent/plaintiff continued to be the registered owner of the same---Moreover, the courts below had correctly held that the appellant was unable to prove that he had paid anything over Rs.200,000 to the respondent and categorically admitted that he had no receipt or proof of the same---Further, the appellant admittedly never approached the respondent seeking performance of the above-mentioned agreement---It was also noticeable that the civil suit was filed by the respondent in the year 2007 and suit for specific performance of the said sale agreement was only filed by the appellant in the year 2019, after the judgment and decree was pronounced by the Trial Court---This conduct itself did not warrant any equitable relief in favour of the appellant/defendant---Had the appellant/defendant been vigilant the said suit for specific performance ought to have been filed earlier---Moreover, it was evident from perusal of the evidence led by the respective parties that the appellant/defendant had not taken any steps in furtherance of the said agreement---Further, it appeared that he was not willing to perform his part of the contract---The same could be deciphered from the fact that the appellant filed a suit for specific performance after the Trial Court had passed a judgement and decree in favour of the respondent / plaintiff---No substantial error or defect was identified by the appellant which required interference of the High Court---Second appeal was dismissed, in circumstances.

ABDUL WAHEED KHAN vs KHUSH MUHAMMAD BHUTTO S — 2026 CLC 299 KARACHI-HIGH-COURT-SINDH

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