Brig. (Rtd) Raja Muhammad Saleem Khan vs Mrs — 2026 MLD 36 KARACHI-HIGH-COURT-SINDH

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Brig. (Rtd) Raja Muhammad Saleem Khan VS Mrs. Nabeela Azam Ss.8, 12 & 39---Transfer of Property Act (IV of 1882), S.53-A---Suit for recovery of possession by vendor---Maintainability---Contingent contract---Contingency in agreement to sell not fulfilled---Legal consequences---Vendor seeking possession of suit property---Vendee having paid almost entire sale consideration---Effect---Failure of vendor to seek cancellation of agreement to sell---Legal implication---Possession of property cannot be granted without prior cancellation of agreement---Scope---In the present case the core challenge stemmed from the vendor's/petitioner's attempt to reclaim possession of the property without first seeking cancellation of the subsisting agreement to sell---The agreement to sell was contingent upon issuance of NOC from GHQ, which was never granted, but despite this the vendee had already paid almost the entire sale consideration and continued in possession---The vendor, instead of pursuing cancellation of the agreement to sell, directly filed a suit for possession, which was legally questionable as to how possession could be reclaimed unless the underlying sale agreement was first lawfully set aside---Held: Possession being sought by the appellant/plaintiff was without any ground or justification as the said possession could not be granted in the absence of a prayer for cancellation of the agreement to sell---Valuable rights in favour of the respondent/vendee had already accrued for the reasons that significant percentage (95%) of the sale consideration had already been paid to the appellant/vendor---Suit of the appellant/vendor was rightly dismissed by the courts below---Moreover, under equitable principles the respondent/vendee was entitled to retain her possession---In the given circumstances her possession was a complete defense to the suit filed by the appellant which was rightly dismissed by courts below---No substantial error in the impugned judgment was pointed out, as such, no case for interference was made out---Second appeal was dismissed, in circumstances. Citation Name: 2026 MLD 36 KARACHI-HIGH-COURT-SINDHBookmark this Case Brig. (Rtd) Raja Muhammad Saleem Khan VS Mrs. Nabeela Azam S.100---Second appeal---Scope---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; (b) the decision having failed to determine some material issue of law or usage having the force of law; (iii) a substantial error of 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---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; they thus assume and exercise a jurisdiction which the High Courts do not possess and thereby also contribute to unjustified prolongation of litigation process which is already chocked with high pendency of cases---High Court in such cases cannot 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. Citation Name: 2026 MLD 36 KARACHI-HIGH-COURT-SINDHBookmark this Case Brig. (Rtd) Raja Muhammad Saleem Khan VS Mrs. Nabeela Azam S.53-a---Possession of a property in part performance of a contract---Scope---Possession of a property in part performance of a contract can only be used as a shield and not as a weapon of offence.

Brig. (Rtd) Raja Muhammad Saleem Khan vs Mrs — 2026 MLD 36 KARACHI-HIGH-COURT-SINDH

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