IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision No.S-66 of 2023

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE.

1. For orders on CMA No.729/14.

2. For orders on CMA No.185/19.

3. For hearing of main case.

4. For orders on CMA No.363/03.

04.08.2025

Mr. Jamshed A. Faiz, Advocate for applicant.

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This Civil Revision Application has been filed in respect to the concurrent judgments as determined wherein the respondent No.1 has filed suit for specific performance against respondent No.2 and cancellation of sale-deed favouring the present applicant said to have been executed by the respondent No.2 wherein was though dismissed by the learned trial Court the findings against the present applicant in the matter had also been given whereby the sale-deed favouring the present applicant was also directed to be ordered for cancellation.

Further background shows that the learned trial Court in the matter on the basis of claims of the parties made out the following issues;

1. Whether the suit is maintainable under the law?

2. Whether the defendant No.1, executed the registered sale-deed in favour of defendant No.2?

3. Whether the suit is barred by any law?

4. Whether the plaintiff is entitled for any relief?

5. What should the decree be?

Apparently the issue No.2 covered the findings based upon the evidence of defendant No.1resulted in the grievance of the applicant.

The foregoing judgment was assailed by the present applicant before learned District Judge wherein no success for the applicant was found available and as such the appeal was dismissed.

Learned counsel for the applicant contended that the suit of specific performance against respondent No.2 having been dismissed the learned trial Court had no ground left to order for cancellation of the sale-deed favouring the present applicant. Learned counsel further contended that in case a party prefers not to file a suit for cancellation and the same is decided on its own merits such an order for cancellation cannot be passed. Learned counsel for the applicant in support of his contentions relies upon the following judgments and orders.

1. 2003 SCMR 74.

2. 2003 SCMR 894.

3. PLD 1998 Karachi 348.

4. 2003 YLR 1760.

5. 2003 YL 1570.

One unreported order passed by this Court in Civil Revision No.01 of 2004 dated 12.02.2004.

Learned counsel eventually contends that the applicant and the seller having never adjudicated any rights the findings under the issue of validity of the sale-deed is not liable to be disturb the same and in this regard the findings of the learned trial Court as well as the learned appellate Court cannot sustain against the present applicant.

In the matter respondents were served earlier and thereafter these present proceedings were dismissed for non-prosecution wherein after notice eventually served by publication and finally the order dated 25.10.2024 said proceedings were restored as valuable rights of the parties was involved however, thereafter respondents have failed to effect appearance as such no one is present on the part of the private respondents.

Having heard learned counsel present and gone through the record. Perhaps, learned counsel for the applicant had not considered that the cancellation of the sale-deed of the present applicant was determined by the learned trial Court on the basis of statement of respondent No.2 (the previous owner) which was though required to be cross-examined on part of the applicant the same was not indulged into on part of the applicant. It is otherwise quite appreciatable that the respondent No.2 cannot be allowed to bring forward a liability where a sale-deed has been executed on his part (i.e. turned away from the terms of sale or to bring forward the liability of the respondent No.1 i.e. the person who had claimed the specific performance in the matter to be bestowed upon the present applicant) but it bearing from the record that the deposition of the respondent No.2 had gone un-challenged and un-rebutted and as such the findings have been given. In my humble understanding, the trial Court had erred to the extent of not concluding the rights of the parties i.e. the seller and purchaser in the matter as such where the suit of specific performance as filed by the respondent No.1 was dismissed wherein the consideration thereof was admitted on part of respondent No.2 it was required on part of the learned trial Court to order for returned of the said amount irrespective to the failure of agreement not having been proved. The said was however, not done whereas the present applicant who claims to be a beneficiary of the sale-deed the execution thereof having denied the same alongwith acquisition of T.O. form without his consent was never challenged as such lead the learned trial Court to conclude the determination of rights between the parties i.e. seller and purchaser alongwith the cancellation as ordered. The said parties however, have preferred not to agitate the matter any further as they are apparently not in possession nor having a registered document available. In this regard however, the indemnification as is available in the sale-deed is found not available to the present applicant to protect himself from a liability created against respondent No.2. Accordingly, it is further ordered that in case the applicant prefers to make the payment acquired by the respondent No.2 as made by respondent No.1 the sale-deed of the applicant need not be cancelled. In the above terms, this Revision Application is found liable to be disposed of as so required under the powers of Section 115 CPC and same is accordingly ordered.

Revision application stands disposed of as above.

J U D G E

Ihsan/PS.