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Specific Relief Act 1877 Case Laws PLJ 2020 Note Islamabad 35

PLJ 2020 Note Islamabad 35 Specific Relief Act 1877

PLJ 2020 Note Islamabad 35 Specific Relief Act 1877, Civil Procedure Code, 1908 (V of 1908)–Section 115 CPC–Specific Relief Act, (I of 1877), S. 12–Suit for specific performance–Decreed–Appeal–Allowed–Matter was remanded–Agreement to sell–Execution of agreement to sell–Possession was handed over–Denial to transfer share to extent of respondent–Agreement to sell was not challenge before any forum–Respondent, in his written statement, had pleaded that he had no knowledge about agreement to sell whereas in his evidence, he produced a copy of said agreement as Mark-D/A, and furthermore, deposed that same was given to him by his father–Additionally, respondent, in his written statement, had pleaded that said agreement was a forgery–However, during his evidence, respondent deposed that said agreement had been executed but that four khasra numbers were unlawfully added to it–It is my view that Civil Court was correct in observing that said contradictory positions adopted by respondent had created a doubt on truthfulness of his version–There was no pleading in respondent’s written statement to effect that his father had given him land in four khasra numbers allegedly inserted in said agreement–Therefore, respondent’s evidence to effect that four khasra numbers had been fraudulently added in agreement to sell is beyond pleadings and cannot be taken into consideration–It is well settled that a party cannot make a departure from its pleadings and is bound by same–Respondent’s brothers and sisters transferred their respective shares in suit land in favour of petitioner–It is also not disputed that petitioner has remained in possession of entire suit land ever since 1990–At no material stage did respondent file any suit for possession of khasra numbers 740 and 741, which according to him were not subject matter of said agreement to sell–Furthermore, neither petitioner nor his siblings have challenged agreement to sell before any forum–Appellate Court erred by not appreciating that petitioner was seeking specific performance of agreement to sell dated 18.08.1990 only to extent of respondent–Other legal heirs of respondent’s father had already transferred their respective shares in petitioner’s favour in pursuance of said agreement to sell–Since respondent evasively denied petitioner’s pleading to effect that respondent was not transferring 12 kanals, 16 marlas in suit land, it is to be treated as admission–Appeal was Allowed.

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