Law: Specific Relief Act, 1877

Section: 12

Specific Relief Act, 1877 (I of 1877)-- ----S. 12--Suit for specific performance--Decreed--Concurrent findings unregistered agreement to sell--Suit was filed without payment of Court fee--Evidence regarding payment of earnest money was in oral form--Execution of sale agreement was denied by vendor--Consistent inconsistency from contents of agreement to plaint and statement of witnesses regarding total area of suit land--Neither agreement nor payment of earnest money was proved--Witnesses were not truthful--Rule of secudum allegata et probata--Respondent was failed to prove execution of agreement to sell--Challenge to--Where execution of document has categorically been denied by vendors then it was obligatory upon plaintiff party to seek signatures/thumb impression comparison, which was never requested--There is a consistent inconsistency from contents of agreement to plaint and statements of witnesses regarding total area of land and transferable area under agreement--There is nothing on record to suggest exact measurement of land transferrable under agreement in question--Neither agreement is proved nor payment of earnest money under agreement is proved and neither witnesses are truthful--Their statements are in contradiction with agreement to sell--Stamp paper of impugned agreement was issued on 20.1.2007--The agreement was written on same day--All other endorsements are of 20.1.2007 whereas astonishingly stamp of Notary Public, District Courts, Swabi shows that he has notarized this document on 19.1.2007 at his register--When agreement is for approximately 40 kanals which was not specifically proved that in accordance with agreement how much is suit property--The High Court after about 11 years of passing of decree is asking plaintiff-respondent to deposit remaining consideration amount before Executing Court when execution petition is filed--Plaintiff failed to prove execution of Agreement to sell on basis of which suit is filed in accordance with law and also failed to prove payment of earnest money under Agreement to sell to defendants--Appeal allowed. JUDGMENT Amin-ud-Din Khan, J.--Through this petition filed under Article 185(3) of the Constitution of…

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