IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE AMIR HANI MUSLIM 
MR. JUSTICE FAISAL ARAB 
 
CIVIL PETITION NO. 160-K OF 2016 
(On appeal against the judgment dated 26.11.2015 
passed by the High Court of Sindh, Karachi in R.A. 
No. 98/2007) 
 
Syed Hakeem Shah (dece) through LRs and others 
… Petitioners 
VERSUS 
Muhammad Idrees and others 
… Respondents 
 
 
For the Petitioners: 
Mr. Jamil Ahmed Virk, ASC 
 
 
For CBA: 
 
 
Mrs. Abida Parveen Channar, ASC 
 
 
 
 
Mr. Ghulam Qadir Jatoi, AOR 
 
Date of Hearing:  
21.12.2016 
 
ORDER 
 
 
 
FAISAL ARAB, J.- Respondent No. 1 filed a suit for 
specific performance in 1993 against respondent No. 2 claiming 
that an area of 2250 square feet in the basement of Nairang 
Shopping Centre, Nairang Complex, Karachi was sold and 
possession delivered to him in the year 1980 for a total sale 
consideration of Rs.200,000/- but the sublease could not be 
registered in his name as there was a ban on such transfer. The 
suit was resisted by the petitioner on the ground that respondent 
No. 2 has sold the property to respondent No. 3, who then gifted 
the same to respondent No. 4 and then the respondent No. 4 sold 
the suit property to the petitioner and he is a bona fide purchaser. 
The learned Trial Court vide judgment dated 29.05.2003 dismissed 
the suit. Feeling aggrieved, respondent No. 1 filed appeal before the 
Appellate Court, which was accepted and the suit of the 
respondent No. 1 was decreed. The petitioner then filed Civil 
Revision before the High Court, which was dismissed vide 
impugned judgment. Hence, this petition.  
Civil Petition No. 160-K/2016 
2
2. 
 
Insofar as the merits of the case are concerned, the 
learned counsel for the petitioners did not point out any 
misreading or non-reading of evidence. The only points that were 
pressed before this Court were that the suit was barred by time as 
the same was filed in 1993 for a transaction that took place in 
1980. The other point was that the suit was undervalued.  
 
3. 
 
Insofar as the plea of limitation is concerned, the 
factual position is that the claim of the respondent No. 1 was that 
he paid the entire sale consideration and was also handed over 
possession of the suit property and only the sublease was not 
being executed by the seller. In this background, when the sale 
consideration is totally paid and possession was also delivered to 
respondent No. 1 and only on account of the ban on the 
registration of leases that transfer document was not executed, the 
respondent No. 1 was well within his right to seek execution of the 
sublease in his favour when the ban was lifted and when 
respondent No. 2 unlawfully entered into sale transaction with the 
respondent No. 3. In this background, it cannot be said that suit 
was barred by time. In the case of Muhammad Nawaz Magsi Vs. 
Illahi Bux (2010 CLC 407), the High Court of Sindh in similar 
circumstances dealt with the issue of limitation as under:- 
 
“14. 
Section 53-A of Transfer of Property Act in itself creates a 
right in favour of a transferee to retain possession. Such right comes 
into existence when transferor puts the transferee in possession in 
part performance of the contract. The right created by section 53-A 
in favour of the transferee in possession could be termed as an 
equitable title which he holds in the property. Hence where a 
transferee is enjoying possession of a property pursuant to an 
agreement to sell and such right is threatened by the transferor or a 
person claiming under him or even by a stranger then the transferee 
becomes entitled to defend his existing right in a Court of law. While 
defending so it matters not whether he goes to the Court as a 
plaintiff or is sued as a defendant. Normally suit is filed against the 
transferee in possession either by the transferor or a person 
claiming under him which threatens the transferee his enjoyment of 
possession. Faced with such a situation, the transferee in 
possession defends his possession by virtue of section 53-A of the 
Civil Petition No. 160-K/2016 
3
Transfer of Property Act. However, there can be a situation, where 
instead of transferor or a person claiming under him files a suit 
against the transferee in possession, the transferor or a person 
claiming under him creates such a situation which threatens the 
transferee his possession and compels him to seek protection of the 
Court. In such a situation, the transferee brings his own suit 
against the transferor or the person claiming under the transferor in 
order to defend his right to retain his possession. Even as a 
plaintiff, the relief that is sought by a transferee in possession from 
the Court under section 53-A of the Transfer of Property Act is 
perseverance of his possession of the property. Thus in both the 
positions i.e. plaintiff or defendant, the transferee in possession is 
defending his equitable title that he has already acquired in the 
property under his possession by virtue of section 53-A of Transfer 
of Property Act. Why a transferee in possession should wait for an 
action to be brought against him by the transferor or any person 
claiming under the transferor or a stranger to exercise his right to 
retain possession under section 53-A of Transfer of Property Act. 
Why not the transferee in possession when threatened should 
himself establish in a Court of law the legality of his possession by 
filing his own suit. If the right to seek protection under section 53-A 
of the Transfer of Property Act is construed to be only available to a 
transferee if he is sued as a defendant in a suit then it would create 
an anomalous situation. It would then mean that it is the capacity 
in which a transferee in possession finds himself in a suit i.e. as a 
plaintiff or a defendant, which would determine whether the 
protection under section 53-A of the Transfer of Property Act is to be 
extended to him. This does not appeal to reason. The right conferred 
upon a transferee in possession under section 53-A should not 
depend upon how he is described in a suit i.e. plaintiff or a 
defendant. This cannot be the object of the lawmakers. Statutory 
protection granted under section 53-A of the Transfer of Property Act 
is available to a transferee in possession and it matters not whether 
he is a plaintiff or a defendant in a suit. His status as a plaintiff or 
defendant in a suit will be of no legal consequence while deciding 
his entitlement under section 53-A of Transfer of Property Act. In 
any of the two capacities, the transferee in possession is defending 
his right to retain possession, which he is already enjoying. When 
the transferee files his suit, he is doing nothing but defending his 
existing right of possession, which he is already enjoying by virtue 
of section 53-A of the Transfer of Property Act. The right of a 
Civil Petition No. 160-K/2016 
4
transferee in possession granted under section 53-A of Transfer of 
Property Act can be availed by him whether he files his own suit or 
is sued as defendant. Therefore, a transferee in possession can 
always file suit of his own seeking the relief of permanent injunction 
in order to preserve his equitable title i.e. the right to enjoy 
possession of the property in the wake of any threat either from the 
transferor or any person claiming under him or even a stranger. 
Reliance is placed on the case of Ahmed Mujtaba Khan versus Iqbal 
Shah reported in 1990 CLC 1381 and a Division Bench case of 
Inayat Ullah v. Shah Muhammad reported in PLD 1961 Lah. 372 
where it has been held that a transferee of immovable property can 
defend his right guaranteed to him under Section 53-A of Transfer 
of Property Act, whether he defends this right in his capacity as a 
plaintiff or a defendant. 
 
15. 
It may also be mentioned here that though for filing a suit for 
specific performance of a contract, the prescribed period of limitation 
is three years but as the applicant has filed his suit on the basis of 
agreement to sell which is coupled with transfer of possession and 
has also sought the relief of, permanent injunction, the statute of 
limitation would not come in his way. Where a plaintiff continue to 
enjoy a right then the statute of limitation cannot take away such a 
right as the law of limitation is not meant to take away an existing 
right. It only bars remedy to gain one's lost right. The right created 
under section 53-A of Transfer of Property Act is an existing right 
and is not extinguished by any length of time. There cannot be any 
expiry date for enjoyment of a right conferred upon a transferee in 
possession under section 53-A of the Transfer of Property Act. 
Therefore, the law of limitation does not come in the way of a 
transferee in possession when he as a plaintiff, files his own suit to 
preserve his right to retain possession that is granted to him under 
Section 53-A of the Transfer of Property Act. 
 
16. 
It may also be added here that while granting the relief of 
permanent injunction to transferee in possession under Section 53-A 
of the Transfer of Property Act, the Court may also direct the parties 
to complete the transaction under the agreement to sell. This would 
certainly close doors to future litigation and would also perfect the 
equitable title of the transferee in possession. There is no reason to 
deny this to the transferee in possession when it was the transferor 
who in the first place failed to discharge his obligation under the 
contract.” 
Civil Petition No. 160-K/2016 
5
 
4. 
 
In view of the reasoning of the above quoted judgment, 
the question of respondent No.1’s suit being barred by time does 
not arise at all. So far as the issue of undervaluation is concerned, 
an issue was though framed but the petitioner failed to establish 
the same. The Appellate and Revisional Courts rightly dealt with 
the controversy and their findings are unexceptionable.  
 
5. 
 
For what has been discussed above, we do not find 
any merit in this petition, which is dismissed and leave is refused.  
 
 
JUDGE 
 
JUDGE 
Karachi, the  
21st of December, 2016 
Approved For Reporting 
Khurram 
 
