Decree of declaration under section 42 of the Specific Relief act 1877 is to be granted in cases where a person entitled to any legal right or title have any denial or apprehension of denial by some other person. In this context, before filing suit for declaration it is necessary to have a pre-existing right or title. No declaration on the basis of agreement to sell is permissible because it does not confer any title on the vendee.
Whether a suit for Declaration on the basis of agreement to sell is competent?
It is held by the Supreme Court of Pakistan that no legal character or right can be established on the basis of agreement to sell unless the title is transferred pursuant to it. In case of denial by the vendor to perform the same, a suit for specific performance may be filed, but a suit for declaration on the basis of agreement to sell is not the appropriate remedy.
Rao Abdul Rehman (deceased) V Muhammad Afzal 2023 SCMR 815
In following cases it is held that the agreement to sell is not a title deed therefore, it does not confer any title on the vendee itself. In this context, it is obvious that a decree under section 42 of the Specific Relief Act, 1877 cannot be awarded, as declaration can only be given in respect of legal right or character. The only right arising out of an agreement to sell is to seek its specific performance.
Muhammad Yousaf V Munawar Hussain and others 2000 SCMR 204
Amjad Ali Abbasi V Muhammad Buksh Jumani 2019 CLC 1275
Declaration on the basis of any other agreement
In a case where plaintiff was praying to be declared owner in possession of a plot which was in his possession on the basis of an agreement containing a permission to enter upon land and to make construction after approval of site plan, but containing no clause of conferring any title on plaintiff, it was held that plaintiff had a case for specific performance of it, however he did not ask for said relief. It was further added that in a suit for declaration, the plaintiff is required to ask for all the claims/reliefs which were open to him at that time. The relevant prayer for consequential relief would have been for specific performance of the agreement but plaintiff did not ask for correct remedy.
Dr. Faqir Muhammad V Maj. Amir Muhammad etc 1982 SCMR 1178
Irfan Ahmed v Ahmad Shah 2016 CLC 114
Only pre-existing rights can be declared
In number of cases, Supreme Court held that a decree under section 42 of SRA 1877 can be passed in civil matters of pre-existing rights which are being denied by someone. No new right can be created by grant of decree of declaration by the civil court. So, where such decree is claimed without any pre-existing right, the suit is not competent.
Director Military Land and Cantonment Quetta Cantt Quetta V Aziz Ahmed 2023 SCMR 860
Muhammad Jameel V. Abdul Ghafor 2022 SCMR 348
Muhammad siddique (deceased) V Mst Noor Bibi ( Deceased) 2020 SCMR 483
Relevant Statutes
The Specific Relief Act, 1877
