' TANVIR BASHIR ANSARI, J.---The captioned appeal (R.F.A. No.35 of 2001) as also R.S.A. No.52 of 2004 arise out of consolidated suit between the parties and are against the single judgment and decree of the learned trial Court and hence, are being disposed of together.
2. Briefly stated the facts of the case, given by Mr. Ahmad Waheed Khan Advocate learned counsel for appellants are that on 11-6-1998, Akbar Ali, respondent No.!, brought a suit for the specific performance against the appellants/defendants, claiming that they, through an agreement to sell dated 10-12-1988, which subsequently was extended through different acknowledgements/agreements dated 5-1-1989, 6- 3-1989 and 30-4-1989 agreed to sell their land measuring 758 Kanals, situated inside and outside of District Kasur, for a consideration of Rs.3,625 per Kanal, which comes to Rs.29,000 per acre. It is the case of respondent No.1 that in pursuance of the aforesaid agreements on different occasions, the respondent has been making the payments of various amounts to the vendors and as against the total consideration of Rs.27,47,750, he has paid Rs.29,18,886. In this manner, an excess payment of Rs.2,33,116, has been made, yet, the appellants have failed to perform their part of the agreement by finalizing the transaction of sale in favour of respondent No.1, therefore, the said suit.
3. The defendants-appellants contested the suit by filing the written statements in the manner that Haji Bashir Ahmad and Iftikhar Ahmad filed joint written statement, whereas, Mst. Mukhtar Begum and Imtiaz Bashir, filed another joint written statement. The defence of all the defendants, primarily, was that the suit is bared by time. Haji Bashir Ahmad though has accepted the execution of the agreement to sell but has denied the receipt of the payment of the total consideration, as alleged by the plaintiff. He has also set out a plea that, in fact, the plaintiff was not ready and willing to perform his part of the contract and therefore, is not entitled to enforce agreement to sell.
Furthermore, the time was the essence of the agreement and as the plaintiff/respondent failed to perform the same, resultantly, he on account of the above, is not entitled to the specific performance. Besides that, Haji Bashir Ahmad had suffered colossal loss for failure of the respondents to abide by the terms of the agreement. As regard the other three defendants, though they have not denied the execution of the sale agreement by Bashir Ahmad but Iftikhar took the plea that he had revoked the power of attorney in favour of his father whereby otherwise was manoeuvred whereas, Mukhtar Begum. And Imtiaz Bashir both have taken up the stance that the same was under undue influence of Haji Bashir Ahmad, their husband and father and as consequence such agreement being invalid under the law, cannot be enforced.
' It may be relevant to mention here that appellants Nos.3 and 4, before the suit for specific performance, brought a suit on 24-7-1997, for the declaration and cancellation challenging the aforesaid agreement to sell in favour of respondent No.1 on the same ground. They in the suit, had also impleaded their father/husband Haji Bashir Ahmad and Iftikhar Bashir, brother, as respondents, who conceded the suit, whereas, it was contested by respondent No.1 alone.
4. Both the suits were consolidated and from the divergent pleadings of the parties, following issues were framed on 26-7-2000, whereas, an additional Issue No.11-A was framed on 29-7-2000:- ISSUES
(1) Whether the suit is barred under section 53-A of Transfer of Property Act? OPD.
(2) Whether the plaintiffs have been estopped by their words and conduct to file the suit? OPD.
(3) Whether the suit has been valued incorrectly for the purposes of court-fee and jurisdiction? If so, what is correct valuation?
(4) Whether the suit is collusive between the plaintiff and defendants Nos.2 and 3? OPD-1.
(5) Whether the defendant No.1 has spent an amount of Rs.21,00,000 on the development of the disputed land, installed four tube wells, constructed two pakka and thee kacha Havelies and planted a garden of Guava on 7 acres of disputed land? If so, its effect? OPD-1.
(6) Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD.
(7) Whether the suit is false, mala fide and has been filed in order to harass the defendants and the defendants are entitled to special costs under section 35-A of C.P.C.? OPD.
(8) Whether disputed agreements to sell were written and executed in favour of Akbar Ali by Haji Bashir Ahmad etc., and have already been received excessive amount of Rs.2,33,136 to that of total consideration amount? If so, whether Akbar Ali is entitled to the decree for specific performance of agreement as prayed for in the titled suit Akbar Ali v. Haji Bashir Ahmad etc.? OPD-1.
(9) Whether the agreement to sell dated 10-12-1988, 5-1-1989, 6-3-1989 and 30-4-1989 are based on fraud, misrepresentation and without consideration? OPP.
(10) If Issue No.9 is answered in negative, whether the agreement for sale dated 10-12-1988, 5-1- 1989, 6-3-1989 and 30-4-1989 stand cancelled as defendant No.1 has not complied with the term of the said agreement? OPP.
(11) Whether the plaintiffs are entitled to a decree for declaration and permanent injunction as prayed for? OPP.
(11A) Whether the suit is barred by time? OPD-1.
5. The proceedings were taken up in the suit for declaration and the appellants examined only one witness Imtiaz Bashir as P. W.1 and tendered document Exh.P.1, power of attorney dated 8-8-1987 given by Imtiaz Bashir in favour of Haji Bashir Ahmad, Parchi Khatoonies Exh.P.2, P.3 and P.4, certified copy of cancellation of power of attorney. Akbar Ali in the suit for specific performance has examined Muhammad Iqbal as D.W.1, Muhammad Yaqoob D.W.2, Amanat Ali D.W.3, Muhammad Ashraf D.W.4 and Akbar Ali himself appeared as D.W.S. So as for defendant No.1 Bashir Ahmad, he 'examined six witnesses. Ch. Barkat Ali, Advocate appeared as D.W.6, Ghias-ud-Din Patwari D.W.7, Juma Khan D.W.8, Ijaz Hussain D.W.9 and Bashir Ahmad himself appeared as D.W.10. The documentary evidence has been produced by the defendant. Exh.D.1 is the agreement to sell dated 10-12-1988, Exh.D.2 agreement dated 5-1-1989, Exh.D.3 dated 30-4-1989, Exh.D.3/1- dated 6-3-1989, Exh.D.5 is the Mutation No.5221 through which share of Imtiaz Bashir of the property was mortgaged in favour of ADBP for an amount of Rs.2,00,000, Exh.D.6 is the Mutation No.5286 on behalf of Iftikhar Bashir in favour of ADBP for an amount of Rs.1,80,000, Exh.D.7 is the Mutation No.5533 of the same nature from Mst. Mukhtar Begum in favour of ADBP for an amount of Rs.2,00,000, Exh.D.8 and Exh.D.9 are Khasra Girdavaries for the period Kharif 1992-1997, Exh,D.9 (exhibited as such again) is the receipt of the payment of certain amount by Mst. Mukhtar Begum to ADBP dated 28-8-1990, Exh.D.10, Exh.D.11, Exh.D.12 and Exh.D.13 are the further receipts of certain payments made by Iftikhar Bashir to the ADBP. Exh.D.3/1 is the sale- deed from one Chiragh Din, Exh.D-3/3 is agreement by Chiragh Din in favour of Yaqoob, Exh.D.3/4 is general power of attorney dated 15-3-1990 from Chiragh Din in favour of Akbar Ali. Exh.D.3/5 is the agreement from Nizam Din in favour of Yaqoob. Exh.D.3/6 is the power of attorney executed by Nizam Din in favour of Akbar Ali. Exh.D.3/7 is the sale-deed from Nizam Din in favour of Akbar Ali.
' Exh.D.W.5/6 to Exh.D.W.5110 are the copies of sale-deed which though were prepared but were not executed by the parties on the stamp paper. Exh.D.W.5/11 to Exh.D.W.5/15 are the copies of the Jamabandies dated 29-6-1992 on the basis of which the sale-deeds mentioned above were prepared. Exh.D.W.6/1 is the legal notice dated 9-6-1991 sent by Ch. Barkat Ali, Advocate to Akbar Ali, Exh.D.W.6/2 is the postal receipts of the above notice. Exh.D.W.6/3 is the acknowledgement due.
Exh.D.W.7/1 is the copy of Rapt Roznamcha dated 19-2-1989 from the Patwari.
6. On the conclusion of the trial, the learned Civil Judge allowed the suit for specific performance of the respondent with the direction to deposit certain amount as determined by the Court within the specific period whereas suit for declaration of the appellant was dismissed. Against the decree in specific performance R.F.A. No.35 of 2001 has been filed whereas appellant against the dismissal of the declaratory suit, filed first appeal before the learned lower Appellate Court. The learned Court of appeal by reversing the finding of the learned trial Court on Issue No.3 had come to the conclusion that the form of the suit for declaration was erroneous which should have been for cancellation of documents under section 39 of the Specific Relief Act, thus, treating it to be suit for cancellation had directed the respondents to make up the deficiency of the court-fee on both the suit and appeal. However, the findings on almost all the other issues have been maintained except Issue No.6, holding that the suit of the appellant for declaration/cancellation did disclose cause of action. Findings upon issue No.8 were marginally modified.
7. At this stage, Syed Najam-ul-Hassan Kazmi, Advocate stated that he does not support the finding of the learned Court of appeal on Issue No.3 and therefore, has no objection if the findings of the trial Court to that extent are maintained.
8. Mr. Ahmad Waheed Khan, learned counsel for the appellants has read the impugned judgment of the learned trial Court and has contended that the findings of the Courts below on material issues are absolutely erroneous, illegal and against the record. It is submitted that both the oral as also documentary evidence has not been appreciated; a number of documents such as inchoate sale-deeds executed by the appellants in favour of the respondents have not been considered.
Moreover, the Fard Jamabandi in favour of the appellants dated 29-6-1992, which the respondents had appended along with inchoate sale-deeds have not been taken into account. It is also submitted that soon after the agreement, the parties had approached the Patwari and itwas told to the respondents by the Patwari that the land in question in under mortgage.
' It is also submitted that part of the land belonging to the appellants was not even mortgaged with the ADBP. Mr. Ahmad Waheed Khan, Advocate has vehemently urged that the time was the essence of the agreement between the parties. This contention is statedly duly reflected in the first agreement dated 10-12-1988, in which the specific date was fixed. Thereafter, vide agreement dated 5-1-1989, the earlier dated 10-3-1989 was extended. Through the agreement dated 6-3-1989, though the date was extended to 1-5-1989, but it was specifically mentioned in this Exh.D.3, that the money, which the respondents have to pay for the purchase of the land is required for the extension of the factory by the respondents and it is thus, stated that the property was being sold and therefore, the time was the essence of the contract. It is submitted that this evidence is .Corroborated by the statement of Malik Bashir, to which there is no cross-examination. Besides, it is submitted that the respondents were not ready and willing to perform its part and it had always been making delays in this regard. Mr. Ahmad Waheed Khan, Advocate has also argued that the appellants had rescinded the agreement and duly informed the respondents vide document Exh.D-5/6 to Exh.D.5/10 and the document dated 11-4-1990, but no steps were taken by the respondents to seek the implementation of the agreement to sell. The learned counsel has laid great emphasis on the proposition that issue No.11-A has been wrongly decided by the learned trial Court, against the appellants and in favour of the respondents. It is submitted that in paragraph No.24 of the plaint, the plaintiff/respondent has alleged that "the cause of action in favour of the plaintiff and against the defendants has arisen when the defendants Nos.2 and 4 filed the suit and defendants Nos.1 and 3, filed their written statement collusively and refused to complete the sale in favour of the plaintiff and also a week back when they refused finally to complete the sale in favour of the plaintiff and the same is continuing one." Whereas the plaintiff/ respondent was duly aware on account of the inchoate sale-deeds Exh.D.5/6 to Exh.D.5/8 allegedly by Iftikhar Bashir, Imtiaz Bashir and Mst. Mukhtar Begum and by Bashir Ahmad, Exh.D.5/9 and Exh.D.5/10 that the property belonging to each of defendants was duly mortgaged. This all happened in the year 1992. Moreover as per Exh.d.5/ll to Exh.D.13, which are the "Fard Malkiyat" of the respondents Nos.2 to 5, it is shown that the property is mortgaged, yet no attempt was made for seeking the execution of the sale- deeds and that the suit was finally filed on 11-6-1998, which is beyond the period of limitation, as enshrined in section 113 of the Qanun-e-Shahadat Order. It is further submitted that through the notice dated 10-6-1991, Exh.D.6/1, got issued by the appellants and other defendants, through a counsel namely Ch. Barkat Ali, it was categorically conveyed that the appellants are refusing to execute the sale-deed in favour of the respondents, still no suit within a period of three years i.e. From the date of final refusal, was instituted.
9. Mr. Saleem Aftab Sheikh, states that the two Courts below have grossly misread and ignored the evidence on the record. In this regard, he has referred to the statement of Muhammad Iqbal D.W.1., who stated that, when he wrote the inchoate sale-deed, "Fard Malkiyat" was available with the other side. It is also submitted that according to Muhammad Yaqoob D.W.2, "Fard Malkiyat" dated 26-9-1992 was available and it had been conveyed to the respondent by Barkat Ali that, the property is mortgaged. Mr. Saleem Aftab Sheikh, Advocate has also argued that, though the appellants and Bashir Ahmad are closely related, yet there had been tiff in the family; wife and the son namely Imtiaz Bashir never wanted to sell the property and on account of this, even Bashir had to leave 53-A Model Town, Lahore where the family was earlier living jointly. He has also argued that the Court below has ignored Exh.D.8 and Exh.D.9. The case also argued that, the Court below has ignored Exh.D.8 and Exh.D.9. The case of the respondents that, someone was in possession of the property in issue and he after paying certain amount, obtained the possession, is absolutely belied for the reason that, no such person was ever examined to prove this bald allegation, nor the receipt of the alleged amount of Rs.50,000 which he paid to some unknown person, has been produced; the possession was with the appellants and while Bashir was in hospital, illegal takeover was made. It is also submitted that, the appellants were though dispossessed in the year, 1993, but when physically Barkat came and started living in the property in question, they thought of filing the suit in the year, 1997, which is within the period of limitation and, therefore, a bit of delay would not be material to defeat their rights, which otherwise stand proved on the record. He has argued that, Jumma Khan D.W.8, who is the Patwari, has categorically stated that Jamabandi dated 19-2- 1989 was issued, meaning thereby that the respondents were fully aware of the mortgage of the property share belonging to that of the present appellants, whereas the share of Bashir was fever mortgaged. Learned counsel has forcefully submitted that, issue No.11-A has been wrongly treated to be an issue in the case of the appellants, which is not so; the reason being that the respondents in their written statement have never set out the ground of limitation; resultantly, the question of limitation, when it is dependent upon the factual investigation and has not been taken up as a ground, cannot be considered, even under the provisions of section 3 of the Limitation Act, because it never remained a question of law alone. Reliance in this behalf has been placed upon the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC690). He has also submitted that, Exh.D.1 to Exh.D.4 have not been proved; for example, on Exh.D.1 there are two attesting witnesses namely Yaqoob and Muhammad Hayat; only. Yaqoob has been examined and there is no reason for non-production of Hayat, and according to the provisions of Articles 17(2) and 79 of the Qanun-e-Shahadat Order, in order to prove the document, the two attesting witnesses must be examined in the Court; as this has not been done, therefore, the agreement is unenforceable. In this behalf, he has placed reliance upon the cases of Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lah. 367) and Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SMR 1089). Similar is the objection on the other three documents mentioned above.. In addition, it is submitted that on Exh.D.4, though there are two attesting witnesses, but none has been produced. On a Court question, that the delay defeats the equity and its reflection upon the conduct of the petitioner in seeking relief, Mr. Saleem Aftab Sheikh, Advocate has relied upon the case of Wali and 10 others v. Akbar and 5 others (1995 SCMR 284) to argue that it is not every of which the petitioner must approach the Court; it is his choice and in this case, the' final attack was made when Barkat came and started living in the disputed property, 'constraining the appellants to sue him. Mr. Saleem Aftab Sheikh, Advocate has also argued that, the agreements are vague and thus, are unenforceable in terms of section 29 of the Contract Act, inasmuch as, these agreements do not specify the details qua the lands, which are allegedly agreed to be sold by respective sellers. He has relied upon PLD 1989 Lah.
152. It is further submitted that the time was the essence of the contract and thus, having failed to perform his part of the agreement, the respondent is not entitled to the equitable relief. Support has been drawn from the judgments reported as Lahore Cantonment Cooperative Housing Society Limited, Lahore through Secretary v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068) and Fazal-ur-Rehman v.. Ahmad Saeed Mughal and others (2004 SCMR 436). Lastly, it is argued that, the view of the Courts below that, because the property was mortgaged and, therefore, the limitation would not debar the plaintiff/respondent to seek the specific enforcement, is in violation of the law laid down by Hon'ble Supreme Court in case of Chief Land Commissioner and another v.
Maula Dad and others (1978 SCMR 264).
10. Syed Najam-ul-Hassan Kazmi Advocate for respondent No.1 contends that as far as R.S.A. No.52 of 2004 is concerned, the same is directed against a concurrent finding of act arrived at by the learned trial Court as well as the First Appellate Court an all the issues except Issues Nos.3, 6 and 8.
According to him, the concurrent findings of fact cannot be interfered with unless and until gross misreading or non-reading of material evidence is pointed out. It is submitted that the learned counsel for the appellants have neither indicated any such irregularity nor indeed pointed out any other legal infirmity upon the findings upon these issues, as far as they relate to the declaratory suit filed by the appellants. With regards to Issues Nos.3, he has already conceded that the findings upon this issue rendered by the trial Court be maintained.
11. Adverting to the merits of R.F.A. 35 of 2001, it is submitted that the execution of the agreements (Exhibits D.1 to D.4) have not been specifically denied by the appellants. In fact, in the notice issued by Mr. Barkat Ali Advocate, Exhibit D.W.6/1 the express admission of these agreements have been made. It is further submitted that the said Advocate while appearing as D.W.6 deposed that he had issued the said notice upon the instructions from all the four persons mentioned therein, namely Haji Bashir, Imtiaz Bashir, Iftikhar Bashir and Mst. Mukhtar Begum. Reference is also made to the statement of Bahsir Ahmed himself who appeared as D.W.10, who admitted the execution of the aforementioned agreements by himself, his wife and son.
12. Continuing in this vein, it is urged that if the execution of the disputed documents is admitted the record, the admissibility of the said documents, or the execution thereof cannot be challenged upon the rule of estoppel and it is futile for the appellants to contend that in view of Article 79 of the Qanun-e-Shahadat Order, 1984 at least two attesting witnesses of the agreements should have been produced. It is further submitted that it has been found upon the evidence on record that the appellants in the suit for specific performance have not been able to establish the exercise of any coercion or the execution of the said agreements under the pressure of any fiduciary relationship between the appellants. The learned counsel has relied upon the cases of Mst. Zainab Khatoon v.
Amir Abdullah Khan (PLD 2004 Lah. 330), Daulat Ali through L.Rs. And 2 others v. Ahmad through L.Rs. And 2 others (PLD 2000 SC 792), Hazoor Bukhsh v Mst. Manzoor Mai (2003 MLD 1164) and National Bank of Pakistan v. General Tractor and Machinery Co. Ltd. And another (1996 CLC 79).
' It is further elaborated that in the circumstances of the present case, when the agreement was affirmed by one attesting witness and also the scribe of the documents, the status of the scribe does not remain merely that of a deed writer but he becomes a witness to the transaction, payment and execution of the documents. Reliance is laced upon the cases of Nazir Ahmad v.
Muhammad Rafique (1993 CLC 257), Amanat Ali v. Riaz Hussain (1991 MLD 1037) and Zafar Ullah Khan v. Mst. Hakim Bibi and another (2000 YLR 2789). Regarding the objection in respect of the plea that the suit for specific performance was barred by time, it is contended that Article 113 of the Limitation Act deals with two situations that is (a) where the date is specified in the agreement itself for the performance of the contract, and (b) where no date is fixed. It is submitted that although a date was originally fixed for the performance of the agreement to sell and the same was even enlarged by the parties, the cause of action would accrue to a plaintiff in a suit of specific performance when the obligor is in a position to perform his part of the contract effectively. It is submitted that it was only when the encumbrance would have been removed that the cause of action would arise for the first time. According to the learned counsel, as the land in suit remained under mortgage, the obligor could only perform his part of the contract effectively when such encumbrance was removed. Relies upon the cases of Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. And another (AIR 1953 Tray. C. 161), Lakshminarayana Reddiar v.
Singaravelu Naieker and another (AIR 1963 Madras 24), Inam Naqshaband v. Haji Shaikh Ijaz Ahmad (PLD 1995 SC 314) and Muhammad Bashir and others v. Haim Ali and others (2000 YLR 368).
13. We have heard the arguments of the learned counsel for the parties and have extensively perused the records.
14. Respondent No.1 Akbar Ail filed his suit for specific performance on 11-6-1998 against Haji Bashir Ahmed, Imtiaz Bashir, Iftikhar Bashir and Mst. Muhtar Begum. The suit was filed in respect of agreement to sell dated 10-12-1998 (Exh.D.1). The salient features of the said agreement were that the executants agreed to sell the suit-land for a sale consideration of Rs.27,47,750. Initially a sum of Rs.2 lacs was paid as earnest money and another sum of Rs.8 lacs was paid vide agreement/acknowledgement dated 5-1-1989 (Exh.D.2). Another sum of Rs.6 lacs was paid vide agreement dated 6-3-1989 (Exh.D.4). Through Exh.D.3, the time for performance of the agreement was extended uptil 5-7-1989. It may also be mentioned that the suit property was claimed by the appellants to be unencumbered in the initial agreement. The vendor also undertook to provide the Fard Malkiat.
15. Prior to this Mst. Mukhtar Begum widow of Haji Bashir Ahmed, and Imtiaz Bashir son of Haji Bashir Ahmed filed a suit for declaration against Akbar Ali, respondent to the effect that the agreements to sell and their subsequent acknowledgements were based upon undue influence, fiduciary relationship with Bashir Ahmad and being without consideration were ineffective upon the rights of the plaintiffs. As hereinbefore mentioned, the suit for specific performance was consolidated with this suit for declaration on 26-7-2000. As already noted the learned trial Court, in appreciation of the evidence recorded before it proceeded to dismiss the suit for declaration and granted a decree for specific performance in favour of the respondent vide the impugned judgment and decree dated 15-11-2000.
16. The appellants in R.S.A. No.52 of 2004 filed an appeal against the portion of the 'judgment whereby their suit for declaration was dismissed before the learned District Court Kasur. The appeal was dismissed vide judgment and decree, dated 6-12-2003. R.S.A. 52 of 2004 has been preferred against the aforementioned judgments. Mr. Salim Aftab Sheikh has put forth his submissions in this second appeal. We have noted that even while persuing the second appeal, the main brunt of submissions by the learned counsel Mr. Salim Aftab Sheikh has been against the decree for specific performance which effectively is a subject-matter of R.F.A. 35 of 2001. Even otherwise, the learned counsel of the appellant has not been able to indicate any misreading or non-reading of material evidence on record which could persuade us to take a view different from the one expressed in the concurrent findings of fact of the lower Courts. The learned counsel for the respondent has already conceded that the findings of the learned Appellate Court upon Issue No.3 directing the appellants to make good the deficiency in the court-fee be set aside.
17. As a result, we find no force in R.S.A. 52 of 2004 with the observation that the findings of the trial Court on Issue No.3 shall remain in the field while those of the learned Appellate Court on this issue are set aside.
18. Coming to the merits R.F.A. No.35 of 2001, our attention has been drawn by the learned counsel for the appellants towards the evidence recorded by the parties to submit that the decree for specific performance is not likely to be sustained either on law or facts of the case.
19. The evidence produced by the respondent Akbar Ali consists of the statements of Muhammad Iqbal D.W.1, who is the scribe of the agreement to sell (Exh.D.1), Muhammad Yaqoob D.W.2, who proved his signatures (Exh.D.1/1. Exh.D .2/1 and Exh.D.3/1) upon the agreements Exh.D.1, Exh.D.2 and Exh.D.3, Amanat Ali D.W.3, who is a witness of the sale transaction and who proves the payment of Rs.2, lacs as earnest money, Muhammad Ashraf D.W.4 and Akbar Ali, respondent D.W.5, who corroborated the averments made by him in the plaint.
20. The evidence of the appellants comprised of the statement of Imtiaz Bashir who appeared as P.W.1 who stated that his father Haji Bashir Ahmed had obtained a power of attorney from him through misrepresentation and that the agreement to sell which was later executed were without the consent of the appellants As Haji Bashir Ahmed was also arrayed as a defendants, he produced Ch. Barkat Ali Advocate as D.W.6 who proved Notice Exh.D.W.6/1, Ghyas-ud-Din Patwari D.W.7, Juma Khan Ex-Patwari D.W.8, Ejaz Hussain Postman D.W.9, while Bashir Ahmed himself appeared as D.W.10.
21. After going through the record we find that the execution of agreements to sell Exh.D.1 to Exh.D.4 has not been denied by the appellants. Their only defence that the said agreements were executed on their behalf on the basis of fiduciary relationship that existed between Haji Bashir Ahmed and themselves is not borne out from the record. The sole statement of Imtiaz Bashir P.W.1 appears to be in conflict with the earlier stand taken by him that the signatures of P.W.1 were obtained upon a blank paper whereupon a power of attorney was later executed by Haji Bashir Ahmed. The further assertion of Imtiaz Bashir that he had cancelled the power of attorney cannot bear scrutiny as the said cancellation made after the execution of the agreements to sell would be ineffective upon the rights of the respondent.
22. Even otherwise we find that the respondent No.1 (plaintiff in the suit for specific performance) has produced cogent and effective evidence to prove the execution of the agreement to sell and the subsequent acknowledgement of the said agreement and of the further payments made by the respondents. The submission made by the learned counsel for the appellants that the execution of the agreement to sell is not proved on account of production of only one attesting witness instead of two as ordained by Article 79 of the Qanun-e-Shahadat Order is devoid of force.
In the first place the admissibility of the said documents cannot be questioned in view of Articles 31, 81 and 113 ibid as the rule of Estopple shall be attracted. In the next place it is noticed that besides the attesting witness namely Muhammad Yaqoob who appeared as D.W.2, the respondent had also produced Muhammad Iqbal D.W.1 who was the scribe of the agreement. According to his statement, besides being a deed writer, he was also a witness to the transaction, payment and execution of the documents. In such a situation, D.W.1 can justifiably be regarded as an attesting witness. The position would have been different if a deed-writer except scribing the document had no further role to play in the completion of the transaction i.e. The payment of consideration, in part or in whole or the putting of signatures on the deed by the parties. Support for this proposition is further received from the view expressed upon the subject in 1993 CLC 257, 1991 MLD 1037 and 2000 YLR 2789 supra.
23. The next important question raised by the learned counsel for the appellant is with respect to the question of Limitation. It is submitted that if the execution of the agreements is established, it would follow that a specific date for completion of the sale-deed was mentioned therein. Even in subsequent agreements, Exh.D.2, Exh.D.3 and Exh.D.4, a specific time frame was stipulated within which payments had to be made and the final deed had to be executed. It is contended that in such circumstances, time shall be construed to be the essence of the contract and any suit brought beyond three years, as provided under Article 113 of the Limitation Act would be barred by time. The learned counsel for the appellants has relied upon PLD 2002 SC 1068 and 2004 SCMR 436 (supra) to support his contention.
24. In order to appreciate this contention the appellants, the intention reflected in the agreements in question has to be ascertained. Exh.D.1 specifically mentions that the suit property was unencumbered. It can safely be inferred that the property which was sought to be transferred in favour of the vendee was to be free from all encumbrances and if it was found that the property in question was subject to any encumbrance, the vendor was incapable of performing his part of the contract till such time that the encumbrance was removed. According to the evidence brought on record, part of the property was under mortgage with the Agricultural Development Bank of Pakistan. It may also be mentioned at this stage that it was the duty of the vendors to provide the Fard Malkiat to the vendee. The Fard Malkiat dated 29-6-1990 for the first time disclosed the existence of a mortgage. Through Mutations Nos.5533, 5221 and 5286 (Exh.D.5 to Exh.D.7), the mortgage charge in favour of the ADBP was to the tune of Rs.5,80,000. Obviously for the conclusion of a registered sale-deed, the mortgage had to be redeemed and encumbrance on the property removed. The respondent has been able to establish on the record that he deposited the charge amount with the ADBP on behalf of the appellants and it was the duty of the appellant to have got the mortgage redeemed in all its formal manifestations. We are thus of the view that the respondent did not default in the performance of his part of the agreement and was thus entitled to the specific performance of the contract. The second limb of Article 113 of the Limitation Act would be attracted in the circumstances of the case and the respondent would be justifiably entitled to file a suit for specific performance within three years of the refusal of the vendor to abide by the agreement to sell. Article 113 of the Limitation Act is reproduced as under:-- "For specific performance of a contract (Three years), the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused."
The cumulative effect of the agreement to sell Exh.D.1 and the acknowledgements/agreements Exh.D.2 to Exh.D.4 is that the parties had agreed to transfer the property free from all encumbrances. The fact that the original right for completion of the transaction was successively enlarged would disclose two fact:- (a) that the time was not regarded as the essence of the contract, and (b) that the completion of the sale transaction could only be made when the encumbrances on the property viz. The mortgage was redeemed. Construing the agreements to sell in this context, it leaves no manner of doubt that time, even though fixed in the first agreement, ceased to remain the essence of the contract. The period of limitation under the first limb of Article 113 of the Limitation Act would thereof, not commence. The case of the respondent would thus, fall within the purview of the second limb of Article 113 of the Limitation Act. The limitation period of 3 years for filing the suit for specific performance would thus, run from the date when the plaintiff had knowledge that the performance was refused. Computed from the final refusal of the appellant, the suit brought by the respondent for specific performance was well within time.
25. We are also conscious of the fact that till such time that the vendor was in a position to effectively perform his part of the contract (which he was not on account of the fact that property stood mortgaged although partially) no cause of action to file a suit for specific performance would arise till then.
26. The cause of action to sue for specific performance of contract arises only when the obligor is in a position to perform his part of the contract effectively. Till this stage, the cause of action against the vendor is merely inchoate and incomplete. The words employed in Article 113 supra should be construed in the manner which must advance the intention of the parties as spelt out from the agreement itself. The date fixed for the performance which is the phrase occurring in the Article 113 must not only be a date which can be identified as a particular point of time, but it should also be .a date which the parties intended should be the date when the contract could be performed.
Keeping in mind the intention of the parties that the land which was to be sold was to be free from all encumbrances, the existence of mortgage would definitely be an obstacle in the way of ,effectively concluding the contract.
27. We are fully supported in expressing this view by the rule laid, down in PLD 1995 SC 314, 1995 CLC 101, 2000 YLR 368, AIR 1953 Tray. C. 161 and AIR 1963 Madras 24 supra.
28. We are not impressed by the submissions made by the learned counsel for the appellants in the second appeal that there has been any L miscarriage of justice either in framing of Issue No.11- A or treating it to be an issue in the suit for declaration. Although, the learned counsel for the appellant is correct that the framing of issue No.11-A was erroneous to some extent, yet this question has been dealt with effectively in respect of limitation as far as it applies both to the suit for declaration as well as to the suit for specific performance. The learned Appellate. Court has come to the conclusion that the suit for declaration was also barred by time. We have re-visited the findings of the learned First Appellate Court upon this issue and do not find any illegality in the same. In any event, even apart from the question of limitation, the declaratory suit had M no intrinsic merit and was rightly dismissed by the concurrent findings of both the learned lower Courts.
29. In view of the above we find no merit in the R.F.A. We have also gone through the evidence on record and find that the learned trial Court has for cogent reasons refused the claim of the respondent which has been raised before us through cross objections. We do not find any merits in the cross objection even upon a reappraisal of the records.
30. The above are the details reasons for the short order made on 29-9-2004 dismissing R.S.A.
No.52 of 2004 and R.F.A No.35 of 2001 along with the cross objection.