' This civil revision assails judgments and decrees dated 4-10-1993 and 24-2-2000 passed by learned Civil Judge and learned Additional District Judge, Kasur, whereby suit and appeal of the petitioners, were dismissed, respectively.
2. Precisely, relevant facts of the case are that predecessor-in-interest of the petitioners namely Ibrahim alias Kheewa filed a suit on 16-10-1993 for possession through specific performance of an agreement to sell dated 20-4-1971 allegedly executed by the deceased predecessor-ininterest of the respondents, agreeing to sell his land detailed in the plaint for an amount of Rs,2000.
Predecessor of the petitioners' claimed that the entire sale price was paid and the possession of the land was delivered to him under the agreement to sell but the sale-deed could not be executed as the land agreed to be sold was under mortgage. It was further pleaded that on redemption of land, original 'owner having died, the respondents refused to perform their part of contract by transferring the land in their names, which necessitated filing of suit.
3. The respondents being defendants in the suit contested it by denying execution of the agreement to sell dated 20-4-1971 allegedly executed by their predecessor Ahmad Din son of Hasil and pleaded that the agreement is forged and fictitious. They also asserted non-receipt of sale price by Ahmad Din and denied delivery of possession under the agreement to sell. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge who was cognizant of the suit, after doing the needful dismissed the suit of the petitioners vide his judgment and decree dated 4-10-1993.
4. The petitioner aggrieved of the decision of the trial Court dated 4-10-1993, filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed on 24-2-2000. Thereafter they filed instant revision petition which was admitted to regular hearing and after completion of service of the respondents, the same has now been placed for final determination. The respondents are represented through their counsel.
5. Learned counsel for the petitioners submitted that suit filed by Ibrahim alias Kheewa was within limitation which, according to him, was to run from the date of refusal of the respondents to perform their part of contract under the agreement to sell executed by their predecessor namely Ahmad Din. According to him, the respondents refused to transfer the land in question after redemption of land thus, from this time, the suit was within limitation but a contrary view taken by the two Courts below is not in accordance with the law applicable. It was also contended on behalf of the petitioners that due execution of the agreement to sell dated 20-4-1971 by Ahmad Din deceased is proved on the file but in spite of it, specific performance of the same has erroneously been refused. He further elaborated his arguments by urging that since 1971, the petitioners are in continuous possession of the land as owners because the entire sale price was paid by their predecessor to Ahmad Din at the time of the agreement to sell dated 20-4-1971. He further submitted that both the Courts below seriously misread/non-read evidence on the file and urged that judgments impugned, run counter to the evidence on the file hence, the same are not sustainable.
6. Learned counsel appearing on behalf of the respondents refuted .The arguments of the petitioners, supported the concurrent judgments/decrees of the two Courts below and urged that through the alleged agreement to sell dated 20-4-1971 is fake yet it provided a specific date for performance, as such, period of limitation would start from the date fixed in the agreement and the case will fall under first part of Article 113 of Limitation Act, 1908 whereunder the suit had to be filed within three years from this date but instead the same was filed after lapse of about 23 years thus, the same was rightly dismissed as barred by limitation. He further contended that plea of the petitioners that registered sale-deed was to be executed on redemption of land, is afterthought as no such reason is mentioned in the agreement itself which was, for the first time taken up by the petitioners in their plaint and is not supported by any evidence documentary or oral. He further elaborated his arguments by submitting that had there been any agreement to sell between the predecessors of the parties, the petitioners would not have slept over their rights especially when they purchased another parcel of the respondents' land through a registered sale-deed dated 2- 6-1971. It was also argued on behalf of the respondents that neither the bargain of sale, transaction between the parties nor payment of price under the agreement was proved by the petitioners hence, they were not entitled to the decree prayed which being discretionary with the trial Court has correctly been refused. It was further asserted that concurrent findings of facts, returned after due appraisal of evidence by the two Courts below, are immune from interference in revisiorial jurisdiction, as the same are not tainted with any illegality or irregularity in terms of section 115, C.P.C.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Primarily, the petitioners' suit was dismissed on two fold grounds, firstly that they failed to prove execution of the said agreement and could not explain lapse on their part to file a suit for a long period of 23 years and secondly their suit was barred by limitation. Respondents had denied execution of the agreement to sell dated 20-4-1971, after which, onus to prove through positive evidence, not only the bargain but also the transaction struck, was on the petitioners, besides proof of the agreement to sell Exh.P.1. Law regarding such proof, is settled whereunder it is obligatory for the beneficiary of a transaction to prove all these things, after denial of the agreement. Reference in this behalf can be made to the cases of Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCM R 1832, Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256 and Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCM R 1089. The petitioners in order to discharge the onus coming on their shoulder, examined three witnesses including statement of Ibrahim, the original plaintiff. P.W.1 and P.W.2 have no doubt stated that agreement to sell (Exh.P.1) was reduced to writing and was thumb-marked by Ahmad Din deceased and their statements were corroborated by P.W.3 Muhammad Shafi who is son of deceased marginal witness of the agreement but none of them uttered a word regarding bargain of sale between Ibrahim and Ahmad Din deceased. Likewise their deposition are absolutely silent about the transaction struck between the purchaser and the seller. In absence of evidence regarding bargain, it could not be held that Ahmad Din deceased really agreed to sell his land to the predecessor of the petitioners.
Similarly, there is no evidence regarding actual payment of the price of the land. In the circumstances of this case, the petitioners could not succeed in the suit by merely producing two marginal witnesses of the agreement which otherwise, does not flow from the evidence on the record.
8. It is settled proposition that in spite of mortgage of land, title of the same could have been transferred by the owner in favour of the prospective purchaser, there is no plausible reason whatsoever, furnished by the petitioners as to why at the time of payment of the claimed entire consideration, sale-deed was not got executed in place of the agreement to sell which was allegedly 'inscribed in the Courts premises by a regular scribe. File is also thirsty of the explanation regarding non-in collusion of land of the agreement in the registered sale-deed dated 2-6-1971.
Predecessor of the petitioners had experience of sale and purchase, as he earlier transacted purchase of some other land as well but he slept over the agreement in question and did not issue any kind of notice or file any suit for specific performance for a period more than two decades which negatively reflected on the claimed bargain. Possession of the petitioners in the Revenue Record over the land subject of suit, is that of lessee paying rent to the respondents as is evident from the petitioners' own document, Khasra Girdawari Exh.P.2. It is amazing that the agreement to sell was not reported to the Patwari concerned and was also not claimed to have been executed by its executant even at the time of his death.
9. The alleged agreement to sell dated 20-4-1971 even if be assumed to have been proved, it envisaged a specific date for its performance I . e . 31-5-1971, providing penal consequences in case of failure of any of the parties to abide by the terms thereof. Undisputedly the time fixed by the agreement was never relaxed or extended by any subsequent settlement, oral or written. On the face of this document, time was essence of the contract and in case of default, predecessor of the petitioners was to approach the Court of competent jurisdiction but he never initiated any kind of proceedings for its performance till the time the suit in hand was filed on 16-10-1993 after lapse of about 23 years. It has been admitted during the hearing of the case that the petitioners also purchased some other land from the predecessor of the respondents through a registered sale- deed dated 2-6-1971. Now had there been any .Agreement dated 20-4-1971, the land therein, could have been easily included in the sale-deed because mere mortgage of land, does not divert the owner of his title of the land which could have been transferred by him without any legal impediment, but this course was not adopted and at the same time there is no mention of agreement in the registered sale-deed dated 2-6-1971. Under law, limitation for filing a suit for specific performance (under Article 113 of the Limitation Act, 1908) would start running from the date mentioned in the agreement which in the case in hand was mentioned with clarity as 31-5- 197L The agreement is absolutely silent about the execution of sale-deed after redemption of land, as asserted by the petitioners in their plaint. The case in hand will fall in first part of Article 113 of the Act (ibid) prescribing limitation of three years for filing suit for specific performance which lapsed on 30-5-1974 and instead the suit was filed on 16-10-1993 thus, the same was patently beyond the limitation and was correctly dismissed by the two Courts below.
10. For what has been discussed above, both the Courts below rightly appraised the evidence of the parties and returned findings in consonance thereof which was neither misread nor non-read. No illegality or irregularity as envisaged by section 115, C.P.C. Was committed by them, hence, this revision petition has no merit in it and is accordingly dismissed, leaving the parties to bear their own costs.