' Instant revision petition assails judgments and decrees dated 12-7-2001 and 2-8-2002 passed by the learned Civil Judge and learned Additional District Judge, Bhakkar whereby suit and appeal of the petitioners were dismissed, respectively.
2. Precisely, relevant facts are that the petitioners filed a suit for specific performance of an agreement to sell dated 19-3-1963for possession of 1/6th share of lot No.7 measuring 200 Kanals under Tube Well Sinking Scheme, village Rakh Mandera, Tehsil Mankera District Bhakkar, averring that Khushi Muhammad son of Shadi predecessor of respondents Nos.2 to 5 was allotted the land in question out of which he agreed to sell land, aforesaid, for an amount of Rs.10,000 and executed a receipt and an agreement to sell dated 19-3-1963 delivering possession of the land to the petitioners. It was pleaded by the petitioners that all the instalments payable by the allottee were to be paid by them and it was settled that after getting the proprietary rights, the land will be transferred to them through some instrument. The petitioners also asserted in the plaint that they after taking over the possession made it cultivable by putting hard labour and incurring huge expenses besides paying the entire governmental dues including the instalments which were payable by the allottee bill in spite of payment of all the instalments, after death of Khushi Muhammad, his heirs changed their mind and refused to transfer land in favour of the petitioners, necessitating filing of suit. The respondents being defendants in the suit filed two separate written statements wherein the claim of the petitioners was denied, besides raising certain preliminary objections. Written statement by respondents Nos.2 to 5 was that of denial wherein they denied execution of the agreement to sell and receipt of earnest money. They also urged that suit of the petitioners was barred by limitation. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful vide his judgment and decree dated 12-7-2001, dismissed . The suit of the petitioners.
3. The petitioners aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed vide judgment and decree dated 2-8-2002. Thereafter, the petitioners filed instant revision petition which was admitted to regular hearing and after completion of record, the same has now been laid for final determination. Respondent No.1 is represented through Ch. Muhammad Ayyub, Advocate whereas the other respondents are represented through Mr. Nisar Ahmad Dhillon,_ Advocate.
4. Learned counsel for the petitioners submitted that issues Nos.2, 3 and 5 were decided by the trial Court in favour of the petitioners whereas the rest of the issues were decided against the petitioners. The respondents did not file any appeal or cross-objections and only the petitioners appeal against the judgment of the trial Court. According to him, the Appellate Court reversed findings of the trial Court on Issues Nos.1, 4 and 7 and while confirming findings of the trial Court on Issue No.6, dismissed the appeal of the petitioners. He further elaborated his arguments by saying that Issue No.6 related to the dispute, as to whether suit was barred by limitation and its onus to prove was placed on the shoulders of the respondents/defendants. He further contended that evidence of the respondents was closed under the provisions of Order XVII, rule 3, C.P.C. Vide order of the trial Court dated 28-6-2001 which was not challenged by the respondents, meaning thereby that there was no evidence on the file from the respondent's side, in absence of which suit of the petitioners could not have been dismissed. It was also argued on behalf of the petitioners that the petitioners in their plaint had pleaded that one month earlier to its institution, the respondents refused performance of the agreement to sell by attempting to interfere into possession of the petitioners over the land in question and thus, in view of provisions of Article 113 of the Limitation Act, 1908, suit of the petitioners was within limitation and has incorrectly been dismissed. It was also submitted that there is no evidence on the file to show that the respondents ever refused performance of their' part of the contract, rendering the suit of the petitioners barred by limitation.
5. Learned counsel. Appearing on behalf of respondent No.1 refuted the arguments of the petitioners, supported the concurrent judgments and decrees of the two Courts below and urging that performance of the agreement to sell, as claimed by the petitioners was refused in the year, 1988 when the petitioners themselves filed a suit for permanent injunction with the prayer that the respondents be restrained from interfering in their possession which in itself amounted to refusal and even if from this time, the period of limitation is calculated, the suit filed on 18-4-1995 was barred by limitation because it had to be filed within three years. He further submitted that in view of provisions of section 3 of the Limitation Act, 1908 it was a bounden duty of the Court to first examine the point of limitation even in absence of any objection from the defendants. According to his submissions, even in absence of any evidence, suit of the petitioners on the face of it, was barred by limitation having been based on an alleged agreement to sell dated 19-3-1963. Learned counsel appearing on behalf of respondents Nos.2 to 5 adopted arguments of respondent No.1 and submitted that the petitioners themselves while appearing in the witness-box admitted that the respondents refused the performance of agreement when they interfered into their possession in the year, 1988.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, the only issue out of those, framed by the trial Court which requires determination is Issue No.6, relating to limitation. It is also not denied that there is no evidence on the file from the respondent's side. Under Article 113 of the Limitation Act, 1908, suit for specific performance has to be filed within the period of three years from the date fixed in the agreement for its performance or within three years from the date of refusal of the executant to perform his part of contract. The agreement dated 19-3-1963 subject of suit in hand, does not provide any period of limitation for transfer of title, hence, period of limitation will have to be calculated from the date of refusal of the respondents to discharge their obligations under it.
The petitioners pleaded in para.6 of their plaint that cause of action regarding institution of suit accrued one month earlier to its institution, on refusal of the respondents. Muhammad Ali one of the petitioners/plaintiffs appeared as P.W.8 and admitted in his cross-examination that they filed a suit for permanent injunction against the allottee in the year, 1988 when the allottee refused to make statement before the concerned official regarding their rights under the agreement to sell.
P.W.8 also admitted that the respondents refused execution of agreement to sell dated 19-3-1963 when the earlier suit was filed. He also deposed that at the time of institution of suit in hand, filing of earlier suit was not brought to the notice of the counsel who drafted the present plaint. There is a copy of the judgment dated 5-6-1989 given by the learned Civil Judge, Bhakkar in Civil Suit No.387 of 1988 on the file which shows that the petitioners averred therein that the allottee (predecessor of the respondents) was adamant to interfere into their possession over the land in dispute and for this purpose, they filed this suit. All this manifests denial of the agreement to sell and the same was positively asserted by the petitioners in the year, 1988 which was, at least, the starting separating point of limitation. Had the suit of the petitioners been filed before 1991, it would have been within the limitation but the same was filed on 18-4-1995 thus, it was rightly held by both the Courts below to be barred by limitation.
7. For what has been discussed above, I have no hesitation to hold that both the Courts below have taken a rightful view in support of their judgments and decrees which are in consonance with the record, none part of it, has been misread or non` read, in absence of which, no interference in revisional jurisdiction of this Court is permissible, under law. No illegality or irregularity in terms of section 115, C.P.C. Was committed by any of the Courts below. This revision petition has no merit in it and is accordingly dismissed, leaving the parties to bear their own costs.