' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that the land in dispute measuring 94 Kanals and 17 Marlas situated in Chak No.331-EB, Tehsil Burewala District Vehari was originally allotted to one Haider son of Wazan, who was an Islamabad Oustee and predecessorin-interest of respondents Nos.2 to 7. Said Haider through a written agreement dated 9-2-1976, agreed to sell the property in dispute to the petitioner for a consideration of Rs.80,000. Out of this amount an amount of Rs.38,000 had already been received by him, while, an amount of Rs.27,000 was to be paid at the time of registration of the Sale-deed and the balance of Rs.15,000 was to be retained by the petitioner for expenses to be incurred at the time of grant of PRs. Said Haider on 11-2-1976 through a registered document appointed respondent No.7 Muhammad Zafar as his General Power of Attorney for the purposes of effecting rest of the affairs with respect to the property in dispute. On the same day i.e. 11-2-1976, an other agreement with the same terms was executed between Haider and petitioner but this time this agreement was got registered. In Kharif 1976, the possession of the property was also delivered to the petitioner. In August 1979 due to appreciation of value in the property respondent No.7 i.e. General Attorney claimed that the sale consideration should be enhanced. Resultantly, through an agreement dated 13-8-1979, the sale consideration of the property in dispute was fixed as Rs.1,05,000. In the meanwhile, the petitioner had already paid an amount of Rs.93,000.
2. Efforts were being made by respondent No.7/General Attorney to get the PRs but since some obstructions were being caused by the State functionaries, he filed a suit against the Province of Punjab and Haider for the conferment of PRs. This suit was decreed on 28-2-1982. Thereafter, on an application made by respondent No.7, the District Collector vide order dated 27-10-1985 directed the General Assistant Revenue to pass an appropriate order in the case of the petitioner for the grant of PRs. In the meanwhile, allegedly Haider, original owner died on 13-5-1979 and inheritance mutation was attested in favour of respondents Nos.2 to 7 with respect to the property in dispute through Mutation No.348 dated 30-10-1985. On 13-11-1985, respondents Nos.2 to 7 i.e. LRs of Haider deceased moved an application before the District Collector under section 19 for the grant of permission in order to sell the tenancy rights of property in dispute to respondent No.9, Rao Munawar Ahmad. This application was allowed by the District Collector vide his order dated 18-11- 1985. As a result thereof, respondents Nos.2 to 7 sold the tenancy rights of property in dispute to respondent No.9 through registered Sale-deed dated 21-11-1985. Consequently, PRs. Were conferred upon respondent No.9, Rao Munawar Ahmad on 6-7-1989.
3. In view of the above developments the petitioner was constrained to file the instant suit for specific performance of the agreement mentioned above on 25-7-1991. The suit was only contested by respondent No.9, Rao Munawar Ahmad and he was supported by Province of Punjab respondent No.
1. Respondents Nos.2 to 7 were proczeded against ex parte during the trial as they did not join the same, while respondent No.8, Zafar/General Attorney had filed conceding written statement in favour of the plaintiff. After recording evidence of the parties, the learned trial Court vide judgment and decree dated 17-11-1994 dismissed the suit filed by the petitioner. Petitioner's appeal also failed before the learned Additional District Judge vide judgment and decree dated 10-1-1996. Both these judgments and decrees are being assailed through the instant civil revision. At this stage, it is to be noted that all the issues relating to the merits of the case were decided by the learned appellate Court in favour of the petitioner. However, the suit was dismissed on the ground it being barred by time.
4. Learned counsel for the petitioner contends that according to Exhs. P.1 to P.3 i.e. Agreements of sell, it was agreed that the sale-deed would be executed in favour of the petitioner after the grant of PRs. Since the PRs were granted in favour of respondent No.9 on 6-7-1989 through Baihnama Shahi {{URDU TEXT}} therefore, the suit filed by the petitioner on 3-7-1991 was within limitation of three years as provided under Article 113 of the Limitation Act. It is further submitted that any suit filed by the petitioner for specific performance before 6-7-1989 was liable to be dismissed on the ground of it being pre-mature as held by this Court in 1984 CLC (Lah.) 1183.
5. On the other hand, learned counsel for the respondent contends with reference to para 4 of the plaint and Exh.P.3 that the agreement to sell was to be executed within one month from the conferment of PRs, therefore, the suit filed by the petitioner fell in 2nd Part of the Article 113 of the Limitation Act and was thus liable to be dismissed being barred by time. In support, he relies on NLR 1995 (Civil) SC 500; AIR 1938 Lah. 123; AIR 1940 PC 19 and PLD 1878 SC 306. It is next submitted that vide order dated 18-11-1985, the L.Rs. Of Haider, the original tenant were granted permission by the Deputy Commissioner under section 19 of the Colonization of Government Lands Act, 1912 to sell the tenancy rights to respondent No.9. Thus this date of grant of permission was the first refusal to the right of the petitioner for specific performance, therefore, according to 2nd Part of Article 113 of the Limitation Act, the said date would be the starting point of limitation from where the suit filed by the petitioner was barred by time.
6. It is next argued that the plaintiff in his, plaint has not only claimed specific performance but has also challenged the order dated 18-11-1985 (Exh.P.4) whereby permission under section 19 was granted and sale-deed dated 21-11-1985 through which respondents Nos.2 to 7 had sold their tenancy rights to respondent No.9. According to the learned counsel under Article 14 of the Limitation Act, an order passed by an official could only be challenged with a period of one year.
Neither the said order nor the sale-deed of tenancy rights was challenged within limitation.
7. It is further submitted that the petitioner is not a Government tenant, therefore, conferment of a PRs on Government tenant i.e. Respondent No.9 could not be challenged by such an alien. Relies on PLD 1964 Lah.
264.
8. By referring 2003 SCMR 1974, it is contended that although other issues were decided against respondent No.9 by the learned Appellate Court but he is entitled to defend the decree without filing cross-objection with respect to said issues.
9. As a right of reply, learned counsel for the petitioner contends that till such time the proprietary rights is conferred, no locus standi was available to the petitioner either to challenge order dated 18-11-1985 or the sale-deed dated 21-11-1985, therefore, they were obliged to challenge the above said order and the sale-deed along with suit for specific performance which is within limitation as argued earlier.
10. I have considered the arguments of the learned counsel for the parties.
11. According to the agreements Exhs.P.1 to P.3, the sale-deed was executed after the grant of PRs.
Undisputedly, PRs were granted to respondent No.9, through Exh.P.8 on 6-7-1989. Therefore, keeping in view the judgment of this Court as reported in 1984 CLC 1183; any suit filed by the petitioner before the grant of PRs for specific performance of agreement would have been pre-mature and could not proceed, therefore, the present suit filed on 24-7-1991 was well within time. The argument of the learned counsel for the respondent that the case in hand falls within the ambit of 2nd part of Article 113 of the Limitation Act is correct, because no actual date for the performance of agreement was fixed in the agreement itself. Therefore, the period of limitation would start from the first refusal as contemplated by 2nd part of Article 113 of the Limitation Act. The argument of the learned counsel for the respondent that first refusal should be treated as 21-11-1985 when the tenancy rights were sold by respondents Nos.2 to 7 in favour of respondent No.9 is without any substance, inasmuch, as the petitioner has not yet acquired any locus-standi to file a suit for specific performance, as according to the agreement itself, the locus standi and cause of action for filing the suit would only accrue after the grant of P.Rs. Which so far had not been conferred.
12. The next argument of the learned counsel for the respondent that petitioner being not a Government tenant cannot challenge the grant of P.Rs. In favour of respondent No.9 is also without any substance, inasmuch, as the original owner had already entered into an agreement to sell with the petitioner and without associating him in the proceedings before the Deputy Commissioner/Collector for the grant of PRs, the tenancy rights were sold by him to respondent No.9 and secondly the judgment referred by the learned counsel is not applicable in the instant case as the petitioner is not claiming any PRs of the state land, he is only enforcing an agreement between him and a state tenant.
13. The other issues which were decided against respondent No.9 could only be challenged by him before this Court by way of filing cross-objections under rule 22 of Order XLI, C.P.C. The reference made by the learned counsel to the judgment of the Hon'ble Supreme Court 2003 SCMR 74 is not of much help for him, inasmuch, as according to the said judgment and rule 22 of Order XLI, a person against whom certain issues are decided and as a result the total findings/decree is rendered against him, he has a right of appeal but if certain issues are decided against him but on certain other issues finding is recorded in his favour and as a result thereof decree is passed in his favour, he cannot file an appeal. However he can defend decree is his favour without filing any cross- objection with respect to the issues decided against him. But if he wants to throw a challenge to the issues decided against him, that he can do only by way of filing cross-objection under rule. 22 of Order XLI, C.P.C. Within the time frame provided by the rule. Failure to file such cross-objection creates an estoppal to challenge those issues.
14. For what has been stated above, this civil revision is allowed, the judgments and decrees passed by both the Courts below are set aside and the suit filed by the petitioner is decreed with costs throughout. The balance also consideration of Rs.12,000 has not so far been deposited or paid by the petitioner which was due ever since the agreement. Keeping in view the depreciation in the monitory value of the rupee learned counsel for the petitioners have agreed to deposit a sum of Rs.1,00,000 within two months, failing which his suit shall stands dismissed.