' MIAN SAQIB NISAR, J.---Suit for specific performance, filed by the respondents against the petitioners, was dismissed by the learned trial Court vide judgment and decree dated 29-3-1988.
However, on appeal, filed by the respondents, which was allowed by the learned Additional District Judge, vide judgment and decree dated 4-6-1990, the judgment and decree of the learned trial Court has been set aside, with the result that suit of the respondents stands decreed, hence this petition.
2. Briefly stated the facts of the case are that, on 13-12-1980, the respondents brought a suit for specific performance of an agreement to sell dated 17-5-1973 with regard to 3/4th share in the house in dispute, claiming that, Wali Muhammad, who is the owner of the said house, had agreed to sell 3/4th share in the house, in favour of the respondents/plaintiffs for a consideration of Rs.12,000, out of which, Rs.11,500 was paid at the time of execution of the said document, whereas, on the payment of the balance consideration of Rs.500, the defendant was obliged to transfer the property and execute the necessary documents; however, at the relevant time, the house was mortgaged with the National Bank of Pakistan and it was agreed between the parties that, the vendor shall get the redemption of the property before finalization of the transaction; the house was got redeemed on 28-5-1980 and resultantly, the respondents brought the suit for specific performance. It may be pertinent to state here that, in the said suit, Muhammad Gulzar, the real brother of Wali Muhammad was also impleaded as party on the allegation that, Muhammad Gulzar subsequently, had got the sale transaction from Wali Muhammad in his favour with regard to whole of the house, which is against the rights of the plaintiffs under the agreement to sell.
3. The defendants/petitioners, contested the matter; they denied if, the agreement to sell was ever executed between Wali Muhammad and the plaintiffs on 17-5-1973. Thus, issues were framed, parties were put to trial and the learned Civil Judge held that, the suit claiming enforcement of the agreement to sell dated 17-5-1973, but having been filed on 13-12-1980 is barred by time; besides that the plaintiffs have failed to prove the agreement to sell of which, original has not been adduced; though they have got the permission to produce secondary evidence, but such secondary evidence has also not been able to substantiate, if any agreement to sell dated 17-5- 1973 was ever executed by Wali Muhammad in favour of the plaintiffs, thus, dismissed the suit.
Against the above judgment and decree, the respondents preferred an appeal, which has been allowed by the learned Appellate Court, and it has been held on the question of limitation that, the property in dispute was mortgaged with the National Bank of Pakistan and, therefore, when it was redeemed on 28-5-1980, the respondents/ plaintiffs then got the cause of action to file the suit, resultantly, the same was within limitation; moreover, by relying upon the statements of P.Ws. 1, 3, 4 and 5, it has been held that, the respondents/plaintiffs have amply proved the execution of the agreement to sell of which, they are entitled to seek the enforcement.
4. The learned counsel for the petitioners, primarily argued that, the respondents have not been able to prove the agreement to sell; P.W.1 has simply stated that the property was mortgaged with the National Bank of Pakistan, but has not given the testimony about the execution of the agreement to sell between the parties; as regards P.W.4 is concerned, he is the son of the scribe of the document, who by that time had died, and has conceded that the document was written by his father; however, he has produced the register of the scribe, which he claims to be in his handwriting, but has not been able to prove if, Wali Muhammad had affixed his signatures on the said register; he has baldly stated that, he knew Wali Muhammad, but in this behalf, the requisite information about his acquaintance with Wali Muhammad is not established; moreover, on the said document, there are no signatures of the so-called marginal witnesses P.W.3 and P.W.5; besides, the thumb-impressions of Wali Muhammad are also not there; he has not been identified by any Identity Card number, which is conspicuously missing on the register; as regards the statements of P.Ws. 3 and 5 are concerned, it has been argued that, as they have not been proved to be the marginal witnesses of the said document; not connecting their testimonies with any documentary proof, therefore, on the bald assertion that, they were the marginal witnesses of a document, which was written, but without there being proof of any valid execution in this behalf, they could not be believed.
5.
6. #TBS
7. Javed Iqbal Sheikh for Respondent.
8. #TBE
9. Heard. The respondents claim that, an agreement to sell was executed between them and petitioner No.1, but they have not been able to establish the execution of the same. The oral evidence in the shape of testimony of P.Ws.3 and 5 is not strong enough to be believed. The original document has not been brought on the record and the copy of the agreement to sell in the register of the scribe is also not attested by the so-called marginal witnesses. P.W.2 Khalid Waheed has not been able to prove if, he knew petitioner No.1, who had executed the agreement to sell and had affixed his signatures on the register. Petitioner No.1 is also not identified by reference to any document or his Identity Card number. The consideration amount, as alleged by the respondents, has also not proved. The petitioner No.1 in reply to the Legal Notice issued by the respondents had denied the execution of the agreement. Thus, in such circumstances, there was heavy burden on the shoulders of the respondents, which they failed to discharge. Resultantly, I set aside the findings of the Court of appeal about the agreement to sell holding that, the same has not been proved by the respondents.
6. So far as the question of limitation is concerned, obviously according to the terms of the agreement dated 17-5-1973, which otherwise has not been proved, the petitioner No.1 was obliged to seek the redemption of the property and thereafter to transfer the same in favour of the respondents. The redemption was just few months before the institution of the suit but well within three years, therefore, the suit brought on 13-12-1980 was well within time. Resultantly, the findings of the Court of appeal in this behalf are unexceptionable.
' In the light of above, this petition is allowed, the impugned judgment and decree of the learned Court of appeal is set aside with the result that, suit of the respondents stands dismissed.