' JAWWAD S. KHAWAJA, J.---Muhammad Ashraf (petitioner/defendant) impugns the appellate decree dated 22-4-1999 whereby the decree of the learned trial Court dated 14-12-1995 was set aside and a suit, filed by Mst. Rashida Bibi (respondent/plaintiff) against her sister Mst. Fazlan Bibi (respondent No,2) and the petitioner/defendant, was decreed.
2. The facts of this case are simple. Mst. Rashida Bibi relied on two agreements to sell which were allegedly executed in her favour by her sister Mst. Fazlan in respect of the disputed house measuring 2 Marlas. The first agreement was dated 7-8-1986 which is not material for the purpose of deciding the present controversy. It is the second agreement (Exh.P-2) dated 8-2-1987 which is of relevance. In this agreement, Mst. Fazlan acknowledged having received the entire consideration of Rs,8,000 of which Rs,7,000 was received pursuant to the earlier agreement dated 7-8-1986 and the balance Rs,1000 was received at the time of the second agreement (Ex.P2).
3. The petitioner/defendant claims that Mst. Fazlan had agreed to sell the suit property to him vide agreement dated 4-8-1992 against a consideration of Rs,46,000 which he had paid to her and against which possession had been delivered to him. It is not in contention that the petitioner is in occupation of the suit property.
4. Based on the pleadings, the learned trial Court framed as many as 8 issues out of which Issue No,1 alone relating to limitation, is in contention before me. The learned trial Court dismissed the suit of Mst. Rashida Bibi (respondent/plaintiff) as being time-barred. The appellate Court has reversed this finding. Hence, this revision petition.
5. The question of limitation has become contentious because of a stipulation in the agreement (Exh.P-2). It was recited in the agreement that there was litigation pending between Mst. Fazlan (respondent/ vendor) and a third sister Mst. Khurshid, in the Lahore High Court. Therefore, it was agreed that Mst. Fazlan would complete the transaction by registering the sale as soon as the High Court decides the aforesaid case. The matter in the High Court (C.R. 1788/86) was decided on 7-4- 1987 when the said petition, filed by Mst. Khurshid, was dismissed for non-prosecution.
6. The learned appellate Court has held the suit to be within time on the basis that it was filed within three years of the date on which Mst. Fazlan refused to execute a sale-deed.
7. Learned counsel for the petitioner, firstly, argued that this decision was based upon a misinterpretation of Article 113 of the Schedule to the Limitation Act. According to him, even though a specific date had not been fixed in the agreement (Exh.P-2) for completing the sale, the date was nevertheless capable of being made specific by reference to a future event. On this basis, it was contended that the present case fell within the first part of Article 113 of the Schedule to the Limitation Act whereby the period of limitation was to run from the date fixed for the performance of the agreement. In the present case, according to learned counsel for the petitioner, the date became specific with the dismissal of C.R. 1788/86 on 7-4-1987 and time was run from this date.
8. Learned counsel for the respondent/plaintiff, however, submitted that because no date for completing the sale had been specified in the agreement, the period of limitation would only begin once the respondent/plaintiff had notice that the vendor had refused performance. He also referred to the case titled Mst. Bibi Khatoon and 7 others v. Abdul Jalil (PLD 1978 SC 213) to support his contention. I have gone through the cited precedent and note that it is on all fours with the facts of the present case. In view of the ratio in the precedent cited by learned counsel for the respondent, the argument advanced on behalf of the petitioner that the case fell within the first part of Article 113 of the Schedule to the Limitation Act, cannot be accepted.
9. Learned counsel for the petitioner next argued that even if the present case fell within the second part of Article 113 of the Schedule to the Limitation Act, the finding of the learned appellate Court is contrary to the record and is based on a misreading of the contents of the plaint and the testimony of the respondent/plaintiff when she appeared in support of her case as P.W.7.
10. In order to appreciate the submissions of learned counsel for the petitioner I have gone through the available record with the assistance of both learned counsel. It is an admitted fact that Mst.
Fazlan (respondent/vendor), Mst. Rashida (respondent/plaintiff) and Mst. Khurshid who was the petitioner in C.R. 1788/86, are full sisters and reside in the same street in which the disputed property is located. Mst. Fazlan was issueless and unmarried. The question is as to when the respondent/plaintiff Mst. Khurshid became aware that C.R. 1788/86 which was the sole impediment in the sale as noted in the agreement (Exh.P-2), had been decided. On this point, the plaint is silent while the testimony of the respondent/plaintiff is contradictory and misleading. In para.6 of her plaint, Mst. Khurshid alleged that Mst. Fazlan had refused, only two days prior to the filing of the suit, to register the sale in her favour. From this averment it follows that she was fully aware that C.R.
1788/86 had been decided. However, as noted above, she did not state in the plaint as to when she became aware of the dismissal.
11. When Mst. Khurshid appeared as P.W.7, she admitted that Mst. Fazlan (respondent/vendor) had taken possession of the suit property from Mst. Khurshid through legal process. The exact words used by her were {{URDU TEXT}} Since the three ladies, mentioned above, were full sisters residing in the same street, it must follow that the plaintiff Mst. Rashida became fully aware of the dismissal of C.R. 1788/86 at the very latest when possession of the property was taken by Mst. Fazlan. She testified that she did not know the date of the decision of the High Court in C.R. 1788/86. She also could not state the month or even the year when she came to know of the dismissal of Mst.
Khurshid's revision petition by the High Court.
12. Since the question of limitation, in the above circumstances, was a mixed question of law and fact, it was incumbent upon the respondent/plaintiff to state, firstly as to when she became aware of the dismissal of C.R. 1788/86 and, secondly, as to when she first sought and was refused execution of a sale-deed pursuant to the agreement (Exh.P-2). At this juncture, it is relevant to note that the onus of proving that the suit was within time, was rightly placed on the respondent/plaintiff and it was for her to lead affirmative evidence of all relevant facts to show that the suit had been filed within the period prescribed under Article 113 of the Schedule to the Limitation Act. Since she failed to do so, her suit was liable to be dismissed as being time-barred.
13. There is another aspect of this case which needs to be commented upon. The petitioner was an outsider unrelated to the three sisters: He paid the entire consideration and is in possession of the property since 1992. The respondent/ plaintiff, who claims that she had paid the entire consideration of Rs,8000; Rs,7000 pursuant to the first agreement and Rs,1000 through the second agreement (Exh.P-2) admittedly, did not take possession of the disputed property even when possession of the same had been taken by Mst. Fazlan. This circumstance also belies the case of the respondent/plaintiff.
14. In view of the foregoing discussion, I find that the learned appellate Court fell in error on account of misreading of the record. The impugned appellate decree dated 22-4-1999 is thus a result of illegality in the exercise of its jurisdiction. The same is set aside and as consequence, the decree of the learned trial Court dated 14-12-1995 is affirmed.