' UMAR ATA BANDIAL, J.---This is a civil revision petition filed against the judgment and decree of the learned Additional District Judge dated 24-11-2004 whereby he accepted the appeal filed by the respondents against the judgment and decree passed by the learned trial Court on 11-10-2003 for specific performance of an oral agreement to sell claimed by the petitioner/plaintiff as buyer against the respondent vendor. The petitioner is in possession of the land measuring 4 Kanals, 5 Marlas situated in Mouza Gurajak, Tehsil Chunian, District Kasur, forming subject-matter of the oral agreement to sell claimed to have been concluded some 25 years prior to the filing of the suit for specific performance which also seeks relief of permanent injunction against his dispossession from the said land.
2. With respect to the divergent findings of the learned lower Courts learned counsel for the petitioner has succinctly pointed out the following matters. The possession of the petitioner over the disputed land for the last 28/29 years is admitted by the respondent. The documents from the Revenue Record, namely, Jamabandi for the years 20002001, 1996-97 and corresponding Khasra Girdawaris Exh.P1 to P7, show possession of the petitioner as co-sharer rather than as tenant in the suit-land. This status of the petitioner in the land record is unrebutted by the evidence produced on behalf of the defendant. The oral agreement to sell alleged by the petitioner has been asserted in his oral statement as P.W.1 and in the statements of P.W.2 Chirag Din and P.W.3 Muhammad Arif.
The agreement having been asserted consistently coupled with the admitted possession of the petitioner is claimed by counsel to suffice as material for sustaining a decree of specific performance in favour of the petitioner.
3. Learned counsel has further shown from the written statement filed by the respondent that no substantive defence is taken except a bare denial of the petitioner's claim in the suit. Therefore, the respondent's purport to lead evidence alleging the petitioner's tenancy in the disputed land goes outside the pleadings of the respondent and cannot be read in evidence under settled principle of law laid down in the cases of Mst. Salima Bibi v. Mst. Halima Bibi (1994 SCM R 1858) and Muhammad Hashim v. Zulfiqar Ali Khan (PLD 1963 (W.P) Lahore 418). In any event, the said plea by the respondent is challenged as being bald because no evidence whatsoever indicating tenancy of the petitioner has been produced on record.
4. The learned appellate Court reversed the learned trial Court's decree of specific performance on three grounds. Firstly, that the petitioner's suit is barred by time. Learned counsel for the petitioner contends in this respect that the impugned judgment fails to record the date for commencement of limitation. Without referring to Article 113 of the Limitation Act, 1908, the finding is as such superficial because neither the date of cause of action nor date of notice of refusal to perform by the respondent is taken as starting point. Learned counsel submits that according to the paragraph 7 of the plaint cause of action occurred only a month before filing of the suit when the respondent clearly refused to execute the sale-deed. Secondly, the ground as to failure to produce Bashir Ahmed mentioned in the suit as witness of the oral agreement cannot be determinative of the question of proof of the petitioner's case because the underlying agreement is oral and not written; and Bashir Ahmed cannot be regarded as an attesting witness. The testimony of the petitioner's witnesses on this point remains unshaken. Accordingly, the agreement to sell claimed by the petitioner stands duly proved. Finally, the impugned judgment has discarded the documentary evidence, namely, Exhs.P1 to P7 for their failure to show the petitioner as an owner of the disputed property. Learned counsel submits that these documents are meant to show that the petitioner is in uninterrupted possession of the disputed property in a character other than as a tenant or adverse possessor. In fact the entries in the Jamabandies show the petitioner as a co- sharer, which in fact has a shade of title thereto. This record has never been disputed or challenged by the respondent. As the record establishes the petitioner's right in suit property consistently with the oral sale agreement, the petitioner has a right to the completion of his title to the said land through a decree for specific performance. Resultantly, the observations made in the impugned judgment that the exhibits do not establish entitlement are given beyond the case of the petitioner because, it in such ownership that the suit is meant to secure. Learned counsel has also pointed out that the reason why the respondent has not executed sale-deed is because he left the Chak.
5. In response to the foregoing submissions the learned counsel for the respondent has raised following points.
6. He submits that there is no mention in the plaint of the price of Rs,800 claimed in the evidence by the petitioner to be the sale consideration of the disputed land. He contends further that only cause for petitioner's suit was that the respondent's brother Jaana had challenged the mutation of his land in favour of the petitioner. The petitioner's present suit was meant only for obtaining withdrawal of Jaana's suit. He further contends that the plaintiff's suit does not show how and when cause of the action accrued to the petitioner and therefore the suit is timed-barred. Finally he has urged that the petitioner failed to produce two witnesses to prove oral agreement to sell in accordance with Article 17 of the Qanun-e-Shahadat Order, 1984.
7. Learned counsel have been heard and record in the case has been perused. It is an established fact that the petitioner is in possession of the disputed land measuring 4 Kanals, 7 Marlas, for nearly 25 years at the time of filing of the suit. The written statement of the respondent has denied the alleged agreement to sell but has failed to cross-examine the petitioner and his witnesses on this point. Learned appellate Court below has held the failure to examine Muhammad Bashir, an alleged witness to the agreement to sell claimed in the plaint, to be a serious defect in the petitioner's case. On the other hand the petitioner has produced Chiragh P.W. Who is also mentioned as witness of the agreement to sell in the plaint. The requirement of two attesting witnesses being produced to prove an agreement to sell under Article 17 of the Qanun-e-Shahadat Order, 1984 cannot apply to an oral agreement because there is no attestation in such case.
Therefore, as to the question whether the oral sale agreement claimed by the petitioner has been established on record even one witness would suffice as nothing is asserted in the respondent's evidence on record to challenge this sale agreement. The plea that the petitioner was tenant in the disputed land appears to have been adopted by the respondent as an afterthought. This plea goes outside the contents of the written statement and cannot be raised pursuant to the rule laid down in the case of "Mst. Salima Bibi" supra. Further, the respondent has brought no evidence on record or otherwise confronted the petitioner to advance the plea of the petitioner's tenancy. In the circumstances, therefore, the possession of the petitioner on the disputed land without proof that he is a tenant therein is consistent with the petitioner's plea that he occupied the disputed land in part performance of the agreement to sell.
8. The question whether the suit is barred by time has been raised by the impugned judgment as also by the learned counsel for the respondent. The short answer to that objection is that the petitioner is duly recorded in the Revenue Record as co-sharer in the suit property. That no limitation runs against a co-sharer is a settled principle of law refer Muhammad Zubair and others v. Muhammad Sharif (2005 SCM R 1217). Therefore the objection of limitation is a non-starter.
9. In the case of oral agreement to sell that has been partly performed by the parties as in the present case the burden of proving the nature of the possession shifts to the owner who is denying the oral agreement to sell. In this behalf the pleadings of the respondent are silent. His attempted explanation by the plea of the petitioner's tenancy raised during his oral evidence is bald and half- hearted unsupported by any evidence. Therefore, on a considered view of the record, it is clear that the impugned appellate order fails to draw the correct conclusions of fact and law therefrom. In the light of the foregoing discussion it is accordingly held that the petitioner's possession of the suit property is in the character of a vendee. This conclusion is strengthened by complete absence of any evidence suggesting the assertion of the rights of the ownership at any relevant time by the respondent over the disputed property.
10. Resultantly, the civil revision petition is accepted and the impugned judgment dated 24-11-2004 is set aside and the judgment and decree dated 11-10-2003 given by the learned trial Court are affirmed.