MUHAMMAD AKHTAR SHABBIR, J.--- Facts giving rise to the filing of the present revision petition are to the effect that Khuda Yar plaintiff/respondent herein had instituted a suit for specific performance of contract on the basis of an agreement to sell dated 2.2.1986 and 5.6.1984 for consideration of Rs. 12,000/- with regard to the land situated in Khata No. 21/20 measuring 4 kanals in 'Mauza Sadiq Pur Tehsil and District Rahimyar Khan. The suit was contested by defendants/present petitioners, who filed their written statement denying the averments of the plaint raising some preliminary objections.
2. From the factual controversy appearing on the pleadings of the parties, the learned Judge Family Court framed the following issues:-
(1) Whether the defendants agreed to transfer the disputed property to plaintiff vide agreement to sell dated 2.2.1986, if so, on what terms and conditions? OPP.
(2) Whether Rs.. 2,000/- were paid in pursuance of agreement to sell and then Rs. 4,000/- were received by the defendants on 5.5.1986? OPP.
(3) Whether the suit is barred by time? OPD.
(4) Whether the suit is false, frivolos and vexatious and as such same is liable to be dismissed, if so, how much? OPD.
(5) Relief.
3 The learned Trial Court, after recording and appreciating the evidence of the parties, pro and contra, decreed the suit vide his judgment and decree dated 24.1 2005. Feeling aggrieved, the defendants/petitioners preferred an appeal, which came up for hearing before the learned Addl.
District Judge, Rahim Yar Khan, who vide his judgment and decree dated 24.5.2005 dismissed the appeal affirming the findings of the learned Trial Court.
4. I have heard the arguments of the learned counsel for the petitioner and perused the record.
5. The first agreement to sell had been executed by the executants/petitioners on 2.2.1986, wherein, the time for performance of the contract through mutation with regard to the disputed property had been fixed. Rs. 2,000/- was received as an earnest money. In this context, time was essence of the contract. 'Thereafter, a subsequent agreement dated 5.6.1986 has further been executed. The executants received further Rs. 4,000/- and extended the period for performance of the contract. It was settled that the execution of the contract shall be made and the property shall be transferred after sanctioning of the mutation of inheritance in their favour. Admittedly, the petitioners received Rs. 2,000/- as per agreement to sell dated 2.2.1986 and Rs. 4,000/- vide the subsequent agreement dated 5.6.1986 and promised that as soon as the mutation of inheritance is sanctioned in their favour, they would transfer the property through registered sale-deed/mutation in favour of the respondents.
6. Two documents i.e. Agreement to sell Ex.P-1 and Ex.P-3 have been attested by marginal/attesting witnesses namely Faiz Ahmad PW-1 and Sardar Allah Ditta PW-2. Both the PWs have testifies their signatures on the said documents and their testimonies were further corroborated by the petition writer Ch. Noor Ahmad PW-3. There is sufficient evidence available on the record to establish execution of the documents in favour of the respondent by the petitioners. To controvert the documentary evidence no other evidence except their oral statements had been produced by the defendants/petitioners. Though in their pleadings, the petitioners have denied the execution of these documents but there is no denial to the fact that numbers of National Identity Cards are mentioned on these documents and the attested copies of the same were annexed with these agreements.
7. Muhammad Ibrahim while appearing as DW-2 had stated in his cross-examination that his father had died in the year 1998 and this statement has been contradicted by a copy of the Death Register of his father Ex.P-6 showing the date of death of petitioners' father as 9.6.1970. Mutation of inheritance has been sanctioned in their favour in the year 1978. These mutations also bears the signature of Muhammad Ibrahim etc./petitioners.
8. From the above discussed evidence available on the record, it reveals that agreement to sell Ex.P-1 and Ex.P-3 executed by the petitioners and payment of receipts Ex.P-2 and 4 have been established through sufficient cogent and convincing evidence. The attesting witnesses and petition writer are the independent witnesses and through the lengthy cross-examination nothing has been extracted from them.
9. The other aspect of the case is that petitioners have taken the stand that the documents Ex.P-1 and 4 agreements to sell and receipts of payment are result of fraud and mis-representation but there is no such evidence to establish the fraud allegedly committed by the petitioners/respondents. In the settled principle of law that fraud is not only to be alleged specifically in the pleadings but also to be proved by convincing evidence beyond any shadow of doubt like any other charge of a criminal offence whether made in the civil or criminal proceedings must be established beyond reasonable doubt and findings cannot be made on surmises and conjectures. In this context reference can be made to the case of Muhammad Tufail Vs. Muhammad Aslam Khan (1999 YLR 934). In case of Punjab National Bank Ltd., Lahore Vs. Dr. A.B.
Arora and others (AIR 1933 Lah. 1024), it has been observed that if a person charges another with fraud or mis-representation. It is incumbent on him to substantiate his allegations by making a statement on oath and by giving the other party an opportunity of cross-examination. In another case titled as Hansrai Gupta and others Vs. Dehra Dun Mussorie Electric Tramway Co. Ltd. (AIR 1940 Privy Council 98), it has been held that the parties alleging fraud is bound to establish it by cogent evidence and suspicion cannot be accepted as proof. Unless therefore the proved circumstances are incompatible with the hypothesis of the person charged with fraud having acted in good faith, they cannot be accepted as affording sufficient proof of fraud. In such like case fraud would not be held proved. The Hon'ble Judges of the Supreme Court in case of Messrs Dadabhoy Cement Industries Ltd. And 6 others Vs. National Development Finance Corporation, Karachi (PLD 2002 S.C. 500) has also held that where allegation of fraud is levelled, the same must be specified and details thereof should be given.
10. In this case, the transactic n of sale has been reduced into writing and is signed by the parties and in such circumstances, it becomes a binding contract and the parties cannot repudiate its terms or resile therefrom, later on and the parties cannot be detract and lodge a claim over and above the terms of the contract. It is also settled principle of law that the documentary evidence cannot be excluded by the oral evidence to rebut Ex.P-1 to Ex.P-4 but there is no evidence from the petitioners' side available, on the record except the oral statements.
11. As per Article 113 of the Limitation Act, 1908, for a suit for specific performance of contract, the limitation for three years was provided from the date fixed for performance or if no such date was fixed, then the time when the plaintiff had notice that performance was refused. This article has two parts. The first part of the said' Article would apply only when, time ,was essence of the contract. It would mean that the time is stipulated to be performed on a specified date and the limitation would be reckoned from that date and not from date of refusal. Where no date for performance of agreement is fixed and time is not essence of the contract, then, the time shall be reckoned from the date of knowledge about refusal by the executants to perform agreement to sell. Meaning thereby that plaintiffs - knowledge of defendant's refusal would be date when notice served by plaintiff on defendant remains unacknowledged by defendant. In this context reliance can be made to the case of Bomanshaw Burjorji Gazdar and another Vs. Mst. Mumtaz Begum and others (NLR 1984 Civil S.C.
564). In the instant case, it has been observed by the Hon'ble Judges of the Supreme Court that time of three years for suit seeking specific performance of agreement of sale which does not prescribe any time for completing sale transaction--- Commences from date when plaintiff has notice that performance was being refused by defendant-Plaintiffs knowledge of defendant's refusal would be date when notice served by plaintiff on defendant remains unacknowledged by defendant.
12. In the subsequent agreement, period already fixed in the first agreement has been extended. It was settled that the property shall be transferred through registered sale-deed after sanctioning of the mutation in their favour. It means that there was no limitation in filing the suit for specific performance of contract fixed in the agreement.
13. It is proved on the record that no date was fixed for the performance of the subsequent agreement. The defendant had issued no notice to the plaintiff/respondents refusing to perform the performance of contract, therefore, the suit was rightly filed by the petitioner within limitation.
14. Both the Courts below have passed the concurrent findings of fact against the petitioners and this Court would not interfere in such findings of.Fact in exercise of its revisional jurisdiction as the Superior Courts have not permitted the Courts to re-appraise and re-evaluate the evidence of the parties as laid down in the cases of Guldar Khan Vs. Isa Khan (1993 SCM R 2099), Nazir Ahmad Vs. Boota" (1989 SCM R 450), Riaz Vs. Muhammad Saleem (1989 SCM R 1491) and Haji Muhammad Din Vs. Malik C. L. R.
Muhammad Abdullah (1994 PSC 254). Learned counsel for the petitioner has miserably failed to point out any illegality or jurisdictional defect in the impugned judgments passed by the Courts below on the issues involved in the matter.
15. For the foregoing reasons, I do not find any illegality in the impugned judgments calling for interference in the same, hence, this revision petition being devoid of any force is dismissed, in limine. .