On 30.9.1986 the respondent filed a suit against the petitioner. In the plaint, it was stated that the plot described in the plaint stood allotted to the respondent by Housing and Physical Planning Department and the entire price has been paid in installments. In the year 1980, the respondent had gone abroad and had authorised his brother Abdul Hameed to act on his behalf in the Housing Department. In January, 1986, he was informed by his brother that a few days ago, the petitioner has forcibly occupied the plot. The criminal proceedings were lodged whereupon the petitioner filed a civil suit. In the civil suit, the plea taken was that the petitioner is in possession on the plot under the agreement dated 24.4.1980 between the parties. An injunction was sought that his possession be not disturb. The learned counsel for the respondent made a statement that he will not be dispossessed other than in due course of law and the suit was accordingly dismissed. It was stated that the agreement is forged and fabricated and that he was not even present in Pakistan on the date when the document was stated to have been executed. He also claimed Rs, 500/- per month by way of compensation for use and occupation. The petition in his written statement admitted that the respondent is an allottee. He also admitted the factum of filing of the suit by him and its disposal. He asserted that the respondent received Rs, 50,000/-by way of consideration and executed agreement dated 24.4.1980 in his favour and delivered him the possession and he is liable to transfer the plot to him. By way of amendment an objection was ruined that the suit is covered by Section 9 of the Specific Relief Act, 1877 and having been brought beyond the period of six months from dispossession is barred by time. Issues were framed.
Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 23.5.1993. A learned ADJ, Burewala, dismissed the first appeal filed by the petitioner on 27.11.1994.
2. Learned counsel for the petitioner contends that the agreement was duly proved alongwith the payment of consideration. The respondent having not been vested with title, the suit could have been filed only under Section 9 of the Specific Relief Act, 1877 and admittedly having been brought beyond six months of the date of dispossession, it was barred by time. It has also been argued that the person who filed the suit had no authority to do so. The learned Counsel for the respondent, on the other hand, contends that there is no evidence of the execution of the agreement on the record. According to him, there is no dispute that the entire price has been paid by the respondent to the said Department and possession was delivered to him and such the suit was competent under Section 8 of the said Act. Further states that the suit was filed by the brother of the respondent who was duly authorized by means of the registered power of attorney, copy whereof is on the record.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. The original agreement was produced in Court through DW-2 Hafeez Ullah who produced the file of criminal case wherein the agreement dated 24.4.1980 was present. This very witness stated that Mirza Amir Baig and Shahid Gulzar are the attesting witnesses and both of them filed affidavits, present in the file, to the effect that neither the agreement was executed in their presence nor any payment was made. The petitioner while appearing as DW-5 was confronted and he admitted A that he said attesting witnesses had filed affidavits controverting his plea. This leaves DW-4 Nazir Ahmad who is Scribe of the agreement. He admits that he did not know any of the parties and neither does he know the attesting witnesses. He says that he is not maintaining any register, neither he is possessed with the relevant licence. He further admits that he did not ask any of the said persons to show him their identity cards. DW-3 is the Stamp Vendor Muhammad Mushtaq. In his cross-examination, he stated that he did not know the respondent personally neither he obtained any identity document of the person purchasing the stamp. Regarding his register, he stated that the same has been lost.
4. Having gone through the said evidence, I do find that the learned Courts below have very correctly held that the execution of the said document has not been proved by the petitioner.
5. Now coming to the said second contention of the learned counsel for the petitioner, I do find that, admittedly, the respondent was the allottee of the plot. He has paid the entire price vide receipts Exs. P.2 to P.10. The possession has been delivered to him through his brother and attorney vide Ex. P.
To my mind the learned counsel for the respondent has correctly argued that the respondent is possessed of sufficient title to bring the suit. I further find that it is the stated case of the petitioner himself that the possession was delivered to him by the respondent. There is another aspect of the matter as well, if is an admitted fact that the petitioner filed a suit on 12.1.1986 inter alia, seeking an injunction that he be not dis-possessed. The suit remained pending till 3.7.1986 when it was dismissed in view of the statement made by the learned counsel for the respondent. To my mind, the provision of Section 15 of the Limitation Act, 1908, and the principle underlying the same would definitely come into play and the said period of time i,e, from 12.1.1986 to 3.7.1986 would be excluded. Thus, even if it be assumed that the suit is covered by Section 9 of the Specific Relief Act, 1877, after excluding the said period of time, it would be within the time prescribed in the said provision of law. In somewhat similar circumstances, in this case of Investment Corporation of Pakistan Syed Jamaat Ali Shah and another (NLR 1992 SCJ 561), the Hon'ble Supreme Court of Pakistan reversed a finding to the contrary recorded by this Court and held that where a temporary injunction had been issued on the instance of a borrower, the suit filed by the lending agency would be within time after excluding the period during which the said suit for injunction remained pending with a temporary injunction in force.
6. So far as the said third contention of the learned counsel is concerned, the copy of the power of attorney is available at page 98-A of the paper book. The date of execution is not discernible but it was registered on 22.12.1986 in Pakistan. It appears to have been executed in the State of Oman.
The basis of the argument is that it will be deemed that the document was executed on 22.12.1986.
Now the document having been executed out of Pakistan could have been registered in accordance with the provisions of Section 26 of the Registration Act 1908. Since there is no dispute that the document was registered, it shall be deemed that it was registered within four month after the document came in Pakistan. According to Section 47 of the Registration Act, 1908, the register document is to operate from the date of its execution and not from the time of its registration. To my mind, the decision of the learned ADJ in the matter of competency of the person filing the suit would not be liable to be interfered with within the meaning of Section 115 CPC.
7. No other point has been urged. The civil revision dismissed leaving the parties to bear their own costs.