' JAWWAD S. KHAWAJA, J.---The petitioner/defendant impugns the concurrent decrees of the learned trial Court dated 10-1-2001 and of the learned appellate Court dated 27-6-2001, whereby a suit filed by the respondents/plaintiffs seeking declaration, injunction and, in the alternate, specific performance, has been decreed.
2. The dispute between the parties relates to property comprising of land measuring 13 Marlas, 4 Sirsahis and a house constructed thereon situated in Mauza Rasool Nagar, Tehsil Wazirabad. The case set up by the respondents was that they had purchased vacant land from the petitioner through an oral agreement and had constructed the house thereon through their own resources.
The case of the petitioner/defendant was that he was owner of the suit property and had never entered into any agreement to sell the same to the respondents. It was his contention that one Munir, who was the husband of Mst. Sharifan (respondent No.1), had taken the property on rent from him but subsequently Mst. Sharifan had obtained a divorce from the aforesaid Munir, who had left the property in the occupation of the respondents.
3. Both Courts below have accepted the version of events put forth by the respondents while decreeing their suit for specific performance. Unfortunately, the learned Courts below have not cared to go through the evidence on record and have committed serious error in overlooking significant aspects of the case.
4. The contents of the plaint are ambiguous and have, in any event, not been proved by the evidence, produced by the respondents. It is, firstly, to be noted that vacant land measuring 13 Marlas, 4 Sirsahis was allegedly purchased by the respondents from the petitioner for a total consideration of Rs.45,500. They averred that a house was constructed on the land by the respondents themselves. The plaint was filed on 18-3-1999. It has been claimed by the respondents that the land in dispute was purchased 12/13 years earlier. This would imply that the oral sale alleged by the respondents, took place around 1986/1987.
5. It is important to note that even through a sum of Rs.45,500 was allegedly paid to the petitioner, no receipt for this payment has been produced on record. In para.6 of the plaint, it has been averred that the petitioner did not execute and register a sale deed because there was some interim injunction issued by a Court. It is also averred that on 3-8-1993 the interim injunction was vacated. There is, however, nothing produced on record by the respondents to substantiate their averment that there was an interim injunction or that the same was vacated on 3-8-1993. On tile contrary, when the petitioner appeared as his own witness, he deposed that there was no stay order in respect of the property in question. He volunteered that there was litigation between him and Haji Muhammad in respect of 4 Marlas of land, arising out of consolidation proceedings and the said litigation was pending before the Board of Revenue at the time but the said litigation had no nexus with the suit-land. Learned counsel for the respondents was unable to show that there was any litigation or interim injunction restraining sale of the disputed property.
6. Furthermore, in view of the allegation in para.6 expressly stating that the interim injunction was vacated on 3-8-1993, it was incumbent upon the respondents/plaintiffs to have produced a copy of the interim injunction and copies of the suit in which the same had been passed, in order to show that between the date of alleged sale i.e. 1986-87 and 3-8-1993 there was a legal restraint which prevented the execution and registration of a sale-deed in their favour. The failure of the respondents to produce such evidence militates strongly against their case. The learned Courts below have failed to notice this aspect of the case and have, without proof, proceeded on the premise that there was a restraining order preventing the execution of sale-deed in respect of the disputed property.
7. It is also of importance that the respondents have not produced on record any receipt to show that a sum of Rs.45,500 was paid by them to the petitioner. The amount, it may be noted, was not insubstantial and even if there was any impediment in the execution of a sale deed, there was nothing to stop the respondents from obtaining a receipt from the petitioner.
8. At this point, it may be noted that in para.6 of the plaint a receipt dated 3-8-1993 for a sum of Rs.45,500 has been mentioned and it appears that a copy of the same was filed with the plaint.
However, the contents of paragraph 6 are ambiguous and do not indicate the nature or purpose of the aforesaid receipt. In any event, it appears that the receipt, referred to therein, had something to do with the town committee and was made out in the name of Muhammad Munir. There is no indication that the receipt was executed by the petitioner or that the same was in respect of the property in dispute. I repeatedly asked learned counsel for the respondents to explain the contents of paragraph 6 of the plaint in order to resolve the ambiguity therein. He was unable to do so and nor was he in a position to advert to any evidence which could have shed light on the ambiguity in paragraph 6 of the pliant.
9. I next take up for consideration the testimony of the witnesses produced by the parties. Since I was not satisfied with the manner in which the learned Courts below had dealt with the oral evidence, I have examined the same with the assistance of both learned counsel rather than remanding the case.
10. The witnesses produced by the respondents/plaintiffs do not inspire confidence as they have given contradictory statements in material particulars. Muhammad Hussain appeared as P.W.
1. He stated that he had paid the sum of Rs.45,500 to the petitioner in his own havaili on the same day on which the bargain was struck with the petitioner. Respondent No.1, however, testified that the bargain was struck in the havaili of Haji Muhammad, but the payment was made the following day. What is significant in this case is that Muhammad Munir, who was the husband of respondent No.1, does not feature anywhere at the time of the alleged bargain. In the plaint, it has been averred that Muhammad Munir divorced respondent No.1 on 27-8-1996 i.e. Approximately ten years after the alleged bargain. The differences between respondent No.1 and Muhammad Munir allegedly arose (as per para.7 of the plaint) in August, 1993. The alleged receipt, which is neither on record and nor are its particulars available, allegedly was executed on 3-8-1993 in favour of Muhammad Munir. I have already noted that there is nothing on record or even in the pliant to indicate that the petitioner had executed the said receipt. Additionally, it is implicit from the contents of para.7 of the plaint that between 1986, when the bargain was allegedly struck, and 3-8-1993, which is the date of some receipt, there were no disputes or E differences between respondent No.1 and Muhammad Munir. It is, therefore, all the more surprising as to why Muhammad Munir was not a party at the time of the alleged transaction.
11. Here it will be important to note that according to Basharat Ali (P.W.2), Muhammad Munir and respondent No.1 stayed in the havaili of Muhammad Hussain (P.W.1) for 7/8 years. The respondent No.1 as P.W.3 also admitted that she and her husband Muhammad Munir stayed with the aforesaid Muhammad Hussain (P.W.1) for a month or two, whareafter they shifted to the disputed property.
This statement, firstly, shows that Muhammad Munir and respondent No.1 were not only on good terms, but were together residing with P.W.1 upon arrival in Rasool Nagar and had shifted to the disputed property only one or two months later. There is, therefore, no reason why Muhammad Munir should not have been an active participant in striking the bargain for the disputed property.
12. Another significant discrepancy/ contradiction in the testimony of the respondent's witnesses is that whereas the first respondent as P.W.3 clearly stated that after residing for a month or two with P.W.1 they had shifted to the disputed property, the testimony of the respondent's witnesses and of P.W.3 herself is to the effect that the land was vacant and it took two years or more for a house to be constructed thereon.
13. The lack of probity of the respondent's witnesses is also clear from other contradictions in their testimony which are of a material nature. Muhammad Anwar (P.W.4) claims that he was engaged as a mason for constructing the disputed house and tie laid the foundations of the same. In the earlier part of his cross-examination, he clearly deposed that he did not know the respondent's husband and had never seen him. In the later part of his testimony, he contradicted himself by stating that the respondent's husband used to meet him during the construction of the house and that he used to see the respondent's husband in the disputed house for a period of 5/6 years.
Likewise, Muhammad Sagheer (P.W.5), who claims to be one of the labourers who were engaged in the construction of the disputed house, states that he had never seen the respondent's husband Muhammad Mtinit and nor did he know him during the period of construction. This testimony is in conflict with the above discussed testimony of Muhammad Anwar (P.W.4). It is also in conflict with the contents of the plaint which show that the differences between respondent No.1 and Muhammad Munir only arose in 1993. It is, therefore not, at all, believable that P.W.5 was involved in the construction of the house some time starting in 1986-87 and did not come across or know Muhammad Munir.
14. There is yet another aspect of the case which undermines the veracity of the case set up by the respondents/plaintiffs and supports the defence raised by the petitioner/defendant. Learned counsel for the petitioner drew my attention to Exh.P.2, which is the Jamabandi for the year 1984-
85. The document, which was produced by the respondents, shows the property to be Ghair Mumkin Makan. The contents of the plaint as well as the testimony of the witnesses produced by the respondents/plaintiffs to the effect that vacant land was purchased by the respondents some time around 1986-87, cannot be relied upon in the light of Exh. P .
2.
15. In addition to the above, learned counsel for the petitioner argued that the suit of the respondents was time-barred. The respondents had claimed a declaration and injunction in the plaint and as an alternate relief they had sought specific performance of the oral agreement allegedly made between them and the petitioner in 1986-87. The learned Courts below rightly held that the declaration of title sought by the respondents/plaintiffs could not be granted because there was no conveyance in their favour. However, the learned Courts below did not grant to the respondents the alternate relief of specific performance of the alleged agreement.
' Learned counsel, firstly, argued that the alleged agreement could only have been enforced through a suit filed within three years thereof. The respondents, however, filed their suit on 18-3- 1999 which is approximately 12/13 years after the date of the alleged agreement. In response, learned counsel for the respondents contended that even though the period of limitation for enforcing an agreement is three years, the period would commence from the date on which the petitioner refused to execute a sale-deed favouring the respondents. On this basis, it was argued that the suit was within time. This submission is not well-founded because even according to the contents of the plaint, the petitioner allegedly was obliged to execute the sale-deed upon vacation of the interim injunction mentioned in the plaint. The interim injunction even according to the plaint, he was vacated on 3-8-1993. Thus, the period of limitation, at the latest, would commence from 3- 8-1993. The suit having been filed in 1999 was, therefore, clearly time-barred.
17. Learned counsel for the respondents also submitted that the petitioner had not raised any objection as to limitation either in the written statement filed by him before the learned trial Court or in the grounds of appeal before the learned lower appellate Court. On this basis, it was argued that the objection as to limitation could not be raised at this stage. In response, learned counsel for the petitioner submitted that the question of limitation was to be attended to by the Court itself even where no objection to such effect had been raised by the petitioner. He supported his submission by referring to the case titled Hakeem Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153. The argument of learned counsel for the petitioner is well-founded.
Learned counsel for the respondents was not in a position to controvert the same or to dispute the position that even if the cause of action is deemed to have arisen on 3-8-1993 and not 1986-87, the suit would be barred by limitation.
18. The learned Courts below have not taken into account the material aspects of -the case discussed above. They have brushed aside the material contradictions in the case put forth by the respondents by holding that there are only minor discrepancies in the testimony of the respondent's witnesses. The evidence and the nature of the contradictions between the respondent's witnesses have not even been discussed by the learned lower Appellate Court. I, therefore, find that the learned Courts below have fallen into material error and as a result, their judgments and decrees are not legally sustainable. The same are set aside. As a consequence, the suit filed by the respondents/plaintiffs is dismissed. The petitioner shall also be entitled to his costs throughout.