' SYED SAKHI HUSSAIN BOKHARI, J.---This R.S.A. Is directed against the judgment dated 2-7-1996 passed by learned Additional District Judge, Gujranwala whereby appeal brought by respondents against the judgment and decree dated 3-12-1995 passed by learned Civil Judge, Gujranwala was accepted.
2. Relevant facts for the disposal of this appeal are that Muhammad Muslim, appellant filed suit for possession through specific performance against the respondents and stated that they (respondents) were owners of suit-land (measuring 10 acres bearing Khewat No.34, Khatuni No.137 situated in village Ahmad Pur Virkan Tehsil and District Gujranwala) . And they agreed to sell the same in his favour vide agreement dated 19-9-1984 and received Rs.10,000 as earnest money. It was agreed that after receiving remaining sale price, sale-deed shall be executed till 30-6-1985.
The plaintiff/appellant asked the respondents to receive remaining sale price and execute sale- deed in his favour but they refused, therefore, he was constrained to file suit. The respondents/defendants mentioned in written statement that they had transferred suit-land in favour of Mst. Zubaida Bibi through gift vide Mutation Nos.111 and 112 and she is in possession of the same as owner but appellant has not impleaded her as party, therefore, suit is not maintainable.
They further mentioned that agreement dated 19-9-1984 has been revoked as plaintiff/appellant had received earnest money and executed a receipt in the presence of witnesses. They averred that suit is time barred. Learned trial Court framed issues, recorded evidence and decreed the suit brought by appellant vide judgment dated 3-12-1995. The respondents filed appeal thereagainst which was accepted vide judgment dated 2-7-1996 passed by learned Additional District Judge and suit brought by appellant was dismissed. Hence this. Appeal.
3. I have heard the arguments and perused the record.
4. As mentioned above respondents were owners of suit-land and they agreed to sell the same in favour of appellant vide agreement dated 19-9-1984 and received Rs.10,000 as earnest money. It was agreed that respondents would execute sale deed till 30-6-1985. The case of respondents is that agreement in question (dated 19-9-1984) has been revoked as appellant had received earnest money through receipt (Exh.D.1). Also that suit is time barred. The receipt (Exh.D.1) shows that appellant had received Rs.11,500 from Siraj Din, respondent given by him as earnest money.
The plaintiff/appellant while appearing as P.W.3 admitted that he had executed said receipt. All the D.Ws. Have supported the case of respondents. So it is clear that agreement had been revoked.
5. The agreement to sell dated 19-9-1984 (Exh. P .1) shows that respondents had to execute sale- deed in favour of plaintiff/appellant till 30-6-1985. However, appellant filed suit on 24-9-1988. As such suit is time barred.
6. The most important aspect of the case is that suit-land was owned by Siraj Din and his brother Muhammad. Ramzan but agreement Exh.P.1 has been executed only by Siraj Dina Learned counsel for the appellant submits that suit may be decreed to the extent of share of only Siraj Din. However, in the circumstances of the case, I find that contention of appellant is devoid of force and his suit merits dismissal. Moreover the respondents have mentioned in their written statement that they had transferred suit-land in favour of .Mst. Zubaida Bibi daughter of Siraj Din before institution of the suit but appellant has not impleaded her as party so far. The judgment dated 2-7-1996 shows that learned Additional District Judge has decided the appeal brought by respondents after appraisal of entire material available on record. Paras. Nos.8 to 13 of the said judgment read as under:- "8. As noted supra the execution of the agreement to sell Exh.P.1 is admitted. But it has to be seen whether Exh.P.1 can be enforced at law. Admittedly Exh.P.1 was executed by Siraj Din one of the appellants while the suit-land is jointly owned by Siraj Din and Muhammad Ramzan appellants. It is no body's case that Siraj Din was holding any power of attorney on behalf of Muhammad Ramzan, appellant. As such Exh. P.1 cannot by lawfully enforced.
9. Notwithstanding the above the appellants, as noted above, had adopted the plea that the agreement to sell Exh.R1 was revoked and consequently. Rs , 11 ,500 were returned to the respondent. This is core and contentious issue. While repelling the contention of the appellants the learned lower Court has held that signature of Muhammad Muslim respondent as obtained on the receipt Exh.D.1 is different from his admitted signatures and no effort was made to get his signatures compared with that obtained on Exh.D.1; Exh.D.l was executed during the pendency of the suit and as such its authenticity is doubtful:
10. I am afraid I cannot subscribe to the view of the learned lower Court. The respondent in his cross-examination had admitted the execution of the receipt Exh.D.1. Added to this is the evidence of D.W.1 Chiragh Din who had deposed that the respondent had signed Exh.D.1. Not only this P.W.4 Muhammad Sadiq who is scribe of Exh.D.l and who was examined to scuttle Exh.D.1 admitted that the respondent had signed Exh.D.l. As such there was no necessity to get the signature of Muhammad Muslim respondent compared with those obtained on Exh. D.1. However, the respondent in his evidence in rebuttal had vainly tried to show that the amount received by him through Exh.D.1 was different from the earnest money of the suit-land. But the respondent had also admitted that no other bargain of sale had taken place between him and the appellants. As such the respondent had failed to explain that the amount received by him through receipt Exh.D.1 was different from the earnest money. It is true that Exh.D.1 was executed during the pendency of the suit but by that time the appellants had not been served in the suit. As such no adverse presumption can be drawn against them. This being so the appellants had succeeded in proving that the agreement to sell Exh.P.1 had been revoked and consequently earnest money was returned to the respondent.
11. In sum the agreement to sell Exh.P.1 was not enforceable at law and the appellants had proved that the agreement to sell Exh.P.1 had been revoked and consequently the amount of earnest money was returned to the respondent against receipt Exh.D.1. As such the learned lower Court erroneously held otherwise.
12. The appellants had from the very beginning adopted the plea in their written statement that vide Mutation No.3 dated 28-1-1988 the suit-land was gifted away in favour of Mst. Zubaida Bibi.
This was reiterated in evidence and was even admitted by P.Ws. Thus Mst. Zubaida Bibi was a necessary party to the suit. But she was never impleaded as such. So the suit was bad for non- joinder of parties.
13. According to paragraph No.2 of the plaint registered sale-deed was to be executed on 30-6- 1985. But the suit was brought on 24-9-1988. The period of limitation is three years. As such the suit brought by the respondent was barred by time."
' It is well reasoned judgment. There is no'illegality or infirmity in the impugned judgment, therefore, there is no justification to set aside the same.
7. The upshot of the above discussion is that this appeal has no force and the same A is accordingly dismissed. No order as to costs;