SYED SAKHI HUSSAIN BUKHARI, J.--- This R.S.A. Is directed against the judgment dated 02-07-1996 passed by learned Addl. District Judge, Gujranwala whereby appeal brought by respondents against the judgment and decree dated 03-12-1995 passed by learned Civil Judge, Gujranwala was accepted.
2. Relevant facts for the disposal of this appeal are that Muhammad Muslim, appellant file 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. 1- 37 situated in village Ahmadpur 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 received 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 Mutations 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 They further mentioned that agreement dated 19-9-1984 has been revoked as plaintiff/appellant had received earnest money and executed a receipt in the presence of witnesses.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 03-12-1995. The respondents filed appeal thereagainst which was accepted vide judgment dated 02-7-1996 passed by learned Addl. 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 The case of respondents is that agreement in .Question (dated 19-9-1984) has been revoked as appellant had received earnest money through receipt (Ex.D.1). Also that suit is time-barred. The receipt (Ex 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 PW. 3 admitted that he had executed said receipt. All the DVVs have supported the case of respondents. So it is clear that agreement had been revoked. .
5. The agreethent to sell dated 19-9-1984 (Ex.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 Ex. P.1 has been executed only by' Siraj Din. 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 b2-7-1996 shows that learned Addl. 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 Ex.P1 is admitted. But it has to be seen whether Ex. P1 can be enforced at law. Admittedly Ex. P1 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-ofattorney on behalf of Muhammad Ramzan, appellant. As such Ex.P1 cannot be lawfully enforced.
9. Notwithstanding the above the appellants, as noted above, had adopted the plea that the agreement to sell Ex.P1 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 obtaining on the receipt Ex.D1 is different from his admitted signatures and no effort was made to get his signatures compared with that obtaining on Ex. D1. Ex.D1 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 Ex.D1. Added to this is the evidence of DW.1 Chiragh Din who had deposed that the respondent had signed Ex.D1. Not only this PW.4 Muhammad Sadiq who is scribe of Ex.D1 and who was examined to scuttle Ex.D1 admitted that the respondent had signed Ex.D1. As such there was no necessity to get the signature of Muhammad Muslim respondent compared with those obtaining on Ex.D1. However, the respondent in his evidence in rebuttal had vainly tried to show that the amount received by him through Ex.D1 was different from the earnest money of the suit land. But the respondent had also admitted that no other bargain bf 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 Ex. D1 was different from the earnest money.
It is true that Ex.D1 was executed ruing 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 Ex.P1 had been revoked and consequently earnest money was returned to the respondent.
11. In sum the agreement to sell Ex.P1 was not enforceable at law and the appellants had proved that the agreement to sell Ex.P1 had been revoked and consequently the amount of earnest money was returned to the respondent against receipt Ex.D1. 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 PWs. 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 30-06- 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 is accordingly dismissed.
No order as to costs..