SHER MUHAMMAD KHAN, J. Brief facts of the instant regular first appeal are that respondents filed a recovery suit of 40,00,000 (Forty lacs) against Ali Muhammad Jan predecessorof the appellants but before appearing in the trial Court he died and the suit was contested by appellants. According to the plaint the predecessor of plaintiffs/respondents purchased the shape of bungalow No 17 Survey No,180, D.I.Khan Cantt., described in the plaint vide agreement deed dated 23-9-1998 at the rate of Rs,15,00,000 per kanal. The area of the property is about 22 Kanals. Predecessor of respondents paid 20,00,000 on the same day i,e, 23-9-1998 vide Cheque No,33652117 of A.B.L. as earnest money to Ali Muhammad Jan predecessor of the appellants and it was promised to pay eighty lacs on or before 8-11-1998 and possession of the property would be handed over to plaintiffs/ respondents at the time of payment of 80,00,000. The predecessor of plaintiffs/respondents, Islamuddin died on 13-10-1998 before the due date i,e, 8-11-1998. After the death of Islamuddin his widow on her own behalf as well as on behalf of her minor children approached Ali Muhammad Jan many times for fulfilment of his obligations per terms of agreement dated 23-9-1998 but he failed to perform his obligations and by his conduct denied fulfilment of his role according to the terms of agreement: The plaintiffs, left with no other choice therefore filed suit for recovery of 20,00,000 paid as earnest money and 20,00,000 as damages/ compensation per terms of the agreement.
2. The process was issued by the learned trial Court but before appearance it was reported by the process server that defendant Ali Muhammad Jan has died, therefore, directions were issued to implead his legal heirs as defendants in the suit, which order was complied with and appellants were arrayed as defendants who contested the suit by filing their joint written statement.
3. The learned trial Court from the divergent pleadings of the parties framed the following issues:-- -
(1) Whether the plaintiffs have got a cause of action against the defendants?
(2) Which of the two parties i,e, plaintiffs and defendant have by their implied or express actions, caused the recession of agreement to sell dated 23-9-1998?
(3) Whether the suit of the plaintiff is in proper form?.
(4) Whether it were plaintiffs, who failed to make payments in accordance with terms of sal agreement dated 23-9-1998 were the defendants Intentionally obstructed performance of agreement to s dated 23-9-1998?.
(5) Whether plaintiffs had sustained any loss on account of alleged actions of defendants, if it so, to what extent and how much?
(6) Whether the plaintiffs are entitled to the decree for recovery of earnest money of 20 lacs, paid through Cheque No,33652117, dated 23-9-1998 to the defendants?
(7) Whether the plaintiffs are entitled to the recovery of 2 millions as damages from the defendants?
(8) Relief.
4. The plaintiffs examined Muhammad Munir, Clerk, Municipal Committee D.I.Khan as P.W.1, who produced death certificate of Islamuddin as Exh.PW1/1 which testified the death of Islamuddin on 13-10-1998. He also was not managed therefore Qaimuddin and Haji Sadiq came to Ali Muhammad Jan and informed him about their intention to rescind the agreement deed. The defendants did not produce any other person as witness.
6. Learned trial Court after hearing arguments of learned counsel of the parties, decreed the suit of the respondents to the extent of 40,00,000 vide judgment/ decree dated 8-10-2004.
7. Appellants aggrieved by the said judgment/decree preferred the instant appeal before this Court.
8. Learned counsel for the appellant argued that the predecessor of respondents did not fulfil his obligations during his life-time and by his conduct he had expressed his intention for rescinding the agreement He further argued that even after the death of Islamuddin predecessor-in-interest of respondents, no one on behalf of respondents have approached us for payment of the outstanding amount or to ask us for implementation of the deed. He next contended that the compensation amount decreed by the trial Court is against law and cannot be awarded through decree of the Court.
9. Learned counsel for respondents raised preliminary objection on the maintainability of appeal on the ground that appellants had not impleaded all the legal heirs of Islamuddin at the time of filing the appeal though they were plaintiffs in the trial Court. Respondent No,7 Mst. Laraib Sana was made respondent on 17-6-2009 after about 4-1/2 years of the filing of the appeal and under Order XLI, Rule 20 of the Civil Procedure Code the appeal is not maintainable.
10. He further argued that respondents have proved their claim through oral as well as documentary evidence which has not been shaken in cross-examination.
11. We have heard learned counsel of the parties perused the record with their valuable assistance.
12. The execution of agreement deed Exh.P.W.2/1 on 23-9-1998 is not disputed between the parties.
Similarly, payment of 20,00,000 by predecessor of respondents appellants on the day of entering into contract is also admitted. The appellants have taken the stance in their written statement that predecessor of respondents, in his life-time had violated the terms of agreement dated 23-9-1998 for that reason it has been rescinded. They did not attribute any violation to respondents after the demise of their predecessor-ininterest.
13. It is established principle of law that the parties should evidence from the averments of the pleadings. The appellants, in their written statement have attributed violation of the terms of agreement to Islamuddin and have claimed that during his life-time he has rescinded the agreement. No allegation whatsoever has been levelled against the respondent. During evidence the attorney of the appellants altogether took new stance by saying that Islamuddin had come to Ali Muhammad Jan and repeated his commitment for payment of the outstanding amount on the date fixed but before that he died. He attributed violation to Qaimuddin P.W.3 that he did not manage payment of the amount and informed Ali Muhammad Jan of their intention to cancel the agreement. The above-mentioned contradictory stance of the appellants shows their intention that they had negotiated the sale of the disputed property with second party in order to receive more benefit.
14. Respondents have specifically alleged in their plaint that even after they have approached appellants for fulfilment of their duty and to act upon the agreement executed by their predecessor and for this purpose they also served appellants with notice Exh.P.W.3/2 on 25-9-1999.
The version of respondents has not been (sic) did not produce any evidence in rebuttal levelled against them by the respondents. Appellants only examined Hussain Jan Khan attorney of the appellants, who admittedly was neither present on the date of scribing of the deed Exh.P.W.2/1 nor he was witness to any subsequent event as he was not residing at D.I.Khan in the lifetime of Ali Muhammad Jan predecessor of appellant.
15. Respondent No, 7 Mst. Laraib Sana is daughter of Islamuddin and equally necessary party like other respondents but she was not impleaded as necessary party after period of limitation which renders the appeal incompetent and is fatal. Reliance is placed on 2001 M LD 1964, PLD 1988 Supreme Court (AJ&K) 156 and PLD 1982 Supreme Court 46. The appeal to the extent of respondent No,7, is not only time-barred but have also rendered the appeal against other respondents incompetent.
16. On merits also the learned trial Court rightly appreciated the evidence of the parties and decided all issues in the light of evidence recorded during trial and relevant provisions of law.
17. In the light of above we do not see any force in the arguments of the learned counsel of the appellants which is hereby dismissed with no order as to cost.