#TBS Effect of acceptance of performance at time other than that #TBE ABDUL LATIF KHAN, J.--- This civil revision has been filed against the judgment and decree dated 25-9-2012 passed by the learned Additional District Judge/Izafi Zilla Qazi-II, Swat, whereby suit of the plaintiff/respondent No,1 is decreed against the petitioners and respondents Nos. 2 to 7.
2. Arguments of learned counsel for the parties heard and record perused with their able assistance.
3. A perusal of the record reveals that Muhammad, plaintiff/ respondent filed a suit for declaration to the effect that he is owner in possession of the property bearing No, 2426 measuring 5 kanals 7 marlas on the basis of "Iqrar-Nama" dated 10-2-2004 and defendants have got no concern with the' suit property and to this effect the entry in the revenue record is liable to be corrected. In relief "Jim" specific performance of the agreement has been sought, whereas permanent and directory injunctions have also been sought in Relief "Jim" and recovery of possession was also sought in Relief "Bay" of the plaint. The suit was contested by the defendants/petitioners by filing written statement raising various legal and factual objections and hotly refuted the execution of deed dated 10-2-2004 in favour of the plaintiff. The deed, Exh.PW-1/1, contains the sale of property on behalf of Abdul Salam to the extent of 5 kanals 7 marlas in lieu of Rs,3,74,500, out of which a sum of Rs,200,000 was paid, which includes mortgage amount of Rs,1,50,000 in the light of deed dated 21- 6-2001 whereas the rest of the amount of Rs,1,74,500 was agreed to be paid on 10-8-2004. It is evident from the record that till 10-8-2004 no payment was made by the plaintiff in favour of the defendants. The cut date given in the deed, shows that the time was an essence of contract in the agreement, which plays a pivotal role in the transaction. For convenience sake section 55 of the Contract Act, 1872 is reproduced as under:- Section 55. Effect of failure to perform at fixed time in contract in which time is essential. --- When a party to a contract promises to do a certain thing at or before a specified time or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, become voidable, at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
' Effect of such failure when time is not essential.--- If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure. ' agreed upon.--- if in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promise accepts performance of such promise at any time other than that agreed, the promises cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance, he gives notice to the promisor of his intention to do so.
4. The bare reading of above provisions of law would suggest that in peculiar circumstances of the instant case time was essence of the contract and parties were bound to honour the agreement on or before A. Cut date. Each case has its own facts and the terms and conditions agreed by the parties are to be considered qua intention of parties to the agreement. In this regard reliance can be placed on the case of "Hall Abdur Rehman v. Niaz Ali through LRs" reported as "2000 CLC 184", wherein their lordships held as under:--- "Parties have consciously agreed that the time would be essence of the contract and its breach would automatically result in recession of the contract. After the expiry of the initial period in the agreement, the appellant did not treat the time as essence of the contract and, therefore, he could not in law, unilaterally fix one week's time for the enforcement and then attempted to resile from the commitments by assuming the time as essence of the contract. Reference can be made to Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala PLD 1962 SC I."
5. The entire record is silent about any serious effort on behalf of plaintiffs/respondents regarding the payment made on or before B 10-8-2004, the cut date given in the agreement. When the learned counsel for respondents/plaintiffs was confronted with the situation, he agreed that no documentary evidence available to this effect in the shape of a cheque or any other document, which shows that he has performed his part of agreement by tendering the amount agreed to be paid on 10-8-2004, which shows the failure on the part of the plaintiffs/ respondents in respect of the fulfilling of the obligation of agreement. The evidence produced by the plaintiff in support of the document comprised upon the statement of plaintiff/respondent as PW-1, who has reiterated the stance taken in the plaint and deposed that apart from payment of Rs,200,000, which includes the mortgage amount a sum of Rs,1,50,000 were further paid regarding which the entry/note was also made on the agreement but failed to prove about the rest of payment of Rs,1,24,500 on or before 10-8-2004. He has admitted in Para 1 of the plaint that the parties have bound-down themselves to pay an amount on 10-8-2004 and in lieu thereof the defendants/petitioners had to transfer the property by dint of mutation, as the plaintiff/respondent failed to pay the amount, therefore, the petitioners/defendants could not be blamed for non-transfer of the property in his favour without sale consideration.
Apart from plaintiff PW-2, Sher Bahadar appeared, who happens to be marginal witness of the deed has categorically mentioned that a period of six (6) months was fixed for payment of the disputed amount, however, unable to justify as to why the payment was not made by the plaintiff and was also unable to support the plaintiff to the effect that as to whether he has made any serious efforts for the payment of amount. Similarly, Muhammad Bashir, PW-3, who too, was shown as marginal witness has repeated the same story. Gul Nazar Khan, Patwari Halqa was examined as PW-4, who has brought on record the extracts from "Jamabandi" and "Aks-shajara-kishtwar" . A perusal of the extracts from "Jamabandi" reveals that Muhammad Islam was not the sole owner of the property, however, out the entire property his entitlement was less than 2 kanals whereas the agreement shows that he has agreed to transfer 5 kanals, 7 malras if all the agreement is taken as correct on its face value, the vendor was not competent to transfer beyond his share to the extent of 5 kanals, 7 marlas. The plea of the learned counsel for the respondents that he had acquired the property from his brothers and sisters later on and was able to transfer the same, is misplaced for the simple reason that at the time of execution of deed, he was not at all shown to be owner in the revenue record to the extent of 5 kanals, 7 marlas, which was allegedly agreed by him to be transferred in favour of the respondents by dint of disputed deed dated 10-2-2004. Muhammad Rahman, marginal witness and scriber of the partition deed dated 27-2-2004 was examined as PW-5, who deposed that he has scribed the deed between the petitioner and his brothers, sons of Khairati Khan. Muhammad Sohaib, petition writer, appeared as PW-6. Abdul Sattar was examined as PW-7, who deposed regarding the partition deed dated 27-2-2004.
6. On the other hand, Ahmad Saeed, the attorney of the defendants appeared as DW-1, who has reiterated the stance taken in the written statement and Zakir Rahman, ADK, was examined as DW- 2, who produced the relevant mutations and record, which is available on file. Fazal Wadood was examined as DW-3 whereas Rahmat Ali Khan appeared as DW-4, who are the marginal witnesses of mutations. Needless to mention that a person having defective title cannot transfer a better title to his vendee. Abdul Salam had no valid title to transfer the property to the extent of 5 kanals, 7 malras and, as such, the deed in question if at all taken on its face value, could not be acted upon as required under the law. The learned Trial Judge has rightly assessed the evidence available on file and non- suited the plaintiff, however, the learned Court of appeal has not evaluated the evidence in true perspective and decreed the suit without any legal backing.
7. Quite apart from this, the sale-deed relied upon by the plaintiff being unregistered document was register-able under section 17 of the Registration Act, 1908, as the value of the property was more than Rs,100, reduced into writing, which amounts of Rs,3,75,400 and, as such, being unregistered deed creates no title in favour of the plaintiffs/ respondents. The document required to be registered under the law, would have no effect in case of its non-registration and reliance cannot be placed upon it in accordance with law. Moreover, the purchasers plaintiffs have not proved that they were inducted into possession on the basis of sale-deed, which is not coverable under the law as the possession is "sine qua non" for attracting the provisions of section 53-A of the Transfer of Property Act. Nothing available on file to justify the possession of the plaintiff in the light of the agreement, the possession of the plaintiff over the property as tenant-at-will would not amounts to possession under the deed unless specifically mentioned in this regard and inducted in possession of the suit property. The deed is otherwise defective on the ground that no khasra number has been mentioned in it nor boundaries are given in it for identification of the property.
Mere mentioning of the name of the property as "Dehran Patay" would not amounts to description of the property and not sufficient for its identification.
8. The appellate Court has not decided the "lis" pending before it conscious and application of independent mind and, as such, the impugned judgment is not sustainable in the eye of law.
' For the aforementioned reasons, I allow the instant petition, aside the impugned judgment and restored that of trial Court, resultantly! Suit of the plaintiff/respondent stand dismissed.