' Through this civil revision petitioner has challenged the judgment and decree dated 28.6.2001 passed by the learned Additional District Judge, Sahiwal whereby appeal filed by the petitioner was dismissed and the judgment and decree dated 13.12.1997 whereby suit filed by respondent Ahmad Shah was decreed.
2. Brief facts of the case are that on 14.9.1993 plaintiff-respondent Ahmad Shah filed a suit for declaration that plaintiff is allottee/bonafide purchaser Of Plot No. 11-V along with construction on plot measuring 7 marlas 7 feet situated in first street,. 30 feet wide, Low Income Scheme, Tariq Bin Ziyad Colony, Sahiwal. It is further stated that under agreement to sell dated 16.7.1986 he is in possession of the plot. He has challenged the exchange of plot by Mst. Haleema Akhtar/Defendant No. 3 with Plot No. 65-Z owned by Abdul Jabbar/ Defendant No. 7 in the same colony through Letter No. DHC-2167-68 dated 12.11.1985 and has challenged the sale-deed issued by Defendant No. 2/Deputy Director (Housing) and challenged the sale-deed dated 27.10.1992 by Defendant No. 7 Abdul Jabbar in favour of Defendant No. 8/Irfan Ahmad, of the said plot. Further permanent; injunction has been claimed that no one should interfere in his possession over the plot and further prayed that defendant be permanently restrained from transferring the said plot in favour of anyone except the plaintiff and a decree for mandatory injunction Was sought that Defendant Nos.
3 to 5 shall procure a permanent sale-deed of the suit plot from Defendant No. 1 and 2 and transfer the same in favour of plaintiff. The case narrated by the plaintiff in his plaint is that suit plot was allotted to Defendant No. 3 by Defendant Nos. 1 and 2 on 15.5.1979. It is pleaded that Defendant No. 3 agreed to sell the said plot to Defendant No. 5 on 13.6.1985 and a fictitious price of Rs. 1,25,000/- was shown in that agreement actually it was for a consideration of Rs. 55,000/-. Defendant No. 5 has shown the purchase in favour of his wife/Defendant No.
4. It is the case of the plaintiff that Defendant No. 4 Salma Naheed was a fictitious and so-called purchaser actually the purchaser was Defendant No:5 thereafter Defendant No. 5 agreed to sell the said plot in favour of the plaintiff vide agreement dated 16.7.1986 for a consideration of Rs. 70,000/- which was received and possession was delivered. It is the case of the plaintiff that Defendant No. 5 agreed that he will directly get the plot transferred from the name of Defendant No. 3 in favour of the plaintiff. In accordance with head-note of the plaint, a prayer for issuance of declaration in favour of the plaintiff has been prayed and in the last portion of the prayer a further prayer for specific performance of agreements to sell dated 13.6.1985 and 16.7.1986 have also been prayed.
Written statement was filed. Suit was contested. Learned trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their evidence. Learned trial Court decreed the suit vide judgment and decree dated 13.12.1997. On the basis of findings recorded by the learned trial Court on Issue Nos. 2, 4 and 5 a declaratory decree has been passed in favour of the plaintiff. The appeal was filed, which was dismissed by the learned first appellate Court vide judgment and decree dated 28.06.2001. Hence, this civil revision.
3. Learned counsel for the petitioner argues that plot was admittedly allotted to Defendant No. 3, who vide exchange deed dated 12.11.1985 exchanged the plot with Defendant No. 7 from whom the present petitioner who was Defendant No. 8 has purchased the same. Learned counsel argues that petitioner has an agreement to sell in his favour dated 16.7.1986 (Exh.P3) from Defendant No. 5 on the basis of Exh.P.4 which is unregistered. General Power of Attorney of Defendant No. 3 in favour of Defendant No.
5. Argues that no declaratory suit was competent and further that the plaintiff claims an agreement to sell on the basis of unregistered Power of Attorney by Defendant No. 5 which otherwise is valueless. Further that the exchange of plot has been admitted and purchase of the plot by the petitioner has also not been denied. Further that even from the date of agreement the suit was time barred and further that suit for declaration was absolutely not competent, therefore, states that findings recorded by both the Courts below are against the well settled principles of law, therefore, not sustainable. Prays for acceptance of the civil revision, setting aside the judgments and decrees passed by both the learned Courts below.
4. Learned counsel for the respondents state that objection of time barred has not been taken earlier, therefore, plaintiff cannot take the same. State that voluminous oral evidence has been produced by the plaintiff-respondent and petitioner-defendant has opted not to produce evidence. Pray for dismissal of the revision petition on the ground that there are concurrent findings recorded by the two Courts below.
5. I have heard learned counsel for the parties at full length and gone through the record of the case, evidence and findings recorded by both the Courts below.
6. Admittedly, Defendant No. 3/Mst. Haleema Akhtar was allottee of suit plot and through exchange deed she transferred the same in favour of Defendant No. 7 and in exchange she got Plot No. 65-Z, hence, plot in dispute was transferred by defendant No. 7 in favour of Petitioner/Defendant No.8. I have noticed that the alleged agreement to sell on the.Basis of which plaintiff has lodged his claim, is otherwise on the basis of unregistered General Power of Attorney (Exh.P4), is not a valid power of attorney to give right to the attorney to transfer the plot. Further Exh.P.3 the agreement to sell is not signed by the plaintiff-respondent, therefore, I am of the considered view that an agreement to sell not signed by one of the parties cannot be said to be an agreement to sell in the eye of law when parties to the agreement have to do something for performance of the said agreement/in the light of 2010 SCM R 334 "Mst. Gulshan Hamid versus Kh. Abdul Rehman and others" I am clear in my mind that when the alleged agreement is not signed by the plaintiff himself he was not entitled to press the said agreement before the Court and further the main thrust of the plaintiff is that he be declared as owner of the suit plot. A declaration cannot be sought by the plaintiff admittedly on the basis of an agreement to sell, the declaration of title cannot be granted in favour of a plaintiff who claims a right in the immovable property on the basis of agreement to sell because a declaratory decree declares a pre-existing right and cannot create or confer a new right. In case in hand, the title of the suit which has been noted with detail shows that plaintiff is asking the Court to declare him owner of the suit plot and further a decree for mandatory injunction has been claimed to ask the Defendant Nos. 3 to 5 to get the sale-deed in their favour from Defendant Nos. 1 and 2 and then transfer the plot in favour of the plaintiff. This prayer is also not tenable under the law on the basis of an agreement to sell and further in the prayer clause a prayer for specific performance has been made which is further contradictory to the claim made in the body of the plaint as well as in the headnote of the plaint. The plaint is full of contradictions and self-destructive pleas. Both the Courts below have ignored this legal position.
7. So far as point of limitation is concerned, under Section 3 of the Limitation Act, 1908 it is the duty of the Court to see a lis whether the same has been filed within the prescribed-period of limitation, therefore, there is no bar if the plea of limitation is pressed before this Court. Suit for specific- performance was barred by limitation. The agreement claimed by the plaintiff by the owner through power of attorney, which is unregistered, gives no power to the attorney holder to enter into an agreement to sell of an immovable property of the principal. In these circumstances, the judgments and decrees passed b both the Courts below while ignoring this legal position are nullity in they eye of law which are absolutely not sustainable. In this view of the matter, I allow this Civil Revision, set aside the judgment and decree passed by learned trial Court dated 13.12.1997 and that of learned first appellate Court dated 28.6.2001. Resultantly, the suit filed by the plaintiff- respondent stands dismissed.