' HAIDER ALI KHAN, J.---This revision petition is directed against the judgment and decree dated 5- 3-2013 of the learned Additional District Judge-II/Izafi Zilla Qazi, Swat, whereby appeal of the petitioner against the consolidated judgment and decree dated 24-10-2012 of the learned Civil Judge-II/Illaqa Qazi, Swat has been dismissed.
2. Brief but necessary facts of the case are that respondent No,1/plaintiff filed Suit No, 328/1 of 2011 for declaration and permanent injunction against the petitioner and respondents Nos.2, 3 to the effect that he purchased land measuring 2550 square feet falling in Khasra No, 583 from the petitioner/defendant No,1 through two sale deeds bearing No, NOA-312 and No, NOA-339 dated 12- 6-2006 and 28-6-2006, respectively. Out of the said property he sold out land measuring 1950 square-feet to respondent/defendant No,2, which was entered in his name in the revenue record, while the remaining portion of land measuring 600 square-feet, which is yet to be mutated in his name, is still in his possession as owner. The plaintiff further averred that the petitioner and respondent No,2 have no right to sell the remaining 600 square-feet land to respondent No,3 and any transaction in this regard, being ineffective upon the rights of the plaintiff, is liable to cancellation. Similarly, the present petitioner also filed Suit No,52/1 of 2012 against the respondent No,1 for cancellation of the aforementioned deeds on the ground that total sale consideration i,e, Rs,7,65,000 of both the transactions between the petitioner and respondent No,1 was mentioned in the deeds to have been received by the petitioner but neither the entire nor partial payment with regard to the said two transactions was made to the petitioner by respondent No,1, therefore with mutual consent of the parties both the deeds were cancelled. The petitioner further averred in his plaint that vide mutation No,2222 respondents Nos.1 and 2 purchased property measuring 7-1/2 Marlas from the petitioner in consideration of Rs,3,87,000. He further averred that the two sale deeds in question were neither registered nor were they acted upon, therefore, the same were cancelled on the mutual consent of the parties and were not entered in the revenue record but despite that respondent No,1 filed a suit for declaration, which is not legally maintainable.
3. The learned trial Court consolidated both the suits vide order dated 8-9-2012. Both sets of the defendants contested the suits by filing their written statements. On divergence of the pleadings,, the trial Court framed eleven consolidated issues to which the parties produced their respective evidence. After hearing arguments of the parties, the learned trial Court vide its consolidated judgment dated 24-10-2014 decreed Suit No, 328/1 of 2011 of the respondent No,1 against the petitioner whereas Suit No, 52/1 of 2012 filed by the petitioner was dismissed. The petitioner preferred an appeal against the consolidated judgment of the trial Court which was dismissed by the learned appellate Court vide judgment and decree dated 5-3-2013. Hence, the instant revision petition.
4. Learned counsel for the petitioner contended that both the Courts below have not properly analyzed the available material on record and have passed the impugned judgments and decrees which are against the law and facts of the case. He further argued that the respondent No,1 was legally bound to prove the payment of sale consideration to the petitioners but both the learned Courts below illegally and unlawfully shifted the same burden of proof to the petitioner which resulted in gross miscarriage of, justice to him. The learned counsel concluded that apart from suit of the respondent No,1 being time-barred, both the Courts below have misinterpreted the Mutations Nos. 2222 and 2223 and thereby non-suited the petitioner without any legal ground.
5. On the contrary, learned counsel for the respondents vehemently defended the impugned judgments of both the courts below of both the Courts below and refuted the stance of the petitioner.
6. Arguments heard and record perused.
7. Perusal of the record shows that two agreements to sell bearing No, NOA312 dated 12-6-2006 (Exh.P.W.1/1) and NOA-339 dated 28-6-2006 (Exh.P.W.1/2) were executed between the petitioner and respondent No,l. When it came to actual transfer of land in light of the aforementioned deeds, they were ignored, the petitioner at the behest of the respondent No,1 vide Mutation No,2222 dated 16-1-2007 (Exh.P.W.1/3) transferred eight shares in favour of respondent No,2 and just one share in favour of respondent No,1 totalling 7-1/2 Marlas of land against sale consideration of Rs,3,87,000 and the possession was delivered on the spot and as such the transaction was completed. The respondent No,1 further mutated his share in favour of respondent No,2 vide Mutation No,2223 dated 17-1-2007. Putting the said two mutations in juxtaposition with two sale agreements, against which declaration/ specific performance has been sought, one can easily infer that the said agreements have been incorporated into the Mutation No, 2222 (Exh.P.W.1/3). They were not acted upon rather the same were replaced by the said mutation. More so, respondent No,1 has adopted different stances in his plaint and his statement as P.W.1. In para No,2 of his plaint the respondent No,1 has averred that out of 2550 sq-feet land purchased from the petitioner vide the two deeds in question, he sold out 1950 square- feet land to respondent No,2. The said para is reproduced as under:- {{URDU TEXT}} ' In his examination-in-chief he has further stated that:- {{URDU TEXT}} ' But in cross-examination of his statement as P.W.1, the respondent No,1 has stated something else.
He states that:- {{URDU TEXT}} ' The above extracts from the plaint and statement of the respondent No,1 clearly shows that he blows hot and cold in the same breath from which it can safely be concluded that the actual transaction that took place between the petitioner and respondent No,1 is that of Mutation No,2222, to which respondent No,2 was also a party and the two agreements to sell were given no effect. It is also noteworthy that the sale agreements in question were not mentioned in the Mutation No, 2222 (Exh.P.W.1/3), therefore, they have lost their significance.
8. As regards specific performance/ declaration of the two agreements to sell as referred to in the preceding para, the same have not been proved in accordance with law as all the three marginal witnesses have stated in categoric terms that the sale consideration mentioned therein have not been paid in their presence. Out of three witnesses only one P.W.2 has stated that only partial payment was made in his presence whereas rest of the two marginal witnesses have expressed their ignorance with regard to payment of sale consideration in front of them. In reply to a question, P.W.4 stated that no payment, whatsoever was made by the respondent No,1 to the petitioner qua sale agreement Exh . P. W.1/2 . In his cross-examination the witness stated as under:-- {{URDU TEXT}} ' On the other hand, the petitioner/ defendant very frankly admitted the payment of sale consideration of Rs,3,87,000 qua. Mutation No,2222 and even admitted the execution of the two documents to the extent of sale alone in his written statement as well as in his deposition as DW-1, although the initial agreements in question were executed to the extent of 2550 square feet of land.
Perusal of the record shows that according to the said mutation the petitioner transferred 1950 square feet (7-1/2 Marla) in favour of respondent No,1 and No,2 according to the actual sale consideration which has duly been mentioned in the Mutation No, 2222 (Exh.P.W.1/3). Thus, in the light of available record, stance of respondent/No,1 regarding the sale agreements in question is baseless and judgments and decrees of both the Courts below are illegal and the result of misreading and non-reading of the evidence available on record.
9. Without prejudice to the above mentioned facts, respondent No, 1/plaintiff filed suit for declaration by dint of two unregistered documents which would neither create any title nor any right or interest in the disputed land as envisaged under section 49 of the Registration Act, 1908, as such, declaratory suit under section 42 of the Specific Relief Act, 1877 on the basis of the two deeds in question is not permissible and, therefore, suit for declaration would not be maintainable. Even if suit of the respondent No,1 be considered as to be that of specific performance, then under the law of limitation, period for filing a suit for specific performance of contract is three years but record shows that the agreements in question were executed in June, 2006 whereas respondent No,1 filed his suit on 25-4-2011 i,e, after lapse of five years, therefore, suit of the respondent No,1 is hopelessly time-barred especially when the respondent No,1/plaintiff has not uttered a single word in his plaint as to when he got cause of action against the petitioner/ defendant, therefore, on this score too suit of the respondent No,1 is not maintainable. Reliance in this regard can be placed on 2011 YLR 890.
10. For what has been discussed above, this revision petition is allowed, the impugned judgments and decrees of both the Courts below are set aside and suit of the respondent No, 1/plaintiff is dismissed.