ZAFAR AHMED RAJPUT, J.---By invoking the revisional jurisdiction of this Court under section 115 C.P.C., the applicant above-named has preferred this civil revision against the concurrent judgments of dismissal of his suit bearing No.91 of 2006 by learned 1st Senior Civil Judge, Hyderabad upheld in Appellate judgment recorded in Civil Appeal No.205 of 2012 by the learned 1st Addl. District Judge, Hyderabad.
2. Briefly stated, the facts of the case are that the applicant/plaintiff filed a suit for specific performance and permanent injunction against the respondents/defendants bearing bearing F. C.
Suit No. No.91 of 2006 averring therein that on 31-10- 1989 the respondent No.1 for self and as attorney of the respondents Nos. 2 to 12, rented out the suit property i.e. Shop No. 6, situated in M.R.
Market, built on plot No. 10/A, Block "C", Unit No. 7, Latifabad, Hyderabad to him at the monthly rent of Rs. 400/- per month and the applicant paid Rs. 1,40,000/- to respondent No.1 as fixed deposit.
Thereafter, on 08-08-1995 the respondents jointly agreed to sell out the said property to applicant by executing agreement of sale for total consideration of Rs. 2,70,000/=, out of which the respondents received Rs. 2,20,000/=, in cash, from the applicant on different dates before the execution of the agreement of sale and it was settled that the applicant would pay remaining sale consideration amounting to Rs.50,000/= to respondents and the respondents shall get the sale deed executed in his favour within one year from the date of execution of sale agreement. It is also stated that it was agreed between both the parties that on execution of agreement of sale the relationship of landlord and tenant would come to an end and the applicants would not pay the rent to respondents. It is further stated that the respondents had assured the applicant that they would get necessary title documents from the competent authority for the purpose of execution of final sale deed and whenever the required documents would be available with the respondents, they would inform the applicant. It is claimed by the applicant that he is in possession of the suit property as a prospective purchaser and owner and he is ready to perform his part of contract. It is case of the applicant that he came to know that the respondents are trying to sell out the suit property and the entire building to one Salman Builder and other builder at a higher price and they are deliberately avoiding to perform their part of contract with mala fide intention and ulterior motive; and when the respondents refused him flatly from execution of registered sale deed in his favour, he issued a notice dated 10-04-2006 to respondents but they avoided to receive; hence, the cause of action accrued to applicant for filing of the suit for specific performance of contract.
3. Respondent/defendant No.11 filed his written statement wherein he denied the claim of the applicant/plaintiff for execution of any sale agreement in his favour and asserted that the applicant is a tenant in shop and he (defendant No.11) has neither received any amount as fixed deposit from the applicant nor he executed alleged sale agreement or received any money as alleged by the applicant. He has also asserted that the alleged sale agreement was forged and managed by the applicant to usurp the property. He has further asserted that since he has not executed alleged sale agreement, there exists relationship of landlord and tenant between applicant and him. Refuting the claim of the applicant, he has stated that the applicant is not a prospective purchaser and since there is no agreement of sale, the question of its performance does not arise. Regarding possession of the shop, he has stated that the applicant is in possession of the shop as tenant and not as owner. He has also raised legal objection over the maintainability of the suit.
4. The respondents/defendants Nos. 1 to 10 and 12 did not filed their written statement and they were declared ex parte vide order dated 12-12-2006.
5. From divergent pleadings of the parties, the learned trial Court framed following six issues:
(1) Whether the suit of plaintiff is barred under any provision of law as such is not maintainable?
(2) Whether the suit is bad for mis-joinder and non-joinder of necessary party?
(3) Whether no cause of action was accrued to the plaintiff for filing the instant suit?
(4) Whether the defendants No.2 to 12 rented out the suit property to plaintiff on 31-10-1989 at the rate of Rs. 400/- per month and also paid Rs. I,40,000/- to defendant No. 1 as fix deposit?
(5)Whether on 08-08-1985 the defendatits jointly agreed to sale out the suit property to the plaintiff vide agreement of sale on consideration of Rs. 2,70,000/- and has received a sum of Rs.
2,20,000/-from the plaintiff on different dates?
(6) Whether it was agreed between the parties that remaining amount of Rs. 50,000/- will be received by the defendants from plaintiff within one year from execution and will also get registered sale deed of the suit property in favour of plaintiff?
(7) Whether defendant also received a sum of Rs. 10,000/- from the plaintiff after execution of agreement of sale?
(8) Whether the plaintiff is in possession of suit property under sale agreement dated 08-08-1995?
(9) Whether the defendants failed to perform their part of contract?
(10) Whether alleged sale agreement is forged and fabricated document and was not signed by the defendant No.11?
(11) Whether the plaintiff is entitled to the relief prayed for?
(12) What should the decree be?
6. After recording evidence of the parties in suit and hearing the arguments of the parties, the learned trial Court answered the issues Nos.1 to 3 and 10 in "Affirmative"; issues Nos. 4 to 9 in "Not Proved" issue No. 11 in "Negative" and while deciding issue No.12, the learned trial Court dismissed the suit of applicant/plaintiff vide judgment and decree dated 23.05.2012 and 24-05-2012, respectively. The applicant/ plaintiff preferred Civil Appeal No.205 of 2012 before the learned District Judge, Hyderabad, which was heard and dismissed by the learned Court of 1st Addl. District Judge, Hyderabad, vide judgment and decree dated 11.01.2013. Aggrieved by the concurrent findings of the Courts below, the applicant/plaintiff has preferred this revision application.
7. I have heard Mr. Ghulam Sarwar Qureshi Advocate, learned counsel for the applicant/plaintiff and perused the material on record.
8. It is now well settled principle of law that the powers of High Court in revisional jurisdiction under section 115 C.P.C. Are very limited. On reappraisal of the evidence, even if a different view is possible, the High Court cannot substitute its own view and upset the findings of facts concurrently arrived at by the Courts below.. Even incorrect decision by the Court having jurisdiction and erroneous decision of fact are not revisable except in case where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result there from. In other words such findings can only be interfered with if the Courts below have misread and misconstrued the evidence on record or have committed any jurisdictional error or any material irregularity and illegality in arriving at such findings. Reliance can be placed in this regard on the case of Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88), Muhammad Bux v. Muhammad All (1984 SCM R 504), Kanwal Nain and others v. Fateh Khan and others (PLD 1984 SC 53) and Abdul Ghaffar v. Jamaluddin (1986 CLC 747).
9. At very outset the learned counsel for the applicant failed to point out any misreading and non- reading of evidence or any misconceiving of fact or commission of any jurisdictional error by the learned Courts below.
10. Under Article 113 of the Limitation Act, 1908, the period provided for filing of a suit for specific performance of contract is 3 years, that commence from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. The alleged agreement of sale was executed on 08-08-1995 but the suit was filed for specific performance of contract on 31-05-2006, after lapse of more than 10 years; while, the time fixed for execution of sale deed was within one year from the date of execution of alleged agreement of sale. Applicant has failed to explain as to why he remained mum for 10 years and did not file the suit within three years.
If he had approached the respondents for performance of their part of contract by executing registered sale deed in 10 preceding years, he should have brought on record through cogent evidence the endeavor taken by him after expiry of one year period fixed in the alleged sale agreement and refusal of respondents. The applicant has not mentioned on which date, month and year he approached to respondents for execution of sale deed. Merely serving a notice upon the respondent on 10-04-2006 does not provide a cause of action to applicant for maintaining the suit for specific performance of contract after lapse of 10 years of alleged sale agreement.
Therefore, the learned Courts below have rightly held the suit of applicant hopelessly time barred under Limitation Act, 1908. Besides, the learned trial Court has observed in its findings on issues No.2 and 3 that the respondents/defendants were not owners of the suit shop as the allotment order leased deed issued in favour of their predecessor Muhammad Khan in respect of the plot bearing No. 10/A, Block-"C", Unit No. 7, Latifabad, Hyderabad, upon which the suit shop is constructed, was already cancelled on 15-05-1965, and the matter of cancellation of allotment on the name of predecessor of respondents remained subjudiced on various legal forum. Meaning thereby the respondents who claims the title of the suit shop by the operation of law of inheritance, were not the owners of the suit shop at the time of alleged sale agreement, therefore, they had no legal capacity to execute the alleged sale agreement in favour of applicant.
11. On the factual side of the matter, it appears that the applicant has sought decree of specific performance of contract in his favour; therefore, under Articles 79 and 117 of the Qanun-e- Shahadat Order, 1979 the initial onus rested upon the applicant to prove his case. The alleged agreement of sale is attested by only one attesting witness, namely, Intizar Hussain, it must have been attested by two witnesses, as required by Article 79 of the Qanun-e-Shahadat Order, 1984.
The attesting witness Intizar Hussain has admitted in cross-examination that he is brother-in-law of the applicant hence he appears to be interested witness. The receipt of payment produced by the applicant also reveals that the same is allegedly signed by the respondent/defendant No.1, who is admittedly not the attorney of other 11 respondents/defendants. Hence, the applicant has failed to prove payment of alleged sale consideration.
12. In view of the above, as no case is ride out on the ground of any material irregularity or exercise of jurisdiction not vested in the courts or failure of exercise of jurisdiction vested in it, the impugned judgments of lower courts do not call for any interference or exercise of discretion on any point of law in this case of concurrent finding. Accordingly, this instant civil revision application is dismissed in limine, along with listed application, with no order as to costs.
13. By my short order dated 7-11-2014 the instant civil revision was dismissed and above is the reasons for the said order in limine.