ALI BAIG, J.---Through the instant civil revision petition, the petitioner has called in question the impugned judgment/decree dated 16-5-2017 passed by the learned District Judge Ghizer in CFA No.28/2014, whereby , the learned First Appellate Court has dismissed the civil 1st appeal of the present petitioner/plaintif f by maintaining the judgment/decree dated 14-4-2014 passed by the learned Civil Judge 1st Class Punial/Ishkoman.
2. Precisely , the facts leading to the filing of the instant civil revision petition are that the present petitioner/plaintif f instituted a suit for specific performance of will deed dated 10th April 1962 executed by father of the petitioner before proceeding to Saudi Arabia for performing Haj, whereby , father of the petitioner and respondent No.2 had delivered his whole properties to respondent/defendant No.1 as Amanat being his son in law as plaintif f/petitioner was minor during those days. According to the contents of will the respondent/defendant No.1 was bound to deliver the possession of the suit properties to the plaintif f on his attaining age of puberty /majority . As per contents of will deed the respondent/defendant No. 1 was also entitled to get 1/4th share out of movable properties of respondent No.2 and father of the present petitioner but the respondents/defendants Nos. 1 and 2 have not returned/delivered the suit properties to the petitioner/plainti ff on his attaining of age of majority . The respondents Nos.1 and 2 have allegedly sold out some patches out of suit properties to the respondents/ defendants Nos.3 to 16 which is unlawful and ineffective on the rights of the petitio ner/plaintif f. The petitioner/plaintif f furthe r averred in the plaint that he is entitled to receive back the whole legacy/properties of his late father , therefore, the suit may be decreed in favour of the present petitioner/plaintif f.
3. The respondents/defendants Nos.1 to 4 contested the suit by way of filing of their joint written statement in the learned trial court on 20-12-2006 wher ein they have raised as many as 22 legal objections and have also repudiated the averments of plaint by pleading that the properties/legacy of father of the petitioner/plaintif f was delivered to him by the respondent/defendant No. 1 in the year 1969 after his attaining age of majority and after taking possession of suit land the petitioner/plaintif f has signed on acknowledgment receipt in presence of Raja/Governor Ishkoman namely Raja Sultan Ghazi Khan. The respondents/defendants Nos. 1 to 4 have further averred in written statement that since the petitioner/ plaintif f is an opium addict and after taking possession of suit lands he has sold out most of his landed properties to dif ferent people including present respondents Nos. 5 to 16.
4. Out of divergent pleadings of the parties the learned trial court has famed the following issues:- Issue No.1: Whether the disputed lands, houses and trees are legacy of father of the plaintif f and in the year 1962 before leaving for Hajj the father of the plaintif f had transferred those lands to defendants Nos.1 and 2 as Amanat through a will deed? OPP Issue No.2.
Whether under the said will deed defendant No.1 was entitled to receive 1/4th share from the immovable property/money and two fields from patch No. 4 only? OPP Issue No. 3.
Whether defendants Nos. 1 and 2 have unlawfully and forcefully got possession of whole legacy of father of plaintif f and from the suit land have sold lands to defendants No. 3 to 16 without consent and permission of the plaintif f therefore, defendants are laible to be ejected from the suit lands? OPP Issue No. 4.
Whether defendants Nos.1 and 2 have not delivered possession of the suit lands to the plaintif f according to the will deed on his attaining majority rather plaintif f has started living in Ishkoman Kot on a certain part of land of his father and has subsequently exchanged it with another land situated in mominabad Ishkoman and has started living on it?
OPP Issue No. 5.
Whether patches Nos. 11 and 12 of the suit property are part of ancestral lands of the plaintif f and patch No. 9 of the suit land is purchased by the plaintif f for sale consideration from Raja Shah Rais Khan and the houses constructed on it are liable to be dismantled? OPP Issue No. 6.
Whether piece No. 10 of the suit land is purchased by father of the plaintif f after sale of his land in Ishkoman and payment of land compensation amount? OPP Issue No. 7.
Whether plaintif f is entitled to recover possession of land under patches Nos.1, 3, 5 to 8 and 10 to 14 and the land underlying patch Nos.9 and 76 kanals land from patch No.4 from the defendants? OPP Issue No.8 .
Whether the suit is within time? OPP Issue No. 9.
Whether the suit of the plaintif f is not drafted according to law hence, libale to be rejected? OPD Issue No. 10.
Whether the suit is liable to be dismissed under Order VII, Rule 1 1, C.P .C.? OPD Issue No. 1 1.
Whether defendant No.1 had improved manifold the lands and business of the father of the plaintif f and has handed over the same to the plaintif f about 35 years before the institution of the suit? OPD Issue No. 12.
Whether the plaintif f has with his own free will sold major part of the suit lands situated in Ishkoman and has himself exchanged and transferred it to others? OPD Issue No. 13.
Whether patch No.9 of the suit land was purchased collectively by plaintif f and defendant No.1 and in the year 1969 in recognition of services of defendant No.1 the plaintif f has gifted his share in that land to defendant No.1 in the Name of Allah vide registered deed No.18? OPD Issue No. 14 Whether one set house situated at Kashrote Gilgit is purchased by defendants No.1 with his own resources? OPD Issued No. 15.
Whether patches Nos. 3 and 6 of the suit property have been sold by the plaintif f to one namely Sifat Gujjar which is obtained by defendant No.1 in exercise of his right of prior purchase and defendant No.1 developed and improved it spending lacs of rupees? OPD Issue No. 16.
Whether the plaintif f has due to his opium addiction sold the whole properties for pennies? OPD Issue No. 17.
Relief.
5. After framing of the above mentioned issues the parties led their respective evidence in the trial court. The plaintif f/petitioner has produced two oral witnesses besides recording of his own statement through his attorney/son namely Roshan Khan in the trial court. The petitioner/plaintif f has also produced some documentary evidence Exh.P/1 to Exh.P/3.
6. The contesting respondents/defendants have also produced 5 oral witnesses besides recording of their own statement through their attorney namely Mohammad Afzal son of Haji Naimat in the trial court. The respondents/ defendants have also produced documentary evidence Exh D/1 to Exh D/3 in the trial court. The plaintif f/petitioner has also produced two oral witnesses in rebuttal in the learned trial court.
7. On conclusion of trial, the learned trial court, after hearing arguments on behalf of both the parties, has dismissed the suit of the petitioner/plaintif f vide judgment/decree dated 14-4-20 14. The plaintif f/petitioner had challenged the aforementioned judgment /decree of the learned trial court through a civil 1st appeal in the court of the learned District Judge Ghizer . The learned First Appellate Court after hearing arguments on behalf both the parties has also dismissed the civil 1st appeal of the, present petitioner/plaintif f vide the impugned judgment/decree dated 16-5-2017, hence this revision petition.
8. The learned counsel appearing on behalf of the petitioner contended that the impugned judgment/decree passed by the learned trial court is contrary to law and facts on the record of the case as such the impugned judgment/decree passed by the learned District Judge Ghizer is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the petitioner/plaintif f had proved his case/claim by adducing reliable and cogent oral and documentary evidence in the learned trial court but the learned trial court as well as the learned 1st appellate courts have wrongly dismissed the suit of the plaintif f/present petitioner . The learned counsel for the petitioner/plaintif f further argued that the impugned judgments passed by both the courts below are result of misreading and non-reading of evidence on record as such the judgments/decrees passed by both the learned courts below are not sustainable and liable to be set aside.
9. On the other hand the learned counsel for the, respondents vehemently opposed the arguments advanced by the learned counsel for the petitioner and defended the judgments/decrees passed by both the courts below by contending that since the suit of the petitioner was hopelessly time barred as limitation for filing of suit for specific performance of contract is provided in the Article 113 of the Limitation Act, 1908, which provides three years period for filing of suit, whereas the plaintif f/petitioner had attained the age of majority in the year of 1967 and suit property has been delivered to the plaintif f in the year 1969 and suit has been filed in the trial court on 15-7-2006. The learned counsel for the respondents/defendants further argued that the plaintif f/petitioner has filed suit for specific performance of will deed which is not permissible under law, thus the suit of the plaintif f was not maintainable and the learned courts below have rightly dismissed the suit of the plaintif f/ petitioner . Concluding his arguments the learned counsel for the respondents argued that plaintif f/petitioner has also failed to prove his claim by adducing reliable and cogent evidence in the learned trial court, hence both the learned courts below have rightly dismissed the suit of the plaintif f/petitioner vide the impugned judgments which may be maintained and this revision petition of the petitioner may be dismissed in the interest of justice.
10. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
11. It is a case of plaintif f/petitioner that father of the plaintif f namely late Haji Rehmat Ullah was owner of the suit properties fully described in the head note of plaint and in the year 1962 father of the petitioner proceeded to Saudi Arabia to perform Hajj and executed a will deed Exh P/1 whereby he had handed over his whole landed properties to the respondent/ defendant No. 1 as Amanat being his son in law as the plaintif f was minor and he was not in a position to lookafter his properties. As per contents of will deed the defendant/ respondent No.1 namely Haji Niamat Khan was duty bound to deliver the possession of suit properties to the plaintif f/present petitioner on his attaining the age of puberty/majority but the respondent No.1 failed to deliver the suit proper ty to the petitioner/plaintif f on his attaining age of puberty . Thus the petitioner/plaintif f had filed the suit for specific performance of will deed in the trial court.
12. The attorney of the plaintif f/petitione r in his cross examination has admitted that the plaintif f/petitioner had contracted marriage in the year 1967, hence the petitioner has attained the age of puberty in the year 1967 as such cause of action has accurred to the plaintif f in the year 1967 to file the Suit. Suit for specific performance of agreement/contract to sell is governed by Article 113 of the Limitation Act, 1908 which provides three years period for filing of suit from the date fixed for specific performance of the agreement. Moreover , as per acknowledgment receipt dated 23-01-1969 prepared/execu ted in presence of Raja Sultan Ghazi Khan the then Governor Ishkoman the suit property was handed over to the plaintif f/petitioner in the year 1969 and the plaintif f has filed the suit after lapse of more than 37/39 years of his attaining the age of puberty , hence the suit of the plaintif f was hopelessly time barred and the learned trial court as well as the learned 1st appellate court have rightly dismissed the suit of the petitioner/plaintif f.
13. Furthermore, the plaintif f has filed suit for specific performance of will deed which is not valid agreement and suit for specific performance can only be filed for performance of an agreement to sell. It is an established principle of law that for the constitution of a valid agreement there must be at least two persons, promisee and promiser , who agree with their free consent for a lawful object and legal consideration which is also the requirement of Section 2 of the Contract Act, whereas in the-present case the very first condition i.e. presence of at least two parties to the agreement is missing and will deed Exh P/1 only contains the signature/thumb impression of father of the plaintif f/ petitioner namely late Rehmat Ullah. The word" agreement " is defined in Section 2 (a) (b) and (c) of the contract Act which means offer/proposal by one person and acceptance or willingness to accept the offer by the other person and in the absence of either the two i.e. offer and acceptance, the same would not ripe into an agreement as held by the Hon'ble Supreme Court of Pakistan in reported judgment 1990 SCMR 28 as under:- "Only an agreement based on an offer and acceptance can be enforced by a suit for specific performance and any document carrying other than proposal and acceptance would not qualify as a transaction of agreement to maintain suit for specific performance of agreement."
Further in reported judgment 1995 CLC 707 a learned Single Bench of the Hon'ble Sindh High Court has also held as under:- "Mere signing of memorandum of unders tanding could not be termed as a valid agreement in the eyes of law and unless an agreement was finalized no legal or valid right would accrue to the plaintiff on the basis of memorandum of understanding."
Moreover in this connection reference is also made to the reported Judgment of the Hon'ble Lahore High Court reported in 2008 CLC 175 .
14. In view of the matter , I am of the firmed opinion that the will Exh p/1 neither fulfills the requirement of agreement as defined in Section 2(a), (b) and (c) of the Contract Act nor stand to the test of law as declared by the Hon'ble superior courts. Furthermore, the will deed Ex-P/1 neither discloses the full description of the parties nor the terms and conditions of agreement hence, the suit of the plaintif f/ petitioner was not maintainable.
15. I have gone through the statements of witnesses of the plaintif f/petitioner recorded before the trial court and found that the petitioner has failed to prove his case/claim by adducing reliable oral or documentary evidence in the trial court.
16. In the wake of above discussion, I have come to the conclusion that both the courts below have not committed any material irregularity or illegality while passing the impugned judgments/decrees and the impugned judgments/decrees are also not result of misreading and non-reading of evidence of the parties. High Court/this court normally does not interfere in the- concurrent findings of facts recorded by two courts below . Consequently , this revision petition having no substanc e is hereby dismissed and impugned judgment/decree dated 16-5-2017 passed by the learned District Judge Ghizer is maintained. Parties are left to bear their own cost. File.