AZHAR SALEEM BABAR, J. The above titled appeal has been filed against the judgment and decree passed by District Judge Hattian Bala dated 25.03.2014.
2. Facts leading to the instant appeal are that Kh. Ali Mohammad being represented by respondents herein, filed a suit for possession against Khadim Hussain and others pertaining to land under Khasra No. 21 measuring 15 kanal along with house situated in Village Chakoti on 03.07.1986 by contending that he handed over the land to Khadim Hussain for cultivation. It was further contended that Khadim Hussian went to Pakistan and handed over the land to defendants Nos. 2 and 3. It was contended that respondent No. 1 in connivance with respondents Nos. 2 and 3 registered fake and bogus mutation. The suit-land was pledge by Zari Traqiati Bank.
3. Suit was contested by the defendants by filing written statement wherein it was contended that the plaintiff has no cause of action to file the suit. It was further contended that defendant No. 1 purchased the land in the year 1969 for a sum of Rs. 36000/- and constructed a house on the suit- land.
4. Khadim Hussain also filed a declaratory suit for specific performance of contract against Kh. Ali Mohammad by contending that Kh. Ali Mohammad the executor had promised to sell the land for a sum of Rs. 36,000/- but has refused to execute the sale-deed in furtherance of agreement-to- sell a week or 10 days ago, when he was asked to execute a sale-deed. Learned trial Court consolidated both the suits and following issues were framed in light of pleadings of the parties on 13.10.1983:-- {{URDU TEXT}}
5. After framing issues the, parties were directed to lead evidence. At the conclusion of the proceedings learned trial Court decreed the suit filed by Khadim Hussain while the suit tiled by Kh.
Ali Mohammad was dismissed. Feeling aggrieved, Kh. Ali Mohammad filed an appeal before District Judge Hattian Bala. Learned District Judge accepted the appeal while dismissing the suit for specific performance of contract filed by Khadim Hussain and decreed the suit for possession filed by Kh. Ali Mohammad. Peeling dissatisfied, the appellants have filed an appeal before this Court.
6. I have heard learned counsel for the parties and perused the record. Learned counsel for the respondents raised a preliminary objection that the instant appeal was filed by Mr. Mohammad Yaqoob Khan Mughal Advocate who remained counsel for the respondents in the Court below. He further emphasized that Mr. Mohammad Yaqoob Khan Mughal Advocate was not competent to plead the case on behalf of the appellants so the appeal is incompetent. He explained that the memorandum of appeal has not been signed by the appellants and Mr. Aftab Ahmed Advocate filed his Wakalatnama after expiration of period of limitation so the appeal is incompetent and is liable to be dismissed on this sole ground. The argument cannot be concurred with for the reason that it can be an irregularity which does not affect the maintainability of appeal. Mr. Mohammad Yaqoob Khan Mughal Advocate, after gaining knowledge of the fact that he is not competent to plead the case on behalf of appellants, withdrew his power of attorney which has been cancelled by the Court vide order dated 28.12.2017. He has been replaced by Mr. Aftab Ahmed Awan and Haider Rasheed Mughal Advocates on the same date. It may be stated here that Mr. Mohammad Yaqoob Khan Mughal Advocate did not insist on his competency to plead the case and rather sought adjournment on objection of learned counsel for the respondents. I am, therefore, of the opinion that filing of appeal through Mr. Mohammad Yaqoob Khan Mughal Advocate is not an illegality and is an irregularity which has been rectified later on.
7. Bone of contention between the parties is an agreement-to-sell dated 09.10.1982. Learned 1st Appellate Court has opined that suit for specific performance of contract filed by Khadim Hussain is hit by the law of limitation. It may be reiterated here that Kh. Ali Mohammad predecessor of respondents herein filed a suit for possession of land on the basis of ownership. He contended that he had handed over the land to Khadim Hussian for cultivation. On the other hand, Khadim Hussian, the appellant filed a suit for specific performance of contract dated 09.10.1982 by contending that Kh. Ali Mohammad, the executor had promised to sell the land for a sum of Rs.
36,000/- but has refused to execute the sale-deed in furtherance of agreement-to-sell a week or 10 days before, when he was asked to execute a sale-deed. Kh. Ali Mohammad predecessor of respondents herein filed a suit for possession in the Court of Sub Judge Hattian Bala initially on 03.07.1986 whereas Khadim Hussain filed a declaratory suit for specific performance of contract in the Court of Sub Judge Hattian on 04.11.1990. It is worth adding here that Khadim Hussain previously filed a suit for declaration in the Court of Sub Judge Hattian on 07.04.1983 by contending that he is owner of land on the basis of oral sale of the year 1969 for a sum of Rs. 36000/-. He further contended that he is in adverse possession of suit-land for over 12 years which has ripened into ownership. Sub Judge Hattian Bala delivered a consolidated judgment on 31.05.1988 and decreed the suit filed by Khadim Hussain. Kh. Ali Mohammad filed an appeal in the Court of District Judge Muzaffarabad, however, he filed an application for withdrawal of suit with permission to file a fresh suit. The application was accepted and the suit was returned to Khadim Hussain. He filed a suit for specific performance of contract dated 09.10.1982 which is under appeal now.
8. Learned counsel for the respondents has mainly focused on the point of limitation during his arguments. He is of the opinion that previous suit filed by Khadim Hussian in the year 1983 was based on the same agreement-to-sell dated 09.10.1982. While referring to Article 113 of the Limitation Act, learned counsel for the respondents stressed that maximum limitation for filing a suit for specific performance of contract is 03 years, so the suit filed by the appellants herein is barred by law of limitation. In his view the disputed agreement-to-sell itself contains a period of 3 months for execution of sale-deed. So, period of limitation would start after 3 months of execution of agreement-to-sell he argued. Ch. Amjad Ali, Advocate appearing on behalf of respondents has relied on the following cases law.
2016 CLC 1268 It has been concluded that limitation period for a suit for specific performance of contract was 03 years from the date fixed for performance and if no such date was fixed, when the plaintiff had notice that performance had been refused.
2000 YLR 2392 It has been concluded by the Hon'ble Supreme Court of Azad Jammu and Kashmir that if a date is fixed for performance of an act in the agreement, the period of limitation would start from the said date and if no such date is fixed, it would start from the date of refusal. The apex Court further concluded that in the instant case although no specific date was fixed yet, it was specifically written in the agreement and that the sale-deed would be executed after the final adjudication of litigation between respondent No. 1 and others which is pending in the civil Court. Term "dates fixed" used under Article 113 Limitation Act would be inclusive of any date so ascertained. In the instant case, the suit should have been instituted within 03 years of termination of litigation between respondent No. 1 and others which took place on 10.01.1974. No application for -condonation of delay was made. Appeal dismissed.
2001 CLC 946 It was the case of amendment in the plaint. The Apex Court held that the plaintiff despite having full knowledge of objections kept on pursuing their remedy before a wrong forum for nearly about 9 years and then chose to file the suit before District Judge when period of limitation had already elapsed. Application for amendment was dismissed being barred by limitation.
PLD 2016 Lahore 487 It has been decided by learned Lahore High Court that arbitration proceedings are independent of a suit for specific performance of contract and benefit of Section 14 Limitation Act cannot be extended to the plaintiff for filing a suit for specific performance of contract on the pretext that he was pursuing the case in arbitration proceedings bona fide.
2016 CLC 1527 Islamabad Learned High Court Islamabad decided that limitation for filing a suit for specific performance of contract is 03 years under Article 113 of Limitation Act.
9. In order to resolve the point of limitation, it has to be ascertained that whether any period for performance of agreement has been mentioned therein. Agreement-to-sell dated 09.10.1982 is part of file of the Court below as Exh. "DA". It states that Kh. All Mohammad decided to sell his land under survey No. 21 measuring 20 kanal for a sum of Rs. 36,000/- to Khadim Hussain son of Kala Khan. The deed further explained that acreage of land under survey No. 21 is 15 kanal in the revenue record, however, on the site acreage of land is more than 15 kanal. It was agreed by Kh. Ali Mohammad, the executor that survey No. 21 shall be got measured and if it comes out to be 15 kanal the executor would be liable to make up the deficiency of 5 kanal from survey No. 22. The agreement deed further explained that the price of land was fixed at Rs. 1,800/- per kanal which comes out to be Rs.36,000/- for 20 kanal. In relation to execution of agreement-to- sell it was agreed by Kh. Ali Mohammad as under: {{URDU TEXT}}
10. The 1st Appellate Court is of the opinion that mentioning of 02/03 month time in agreement-to- sell relates to limitation for filing the suit on the basis of this agreement. This is not a true perception of the matter because mentioning of 02/03 months time relates to payment of outstanding amount of Rs. 13,000/-. As regard, limitation for filing of suit, it has been agreed by Kh. Ali Mohammad, the executor that a sale-deed would be registered as soon as Khadim Hussain provides his State Subject Certificate and pays outstanding amount of Rs. 13,000/-. There is no evidence on record that the executor demanded the outstanding amount of Rs. 13,000/- from Khadim Hussain or that Khadim Hussain provided his State Subject Certificate and demanded for execution of sale-deed. Article 113 of the Limitation Act deals with the situation which provides period of three years for specific performance of contract and it has been mentioned in column 03 of the relevant Article that time from which period begins to run shall be the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
11. Learned counsel for respondents is of the view that previous suit filed by Khadim Hussain in the year 1983 was based on the same agreement i.e. 09.10.1982. Although, a copy of previous suit filed by Khadim Hussian is not on record, however, a copy of judgment in suit titled "Khadim Hussian v.
Kh. Ali Mohammad" and ,a suit titled "Kh. Ali Mohammad v. Khadim and 2 others" dated 31.05.1988 decided by Sub Judge Hattian Bala is on record. A certified copy of decree-sheet in furtherance of judgment has also been attached with the record of trial Court whereby suit filed by Khadim Hussain has been decreed on the basis of oral sale and adverse possession. A perusal of judgment further reveals that Khadim Hussain plaintiff filed his suit on the basis of oral sale of the year 1969 for a sum of Rs. 36,000/-. He claimed that he got possession of land under oral sale and is in continuous possession of the suit-land measuring 15 kanal under survey No. 21. Khadim Husain claimed adverse possession on suit-land by providing copies of Khasragirdawri of the years 1962 to 1982. He further claimed improvements on the land worth Rs. 1,00,000/- in the shape of construction of house and plantation of fruit and non-fruit trees. Whole the judgment dated 31.05.1988 does not mention a single word about agreement-to-sell dated 09.10.1982. It is, therefore, not true to presume that Khadim Hussain filed his previous suit on the basis of same agreement- to-sell dated 09.10.1982.
12. 1 have perused the rival versions of the parties in their pervious and present suits and revenue record attached with the file of trial Court as well. Agreement-to-sell dated 09.19.1982 does nor find mention in any attached revenue record. There is a copy of Jamahbandi of village Chakoti on record of trial Court as Exh. "PA" which appears to have been issued and attested by Tehsildar on 10.08.1983. It states in column 5 that Kh. Ali Mohammad purchased the land from Maqbool son of Yaqoob Shah and Ali Akbar Shah son of Ayub Shah in the year 1964 for a sum of Rs. 20,000/-. A copy of Khasragirdawri of the suit-land for the year 1973 to 1982 also finds mention of sale-deed dated 01.08.1964 whereby Kh. Ali Mohammad purchased the suit-land under survey No. 22 measuring 21 kanal. However there is no record on file to substantiate that agreement-to-sell dated 09.10.1982 was ever entered in the revenue record. It has already been mentioned that Khadim Hussain filed a declaratory suit on 13.04.1983 on the basis of oral sale and adverse possession and he did not mention the existence of agreement-tosell in his plaint. Kh. Ali Mohammad filed a suit for possession in the Court of Sub Judge Hattian on 03.07.1986 and did not mention that he ever executed an agreement-to-sell in favour of Khadim Hussain. No such deposition was made in' the rival written statements. In such circumstances, there is no other option but to believe the version of Khadim Hussain in para 2 of his plaint that he demanded from defendant (Kh. Ali Mohammad) to execute a sale-deed by admitting the plaintiff's claim but he refused to do so a week/ten days before. Period of limitation for filing a suit for specific performance of contract would, therefore, start running from 10 days before institution of suit on 04.11.1990.
13. It is noticed that both the parties have not come to the Court with clean hands and have suppressed the material facts. On the one hand, Khadim Hussain was in knowledge of agreement- to-sell dated 09.10.1982 but he filed a declaratory suit on the basis of oral sale of the year 1969 and on the basis of adverse possession in the year 1983 and on the other hand, Kh. Ali Mohammad the original plaintiff claimed possession of the suit land on the basis of ownership but concealed the fact that he has already executed an agreement-to-sell in favour of Khadim Hussain. It may be stated here that Kh. Ali Mohammad admitted the existence of agreement-to-sell dated 19.10.1982 for the first time in his written statement filed before the Court of Additional Sub-Judge Muzaffarabad on 29.07.1991. He still did not admit the execution of agreement-to-sell in total and sated as follows. {{URDU TEXT}}
14. So, Kh. Ali Mohammad in his written statement clearly admitted the existence of agreement-to- sell dated 09.10.1982. The 1st appellate Court has overlooked the conduct of Kh. Ali Mohammad, predecessor of the respondents herein and has blamed the appellants for coming to the Court with unclean hands and with contradictory versions.
In view of afore discussed circumstances, by accepting the appeal, it is concluded that suit for specific performance of contract dated 09.10.1982 filed by Khadim Hussain is within limitation from refusal of performance. Agreement-to-sell dated 09.10.1982 stands proved from evidence of the appellants/plaintiffs. The respondents are bound to execute the sale deed in favour of appellants on payment of Rs.13,000/-, failing which the sale deed shall be registered by Sub Registrar Muzaffarabad through Nazir, provided the appellant deposits the outstanding amount of Rs.
13,000/- with Sub Registrar. Sale deed shall be registered through Nazar within 60 days. Judgment and decree of the 1st Appellate Court are set-aside and of the trial Court upheld.