AHMAD ALI, J.--- Through the instant Civil Revision petitioners have called in question the vires of judgment/decree dated 26.06.2019 of the learned Additional District Judge-I Mardan whereby their appeal filed against judgment/decree dated 07.10.2016 of the learned trial Court, was dismissed with cost of Rs. 50,000/-.
2. Brief facts for the disposal of this, revision petition are that petitioners filed a suit seeking therein declaration of ownership in respect of the property measuring 45 kanals including 03 Kanals-15 Marlas entered in the name of respondent No. 1 on the ground that she had relinquished the said share out of the legacy of her father in favour of petitioners in exchange of 04 Kanals of land where she has constructed house and that all this transaction was done through her son and nephew i.e. respondents No. 2 & 3 respectively . Thus respondent No. 1 has no rights in the suit chunk of land, described in the head-note of the plaint, and therefore, she is liable to transfer the said property in favour , of petitioners. In the plaint, petitioners contend that the suit property was actually owned by their predecessor namely Haji Kazam and after his death, the respondent No. 1 being his daughter inherited 03 Kanals- 15 Marlas. A dispute between the siblings i.e. legal heirs of Haji Kazam arose and the matter was then referred to elders for its resolution which culminated upon agreement dated 17.07.1995. According to the said agreement respondent No. 1 agreed to surrender her inherited share in the exchange of 04 Kanals land. 04 Kanals land was transferred to her through respondents No. 2 & 3 but she failed to perform her part of the agreement.
3. The suit of petitioners was processed in accordance with law by the learned trial Court where respondents contested the suit and finally the same stood dismissed vide Judgment/Decree dated 07.10.2016 by the learned trial court. The appeal of petitioners was also dismissed vide judgment/decree dated 26.06.2019 and present revision has been preferred against the concurrent finding of the two courts below .
4. Learned counsel for the petitioner argued that parties had agreed to agreement deed dated 17.07.1995 and now respondents are bound to act upon the same as the property was transferred in favour of respondent No. 1 by Mst.
Nuzhat Begum and Sanam Sardar . That the findings of two courts below suffer from misreading and non-reading of the important record of the case. He argued that the cost imposed upon petitioners by the learned appellate Court is too harsh and is liable to be set aside as the appeal is a legal right of petitioners.
5. Arguments heard and record gone through,,
6. Record manifests that the case of petitioners mainly hinges upon the agreement dated 17.07.1995 (Ex.P .W.3/1) and they are impliedly seeking enforcement of the said agreement through the present suit which was filed on 16:04.2012 for declaration and permanent injunction on basis of ibid. Although the alleged agreement arrived between parties in the year 1995, but petitioners slept over the same for about 17 years before approaching the Court. Law favours the vigilant and not indolent. Petitioners were 'not vigilant in asserting their rights by filing suit There is nothing to suggest that petitioners had performed any overt act to keep the said agreement alive. Also, there is nothing to show that any reminde rs or notices were issued to respondent No. 1 to perform her part of the agreement. Hence, the suit for declaration is not competent because the very foundation of the suit i.e. agreement dated 17.07.1995 has been expired and cannot operate any legal binding. Reliance is placed on the case titled Ainuddin and others VS. Abdullah and another (2019 SCMR 880 ).
7. The agreement deed dated 17.07.1995, Ex-PW 3/1, also seems to be bogus since in plaint petitioners alleged that there was agreement to sell under process between them and vendors namely Mst, Nuzhat Begum and Mst.
Sanam Sardar Begum whereby it was agreed between the parties that petitioners shall transfer the area to be purchased from the vendors directly in the name of respondent no.1 or her nominee but contents of agreement to sell, Ex.PW 4/1, reflect that it was executed on 01.07.1996, year before the agreement deed dated 17.07.1995, and there is no mentioning of fact that the vendors or their general attorney shall transfer the so purchased landed property in the name of respondent no. 1 or her nominee. Second, Sardar Ali was though the general attorney of Mst. Nuzhat Begum ad Mst. Sardar . Begum but no particulars regarding general power of attorney are mentioned in the sale agreement. Third, as per contents of agreement to sell, Mst. Nuzhat and Mst. Sardar became owners of their shares through inheritance mutation no.8, which was attested on 30.08.1995, then, how this was possible that their attorney agreed to sell their shares in favour of petitioners at the time of execution of agreement deed dated 17.07.1995, which was much prior than their (vendors) becoming the owners of respective shares. This is universal rule that inheritance opens on the demise of legator and it is admitted by PW-8, special attorney for petitioners, in his cross-examination that deceased Kazim has died in 2003. As Kazim has died in 2003, whereas, inheritance mutation no.1353 was attested on 24.03.2003, then, how it was possible for respondent no. 1 to enter into agreement regarding transfer of her share to be received through inheritance on the death of her father in the names of petitioners in advance because time of death of any person is not known. Petitioners alleged that they have performed their part of the contract by transferring an area of 4 kanal in the name of respondent no. 2 (Sardar Khan) at the request of respondent no. 1 but perusal of mutation suggests that it was a sale mutation and not exchange mutation and respondent no.2 has directly purchased an area of only five marla vide mutations no. 21, 22, 10, 19, 23, Ex.PW 1/1 to Ex.PW 1/5. Terms and conditions set in the agreement deed speak about the transfer of 4 kanal area in the name of respondent no. 1 or her nominee through exchange mutation but petitioners have not entered any mutation in favour of any of respondents, therefore, it is held that petitioners have got no cause of action.
8. It is worthy to mention that although there is no time frame for the compliance of agreement dated 17.07.1995, yet it was to be done within the reasonable time which otherwise provided in the Limitation Act, 1908, as three years. Limitation starts form the date of the refusal, but in absence of any refusal too it becomes the duty of beneficiary to make efforts to safeguard his rights and if no such efforts are made that after the lapse of three year's he barred by the law of limitation to file suit. Herein the present case on one hand, no date of refusal has been mentioned in the plaint to calculate the limitations, whereas on the other , there is inordinate delay of about seventeen years, hence, the limitation would not start from the refusal for the simple reason that it is equal responsibility of one asserting his rights to step in the court within the scope of limitation even where there is no refusal on the part of the other party . Reliance is placed on Mst. Kubra Amjad VS. Mst. Yasmeen Tariq and others (PLD 2019 Supreme Court 677) .
9. Apart from above, there is nothing on the entire case record that the agreemen t dated 17.07.1995 was with the consent of respondent No. 1 nor there is anything on record which could have suggested that the respondent No. 1 expressed her consent over the said agreement. Learned counsel for petitioners has not been able to point out any error in the concurrent findings of facts recorded by the two courts. There is no misreading and non-reading of the record and law nor there is an error in the exercise of jurisdiction by the courts below .
10. The decrees of concurrence passed by the two Courts below about the dismissal of the petitioner's suit are quite justified and clearly unexceptionable.
11. There is no case made out at all for the exercise of revisional jurisdiction. Hence, dismissed in limine.