CH. MUHAMMAD MASOOD JAHANGIR, J.----The instant second appeal was filed against the judgment dated 03.04.2010, whereby learned Appellate Court below while allowing first appeal of the respondents/plaintif fs, reversed decision of the learned Trial Court and decreed their declaratory suit based upon alleged exchange contract dated 22.03.1995 (Ex:P1).
2. The condensed facts of the case were that Sher Muhammad (ascendants of respondents Nos.1 to 4) as well as Muhammad Afzal and Muhammad Ismail (respondents Nos.5 and 6), three real brothers, were joint owners in equal shares of 651/2Kanas situated in Mauza Deenar . On the same pattern, Muhammad Latif (ascendant of appellants Nos,1 to 5), Muhammad Rafique, appellant Nos.6 and Muhammad Sharif (predecessor-in-interest of appellants Nos,7 to 10) were also brothers inter se, who too were titleholders in equal shares of 651/2Kanals in same Mauza. The respondents/plaintif fs on 22.04.2002 instituted suit against the appellants for declaring them exclusive owners of land vested to the latters/defendants as they had purportedly exchanged it vide agreement dated 22.03.1995 (Exh.P1). The appellants/defendants seriously contested the suit with two-fold defence; firstly that alleged exchange transaction had never been settled among the parties, rather forged, fictitious and fraudulent document was maneuvered to usurp their valuable land, and secondly that two out of three defendants were neither available nor party to Exh.PI, thus it to the extent of their rights was ineffective. Facing with the hot contest, issues were materialized, evidence in pros and cons received and though suit was dismissed by the learned Civil Court on 24.01.2007, yet decreed by the learned Appellate Court below through impugned judgment duly reflected in preceding para, thus this second appeal was preferred by the appellants seeking restoration of judgment of the learned Trial Court.
3. Consequent upon issuance of process through various modes, respondents were duly served, out of whom only respondent No.2 appointed Syed Qaiser Gillani, Advocate for his representation, who submitted his power of attorney , but for the last so many dates of hearing none of them is appearing. This matter is lingering on for more than a decade and per its age now falls within category of the oldest cases, whereas the respondents seem not to be interested in its disposal on merit, who are proceeded against ex parte.
4. Arguments of learned counsel for appellants heard and record scanned.
5. Undoubtedly , there were three co-owne rs each from both sides to whom land vested in equal shares. Although, respondents/plaintif fs claimed their ownership qua land owned by three defendan ts/appellants while relying upon agreement of exchange dated 22.03.1995 (Exh:Pl), but admittedly out of the latters, it alone was allegedly thumb marked by Muhammad Latif and that too while exposing him exclusive owner of entire property , whereas per available copies of record of rights, he being just a co-owner was owner only to the extent of his 1/3rd share. Thus per face value of Exh:Pl, its execution by one of the co-sharers while showing him owner of total area was in opposite. Moreover , Muhammad Latif, the sole alleged signatory specifically not only denied the execution of Exh.P1, rather he claimed signatures available over there to be fake. In the given situation, sine qua non for the beneficiary/plaintif fs to have either alleged that sole signatory was, authorized on the part of other co-owners to settle the exchange or execute Exh.P1 or the latters ever ratified the action initiated on behalf of Muhammad Latif.
It was surprising that on both of the said counts, not only the basic/hub document (Exh.P1), whereupon entire case of the plaintif fs rested, rather the plaint was totally silent. Thus this document in no way could be used to confer title upon the plaintif fs to the extent of remaining 2/3rd share of suit land, which was neither owned by Muhammad Latif nor he had expressed authority to act in this behalf. More surprising that even plaint itself was mute to justify that in what capacity Muhammad Latif solely executed the contract, rather according to its para No.1, all the three defendants/appellants settled the exchang e. This pleaded fact otherwise was negated by the marginal witnesses of Exh.P1, viz Muhammad Afzal (PW2) and Muhammad Khalil (PW3) while explicit ly conceding during their cross- examination (at pages 54 and 56) that Muhammad Sharif and Muhammad Rafique (rest of two defendants) neither singed Exh.P1 nor they were available at the scene, therefore their evidence being contrary to the contents of the plaint was of no value. The Exh.P1 being a document of future liability per scheme of law was required to be attested by at least two male witnesses. No doubt it was so, but one out of them (Muhammad Afzal PW2) was beneficiary of Exh.P1 as well. It is well established rule that a party cannot be a witness of its own document, thus it was not to be taken in evidence, what to talk that it could be made basis to confer title upon its beneficiary .
6. The other drastic angle of the case of respondents/plaintif fs was that only Sher Muhammad, one of the plaintif fs while posing him to be exclusive owner of the land (which was allegedly given to the appellants/defendants in lieu. of said exchange) solely signed Exh:Pl, therefore firstly it was of no help to rest of the two plaintif fs and secondly that he did not appear in the witness-box to make statement on oath, whose non-appearance without any probable cause not only compelled the Court to draw hostile inference under Article 129 illustration (g), rather by not appearing in the witness box, he assuredly damaged the case. See "Haji Abdullah Khan and others v. Nisar Muhammad Khan and others" (PLD 1959 Peshawar 81). The relevant para thereof at page 100 is reproduced as follows:- "So far as the other defendant-appellants are concerned, none of them appeared in the witness-box except Mir Afzal Khan. It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circum stance going to discredit the truth of his case. By non-appearance, therefore, the defendant- appellants except Mir Afzal Khan failed to discharge the onus or shift the onus on to the plaintiffs."
This view has been recurred by the apex Court in cases reported as Niaz Rasool through Muhammad Bilal v.
Mst. Perveen Ikram and others ( 2013 SCMR 397 ) and Naveed. Akram v . Muhammad Anwar ( 2019 SCMR 1095 ).
7. The learned Appellate Court below despite being bound to consider the statement of DW1 as a whole per its pith and substance tried to accord benefit to the plaintif fs for some alleged weaknesses while picking particular glimpses therefrom, whereas it is well established principle that in order to succeed, the plaintif f(s) has/have to stand on his/their own legs, thus imperative for him/ them to prove his/their case A independently and without merely getting any support for the flaws/lapses, if any, of his/their adversary . See Amir Ullah Khan and another v.
Muhammad Akram (2004 YLR 709) and Fazal Khan v. Mukaram Khan and others (2007 CLC 894). The learned Addl. District Judge (Malik Ali Raza Awan) as he then was, to form its respective findings had also wrongly interpreted "ratification" as provided in section 196 of the Contract Act, 1872. In the file in hand, DW1 during cross- examination simply worded that they had permitted Muhammad Latif, their brother (alleged signatory of Exh.P1) to administer the suit land, whereas he as well as other co-plaintif f via their written statement as well as statement-in- chief expressly averred that Muhammad Latif was never authorized to settle the exchange or execute a document in this behalf. Sorry to say that learned Addl. District Judge just to graft his unfounded reasoning not only twisted the available evidence, rather misapplied the provision ibid. "Administer" just means to manage or supervise the matter/ task so assigned. It does not qualify the authorization qua disposal of the property . Ratification as referred in provision ibid is that where acts are done by one person on behalf of another , but without his knowledge or authority , the latter may act to approve or confirm it. If ratification is made, then same effect will flow as if those acts have been performed under some authori ty. It is again well settled that acts done by a person in his own name and in his separate legal capacity are not capa ble to subsequent ratification by another person. See "Imperial Bank of Canada v. Mary Victoria Begley (AIR 1936 PC 193), "Muhammad Zakaria v. Bashier Ahmad" (2001 CLC 595) and "Maulana Abdul Hague Baloch and others v. Government ot Balochistan through Secretary Industries and Mineral Development and others" (PLD 2013 SC 641). In such like situation, the ratification would be applicable that after the execution of Exh.P1 the other defendants had subsequentl y authorized Muhammad Latif to settle transaction of exchange on their behalf. In absence thereof, the term "ratification" was not applicable in the case in hand, which purposely was applied just to pass the decree in favour of respondents, who otherwise, never pleaded the said fact/situation.
8. The Court below also failed to consider that on the basis of some agreement, suit for declaration was not maintainable, whereas to seek decree for its specific performance, period of only three years per Article 113 of the Limitation Act, 1908 was available to institute the suit. Admittedly , the alleged agreement (Exh.P1) was settled on 22.03.1995, thus the suit for specific performance on its strength could be filed till 21.03.1998, whereas while stretching it to accord decree for declaration the Court was bound to satisfy that suit per Article 120 of the Act ibid was instituted within six years, but despite that suit was filed on 22.04.2002 after more than seven years, the learned Addl., District Judge did not attend to said aspect. As per mandate of Section 3 of the Act ibid, the Court is under obligation to scrutinize the plaint, the application and the appeal on the point of limitation regardless of the fact that the said point has been agitat ed by either party or not. The relevant provision of law for clarity and reference, is reproduced hereunder:- "Section 3 Dismissal of suit, etc, instituted, etc, after period of limitation. Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed, although limitation has not been set up as a defence."
Moreover , it is an established principle by now that law of limitation is not merely a technicality , rather said statute furnishes certainty and regularity to the, human affairs, matters and dealings. It is also well settled that law helps the vigilant and not the indolent. Furthermore, delay of each and every day has to be explained satisfactorily , otherwise the delay cannot and should not be condoned. On said settled canons of law, this Court is fortified by case law cited as "Messrs Dawood Cotton Mills Ltd. v. Sindh Labour Appellate Tribunal and others" (2006 SCMR 630), "Atta Muhammad v. Maula Bakhsh and others" (2007 SCMR 1446 ), "Muhammad Hussain and others v. Dr. Zahoor Alam" (2010 SCMR 286), "Muhammad Islam v. Inspector Gene ral of Police, Islamabad and others" (2011 SCMR 8) and "State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others" (2012 SCMR 280). In such facts and circumstances, the learned Court below was not justified to decree the time barred suit.
9. For the foregoing reasons, it is a fit case to attract exceptions provided under section 100 of the Code, 1908, consequently , this appeal is allowed, judgment and decree impugned herein is set aside and that of the learned Civil Court, whereby suit was dismissal is restored, with costs throughout.