AAMER FAROOQ, J.---The petitioners filed a suit for specific performance of the agreement to sell dated 14.01.1991 with respect to land measuring 21-kanals and 12-marlas bearing Khasra No.2727, situated in Moza Kirpa, Islamabad for a total consideration of Rs.70,000/- (the agreement). It was alleged in the plaint that the entire consideration amount was paid to the vendors namely respondent No. I and the predecessor-in-interest of respondents Nos.2 to 7. It was further alleged that the agreement was registered with the Sub-Registrar , Islamabad and the vendors also executed power of attorney in favour of the petitioners which also was registered with Sub- Registrar , Islamabad on 14.01.1991.
2. The suit was resisted by the respondents. It is pertinent to observe that at the time when the suit was filed Ghulam Razzaq, predecessor-in-interest of respondents Nos.2 to 7 was alive but on his death his legal heirs were impleaded. The suit was filed on 05.04.1999 on the basis that respondents have refused to transfer the land in favour of the petitioners. It was alleged that the petitioners came to know about the refusal when inheritance mutation was entered in favour of respondents Nos.2 to 7 (Mutation No.3381).
3. Out of the divergent pleadings of the parties six issues were framed which are as follows: ISSUES I. Whether the plaintif f is entitled to decree for specific performance of contract dated 14.01.1991 as prayed for?
OPP II. Whether the plaintif f has got no cause of action to institute this suit? OPP III. Whether the suit is not maintainable in its present form? OPD IV. Whether the suit is time barred? OPD V. Whether the defendants are entitled to special cost under section 35- A, C.P .C.? OPD VI. Relief.
4. The petitioners recorded their eviden ce and in this behalf PW-1 entered the witness box whereas in the documentary evidence sale agreement was tendered as Ex.P-1, irrevocable power of attorney as Ex.P-2.
Respondent No.4 entered the witness box as DW-1 and also produced Muhammad Riaz as DW-2 and Meharban Khan as DW-3. The inheritance mutation No.3381 dated 30.11.2000 was tendered as Ex.D-1 and mutation No.3869 dated our 14.05.2004 as Ex.D-2 whereas mutation No.4455 dated 27.05 .2004 as Ex.D-3 and the record of rights as Ex.D-4. The learned Trial Court vide judgment and decree dated 14.05.2010 allowed the claim of the petitioners. Appeal was preferred by the respondents which was allowed and the judgment and decree of the Trial Court was set aside vide judgment dated 07.01.2013; consequently suit filed by the petitioners was dismissed, hence the petition.
5. It is relevant to observe that this is the second round of litigation inasmuch as earlier the instant civil revision was allowed on 12.01.2016 by this Court; however , the respondents agitated the matter before the august Apex Court and the said judgment was set aside and the matter was remanded to this Court vide order dated 02.06.2021. It is also pertinent to observe that though a direction was issued by the Hon'ble Supreme Court of Pakistan to decide the matter within one month; this Court seized of the matter post remand on 24.06.2021 when no one appeared on behalf of the petitioners. The matter was again taken up for hearing on 01.07.2021 when no one entered appearance on behalf of the applicant in C.M. Nos.665 and 598 of 2016. On 02.07.2021 the matter was partially argued when it was pointed out that respondent No.2 has passed away; his legal heirs are already on record but respondents Nos.3 to 6 are in United Kingdom and are not available. With consent the matter was adjourned to 08.07.2021, on which date the service of non-available respondents was ordered to be effected through newspaper proclamation for 27.07.2021. Meanwhile, applications were filed for impleadment (C.M. No.747/2021 and C.M.
No.686/2021) by the subsequent purchasers in which notices were issued to the opponent. On 27.07.2021 absent respondents were proceeded ex parte and the case was finally argued and heard on 04.08.2021.
6. Learned counsel for the petitioners, inter alia, contended that the Appellate Court non-suited the petitioners on the ground that they have failed to prove the execution of the agreement and irrevocable power of attorney . It was contended that there was no need to adduce evidence of the attesting witnesses inasmuch as the respondents never specifically denied the execution of the agreement as well as irrevocable power of attorney . It was submitted that under proviso to Article 79 of the Qanoon-e-Shahadat Order , 1984 the evidence of two attesting witnesses is mandatory only where the execution of the document except will is denied. It was submitted that otherwise, the petitioners duly proved their case, hence Trial Court. rightly decreed their claim. Reliance was placed on the case titled Beru through His Legal Heirs v. Omee d Ali (deceased) through his legal heirs (2004 CLJ 742), PIRLA and others v. Noora and others (PLD 1976 Lahore 6), Niaz Rasool through Muhammad Bilal v. Mst. Parveen Ikram and others (2013 SCMR 397), Mst. Zareedah Begum and 2 others v. Abdul Rasheed and 4 others (2013 YLR 831), Messrs Kashmirian (Pvt.) Ltd. and 6 others v. Ghulam Nabi Guijar and another (2006 CLC 482), Munir Ahmad and 6 others v. Muhammad Saddique (2005 MLD 364), Karam Shah v. Mst. Ghulam Fatima and 3 others (1988 CLC 1812 ) and Manzoor Hussain Khan v. Mst. Asia Begum and 21 others ( 1990 CLC 1014 ).
7. Learned counsel for the respondents, inter alia, contended that two attesting witnesses ought to have been adduced by the petitioners as the execution of the document was denied. It was contended that when the evidence of the petitioners was being recorded one of the attesting witness had died and the other alive (the case was proceeded ex parte against the defendants which order was subsequently set aside) and in the second round both the attesting witnesses had passed away . It was contended that even otherwise, the petitioners were required to prove the transaction which they failed to do so and even if the execution of the agreement has not been denied the sale document i question had to be proved. Reliance was placed on the case titled Muhammad lqbal Khan v.
Mst. Farhat Nisa (PLD 2017 Lahore 727), Mst. Saleema Bibi and another v. Mst. Ramzan Bibi and others (2007 YLR 910) and Ghulam Bheek v. Mst. Salamat Bibi and others (2001 CLC 1078 ). It was also contended that an objection had been taken in the written statement that the claim of the petitioners is barred by limitation, on which issue had also been framed, but the matter was decided against the respondents only on the ground that no evidence had been produced. It was contended that under section 3 of the Limitation Act, 1908 it was incumbent upon the Trial Court as well as the Appellate Court to examine whether the claim of the petitioners was within limitation period which it was not inasmuch as the alleged agreement is dated 14.01.1991 whereas the suit was filed in the year 1999. It was contended that the sanctioning of inheritance mutation does not confer any cause of action nor the sale of property to third party by the respondents. It was further contended that the respondents sold the property to one Samreen Akhtar who in turn sold to other party and the property had exchanged multiple hands.
8. Syed Nayab Hassan Gardezi, Advo cate appearing on behalf of the applicant namely I.B. Employees Cooperative Housing Society in C.M. No.686/2021 contended that the petitioners have failed to prove their case as required under the law, hence Appellate Court rightly dismissed their claim. He took the Court through the statement of PW-1 to substantiate his arguments. He also placed reliance on the case titled Liaqat Ali Khan and others v. Falak Sher and others (PLD 2014 Supreme Court 506), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Maqsood Ahmed and others v. Salman Ali (PLD 2003 Supreme Court 31) and Adil Tiwana and others v. Shaukat Ullah Khan Bangash (2015 SCMR 828).
9. Learned counsel for the applicant in C.M. No.747/2021 also argued to the same effect that the case of the petitioners has not been proven as required under the law .
10. Arguments advanced by the learned counsel for the parties have been heard and the documents placed on record examined with their able assistance.
11. The facts leading to filing of the instant petition have been mentioned herei nabove, therefore, need not be recapitulated. As noted above the petitioners in order to prove their claim tendered evidence of Qazi Sadique Akbar as PW-1. In his statement no proof of payment of the consideration amount of Rs.70,000/- was given neither the details of transaction were stated. He admitted that he attended the funeral of predecessor-in-interest of respondents Nos.2 to 7; however , conce ded that he did not make any claim about the transfer of the property .
Though it was alleged in the plaint that the cause of action recently accrued to the petitioners but again in the evidence date, time and place and the name of the person refusing the transaction was given. In the above backdrop, the petitioners claim that the property ought to be transferred in their favour; however , I am unable, to accede to the argument by the learned counsel for the petitioners. The petitioners vehemently assert that since no specific denial existed on behalf of the respondents, hence the requirements of adducing two attesting witnesses is dispensed with. Again the said argument is spurned in light of the judgment of the Division Bench of the Hon'ble Lahore High Court in case titled Muhammad Iqbal Khan v. Mst. Farhat Nisa (PLD 2017 Lahore 727) wherein it was held as follows:'
"We confronted the appellant's counsel with the afore noted principle of law and asked as to how the appellant without producing two attesting witnesses of alleged agreement to sell (Exh.P1) could claim a decree as prayed for in the plaint. In response to said query , he submitted that: (a) since the responde nt/defendant had not appeared before the learned Trial Court, there was no denial to the execution of agreement to sell (Exh.P1) and, therefore, the appellant by virtue of proviso to Article 79 of the Qanun-e-Shahadat, 1984 was not required to produce attesting witnesses of the agreement to sell (Exh. P1); and, (b) the evidence available on record was sufficient to decree the suit. The above arguments sans merit. It is an elementary principle, which forms the basis of all legal procedure, that no litigant is entitled to obtain relief from a Court unless he establishes to the satisfaction of the Court that his claim is well' founded. The proviso to Article 79 of the Qanun-e-Shahadat, 1984 does not dispense with altogether proof of the document and claim. If a document is taken to be executed and proved simply because defendant does not appear and deny it, it may follow that every suit may be decreed against the defendant when he does not appear and deny the claim. But a decree cannot be granted without taking evide nce simply on defendant's non- appearance and upon verification in the plaint. According to proviso to Article 79 of the Qanun-e-Shahadat, 1984 it is not necessary to call attesting witnesses in proof of the execution of any docu ment, not being Will, which has been registered in accordance with the provisions of the Registration Act, 1908 unless its execution by the person by whom it purports to have been execut ed is specifically denied. This proviso does not contemplate admission of execution of document by implication. It attracts where, there is no specific denial to the execution of registered document. A document can be said to be admitted or specifically denied only when defendant appears before the Court and makes statement to this effect. The proviso to Article 79 of the Qanun-e-Shahadat, 1984, therefore; does not apply where there is no defendant's statement at all. In the present case, there was no statement of the respondent-defendant as he had not appeared before the learned Trial Court and, therefore, it could not be said that the agreement to sell (Exh.P1) was not specifically denied relieving the appellant to prove the same by calling its two attesting witnesses. Even otherwise, the agreement to sell (Exh.P1) being not registered in accordance with provisions of the Registration Act, 1908 was extraneous to the proviso to the Article 79 of the Qanun-e-Shahadat, 1984. Thus, absence of the respondent- defendant did not absolve the appellan t to prove the execution of the agreement to sell (Exh.P1) calling its two attesting witnesses. The appellant had not produced the attesting witnesses of the agreement to sell (Exh.P1) and, therefore, the learned Trial Court was justified in declining to issue decree."
12. Similarly , in another decision of the. Hon'ble Lahore High Court reported as Ghulam Bheek v. Mst. Salamat Bibi and others (2001 CLC 1078 ) it was observed that party relying upon a registered document was only relieved of the duty of calling the attesting witness but was not absolved of its duty to prove the document. Same observations were made in Mst. Saleema Bibi and another v. Mst. Ramzan Bibi and others (2007 YLR 910).
The petitioners are beneficiary of agreement as well as irrevocable power of attorney , hence they were required to prove the said doccument even though the execution of the same have not been specifically denied. Reliance is placed on the case titled Amjad Ikam v. Mst. Asiya Kausar and 2 others (2015 SCMR 1). There is no cavil the judgments relied upon by the learned counsel for the petitioners; however , same are not applicable in the facts and circumstances of the case. The petitioners cannot rely on the weaknesses of the respondents' case to substantiate their claim and had to prove their case on the basis of evidence including the documents in their favour . Even though the respondents have not denied the documents namely agreement and power of attorney in specific terms and if the argument of the petitioners is accepted that there is no specific denial of agreement to sell, they had the primary obligation to prove the transaction which they failed to do so In this behalf it is trite law that mere tendering of document in evidence as exhibit does not prove the contents thereof.
13. Another aspect of the matter which has escaped attention of the learned Trial Court and the Appellate Court is the limitation period. Though finding has been rendered by the Trial Court that respondents did not adduce any evidence with respect to claim of the petitioners being barred by limitation but under Section 3 of the Limitation Act, 1908 it was incumbent upon the Court to examine whether the claim of the petitione rs was within limitation period.
Reliance is placed on Khushi Mohammad v. Mst. Fazal Bibi (PLD 2016 SC 872) and United Bank Limited v.
Noor tin Nisa (2015 SCMR 380). The limitation period for a suit for specific performance as provided in Article 113 of the Schedule-I to the Limitation Act, 1908 and is three years from the date of notice that performance is refused.
The agreement of sale relied upon by the learned counsel for the petitioners in their favour was allegedly executed on 14.01.1991 but the suit was filed in 1999 and it was contended that only on demise of Ghulam Razzaq the cause of action accrued to the petitioners as mutation of inheritance was entered with respect to the property in favour of legal heirs of the deceased. The referred claim seems to be baseless inasmuch as PW-1 did not contend as to when he broached the subject of transfer of the property with the respondents or with whom and when and how the same was denied. The referred witness also admitted in cross-examination that he attended the funeral of Ghulam Razzaq (Predecessor-in-interest of respondents Nos.2 to 7) but did not make any claim regarding transfer of property . The mere entrance of mutation (s) of inheritance in favour of legal heirs of Ghulam Razzaq does not amount to notice of refusal to transfer the property . The Trial Court ought to have decided the issue of limitation on its own even after recording of evidence. On the strength of the evidence and the document on record the claim of the petitioners was barred by limitation. This Court on the strength of judgmen ts reported as Government of Khyber Pakhtunkhwa v. Latif Ullah Khan (2021 SCMR 829), Syed Altaf Hussain Shah v. Multi Professional Housing Society (2020 CLC 1119) and Major Mohammad Nauman v. Usman Habib (PLD 2019 Islamabad 255) can correct an illegality or jurisdictional error suo motu under section 1 15 of the Code of Procedure 1908.
14. For what has been stated above, the judgment of the Appellate Court impugned in the instant petition does not suffer from any jurisdictional error Warranting interference hence `this Court grants imprimatur to the same. The present petition is without merit and is accordingly dismissed. Since the petiti on stands decided all pending applications are accordingly disposed of.