CH. MUHAMMAD IQBAL, J. Through this Civil Revision, the petitioner has challenged the validity of judgment and decree dated 04.05.2010 passed by the learned Civil Judge, Daska who dismissed the suit for specific performance of contract along with permanent injunction filed by the petitioner and also assailed the judgment and decree dated 04.10.2011 passed by the learned Addl. District Judge, Daska who dismissed the appeal of the petitioner.
2. Brief facts of the case are that the petitioner/plaintiff has filed a suit for possession through specific performance on the basis of oral agreement to sell along with permanent injunction against the respondents/defendants with the contention that Muhammad Anwar Khan, father of the petitioner/plaintiff purchased land measuring 13-Kanals situated in Mouza Bharthanwala, Tehsil Daska, District Sialkot fully described in Para No. 1 of the plaint from the respondent/defendants on the basis of oral agreement to sell dated 31.05.1985 against total paid consideration of Rs.24,500/- in the presence of witnesses namely Talib Hussain son of Allah Bakhsh resident of Gujjar Kay, Tehsil Daska and Muhammad Aslam son of Ghulam Rasool resident of Dhulleke Goraya, Tehsil Daska.
That the father of the petitioner/plaintiff made request to respondent/defendant No.1 to execute the sale deed but he did not do so. As the petitioner's father had died on 19.07.1989, now the petitioner filed present suit. Respondent/defendant No.1 filled contesting written statement and denied the execution of oral agreement to sell as Well as receiving any consideration contending therein that father of the plaintiff was illegal occupant upon the suit land and he was murdered on 19.07.1989.
Respondents/defendants Nos.2 to 4 (mother and sisters of the petitioner) filed conceding written statement. From the divergent pleadings of the parties, issues were framed and evidence was recorded. The trial court vide judgment and decree dated 04.05.2010 dismissed the suit of the petitioner. Against the said decision, the appeal of the petitioner was also dismissed by the appellate court vide judgment and decree dated 04.10.2011. Hence, this civil revision.
3. Arguments heard. Record perused.
4. As per contents of the plaint the petitioner claims that his father purchased the suit land and he had died but his mother and two sisters (defendants Nos. 2 to 4) neither filed suit nor joined the petitioner as plaintiffs in the suit as well as in the appeal.
In Para No.1 of the plaint the petitioner stated that his father orally purchased the suit land on 31.05.1985 against consideration of Rs.24,500/- from respondent/defendant No.1 in the presence of witnesses namely Talib Hussain son of Allah Bakhsh resident of Gujjar Kay, Tehsil Daska and Muhammad Aslam son of Ghulam Rasool resident of Dhulleke Goraya, Tehsil Daska but he did not disclose the time, place as well as the offer and acceptance of the transaction, which are mandatory ingredients for an oral sale agreement. Moreover, it is mandatory for the petitioner/plaintiff to prove the oral agreement to sell through producing the witnesses of the agreement as well as that of payment of consideration, but he did not produce one witness namely Muhammad Aslam son of Ghulam Rasool and even no explanation has been furnished in this regard, thus the petitioner has failed to prove the oral agreement to sell. As per Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it is duty of the petitioner-plaintiff, to prove the alleged oral agreement to sell by producing both the witnesses but here in this case adittedly one witness of the alleged agreement to sell was not produced in evidence and even no convicing reasons have been expounded in this regard, which is a blatant non-compliance of the above mandatory provision of law and same leads to conveniently hold that the petitioner/plaintiff has failed to prove the execution of the alleged agreement to sell as per law. The non-production of the required number of witnesses in evidence is blatant non-compliance of the aforesaid mandatory provisions of law which impress fatal impact on the case of the petitioner. Reliance is placed on the cases cited as Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044).
5. Moreover, the petitioner in his plaint stated that oral agreement was executed on 31.05.1985 and his father before his death, on 19.07.1989 made request to respondent/defendant No.1 to execute the sale deed but defendant did not execute sale deed despite the fact that respondent/defendant No.1 had become- owner of the suit land through decree dated 21.04.1979 whereas the petitioner filed suit for possession through specific performance of oral agreement to sell on 04.08.2003 after 18-years, 02-months and 04-days whereas under Article 113 of the Limitation Act, 1908, the prescribed period of limitation for a suit of specific performance of an agreement to sell is only three years. The said provision of law is reproduced as under: Description of suit propertyPeriod of limitationTime for which period begins to run 113 For Specific performance a contractThree yearsThe date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.
Further with regard to the question of limitation of suit for specific performance, under Article 113 of the Act ibid, the Hon'ble Supreme Court of Pakistan in its judgment titled as "Muhammad Sadiq and others v. Muhammad Mansha and others' (PLD 2018 SC 692) held as under:- "Therefore in the ordinary course it is the first limb of Article 113 of the First Schedule to the Limitation Act, 1908 that would have applied and the suit would have become barred by limitation after 28.5.1986. However, the learned High Court took the view that since the property was mortgaged limitation did not begin to run till such time as it was redeemed which came about around 28.11.1988. On such basis it was held that the suit was within time. In our view, with respect, the reasoning and the conclusion of the learned High Court proceeded on a fundamental misconception of the law. As is well known, when a property is mortgaged by one person to another the interest that is left in the hands of the mortgager is called the equity of redemption.
Now, the equity of redemption is itself immovable property which can be dealt with as such by the mortgager, whether by way of sale, subsequent mortgage, gift or transfer but subject always to the rights and interests of the mortgagee. In other words the existence of a mortgage on immoveable property does not in or itself constitute a bar to subsequent dealing by the mortgager as regards the equity of redemption."
As the suit of the petitioners was barred by time almost about 18 years and no explanation has been furnished in this regard whereas the suitor has to explain the reason for delay of each and every day which are conspicuously missing in this case. Thus there is no hesitation to hold that the very suit of the plaintiff was blatantly time barred.
6. Even otherwise, under Section 22 of the Specific Relief Act, 1877 the grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principle of equity even if the suitor has proved the case, as settled by the Hon'ble Supreme Court of Pakistan in its judgment titled as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) wherein it is held as under: "16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair and inequitable."
And similar principle has been reiterated in the case titled as Muhammad Miskeen v. District Judge Attock and others (2020 SCMR 406).
7. Learned counsel for the petitioner has neither pointed out any illegality or material irregularity in the impugned judgment and decrees passed by the Courts below nor identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).
8. In view of above, this civil revision is dismissed being devoid of any merit with no order as to cost.