SHAHID BILAL HASSAN J. Facts in concision are as such that the petitioners instituted a suit for specific performance of contract with regards to the suit property against the respondents/defendants, which was duly contested by them while submitting written statement.
Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court vide judgment and decree dated 26.10.2017 decreed the suit in favour of the petitioners, against the respondents. The respondents/defendants preferred an appeal. The learned appellate Court vide impugned judgment and decree dated 30.09.2021 accepted the appeal, set aside the judgment and decree dated 26.10.2017 ibid and dismissed suit of the petitioners; hence, the instant revision petition.
2. Heard.
3. It is case of the petitioners that their predecessor in interest namely Allah Rehm (deceased) entered into a contract via Iqrarnama No.271 dated 14.06.1977 with the respondents germane to 01- Kanal 4-Marlas suit property for a consideration of Rs.10,000/- and entire sale consideration was paid in presence of the witnesses and that it was settled that as and when the deceased predecessor of the petitioners namely Allah Rehm would want, the registered sale deed would be executed, therefore, in pursuance of the said contract possession was delivered to Allah Rehm, who constructed a house and shops over the suit property and since then the possession of the suit property remained, firstly with Allah Rehm and after his death the petitioners are in possession of the same as owners. However, when the respondents were contacted for getting the registered sale deed executed in favour of the petitioners, they refused, which culminated in filing of the suit.
4. First of all the objection of limitation is taken up. Article 113 of the Limitation Act, 1908 provides three years for filing such suit from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused. In this case, no cutoff date for performance of contract was fixed in the Iqrarnama, therefore, the second part of the above said Article would attract, which provides that if no such date is fixed, when the plaintiff has notice that performance is refused and in the present case, the petitioners specifically pleaded that the cause of action arose and accrued in July 2014 and the suit was instituted on 29.02.2016, which is well within time from the date of refusal. Therefore, the objection has no force, which is hereby repelled.
5. Additionally, when the sale consideration is totally paid and possession was also delivered to the petitioners' predecessor in interest namely Allah Rehm, the petitioners were well within right to get executed the sale deed on the basis of the Iqrarnama in question.
Reliance is placed on Syed Hakeem Shah (Deceased) through LRs and others v. Muhammad Idrees and others (2017 SCMR 316), wherein it has been held that:- 'Insofar as the plea of limitation is concerned, the factual position is that the claim of the respondent No.1 was that he paid the entire sale consideration and was also handed over possession of the suit property and only the sublease was not being executed by the seller. In this background, when the sale consideration is totally paid and possession was also delivered to the respondent No.1 and only on account of the ban on the registration of leases that transfer document was not executed, the respondent No.1 was well within his right to seek execution of the sublease in his favour when the ban was lifted and when respondent No.2 unlawfully entered into sale transaction with respondent No.3.'
Though for filing of suit for specific performance of a contract, the prescribed period of limitation is three years but as the petitioners have instituted the suit on the basis of Iqrarnama which is coupled with transfer of possession after payment of entire sale consideration, the impediment and hurdle of limitation would not come in their way, because where a plaintiff(s) continues to enjoy a right then the statute of limitation cannot take away such a right as the law of limitation is not meant to take away an existing right. It only bars remedy to gain one's lost right. The right created under section 53-A of the Transfer of Property Act, 1882 is an existing right and is not vanished by any length of time. There cannot be any expiry date for enjoyment of a right conferred upon a transferee in possession under section 53-A of the Act ibid. In judgment reported as Mst. Rehmat and others v. Mst. Zubaida Begum and others (2021 SCMR 1534), it has invariably been held by Supreme Court of Pakistan that:-
8. As to the possession, he admitted in his examination in chief that 'As Muhammad Idrees was my friend, therefore, I allowed him for temporary shelter but after two days; they backed out from their promises and have not yet vacated the house18'. He further admitted in his cross-examination as DW-1 that 'It is a fact that since 1973 till today Mst. Zubaida is in possession, voluntarily says that possession is illegal19'. These admissions of DW-1 who is the attorney as well as the husband of appellant No.1 are sufficient enough to establish that the sale transaction was entered between Mst. Ashfaq Jehan and the Respondent No.1 in the year 1973 and the vendee paid a sum of Rs.
36,000/- in part performance of sale consideration while the possession was also delivered to her.
It is an established principle of law that facts admitted need not be proved, reference can be made to Article 30 of the Qanun-e-Shahadat Order, 1984 and the case of Nazir Ahmed v. M.
Muzaffar Hussain,20 wherein Paragraph No.8 of the judgment this Court observed that: '8. So far as the execution of agreement is concerned, the appellant Nazir Ahmad who appeared as D.W.1 admitted the execution of the agreement for sale of the property in dispute for consideration of Rs.50,000 and the execution of the agreement was further testified by Allah Ditta Scribe of the document who appeared as D.W.4. The said witness appeared twice in the Court; firstly as P.W.1 and secondly as D.W.4 and admitted the thumb impression of Nazir Ahmad and signatures of Rashid Ahmad appellants on the agreement to sell (Exh.P.1). It means that the execution of agreement is admitted not disputed and it is well settled proposition of law that the admitted facts need not to be proved. The admission has been defined in Article 30 of the Qanun- e-Shahadat Order, 1984 which reads as under:- "30. Admission defined. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
9. The Appellant, under facts and circumstances of the case, can neither claim nor could substantiate, that she is bona fide purchaser without notice to the earlier transaction. In a case Jaiwanti Bai v. Messrs Amir Corporation,21 in paragraphs 19 and 20 it was held 'that the right of a person having established that they were equipped with unregistered instrument, which were prior in time, and were in possession of property in part performance of such instrument, would rank superior even against the subsequent registered instrument'. Therefore, in the instant case, the position of respondent No.1 being in possession of the suit house since 1973, having paid 80% of the total sale consideration, much before time fixed in the sale agreement and much before performance of reciprocal obligations set out under clause 4 of the agreement, on the part of the Respondent No.2, is much stronger than that of the appellant No.1 more particularly the possession is specifically admitted by DW-1 in his statement in view of the Nazir Ahmed's case supra.'
6. Moreover, in the present case, the petitioners produced sons of Sultan and Ghulam Muhammad, both the marginal witnesses, as admittedly both of them have breathed their last and their sons while appearing in the witness box as P.W.2 and P.W.3 identified the signatures of the marginal witnesses and P.W.6, brother of the scribe also identified the writing and signature of the scribe.
Meaning thereby, the authenticity and veracity of Iqrarnama Ex.P1 has fully been proved by the petitioners. As against this, the deposition of D.W.1, who is attorney of the respondents, is based on hearsay as he was not present at the relevant time, so non-appearance of the respondents in the witness box and making deposition on oath also goes against them. In judgment reported as Mrs. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 Supreme Court 401) it has been candidly held by Supreme Court of Pakistan that:- 'Initially, it is the party itself to depose about the first hand and direct evidence of material facts of the transaction or the dispute and its attorney having no such information cannot be termed as a competent witness within the meaning of Order III, Rules 1 and 2 of C.P.C. Yes! The attorney can step-in as a witness if he possess the first hand and direct information of the material facts of the case or the party had acted through the attorney from the very inception till the accrual of cause of action. Deposition of such an attorney under the law would be as good as that of the principal itself. Non-appearance of the party as a witness in such a situation would not be fatal. If facts and circumstances of the case reflect that a party intentionally did not appear before the court to depose in person just to avoid the test of cross examination or with an intention to suppress some material facts from the court, then it will be open for the court to presume adversely against said party as provided in Article 129(g) of Qanun-e-Shahadat Order 1984 (QSO, 1984).'
7. Pursuant to the above discussion it is observed that the learned appellate Court has failed to adjudicate upon the matter in hand by appreciating law on the subject; thus, the learned appellate Court has misread evidence of the parties and when the position is as such, this Court is vested with authority to undo the same in exercise of supervisory jurisdiction under section 115, Code of Civil Procedure, 1908. Reliance is placed on Nazim-Ud-Din and others v. Sheikh Zia-Ul Qamar and others (2016 SCMR 24), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001), Habib Khan and others v. Mst. Bakhtmina and others (2004 SCMR 1668) and Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others (2020 SCMR 2046).
8. In view of the above, while placing reliance on the judgments supra, the revision petition in hand is allowed, impugned judgment and decree dated 30.09.2021 passed by the learned appellate Court is set aside and by restoring the judgment and decree dated 26.10.2017 delivered by the learned trial Court, the suit is decreed in favour of the petitioners. No order as to the costs.