' SALEEM AKHTAR, J.---(1) These appeals relate to dispute in respect of Plot No,6, Sub-Block K. Block 1, Nazimabad, Karachi which was allotted by the Ministry of Works, Government of Pakistan to one Muniruddin.
' Two persons viz. Kabiruddin and Mst. Maqbool Begum claim to have purchased this property from Muniruddin under separate agreements. Mst. Maqbool Begum filed suit for specific performance of agreement, possession, mesne profits and accounts. Kabiruddin filed suit for declaration that agreement entered into between Muniruddin and Mst. Maqbool Begum is void. Munirudin died during the pendency of both the suits and his legal representatives were brought on record. The suit filed by Maqbool Begum was decreed and Kabiruddin's suit was dismissed. The facts as stated in plaint are as follows:- ' In Suit No,13/79 filed by Maqbool Begum which is subject-matter of High Court Appeal No,95/84, it has been alleged that Muniruddin wanted to develop the said plot by constructing shops and flats according to the approved plan of K.M.C. Muniruddin, his son and son-in-law entered into partnership with Kabiruddin. The partnership deed Exh.7/6 was executed on 2-5-1971 which was to carry on business in the name and style of Munir Co. On 23-7-1971 Munir Co. Entered into an agreement with M/s. Muhammad Abdullah & Co. Building Contractors which were engaged to carry out the construction work. This partnership was dissolved on 8-5-1972 under a deed of dissolution (Exh.9/14). It has been alleged by Maqbool Begum that under an agreement dated 17- 5-1972 she agreed to purchase from Muniruddin the aforestated plot with construction thereon for a consideration of Rs,80,000. Maqbool Begum also agreed to pay the dues of K.DA. And K.M.C.
Amounting to Rs31,487.67. Maqbool Begum took over the liability of Rs,50,300 as specified in the agreement from which Munir was discharged. This liability included payment of Rs,40,000 to Abdullah Bhai Contractor. She paid Rs,45,000 at the time of agreement and Rs,35,000 was agreed to be paid at the time of registration of agreement. Maqbool Begum discharged the liability and paid Rs,12,500 to Abdullah Bhai. The possession of the plot and construction was delivered to Maqbool Begum and while she was raising construction on 29-5-1972 Kabiruddin fraudulently and maliciously filed Suit No,1006/72 in the Court of Civil Judge, Karachi for accounts and permanent injunction against Muhammad Bhai Abdullah proprietor of M/s. Abdullah & Co. Alleging that having purchased the disputed property from Muniruddin he (Kabiruddin) is the owner of the aforementioned plot with construction thereon. He obtained ex parte order of injunction against the said contractor and in the night between 2nd and 3rd of June, 1972 took forcible possession of the premises and the material lying thereon. Maqbool Begum and Muniruddin came to know about the suit and applied for being joined as party which was granted. Muniruddin filed his affidavit denying that he had entered into any agreement with Kabiruddin for sale of the plot and construction thereon. The learned Civil Judge by order dated 30-6-1972 vacated the order of injunction holding that Kabiruddin has failed to prima facie make out a case for purchase of the disputed property. Abdullah Bhai filed an application for appointment of Receiver in Suit No,1006 of 1972 which was granted and Nazir was appointed as a Receiver who prepared an inventory. The appeal filed by Kabiruddin against the order vacating the injunction was dismissed. Kabiruddin then filed Suit No,2156/74 in the Court of XVIII Civil Judge, Karachi against Muniruddin and Maqbool Begum seeking a declaration that the agreement of sale dated 17-5-1972 executed by Muniruddin in favour of Maqbool Begum is void. Kabiruddin issued notice to the occupants of shops and godown on the disputed plot claiming to be the owner. Maqbool Begum through her husband approached Muniruddin for execution of the registered sale-deed but it was put off. On 23-1-1976 Muniruddin entered into another agreement with Maqbool Begum extending the original agreement dated 17-5-1972. She paid Rs,5,000 to Muniruddin who promised to execute the sale- deed expeditiously. A pay order of Rs,30,000 sent to Muniruddin was refused. Maqbool Begum first filed application to sue in forma pauperis but it was withdrawn and suit No,13/79 was filed against Muniruddin and Kabiruddin for specific performance of agreements dated 17-5-1972 and 23-1-1976, possession and mesne profits. Muniruddin supported her case but Kabiruddin filed written statement denying the claim. His averments were the same as pleaded in the plaint filed by him against Maqbool Begum and Muniruddin.
2. Kabiruddin filed Suit No,2156/74 which was transferred to High Court and tried as Suit No,986/79 with Suit No,13/79. High Court Appeal No,95 of 1984, arises from Suit No,986 of 1979. Briefly the facts as alleged by Kabiruddin are that Muniruddin was an allottee of the disputed plot and was unable to pay the dues of K.DA. Upto December, 1970 and no plan for construction of building was approved by any Authority and further that at least 70 to 75% of the plot was occupied by encroachers who had raised huts, hotels and Dhobi Ghat. It was a serious problem to get the plot vacated from these encroacheRs, Muniruddin was also served with notice by K.DA. For payment of dues and construction of building on the plot within the stipulated time. Muniruddin was not in a position to do anything due to financial difficulties when Kabiruddin/plaintiff came in his contact and agreed to help him. The agreement between the parties was reduced in terms of partnership deed dated 2-3-1971, in which Muniruddin, his son-in-law, son and Kabiruddin were partneRs, Each had 25 paisas share and were to carry on the business under the name and style of Munir Co. For construction of shops, godown and flats and sell and purchase plots. The main object of forming the firm was to construct multi-storeyed building on the plot in dispute and Kabiruddin became incharge of all the work. Through his own efforts plan was got approved on 12-2-1972 through Jaffar Ali Associates, Architects. Kabiruddin has alleged in his plaint that he got the plot cleared from the encroachers and spent Rs,15,000. When the scheme was launched only six flats could be booked and as finances were not available to commence construction, the firm was dissolved on 8-5-1972 (Exh.9/38). Muniruddin requested Kabiruddin to take all the liabilities and purchase the plot in dispute and consequently by an agreement dated 8-5-1975 (Exh.9/14) Kabiruddin agreed to purchase the plot with construction thereon. At the time the construction was being carried out by Muhammad Bhai Abdullah. Kabiruddin paid Rs,40,000 in cash to him and under a receipt signed by Muhammad Abdullah and countersigned by Muniruddin to discharge the liability of the contractor.
The contractor was asked to carry out the construction work but having received money in excess he did not carry out the work satisfactorily and consequently Kabiruddin alleges to have resumed the work and also filed Suit No,1006 of 1972 against him. He alleges to have completed the front side shops of the building on the ground floor and invested upto Rs,90,000. On 17-6-1972 Muniruddin and Maqbool Begum filed objections alleging that by an agreement dated 17-5-1972 Muniruddin has sold the plot and construction to Maqbool Begum. Kabiruddin pleaded that he is the owner of the property having agreed to purchase the same and in possession from 8-5-1972 and that in re- selling the property Muniruddin has played fraud in collusion with Maqbool Begum. She initiated proceedings under section 145, Cr.P.C. Which at that time of filing the suit was pending. In these circumstances Kabiruddin had prayed for declaration that the agreement dated 17-5-1972 is illegal and void, the same be cancelled and for permanent injunction against Muniruddin and Maqbool Begum restraining them from claiming any title on the basis of that agreement. Maqbool Begum and Muniruddin, and after his death his legal heirs denied the claim. Their averments were the same as pleaded in Suit No, 13/79 and need not be repeated.
3. Both these suits were tried together and common evidence has been recorded. By a common judgment both the suits have been disposed of. The suit filed by Maqbool Begum has been decreed while the suit filed by Kabiruddin has ben dismissed. Kabiruddin has filed both these appeals and we propose to dispose them of by this judgment. In a nutshell Kabiruddin claims to have purchased the disputed property from Muniruddin on 8-5-1972 whereas Maqbool Begum claims to have purchased the same property from Muniruddin by an agreement dated 17-5-1972.
Muniruddin has taken the plea that he has sold this property to Maqbool Begum and the agreement relied upon by Kabiruddin is false, fictitious and fraudulent. On the basis of the.
Pleadings of the parties the following issues were framed:-
(1) Whether the Suit No,13 of 1979 is barred by limitation?
(2) Whether Suit No, 13/79 is bad for non-joinder of necessary parties?
(3) Whether the two suits are not properly valued?
(4) Whether Suit No, 986/79 as framed is maintainable?
(5) Whether in Suit No,13/79 the defendant No,2 on the date of dissolution of partnership entered into an agreement of sale with the defendant No,1 and whether the possession of the plot in suit was handed over by the defendant No,2 to the defendant No,1?
(6) Whether the plaintiff in Suit No,986/79 was never in possession of the property and occupied the same forcibly under cover of status quo order in Suit No, 1006/74. If so, what is his status?
(7) Whether the documents relied upon by the plaintiff in Suit No,986/79 in support of his claim have been held by the District Judge to be forged and fabricated. If so, what is the effect?
(8) Whether the plaintiff in Suit No,986 of 1979 has any legal right, title or interest in the disputed property?
(9) Whether in Suit No,13 of 1979 the defendant No,1 got the plot vacated, plan approved, raised construction on the plot and saved the plot?
(10)Whether in Suit No,13 of 1979 no agreement was executed between the plaintiff and the defendant No,2 on 17-5-1972 and the agreement dated 23-1-1976 between the plaintiff and the defendant No,2 is a forged document?
(11)Has the plaintiff in Suit No,13/79 fulfilled her part of the contractual obligations?
(12)Whether in Suit No,13 of 1979 plaintiff and defendant No,2 are in collusion?
(13)What should the decree be?
4. The learned counsel for the appellant has contended that the evidence on record has not been properly appreciated and it is a clear case of misappreciation and misreading of evidence.
According to him if the evidence is properly read and appreciated, suit filed by Kabiruddin, the appellant, should be decreed and the suit filed by Maqbool Begum, the respondent, should be dismissed. To substantiate this contention the learned counsel has taken us through the entire record and the evidence produced before the learned Single Judge. There is no dispute between the parties that the plot in dispute belonged to Muniruddin who is now represented through his legal heirs who will be referred as respondent No,1. Mst. Hajiani Maqbool Begum hereinafter will be referred as respondent No,2. The agreement of partnership between the appellant and Muniruddin who was alive at that time has not been denied. The dispute arose from the date when partnership deed was dissolved by an agreement dated 8-5-1972. According to the appellant by an agreement of the same date Muniruddin had agreed to sell his property to the appellant. The burden is therefore, entirely upon the appellant to establish that Muniruddin had agreed to sell the property to him. Muniruddin during his lifetime in affidavit filed in Suit No,1006/72 and the written statement had denied the execution of agreement Exh.9/14. The question therefore arises whether agreement to sell Exh.9/14 was executed by Muniruddin. The signature on a document can be proved by the admission of the executant or from the oral evidence of the witness before whom it has been signed. It can also be proved by referring the admitted and disputed signatures of the executant to a handwriting expert, comparing them by Court or by other circumstantial evidence.
5. The appellant has stated that the deed of dissolution Exh.9/38, the agreement to sell (Exh.9/14) and two receipts namely Exhs.8/1 and 8/3 were executed on the same day. He has stated that all these documents were prepared by Mr. Mukarim Advocate in his office. Mr. Mukarim has been examined by the respondent and he has denied that he had prepared the sale agreement and receipts. He, however, stated that the deed of dissolution was prepared by him which was executed by the parties. Mr. Khalid M. Ishaque, the learned counsel for the appellant has contended that in view of Article 9 of Qanun-e-Shahadat which is equivalent to section 126 of the Evidence Act, the evidence of Mr. Mukarim could not have been recorded and cannot be relied upon. This provision of law prohibits an Advocate from disclosing any communication made to him in his professional capacity. The provision ensures secrecy of professional communication made to an advocate by his client. An Advocate is prohibited from disclosing any information, communication, instruction or advice made to him, received, obtained or tendered by him during the course of his professional engagement without the consent of his client. Such prohibition extends to disclosing the contents of the documents with which he has become acquainted in the course of his employment or any advice given by him for the purposes of such employment. Pendency of any proceeding is not a condition precedent for operation of this bar. An Advocate is obliged not to disclose any communication made to him by his client even if there is no legal proceeding pending or apprehended and his client is not concerned with a case. Reference can be made to In re: An Attorney AIR 1925 B 1. This bar continues even after the employment ceases. But there are exceptions to the aforestated prohibition and any communication made in furtherance of any illegal purpose is not protected nor can this privilege extend to any fact which shows commission of any fraud or crime committed since the commencement of the employment as advocate. In the present case except the statement of the appellant that Exhs.9/14, Exh.8/1 and 8/3 were prepared by Mukarim Advocate and he was engaged by him there is no other evidence to support this contention. In view of denial of Mr. Mukarim and other circumstances as discussed hereunder it has not been established that Mr. Mukarim was engaged by the appellant as an advocate for preparation of agreement to sell. Therefore, the question of applying the bar under Article 9 of the Qanun-e-Shahadat will not be applicable. The bar will apply if the engagement of the Advocate has been proved.
6. Mr. Khalid M. Ishaq the learned counsel has contended that considering the fact that Mr. Mukarim was acting for and advising Muniruddin it would not be proper to rely upon his evidence. We are not impressed by this argument as Mr. Mukarim is an advocate of standing and repute and we are convinced that although he was appearing for Maqbool Begum in the suits he would not make a false statement merely to protect his client. His testimony cannot be discarded nor he can be termed as an interested witness. He is a respectable senior advocate, and we have no hesitation in believing his words.
7. Besides the fact that Mr. Mukarim has completely belied the statement of the appellant as stated above, the attending circumstances also do not support the appellant's contention. According to the appellant both Exhs.9/14 and 9/38 were prepared on the same day in the office of Mr. Mukarim but they seem to have been typed on the stamp papers purchased on different dates. The typewriters used for typing both the documents are different. The Notaries Public who have attested these documents are also different persons. It is difficult to reconcile to normal reasoning and human conduct that transactions relating to the same property between the same parties which were recorded on the same day, in the same office will bear attestation by different notary public, typed on different type-writers and on stamp paper purchased by different persons on different dates. All these glaring discrepancies in the appellant's evidence have neither been explained nor clarified. The sale agreement Exh.9/14 and receipts Exhs.8/1 and 8/3 were executed in respect of the same transaction, at the same time. Rauf Baig has signed Exhs.8/1 and 8/3 as one of the attesting witnesses but he has not witnessed Exh.9/14. Zahir Yar Khan is a witness in all these documents but he has not been examined. The other attesting witness of Exh.9/14 has also not been examined. Therefore, both the attesting witnesses of Exh.9/14 were not produced in Court.
Syed Muhammad Shahid is the Oath Commissioner and Notary Public who has attested this document. He has clearly stated that the document was produced duly signed and nobody was identified to him. Therefore, he cannot be a witness to the execution of the agreement by Muniruddin.
8. The other documents relied upon by the appellants are Exh.8/1 and 8/3 which reflect upon the execution of the agreement. Exh.8/1 is a receipt by Muhammad Bux known as Muhammad Bhai Abdullah the contractor who has acknowledged receipt of Rs,40,000 from Kabiruddin, the appellant who paid on behalf of Muniruddin towards the proposed construction on the disputed plot. It is also stated that a post-dated cheque of Rs,5,000 dated 25-3-1973 was issued in his favour but in view of the payment it is cancelled. From this document the appellant wishes to establish that in terms of the agreement Exh.9/14 as well as the deed of dissolution Muniruddin had to pay Rs,40,000 to Muhammad Abdullah Bhai the contractor for the work already done and under the arrangement between the parties this amount of Rs,40,000 was paid by the appellant in discharge of the liability of Muniruddin and this part of sale consideration under the agreement stands paid up. It has also been contended that these receipts have been countersigned by Muniruddin. Mr. Wajihuddin the learned counsel for the respondent has vehemently attacked the genuineness of these receipts and contended that they have neither been signed by Muhammad Abdullah Bhai nor Muniruddin.
At the outset it may be stated that Muhammad Abdullah Bhai was examined on behalf of the respondent and he has denied having signed Exhs.8/1 and has also denied that Rs,40,000 was paid to him by Kabiruddin as stated in this receipt. Shamsuddin the son of Muniruddin at the first instance admitted the signature of Muniruddin on Exhs.8/1 and 8/3 but later he has resiled from this statement. It may be noted that in examination-in-chief Exhs.8/1 and 8/3 were shown to Shamsuddin and he was asked whether they were signed by his father. He replied in the affirmative, but in cross-examination by the advocate for Maqbool Begum when he was asked to read the contents of these documents, he replied that these receipts do not bear the signature of his father. In support of his later statement he stated that the signature on Exhs.8/1 and 8/3 appeared to be of his father but they could not be of his father as these documents show payments made by Kabiruddin to his father which were never paid. This explanation appears to be reasonable and correct as he seems to have been led" away by the similarity which Muniruddin's signatures on Exhs.8/1 and 8/3 bear with his admitted signatures. Taking into consideration the evidence produced to prove the signature of Muniruddin as discussed above and hereunder the discrepancy in the statement of Shamimuddin does not conclusively prove the plaintiff's contention and allegation. In the face of denial by Muhammad Abdullah Bhai the counter signature even if made by Muniruddin is of no consequence.
' This receipt Exh.8/1 has been signed by two witnesses one of which is Mirza Rauf Baig who has been examined. The other witness has not been examined. Mirza Rauf Baig has stated in cross- examination that he had signed this document as well as Exh.8/3 at the request of Kabiruddin the appellant and nobody has signed these documents in his presence. He admitted that he was residing at the disputed plot at the time of signing the document, but stated that he cannot identify Kabiruddin and whether he was sitting in the Court although he has admitted that he knew Kabiruddin and was called by him for signing these documents. In these circumstances by stating that he can not recognise Kabiruddin he attempted to give a touch of impartiality to his statement.
Be that as it may, the fact remains that Muhammad Abdullah Bhai and Muniruddin have not signed in his presence and the other attesting witness not having been examined no reliance can be placed on the statement of Kabiruddin alone.
' Mr. Wajihuddin the learned counsel has pointed out that even the contents of Exh.8/1 do not prove the contention of the learned counsel for the appellant. If this receipt was purported to discharge the liability of the construction work carried out by Abdullah Bhai which was in terms of the deed of dissolution the liability of Muniruddin, then there was no need to state that Rs,40,000 was paid towards the proposed construction of the plot in dispute. Proposed construction means the construction which was sought to be made in future. The contention of the learned counsel seems to be reasonable and sufficiently discredits the evidence produced to support the appellant's plea.
9. The appellant has also relied on Exh.8/3 which is a receipt alleged to have been signed by Muniruddin acknowledging receipt of Rs,33,639.33 being the expenditure incurred from time to time by the appellant in the name of Muniruddin at his request on the plot in dispute on account of principal and interest due to him (Muniruddin) under the sale agreement duly executed by him (Muniruddin) on 8th May, 1972 at Karachi. Therefore, by this document the appellant also wanted to prove that the execution of the agreement to sell has been admitted.
10. Mr. Wajihuddin has pointed out that the agreement to sell, receipt and deed of dissolution bear the same date i,e, 8-5-1972 and if Muniruddin were to bear any additional liability of Rs,33,936.33 then it must fmd place in the deed of dissolution where liabilities of the partners were specifically mentioned. The deed of dissolution Exh.9/38 specifically mentions the liabilities and losses assessed and admitted by the parties amounting to Rs,78,200. This total amount has been specifically mentioned with full particulars and was agreed to be the exclusive responsibility of Muniruddin. The other partners including the appellant were discharged from all liabilities and they relinquished all their claims in favour of Muniruddin having no interest or share in the property in dispute. According to the appellant this amount of Rs,33,936.33 was an additional liability which was not specified in the deed of dissolution on the advice of Mr. Mukarim Advocate and for that purpose it was mentioned in the receipt separately. This has been denied by Mr. Mukarim. He has also denied having advised or even being consulted on the preparation of the agreement Exh.9/14.
This is a very strong ground for discarding the authenticity of receipt Exh.8/3. The attesting witness Mirza A. Rauf Baig is not a witness to the execution by Muniruddin nor is Syed Shahid Hussain the Oath Commissioner. Shamimuddin first admitted the signatures shown on Exhs.8/1 and 8/3 but later on as discussed above he expressed his doubts and denied it. Mr. Khalid M. Ishaq the learned counsel for the appellant has referred to the statement of Abdul Wahid Ahmed P.W. 2 (Exh.7) who is a banker and has produced the account opening form and specimen signature card of Munk Co.
In which Muniruddin had affixed his signature. According to the learned counsel for the appellant the signature of Muniruddin in this document and on Exhs.8/1 and 8/3 resemble each other which are in abbreviated form. They differ from the signature of Muniruddin In deed of dissolution Exh.9/38 in which full name has been written. In this regard the statement of the appellant has also been referred where he has stated that when he inquired from Muniruddin about the change of signature he stated that he had done so because his son was copying his signature. This confusion would have been completely cleared if the attesting witnesses would have supported the execution of the agreement or the matter would have been referred to the handwriting expert.
11. One of the scientific modes of proving a disputed signature is to refer it to a handwriting expert with admitted signature for his opinion. It was open to the appellant to apply for examination of disputed and admitted signatures to handwriting expert. This step has not been taken by him although from 1972 when the appellant filed Suit No,1006/72 Muniruddin had denied the execution of the agreement.
12. No doubt the Court is competent to compare the disputed and Cadmitted signatures to ascertain the genuineness of the disputed signature but such procedure are risky and has to be adopted with caution and sparingly. In the present case the volume of evidence is against the appellant's contention. The mode provided under law for proving disputed signatures has not fully been adopted by the appellant, therefore, in these circumstances it will not be a safe course for the Court to compare the signatures and give a finding on it.
13. The appellant has relied on the evidence of Niaz Mohammad Chowkidar on the disputed plot.
According to him he was employed in 1969-70 by Munir, his son Nasim and Kabir but before his death Munir told him that he had sold the plot to Kabir and his salary would be paid by him. In cross-examination he could not remember whether he was appointed as Chowkidar in 1970, 1971 or 1972. He further stated that two months after his appointment Munir had told him about the sale of the plot to Kabir. Munir died in the year 1979 and therefore, his earlier statement is completely contradicted. Furthermore, it is not probable that in 1979 such information would have been conveyed by Muniruddin to him as at that time both the parties were hotly pursuing cases in the Court. He is also contradicted by the statement of Kabir when he stated that no contractor had been employed. Kabiruddin started litigation in the year 1972 but at no stage his name features anywhere except that he has been examined on this behalf in this case. This witness is neither trustworthy nor reliable and his testimony cannot be accepted. In view of the above discussion we feel no hesitation in holding that the finding of the learned Single Judge that the appellant has failed to establish that Exhs.8/1, 8/3 and 9/14 were executed by Muniruddin is correct and does not call for any interference.
14. The learned counsel for the appellant contended that there has been an unreasonable delay in filing the suit for specific performance of the agreement by Maqbool Begum and it has been filed mala fide in collusion with respondent No,1 who wants to take advantage of appreciation of price of the land in dispute. According to the learned counsel if the agreement between the respondents would have been genuine Maqbool Begum would not have waited till 1979 to file the suit. On the other hand Mr. Wajihuddin Ahmed has taken us through the record which relates to the litigation between the parties during this period and has contended that at all material times the respondents were taking necessary action to protect their rights as was permissible under law.
According to the learned counsel in the facts and circumstances of the case no inordinate delay has been caused by the respondent. The sale agreement as claimed by the appellant is alleged to have been executed on 8-5-1972 when partnership was dissolved. The dispute arose as alleged by Maqbool Begum on 2-6-1972 when Kabiruddin forcibly took possession from Muhammad Abdullah Bhai the contractor who was engaged by her. In this regard Haji Abdul Rehman the husband of Maqbool Begum filed a complaint Exh.13/9 before S.H.O. Golimar Police Station stating that on 31-5- 1972 he went to Sukkur leaving his Chowkidar and contractor in possession of the building site and when he returned on 3-6-1972 he found that Kabiruddin had dispossessed them in the night on 2- 6-1972 and trespassed into the plot and misappropriated the building material. On this report proceedings under section 145, Cr.P.C. Were initiated by the Magistrate against which Kabiruddin filed Revision Application which was dismissed on 7-7-1975 (Exh. 13/10). It is, however, to be noted that on 29-5-1972 Kabiruddin had filed Suit No,1006/72 against Abdullah Bhai in the Court of Civil Judge for accounts and also obtained ex parte interim injunction against him restraining him from dispossessing Kabiruddin from the disputed property. The injunction application was dismissed on 30-6-1972 (Exh. 13/20). In this suit Muniruddin and Haji Abdul Rehman filed their supporting affidavit.
Muniruddin denied that he had agreed to sell the disputed plot and construction thereon to Kabiruddin. This had impressed the learned Court who vacated the interim injunction and dismissed the application. It may also be mentioned here that Muniruddin and respondent No,2 got public notices published in the 'Sun' dated 8-6-1972 stating about the sale between them and illegal possession taken by the appellant. In the same suit on 5-7-1972 Abdullah Bhai filed an application under Order XL, Rule 1, C.P.C. For appointment of Receiver which application was granted on the same day and the Nazir prepared a report Exh.13/13. On 17-6-1972 Muniruddin filed application under Order I, Rule 10, C.P.C. To be joined as party which was allowed on 26-2-1975.
Kabiruddin had filed an appeal against the order appointing the Receiver which was dismissed by the District Judge on 22-4-1976 and a Revision filed against that order was also dismissed on 19- 10-1977 (Exh. 13/26). Suit No,1006/72 filed by Kabiruddin was dismissed on 8-5-1978 but before this suit was dismissed Kabiruddin had filed Suit No,2186/74 on 4-10-1974 before the Civil Judge for cancellation of agreement for sale dated 17-5-1972. This suit was ultimately transferred to the High Court and was tried with suit filed by Maqbool Begum and has been dismissed by the impugned judgment. Maqbool Begum first filed application for permission to sue in forma pauperis but later this application was withdrawn and Suit No,13/79 was filed for specific performance of agreements dated 17-5-1972 and 13-1-1976 and mesne profits. A perusal of all these facts and events reveals that from 1972 till 1979 there has been continuously spate of litigation between the parties in respect of the disputed property. On respondents' part the proceedings commenced first on 3-6- 1978 when Maqbool Begum and Muniruddin filed complaint before the police. Then the parties remained engaged in suit filed by the appellant in which the intrerlocutory orders were challenged till the appellate and revisional stage. In all these proceedings Maqbool Begum and Muniruddin were parties at one stage or the other. Therefore, in these circumstances it cannot be concluded that the agreement dated 17-5-1972 is not genuine or that Maqbool Begum has caused unnecessary delay in proceeding with the matter disentitling herself from discretionary relief of specific performance.
15. There seems to have been much controversy in respect of the approved plan and the completion certificate obtained by Kabiruddin. Kabiruddin has produced two approved plans Exh.9/12 and 9/13 dated 10-2-1971. They seem to have been approved in the name of Muniruddin as the owner of the property. However, the appellant has also produced a completion certificate Exh.9/41 in his name. By this document the appellant wants to prove that he is the owner of the disputed property. The photo copy of Exh.9/41 on record is so blurred that it cannot be read at all.
Mr. Khalid M. Ishaque has shown us another photo copy from his record which though blurred can be read with some difficulty. It relates to the completion of the building. However, the respondents have relied on Exh. 13/60 a letter dated 10-6-1980 from Ahmed Hussain, Dy. Controller of Buildings, Master Plan and Environmental Control Department, K.DA. Addressed to Abdul Rehman the attorney of respondent No,1 which reads as follows:- "It is verified from the record that no completion has been approved by this office for the above building, the reference No,CC-1122/75/41 dated 24-11-1976 in favour of Mr. Kabiruddin is forged."
' When this letter was produced through Abdur Rehman, objection to its admissibility was raised by the appellant's Advocate and it was retained on record as Exh. 'X' subject to proof. The respondent examined one Muhammad Riazul Hassan, Assistant Controller, Building Control Authority who had brought all the record relating to the plan of the disputed plot but there was no completion plan of any building constructed on this plot. He further stated that the letter Exh.9/41 is a forged document. He further stated that the outward register does not show issuance of completion certificate. This witness has thus proved letter dated (0-6-1980 Exh. 13/60. According to the learned counsel for the appellant in the inward register there is an entry for receipt of the plan of completed building and it is contended that according to rules if no reply is given within 60 days the completion certificate shall be deemed to have been issued. This argument is contrary to the statement of the appellant who has stated that completion certificate was issued and to prove it he had produced Exh. 9/41. Except this document which is doubtful and of little authenticity the appellant has not produced any other evidence in support of his contention. The appellant has thus failed to establish that a valid completion certificate was issued. This certificate is alleged to have been issued in the name of Kabiruddin who alleges to have only an agreement for sale in his favour which cannot prove his title. No other title document was executed in favour of Kabiruddin and his name could not be recorded as owner in the record of K.DA. Then how can he be described as owner in the completion certificate particularly when no title documents were in his favour and the approved plans were in the name of Muniruddin. It is an admitted position that in suit No,1006/72 a Receiver had been appointed who had prepared an inventory and the construction existing on 5-7-1972. The second report was prepared on 22-5-1974 and it seems that Kabiruddin unauthorisedly had raised certain construction. This construction in the face of the order of appointment of Receiver was prima fade raised illegally and with a view to give it a legal cover letter Exh. 9/41 had been produced which has not been accepted as genuine by the Building Control Authority.
16. Mr. Wajihuddin Ahmed has contended that all the title documents have been produced from the custody of Maqbool Begum which proves that she is the real purchaser. The appellant alleges to be in control of construction business of the firm and was instrumental in obtaining the approval of the plan. If he had purchased the plot and construction-then in the normal course all the documents of title which were available at that time should have been surrendered to him particularly so as he alleges to continue the construction work. He has only produced order of possession and no other document. This fact lends support to the respondent's case. From the aforestated discussion it is clear that the appellant has failed to discharge the burden of proof and the execution of agreement for sale of the disputed property in his favour by Muniruddin has not been established. On the other hand no collusion between Muniruddin and the respondent No,2 has been established. From the very inception Muniruddin has by affidavits and public notice admitted the execution of agreement for sale of disputed property in favour of respondent No,2 (Maqbool Begum). The completion was delayed due to intervention of the appellant and the litigation he started from 1972. The respondent No,1 the legal representatives of Muniruddin have also not denied the agreement in favour of respondent No,2 which stands proved.
17. The next contention of the learned counsel for the appellant is that the suit is barred by limitation. In this regard the learned counsel has referred to Art. 113 of the Limitation Act which provides period of limitation of three years for filing a suit for specific performance of agreement for sale of immovable property. It provides that in case a date is fixed for the performance of the agreement then three years shall be computed from that date but where no date has been fixed then three years shall start running from the date when the plaintiff has notice that performance is refused. It is an admitted position that in the agreement dated 17-5-1972 (Exh.9/38) no date for performance of the agreement has been specified. At no stage Munkuddin had denied the execution of the sale agreement. Therefore, the suit filed by Maqbool Begum is not barred by time.
18. Mr. Khalid M. Ishaq the learned counsel has contended that the suit was barred by time as it ought to have been filed within three years from the date of agreement dated 23-1-1976 under which Muniruddin has reiterated to execute the agreement and received Rs,5,000. According to the learned counsel Maqbool Begum filed application J. Misc. No,13/79 for permission to sue in forma pauperis but no reference was made to the agreement dated 23-1-1976. Therefore, according to him the second agreement was fraudulently planted merely to seek extension of time. In our view the suit had not become barred by time, and therefore, there was no necessity for planting such an agreement for extension of time. Even if it is held that this agreement dated 23-1-1976 is fraudulent and not valid the suit will not be barred by time for specific performance of agreement dated 17-5- 1972. The learned counsel then contended that in view of the agreement the respondents Nos,1 and 2 are in collusion. In view of the legal position as discussed above the question of collusion does not arise.
' We, therefore, dismiss both the appeals with costs.