' This revision petition has arisen from a suit filed by the petitioner for specific performance of agreement, dated 15-12-1973 which was dismissed by the learned trial Court through judgment dated 20-2-1988, and the appeal against which filed by the petitioner has also been dismissed through judgment dated 5-5-1990, both of which have been challenged in this petition.
2. The case of the petitioner was that the disputed agreement dated 15-12-1973 was executed in his favour by the respondent in respect of sale of the house in dispute owned by him for a consideration of Rs,4,000 out of which an amount of Rs3,000 was paid to him as earnest money and the remaining amount of Rs,1,000 was to be paid at the time of registration of document of sale before the Sub-Registrar. According to him the possession of the house was delivered to him by the respondent in pursuance of the said agreement of sale and he was in possession thereof since then.
3. The respondent contested the suit. In his written statement he denied the execution of the disputed agreement of sale. It was urged that the suit was barred by time and that the plaintiff was in possession of the house as tenant under him for the last six years. The suit was filed on 13-10- 1986 and this written statement appears to have been filed on 18-1-1987. The learned trial Court reflected the controversies arising from the pleadings of the parties in the following issues:-- {{URDU TEXT}} {{URDU TEXT}} ' The learned trial Court through judgment dated 20-2-1988 dismissed the suit. It was held that no evidence was led on Issue No,2 which was also not pressed at the time of argument, therefore, it was answered against the respondent. Issue No,3 was decided against the petitioner. The learned trial Court took into consideration the inconsistency in the evidence of P.W.1 and P.W.3 regarding execution of a separate receipt for payment of Rs,3,000 as earnest money and absence of any entry in the register of petition-writer about execution of the other agreement of sale, dated 14-12- 1973 by Muhammad Din P.W.1 in favour of the wife of the present petitioner regarding sale of his house and held that the execution of disputed agreement of sale Exh.P.1 was not proved. The evidence of P.W.2 son of the petitioner has also been discredited on the ground that against one serial number in the register a space was left blank which was later on cancelled. Under Issue No,1 it was held that the suit was barred by time because the same had been filed after the expiry of three years from the date of its execution of agreement i,e, 15-12-1973. It was observed that the conduct of the respondent of filing ejectment petition and thereafter making application before the police was evidence that he had been denying the execution of the document. In view of the fmdings recorded in Issues Nos. 1, 2 and 3 under Issue No,4 it was held that the petitioner was not entitled to a decree for specific performance. Consequently the suit was dismissed. In appeal filed by the petitioner the learned lower Appellate Court through judgment dated 5-5-1990 upheld the finding recorded by the learned trial Court and dismissed the appeal.
4. Since the learned counsel for the petitioner argued that the findings recorded by both the Courts below suffer from misreading of evidence, therefore, I have examined the same myself with the assistance of the learned counsel for the both the parties.
5. In support of his case the petitioner examined Muhammad Din who is the real brother of the respondent as P.W.1. He stated that the agreement dated 15-12-1973 in dispute (Exh.P.1) bore his signatures which he put as marginal witness. According to him Ghulam Rasool the other witness also put his signatures and that it also bore the signatures of Sana Ullah Khan (plaintiff). It is in the evidence of this witness that in his presence the respondent received an amount of Rs,3,000. The scribe of the document according to this witness was one Ayub who was resident of Peshawar. He also stated that regarding payment of Rs,3,000 as earnest money a receipt was separately executed but he put signatures only on the agreement of sale. Altaf Hussain was examined as P.W.2. He is the son of Ayub deceased who was scribe of the disputed agreement of sale (Exh.P.1).
He identified the writing of his father of this document and stated that the same bore the signatures of his father. He also produced the register maintained by the petition-writer according to which the document in dispute had been entered at Serial No,1287 on 15-12-1973. Ghulam Rasool was examined as P.W3. He is also one of the marginal witnesses of the disputed agreement of sale.
He stated that the same bore his signatures and that the respondent also put his signatures on the same. According to his evidence an amount of Rs,3,000 was paid to the respondent by the petitioner out of the total consideration of Rs,4,000. In the cross-examination this witness admitted that Muhammad Din P.W.1 the brother of the respondent had also executed agreement of sale on 14-12-1973 which was also scribed by the same petition-writer. He stated that he was also the marginal witness of the said agreement of sale executed by Muhammad Din. The petitioner examined himself as his own witness as P.W.4. He stated that the agreement of sale in dispute was executed in his favour by the respondent who received an amount of Rs,3,000 as earnest money and delivered possession of the house to him. He also stated that through agreement dated 14-12- 1973 the brother of the respondent Muhammad Din P.W.1 agreed to sell his property to his wife.
6. As against this evidence the respondent appeared as his own witness as D.W.1 and denied having executed any agreement to sell his house to the petitioner and stated that the petitioner was in possession of the house as his tenant for the last seven years who failed to make payment of rent since two years before. He denied having executed any agreement of sale. He admitted that he filed an ejectment petition against the present petitioner which was dismissed and no appeal was filed against the order of the Rent Controller. He admitted that he made application to the Divisional Police Officer, Kalur Kot. He admitted that he was known as Feroze Din and people also sometimes called him Feroze Khan. No other witness was examined by the respondent.
7. I am afraid both the Courts below have based their findings on erroneous assumption that there were discrepancies of material nature in the evidence of P.Ws. On account of which their evidence was not accepted. It has altogether been ignored that Muhammad Din P.W.1 who is the real brother of the respondent had supported the petitioner's case who was also one of the marginal witnesses of the disputed agreement of sale. There is no reason to disbelieve him as nothing has been brought on the record in cross-examination as to why he was interested to depose against his brother. An adverse inference had been raised that in the register maintained by the scribe no entry had been made regarding agreement of sale executed by this Muhammad Din regarding his house in favour of the wife of the petitioner on 14-12-1973 in order to hold that the execution of agreement of sale in dispute was also doubtful. It has not been taken into consideration that Muhammad Din P.W. 1 did not deny that he executed the said agreement of sale regarding his house. From the absence of any entry in register of petition-writer regarding agreement of sale executed by Muhammad Din on 14-12-1973, no adverse inference could be raised regarding agreement of sale in dispute against the petitioner. This is apart from the fact that according to the evidence of the petitioner the agreement of sale executed by Muhammad Din was scribed by Sardar Ibrahim another petition-writer and both were sitting close to each other. The agreement in dispute was scribed by Muhammad Ayub petition-writer whose register was produced by his son P.W.2, therefore, no entry of the said agreement of sale could be present in this register. The two Courts below shall be deemed to have introduced an extraneous matter, which was not relevant for determining the controversy raised in the present suit. Regarding discrepancies in relation to evidence of P.W.1 and P.W3 pointed out by the learned trial Court and upheld by the learned lower appellate Court pertaining to execution of a separate receipt and payment of Rs3,000, it may be pointed out that in reality the evidence was not in fact discrepant. The witnesses were examined after a passage of considerable period, therefore, if minor discrepancies regarding the details relating to execution of document in dispute, the time at which the same was executed and the manner in which the parties acted the same were natural and did not have material bearing and had not adversely affected the evidentiary value of their statements. The petitioner in his own evidence made clear that Katchi receipt was written. The payment of an amount of Rs,3,000 by the petitioner had been acknowledged as mentioned in the agreement of sale itself. The petitioner is admittedly in possession of the property which he claimed to have been delivered to him under the agreement of sale. The petitioner in his statement clarified that initially the respondent undertook to deliver possession of the house at the time of his visit to Kalur Kot but on his insistence he delivered the key of the house there and then. The case of the respondent was that the petitioner was in occupation of the house as his tenant. He admitted that an ejectment petition was filed against the petitioner which was dismissed. It was not his case that the petitioner was served in the said ejectment petition and appeared in the Court. Learned counsel for the petitioner when questioned whether the petitioner appeared in the said ejectment petition to contest it stated after taking instructions from the respondent who is present in person that the present petitioner was neither served nor he appeared before the said Court and that the ejectment petition was withdrawn. The respondent failed to produce any evidence that the possession of the house was delivered to the petitioner by him as tenant. In the written-statement it was stated that the petitioner was in possession of the house for the last six years. The written statement was filed on 18-1-1987. According to it the petitioner must have been put in possession of the house in 1981. The respondent has not produced evidence that the petitioner ever paid rent in the presence of any person to him. The inference raised in favour of the respondent from his own act of filing ejectment petition and application before the police officer could not be raised under the law as it amounted to admission by the respondent in his own favour. The act of withdrawal of the said ejectment petition and his conduct of not filing any other ejectment petition rather was a circumstance which supports the case of the petitioner which has not been taken into consideration and it is a case of ignoring very material piece of circumstantial evidence. The respondent was asked by me as to from which point of time the petitioner had been in possession of the house who without any hesitation stated that he was in possession of the house since 1973. The execution of document of sale in dispute has been fully proved by the petitioner through cogent evidence which has not been correctly appraised and carefully gone into and misread. In particular as pointed out earlier there is no reason to disbelieve Muhammad Din P.W.1 who is the real brother of the respondent and a marginal witness of the document. The possession of the petitioner over the property in dispute since 1073 coupled with the fact that no evidence is available that he ever paid rent to the respondent or that he was inducted in the premises as tenant also furnishes strong evidence in favour of the petitioner regarding the execution of the agreement of sale.
8. The two Courts below have also committed material illegality while holding that the suit was barred by time. The fallacy of the reasonings given by the learned two Courts below in holding so lies in erroneous assumption that the period of limitation was to start in this case from 15-12-1973 i,e, the date of execution .Of agreement of sale whereas it is manifest from the document itself that no time was fixed for execution of the sale-deed and completion of sale c itself, as such, under Article 113 of the Limitation Act, in such a case the limitation was to start from the date when the petitioner came to know that the respondent had declined to abide by his commitment. The respondent admitted that he made an application to Inspector Police which was in fact the point of time from which the petitioner in fact came to know that the respondent had intention to refuse to perform his part of agreement, as such, the suit was within limitation.
9. Learned counsel for the respondent faintly argued that inaction on the part of the petitioner for a long time itself should be taken into consideration and a presumption should be raised that the agreement of sale had not been in fact executed in his favour otherwise he would have come to the Court earlier.
10. The argument in the facts and circumstances of this case has no merits, for, the petitioner who had been in possession of the property since 1973 as admitted by the respondent in the Court today, was not under any compulsion to approach the Court. The fact remains that admittedly the respondent at the time of execution as also thereafter was residing at Peshawar and in such circumstances the petitioner could wait for the respondent to come to Kalur Kot and execute the sale-deed. He being the person in possession of property and enjoying the same under agreement of sale was justified in the ordinary circumstances not to entertain any doubt in this respect.
11. It may also be observed that the petitioner was given a suggestion in the cross-examination that Ghulam Rasool and Feroze Din colluded and got the signatures of the respondent thereafter which suggestion by implication means an admission by the respondent that the agreement of sale bore his signatures. After examining the evidence I am fully convinced that the execution of disputed agreement of sale by the respondent and payment of s.3,000 thereunder and delivery of possession . Of the house have been fully established. The two Courts below misread and misconstrued the evidence in material aspect, therefore, their findings suffer from material irregularity and illegality which are not sustainable.
12. This revision petition is accepted. The judgments and decrees of both the Courts below are set aside. The suit of the petitioner is decreed subject to payment of Rs,1,000 which shall be deposited in the learned trial Court on or before 16-12-1992 failing which his suit shall stand dismissed. There will be no order as to costs.