' Facts leading to the institution of this second appeal are that according to plaintiff/respondent through an agreement to sell dated 14-6-1955, the appellant on a plain paper acknowledged that he had sold the land in dispute measuring ten Kanals situated at Chah Dalel Wala in Tehsil Ahmad Pur Sharqia for a consideration of Rs,600. The consideration amount was received by the appellant/defendant and the possession was given to the plaintiff/respondent on the spot, and the said deed Exh.P1 'also shows that he could ask for specific performance of the agreement.
2. Later on the refusal of the defendant/appellant for the performance of his part of the contract, respondent/plaintiff filed a suit for specific performance on 22-2-1968 before the learned Civil Judge at Ahmad Pur Sharqia. In the written statement, the appellant/defendant made a preliminary issue that the suit was hopelessly time-barred, and also that the alleged written agreement to sell was not on the proper stamp paper and, as such, was inadmissible in evidence, and the execution of Exh.P1 was also denied as being a fictitious document, result of a forgery. The trial Court framed the following issues--
(1) Whether the suit is time-barred? OPP
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiff is in possession of suit land? OPP
(4) Whether the defendant agreed to sell the disputed land on 14-6-1955 according to the disputed terms and thereof failed to perform specifically his part of contract? OPP
(5) Whether the agreement to sell is forged document, if so, what is its effect? OPP
(6) Relief.
3. After recording the evidence, the learned Civil Judge, Ahmad Pur Sharqia, vide his judgment and decree dated 4-12-1969 decided all the issues in favour of the plaintiff, except issue No,1 of limitation and dismissed the suit as being barred by time.
4. Learned District Judge, Bahawalpur vide his judgment and decree dated 28-10-1970 accepted the appeal of the plaintiff/respondent, and held that the suit was within time and as the findings of the trial Court on other issues was not agitated before him, therefore, he decreed the suit.
5. Being aggrieved thereby, defendant has instituted this second appeal assailing the findings of the First Appellate Court on the question of limitation as well as the decision of the trial Court on other issues. The agreement to sell was executed on 14-6-1955, thereafter, it is asserted by the appellant that the plaintiff issued a Notice Exh.P3 to the appellant, and vide postal receipt Exh.P2, the appellant sent a reply to the said Notice. According to appellant this reply was received by respondent/plaintiff on 13-6-1965, wherein, the appellant had denied the execution of the said agreement to sell Exh.P1, and had denied any right of the plaintiff. The suit was filed on 22-10-1968 and therefore, according to the appellant, the suit after a period of three years was barred by time even if the period of limitation is to be computed from the date of receipt of Notice , i,e,, 13-6-1965.
This issue has been dealt with by the First Appellate Court, which has very rightly rejected the date mentioned on the postal receipt as it is written in pencil, and secondly, the First Appellate Court has relied on the statement of the appellant himself as D.W.1, in which he admits that the Notice was sent by plaintiff to the appellant about 8/9 months prior to the institution of the suit, and as such, the First Appellate Court held that the suit was within time.
6. Learned counsel for the respondent has contended that under Article 113 of the Limitation Act, period of limitation of three years for the suit of specific performance is to be commuted, in the cases, where no date is fixed for the performance of the contract, from the date when the plaintiff has Notice that performance is refused. In the instant case, even according to the defendant himself as D.W.1, he denied the rights/title of the plaintiff about 8/9 months prior to the institution of the suit and that is the date of Notice of refusal to the plaintiff, and as such, the suit is within time.
Reliance in this regard is placed on 1991 CLC 1457 Muhammad Yasin v. Allah Din.
7. Learned counsel for the appellant has also tried to agitate against the findings of the trial Court on issues. Nos.2 to 5. The appellant cannot be allowed to agitate the findings of the trial Court on issues Nos.2 to 5 for the first time in the second appeal. The appellant did not agitate against such findings before the First Appellate Court. In para. 6, the First Appellate Court has clearly mentioned that "the findings of the learned lower Court on the other issues were not questioned". In this connection, learned counsel for the respondent has placed reliance on 1979 CLC 533 Waris All and 2 others v. Ghulam Rasool and another, wherein, relying upon Faiz Ahmad v. Ghulam Muhammad and another 1972 SCM R 220 it was held that where the objection to finding of fact by the trial Court was not raised before the First Appellate Court, it could not be allowed to be raised for the first time in the second appeal. Reliance is also placed on NLR 1979 Civil SC 718 Muhammad Sharif and others v. Hasan Din and others, wherein it was held that High Court was justified in not permitting those issues to be agitated in second appeal which had not been pressed and given up earlier.
6.Agreeing with the findings of the First Appellate Court, I see no merit in this appeal, which is accordingly dismissed. However, parties are left to bear their own costs.