SAVED NAJAM-UL-HASSAN KAZM1, J. - This appeal arises from judgment, dated 17.5.19 95 passed by learned Civil Judge, Jaranwala, in a suit for specific performance.
2. Respondent No. 1 (Inayat Muhammad) filed a suit for possession of land measuring 24 kanals, 16 marlas through specific performance of agreement of sale dated 5.1.1987. The case of respondent was that the appellants and respondent No. 2 (Saad Ullah) had agreed to sell land measuring 37 kanals, 1 marlas in Chak No. 76/KB Tehsil Jaranwala, at the rate of Rs. 1,40,000/- per acre (8 kanals) and received Rs.One lac as earnest money. In terms of the agreement, sale-deed of land bearing killa No. 6 and 5/2 was to be executed on 5.2.1987 subject to payment of agreed price after deducting Rs.33,000/- from the earnest amount of Rs.One lac. The sale-deed for 13 kanals two marlas was executed by the appellants and respondent No. 2 by receiving proportionate sale price and adjusting Rs.33 ,000/- from the initial earnest money with the result, a sum of Rs.67,000/- remained with the appellants, towards earnest moneys -It was claimed that die appellants had to execute a sale-deed of remaining land measuring 24 Icanals, 16 marlas at the rate of Rs.1,40,000/-, but they avoided the same which necessitated the filing of suit.
3. Appellants resisted the suit. It was claimed that the land formed part of un-divided khata, the agreement could not be specifically performed, the agreement was violative of MLR 115, time was essence of the contract which stipulation having not been adhered to, respondent could not claim discretionary relief and that some of the defendants, namely, defendants Nos. 1, 5 to 7 had not executed the agreement. Additionally it was pleaded that the appellants appeared before the Sub-Registrar for the sale-deed but the respondent (iid not turn up which would disentitle him to claim enforcement of the agreement.
4. Looking the controvercies as the same were, the learned Trial Court framed the following issues:-
(1) Whether the disputed land is not partitionable?
(2) Whether the terms and conditions of the agreement are in violation of MLR (3) Whether the suit is not maintainable in its present form?
(4) Whether the plaintiff is estopped by his act and conduct to bring this suit?
(5) Whether the suit is time-barred?
(6) Whether the suit of plaintiff is false, frivolous, vexatious and the defendants are entitled for the special costs u/S. 35-A of CPC?
(7) Whether the defendants entered into an agreement to sell that the plaintiff under consideration of Rs.4,34,000/- regarding the land in dispute and have received Rs.67,000/- as advance?
(8) Whether the defendants have \completed partial performance of the agreement to sell vide mutation No. 1050?
(9) Relief.
5. Apart from the documentary evidence, respondent No. 1 produced, Sher Muhammad PW-1, Khalid Maqbool PW-2, Sultan Mehmood PW-3, an Advocate PW-
4. Sultan Mehmood PW-3 appeared as attorney of respondent No. 1. In defence appellants produced Muhammad Arif, DW-1 Ahmad DW-2 and Sardaran Bibi DW-3. Documents Exh.P-1 (agreement of sale), Exh.P-2 (receipt for payment of Rs.1,000/-), Exh.P-3 (power-of-attorney) were also tendered in evidence.
6. The suit was decreed by the learned Civil Judge on 17.7.1995, holding, that the agreement of sale was proved, partial performance of the agreement through sale of land measuring 13 kanals, 2 marlas was proved, time was not essence of the contract, respondent No. 1 had remained ready and willing to perform his part and was entitled to the enforcement of the agreement, the suit was not barred by any provisions of MLR 115, and that the appellants were duty bound to perform their obligations under the sale agreement. Needless to mention here that respondent No. 2, who was defendant No. 8 in the suit, conceded the claim of respondent/plaintiff and, therefore, the suit to his extent was also decreed.
7. Learned counsel for the appellants argued that the agreement was not proved, the respondent did not perform their part and were disentitled to claim relief in equity, the suit was filed after two years which should be a negative consideration against the respondents, the decree against respondent No. 2 was passed on 19.5.1991 but was not executed and that the respondents having failed to appear before the Sub-Registrar rendered himself disentitled to any relief for enforcement of contract.
8. In reply learned counsel for respondents submitted that the evidence on record proved beyond doubt execution of the agreement which was otherwise admitted in his evidence. It was added that no notice was given for appearance before Sub-Registrar, the notice issued by the respondent was never responded and that respondent No. 1 got the sale-deed for 13 kanals, 2 marlas which would show his readiness and willingness to perform obligation under the agreement.
9. With the assistance for the parties we had the opportunity to examine the entire evidence on record.
10. As far as the execution of the agreement is concerned, though initially the claim of the appellants was that except defendants Nos. 2 to 4, the other defendants, namely, defendants Nos. 1, 5 to 7 in the suit had not executed the agreement but in evidence, the execution was, by and large admitted. Even otherwise, the plea raised was self-contradictory as on the one hand the appellants pleaded that some of the vendors had not executed the agreement while on the other hand, their case was that they appeared before the Sub-Registrar for performance of obligation under the agreement but the respondent did not appear. If there was no agreement on behalf of all of the, appellants, there was hardly any occasion for them to approach the Sub-Registrar, for registration of the agreement. This in itself would .Show that the agreement was on behalf of all the appellants. Another factor is that the agreement was in respect of land measuring 37 kanals, 18 marlas and in terms of the agreement, the sale-deed for 13 kanals, 2 marlas was to be executed on 5.2.1987. Admittedly, land measuring 13 kanals, 2 marlas was sold by receiving price and allowing adjustment of Rs.33,000/- from the earnest money. In the evidence, it is established beyond doubt that this sale was made and was never challenged. If there was no agreement, there was hardly any occasion to make any sale in performance of the agreement for a portion of the land. Apart therefrom, the respondent produced evidence of PW-1, PW-2 and PW-3 which proved beyond doubt the execution and existence of the agreement, payment of the earnest money, completion of sale-deed in regard to part of the land subject-matter of the agreement., Not only this, the witnesses of the appellants themselves admitted the existence of agreement of sale. So much so, DW-1 admitted that on the application allegedly moved to the Sub Registrar for the registration of the sale-deed, all the sisters' and the mother were included. The witnesses produced by the appellants did not deny that they had the knowledge of the agreement but they never made any effort for its cancellation. In this view of the evidence, the learned Trial Court was justified in concluding that the agreement of sale was proved. The findings on this account could not be shown to be suffering from any misreading of the evidence or from error of law.
11. As regards the plea, that respondent No. 1 had failed to perform obligation under the agreement, the same is not well-founded. The statements of PW-1 to PW-3, makes it obvious that the respondent was always ready and willing to perform his part. Not only this, he got the sale of 13 kanals, 2 marlas by making payment of the proportionate sale price and the remaining agreement, to be performed is in regard to land measuring 24 kanals, 16 marlas. The appellants were served with a notice for the enforcement of the agreement but which was proved by PW-4 but they refused to either respond or to perform their part. As regards the plea of appearance before Sub-Registrar, the appellants did not produce the application in evidence. It is not the case of the appellants, that the respondent was given a notice for appearance before the Sub-Registrar.
Without a notice for appearance before the Sub-Registrar, the respondent could not have any knowledge of appearance. Even otherwise, the sale-deed having not been prepared, there would be hardly any reason for making simple appearance before the Sub-Registrar. If the sale-deed had been ready, there would have been some logic to appear before the Sub-Registrar. Evidence indicates that the respondent issued a notice but the appellant neither respondents nor gave any authority for the purchase of stamp paper or for the preparation of sale-deed and in these circumstances, the sale-deed could not conclude. This being so, it cannot be said that the respondent had waived his right or was debarred by principle of estoppel.
12. Regarding the argument that the time was essence of the contract, it has already been observed that the respondent did remain ready and willing to perform his part under the agreement and also got the deal completed to the extent of a part of the area, within the stipulated time. For the completion of the deed in respect of remaining land he had been making efforts but the sale could not be concluded due to the fault on the part of the appellants. On the contrary, the appellants have been taking contradictory position, as on the one hand the execution of agreement on behalf of some of the vendor was denied and on the other hand, it was claimed .That they were ready to perform their part under the agreement. Admittedly, no notice for decision of the contract was given on the ground that the time was essence of contract. This being so, the appellants themselves did not treat the time to be essence of the contract. The objection raised in this regard is, therefore, without substance.
13. As regard the delay in tiling of the suit, it may be observed, that the suit could be filed within three years from the date mentioned in the agreement in terms of Article 113 of the Limitation Act which was admittedly filed within time. The filing of suit, after two years and that too within the prescribed limitation cannot reflect so strongly against the intending buyer if the circumstances and facts appearing on the record, otherwise proved that the buyer remained ready and willing to perform on the part and took steps to conclude the sale and that the sale-deed could not be registered due to the fault of the vendor. Since the evidence in this case proved beyond doubt that the respondent was ready and willing to do the needful and did take steps to have the deed concluded but could not succeed on account of the fault on the part of the appellants, therefore, the plea raised on this basis does not have any merit.
14. The learned Civil Judge, after considering the entire evidence on record and also the factors noted supra, concluded that the respondent was entitled to the specific performance of the agreement of sale, which findings do not suffer from any error of law.
15. Resultantly we do not find any ground to interfere. The appeal being devoid of substance is, therefore, dismissed.