CH. IJAZ AHMAD, J.--- I intend to decide C.R. No. 2052/84; C.R. No. 2053/84 and C.R. No. 2054/84 by one consolidated judgment having similar facts and law.
2. The brief facts of C.R. No. 2052/84 are that the petitioner executed Agreement to Sell regarding land measuring 6 kanals, 8 marlas with late Bihan for consideration of Rs. 160/-. The petitioner filed suit for specific performance against the respondents. The respondents filed written statement, controverted the allegation in the plaint. Out of the pleadings of the parties, the following issues were framed by the Trial Court:- ISSUES.
(1) Whether the suit is barred by time? OPD
(2) Whether the agreement is void, illegal and based on fraud? OPD.
(3) Whether the defendant No. I agreed to sell suit land and received Rs. 160/- as purchase money?
OPP.
(4) Whether the defendant No. 2 purchased the suit land with consideration and the good faith?
(5) Relief.
The Trial Court dismissed the suit vide judgment and decree dated 5.5.1984; the petitioner being aggrieved tiled appeal before the learned District Judge, Okara, who entrusted the same to learned A.D.J. Who dismissed the same vide judgment and decree dated 19.6.1984.
3. The brief facts of C.R. No. 2053/84 are that the petitioner executed Agreement to Sell on 9.12.1963 regarding land in-question measuring 19 kanals, 5 marlas for consideration of Rs. 482/- with one Sheikh Muhammad. The contents of Agreement to Sell reveal that petitioner paid' the consideration to respondents who had handed over possession of the property in-question to the petitioner. The petitioner filed suit for specific performance against the respondents. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the following issues were framed by the Trial Court:- ISSUES.
(1) Whether the suit is barred by time? OPD (21 Whether the agreement is illegal, and void, and based on fraud ? OPD.
(3) Whether the cause of action was not accrued on 8.6.1970?
OPD. (4) Whether the plaintiffs have no cause of action against the defendant No. 2? OPD.
(5) Whether the defendant No. 2 executed special power-ofattorney in favour of the defendant No. 1 to sell the suit land? OPP.
(6) Whether the defendants Nos. 1 and 2 agreed to sell the suit land and received Rs. 482/- as purchased money? OPP.
(7) Whether the defendant No. 2 purchased the suit land with consideration and the good faith?
OPD.
(8) Relief.
4. The Trial Court dismissed the suit vide judgment and decree dated 5.5.1984; the petitioner being aggrieved filed appeal before the learned District Judge, Okara, who entrusted the same to learned A.D.J. Who dismissed the same vide judgment and decree dated 19.6.1984.
5. The brief facts of C.R. No. 2054/84 are that the petitioner executed an Agreement to Sell with Muhammad Sharif and other regarding land in question 13 kanals, 10 marlas on 23.6.1966 for consideration of Rs. 391/-. The petitioner paid the consideration to Muhammad Sharif etc. Muhammad Sharif etc have handed over possession of the land in-question to the petitioner. The petitioner filed suit for specific performance against the respondents. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the Trial Court framed the following issues:- ISSUES.
(1) Whether the suit is barred by time? OPD
(2) Whether the agreement is illegal, and void, and based on fraud? OPD.
(3) Whether the suit is defective as contended in objection No. 4 in W.S. And what is the effect? OPD.
(4) Whether the defendants Nos. I to 3 agreed to sell the suit land to the plaintiff and received Rs.
250/- as part purchase money? OPP.
(5) Whether the defendant No. 4 purchased the suit land with consideration and in good faith?
OPD.
(6) Relief.
The Trial Court dismissed the suit vide judgment and decree dated 5.5.1984; the petitioner being aggrieved tiled an appeal before the learned District Judge, Okara, who entrusted the same to the learned A.D.J. Who dismissed the same vide judgment and decree dated 19.6.1984.
6. The learned counsel for the petitioners contended that mere rejection of the mutations does not set the limitation to start running against the petitioners and the respondents defendants having failed to discharge the onus to proof of issue No. 1. The petitioners were entitled to be granted decree prayed for. He relied upon (PLD 1978 S.C. 213); (A.I.R. 1928 Calcutta 754) and (PLD 1968 Karachi 723). He further stated that onus to prove Issue No. 1 was on the respondents but both the Courts below wrongly decided Issue No. 1 against the petitioner without adverting to the evidence on record; he urged that respondents/defendants admitted in their statements that mutations were entered by the same were not attested on account of the absence of respondents, therefore, both the Courts below wrongly decided Issue No. 1 against petitioner. He further urged that petitioners mentioned cause of action in their plaints accrued to them on 8.6.1970 as the respondents refused to honour the Agreement to Sell, but both the Courts below decided Issue No. I against the petitioner outside the pleadings of the parties.
7. The learned counsel for respondents contended that both the Courts below have given concurrent findings of fact on Issue No. 1; this Court has no jurisdiction to disturb the findings of fact.
He relied upon PLD 1964 Karachi 149. He further stated that respondents did not plead in plaints that mutations in-questions were entered by the Revenue Officer on the basis o' the Agreement to Sell, therefore, evidence produced by the petitioner beyond the pleadings is not sustainable in the eyes of law. He relied upon 1992 SCMR 46; both the Courts below consciously after applying mind decided Issue No. I against the petitioners and this Court has no jurisdiction to remand the case as the principle laid down by the Hon'ble Supreme Court in PLD 1980 SC 228; he urged that petitioners admitted in their evidence that respondents did not enter appearance at the time of attestation of the mutations in-question, therefore, admission made during the proceedings are bending upon them; he further stated that late Behian is women therefore, rights of women must he protected as the principle laid down by the Hon'hle Supreme Court in PLD 1990 S.C. 1; PLD 1991 SC 1140; that it is the duty and obligation of the Court by virtue of Section 3 of the Limitation Act to itself examine whether the suit is within time or not? He relied upon AIR 1935 PC 85 ; that question of limitation is mixed question of law and facts; that both the Courts below have given concurrent findings of fact against the petitioners, therefore, revision petitions are not maintainable. He relied upon 1974 SCMR 393.
8. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is admitted fact that all the agreements did not mention any date for completion of the mutation by the parties or for execution of the sale-deed. It is also admitted fact that on the basis of the agreement to sell mutations were entered by the revenue officer which were rejected on 28.2.1967 in the absence of the parties. The contents of the plaint- reveals that the petitioners were put into possession of the land in question and respondents promised to get the sale-deed registered and land mutated in the names of the petitioners. The contents of the plaint further reveal that the petitioners have paid the price of the land in full and thus performed the contract on their part and finally respondents refused to perform, remaining part of the contract to execute sale-deed in favour of the petitioners on 8.6.1970. Respondents filed written statements in all the three suits and had taken specific preliminary objections that the suits are time barred and on merits denied the contents of the plaint. It is pertinent to mention here that all the suits were dismissed by the Triai Court after, appreciation of evidence on record on all the issues whereas the first Appellate Court dismissed the appeal, by appreciation of evidence on record qua the issue No. I and observed as under:- 'That mutations were rejected on 28.2.1967 and the period of limitation expired on 28.2.1970 and the suits were tiled by the petitioners on 14.12.1970 and rejected the contention of the learned counsel for the petitioner that the mutations were cancelled in absentia as the petitioners had knowledge about the same is proved version during the appeal and find no clue in the evidence, or in the pleadings before the Trial Court coupled with the fact that the petitioners admitted that mutations were entered."
The sole question is to he determined whether both the Courts below have decided issue No. 1 in accordance with the Article 113 of the Limitation Act and law laid down by the superior Courts. It is better and appropriate to reproduce Article 113 of the Limitation Act:-{{TABLE}} For the specific performance of a contract (Three years) .. The date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused.
The aforesaid Article consists of two parts:-
(1) Pate fixed in the agreement to sell for the pertformanee.
(2) No date fixed in the agreement to sell for performance.
(3) Notice of refusal for non-pertOrmance received by plaintiff.
NLR 1995 U.C. 347 (Malik Imam Bakhsh's case) NLR 1997 Appeal Cases 125 (Suleman Zulfiqar Mehdi's case). NLR 1995 Appeal Cases 38 (Haji Sh. Ijaz Ahmad's case). 1993 CLC 747 (Muhammad Kabir-ud- Din's case). PLD 1968 Karachi 723 (Hoshang and others case).
The aforesaid proposition of law has been considered in detail by my learned brother Sayed Najam-ul-Hassan Kazmi, J., in un-reported judgment C.R. No. 1840-D-84. Both the Courts below non-suited the petitioners on issue No. 1 as the mutations were rejected on 28.2.1967. This fact is sufficient notice to the petitioners/plaintiffs that respondents refused to perform their part. It is settled proposition of law that the refusal of the defendant to perform contract apart from being proved strictly must be clear, unequivocal and un-conditional. I am fortified from a case reported in AIR 1932 Lahore 36. In the present case onus to prove rested issue No. I was on the respondents/defendants but they tiled to discharge it. Both the Courts below wrongly relied upon the portion of the evidence of the petitioners that petitioners admitted in their evidence that mutations were entered. It is also settled proposition of law that in respect of agreement of sale qua immovable property time is not of the essence of the contract even though mentioned in the agreement itself unless written notice is addressed by one party to the other. Reference can he made to Bashir Ahmad's case (1992 CLC 1069). The aforesaid proposition of law was also considered in Ghulam.Hussain's case reported as PLD 1985 Karachi 674 and observed as such:- "But the respondent never expressly indicated that he would be rescinding the contract nor any refusal in categorical terms not honour his commitment was forthcoming from him. It would he harsh and inequitable to deprive the plaintiff/applicant from the right acquired under the agreement of sale in such a situation and it would he too much to infer that mere tilling of the rent proceedings would amount to a refusal within the meaning of Article 13 of the Limitation Act, and further to attribute to the appellant that he had notice of such an intention because the requirements of law are" that the plaintiff has notice that performance is refused."
Reference can also be made to the following judgments:- PLD 1988 Lahore 216 (Muhammad Safdar Ansari's case). PLD 1988 Lahore 390 (Mst. Nazir Rauf's case).
The judgments cited by the learned counsel for the respondent are distinguished on facts and law.
It is pertinent to mention here that the aforesaid judgments did not discussed Article 113 of the Limitation Act. Both the Courts below have committed material irregularity to decide issue No. 1 in violation of mediatory provisions of Article 113 of the Limitation Act and the law laid down by the superior Courts. This Court has ample jurisdiction to disturb the findings of fact in such situation as the principle laid down by the Hon'ble Supreme Court in Shaukat Nawaz's case (1988 S.C.M.R. 851). It is also settled proposition of law that question of limitation is not a pure question of fact, it is mixed question of law and facts. This Court has jurisdiction to disturb the concurrent findings of fact on issue No. 1 as the principle laid down by the Hon'ble Supreme Court in Haji Sheikh Ijaz Ahmad's case NLR 1995 Civil S.C. 500 and observed as under:- "Before a defendant can successfully invoke the bar of limitation under second clause of third column of Article 113 of the Limitation Act, he has to prove affirmatively that more than three years before the tiling of the suit he had unequivocally, unconditionally and clearly refused to perform his part of the contract. In the instant case he has not stated so." revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.