' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court dated 17-9-1999, whereby the suit filed by the appellant and others for specific performance of a contract dated 14-3-1968 dismissed by the Additional District Judge, Bhimber was maintained and the appeal was dismissed.
2. The brief facts of the case are that according to the case of the plaintiff-appellant an agreement to sell was executed in his favour regarding suit land by Tariq Shamsi in his personal capacity as well as attorney for the other executants on 14-3-1968; said agreement was executed for a consideration of Rs,47,000 out of which Rs,18,000 were allegedly paid to Tariq Shamsi, respondent and Rs,29,000 were to be paid at the time of execution of sale-deed. It is further the case of the plaintiffs that the sale-deed in pursuance of the aforesaid agreement to sell was to be executed when some other litigation between Khalid Shamsi and other respondents, and one Muhammad Aslam finally terminated. However, the respondents instead of executing sale-deed in his favour transferred the land measuring 8 Kanals, 10 Marlas out of the suit land through a sale-deed to other respondents. Thus, he sought a decree for specific performance of contract dated 14-3-1968 and also sought declaration that the sale-deed executed on 10-2-1985 might be declared as inoperative against him. It may be pointed out that on the same day, i,e, 14-3-1968, Tariq Shamsi also executed a mortgage deed regarding some other land in favour of the plaintiffs for a consideration of Rs,18,000. Consequently, respondents also filed a suit for redemption of the aforesaid piece of land. The District Judge consolidated both the suits and disposed of the same by a single judgment. He decreed the suit for redemption on the payment of Rs,18,000 but dismissed the suit for the specific performance of the contract filed by the appellant, herein and others, on the ground that they failed to prove the execution of the agreement; according to the statement of Nawab Din appellant, as witness, no consideration was paid to the respondent at the time of execution of Exh.P.A, the agreement to sell, rather a sum of Rs,18,000 which was paid as a consideration for mortgage deed on the same day was mentioned as consideration for the agreement to sell Exh.PA. The learned District Judge further observed that the statement of Fazil, one of the marginal witnesses of Exh.P.A, does not inspire confidence and does not prove the execution of agreement to sell, specially so when according to the statement of Nawab Din, appellant, Rs,18,000 which were recorded in Exh.PA as consideration was in fact not paid to the executant but the said witness states otherwise. Both the parties went up in appeal to the High Court. The appellant, herein, challenging the dismissal of his suit while the respondents seeking that the appellant and others were not entitled to receive mortgage money because they had caused damage to the suit land. However, the High Court dismissed both the appeals and upheld the judgment and decree of the trial Court. It may also be observed that the High Court has also dismissed the suit filed by the plaintiffs for the specific performance of the agreement on the ground that the same was time-barred because the litigation between Tariq Shamsi and Muhammad Aslam terminated on 10-1-1974 whereas the present suit has been filed on 11-4-1985; the same should have been filed within a period of three years from the final adjudication of litigation between Tariq Shamsi and Muhammad Aslam.
3. Ch. Yaqoob Javed Batalvi, the learned counsel for the appellant, has argued that the trial Court has committed an error in holding that Exh.PA is not proved. He has contended that the execution of Exh.PA is not specifically denied by the opposite-party. He has further argued that the statement of Muhammad Fazil, the marginal witness, coupled with the stand taken by the plaintiffs regarding consideration of Exh.PA, the same stands fully proved. He has argued that even if it is assumed that no consideration was paid to the executant for the agreement to sell, the fact remains that the consideration i,e, Rs,29,000 was to be paid to the executant at the time of registration of sale-deed.
According to the learned counsel, Exh.PA cannot be held to be illegal because in case of a sale the consideration may be paid at the time of transfer or the same may be promised to be paid afterwards; it is not necessary that the same is paid at the time of execution of the document. He has also submitted that the High Court has also committed an error in holding that the suit filed by the appellant was time-barred or that Tariq Shamsi was not even otherwise competent to execute agreement to sell on behalf of the other executants. The learned counsel has argued that in fact the defendants-respondents have failed to execute sale-deed in pursuance of the aforesaid agreement to sell despite the demand made by the plaintiff-appellant on the one pretext or the other and finally they refused to do so in the year 1985. The learned counsel has argued that in the instant case the period of limitation under Article 113 of the Limitation Act would start from the date of refusal by the defendants-respondents to execute sale-deed and not from the date of final decision of litigation between Khalid Shamsi and others, which has been referred to in the agreement to sell. He has referred to a case reported as Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others 1988 CLC 870, wherein it has been held that where no date for the performance of contract is mentioned in the agreement the period of limitation would commence from the date of the refusal of concerned party to perform the contract. In an unreported case titled Muhammad Ashraf Baig v. Haji Ahmad Civil Appeal No,65 of 1999, decided on 4-2-2000, a decree for performance of agreement was passed but in this case the question of limitation was not directly subject of controversy between the parties. Hence, this judgment need not be commented upon.
4. In reply Mr.Muhammad Rafique Dar, the learned counsel for respondents Nos.1 to 6 and 12 to 14, has controverted the arguments on behalf of the appellant. He has argued that the execution of the agreement to sell in the instant case has been specifically denied by the defendants- respondents and the burden to prove the same was on the plaintiff-appellant and the pro forma- respondents which they failed to discharge. He has further maintained that according to the agreement itself, the money which changed hands between the parties as a result of mortgage deed executed on the same day was also consideration for the agreement to sell, which could not be considered so because the said documents are separate and thus consideration for the one cannot be the consideration for the other. Thus, he has contended that if it is assumed for the sake of argument that agreement to sell is proved that being without consideration is of no legal consequence. He has further contended that in the instant case the period of limitation would commence from the date of the final adjudication of the litigation between Khalid Shamsi and others terminated, the said litigation terminated on 10-1-1974 and thus, the suit can be instituted within three years, i,e, before 10-1-1977, whereas the present suit for the specific performance of contract was instituted in the year 1985 about more than 10 years after the expiry of period of limitation. He has also controverted the argument advanced on behalf of the appellant that as no specific date has been fixed in the agreement to sell the limitation would start from the date of refusal by the defendants-respondents to execute the sale-deed and not from the date of the termination of the said litigation.
5. We have given due consideration to the matter. So far as the question of execution and agreement to sell is concerned, that is amply proved from the statement of Muhammad Fazil, the marginal witness of the agreement and from the proof of the signatures of other marginal witness, namely Ali Asghar deceased, on the same. So far as the alternate argument advanced by the counsel for the appellant that even if the execution of the agreement is proved that would be a void document because no consideration was paid for the agreement, is concerned that is not tenable. Because even if we assume for the sake of argument that the consideration of mortgage deed cannot be regarded as a consideration for agreement to sell, the fact remains that it is also mentioned in the agreement that remaining sum of Rs,29,000 would be paid at the time of execution of the sale-deed. It may be stated that according to the definition of word "sale" given under section 54 of Transfer of Property Act, "the sale is transfer of ownership in exchange for a price paid or promised or part-paid and part-promised". Thus, assuming that no consideration was paid at the time of execution of the agreement to sell, Rs,29,000 were promised to be paid at the time of the execution of the sale-deed and; the agreement was written for Rs,47,000. Transfer, we are of the view that the Courts below are not correct in holding that the agreement to sell in the instant case was not proved or the same was executed without consideration.
6. Coming to the question as to whether the suit was instituted after the period of limitation, it may be observed under Article 113 of the Limitation Act that if a date is fixed, for the performance of an act in the agreement, the period of limitation would start from the said date and if no such date if fixed, it would start from the date of refusal. In the instant case although no specific date was fixed yet, it was specifically written in the agreement that the sale-deed would be executed after the final adjudication df the litigation between Khalid Shamsi and others which was pending in the Civil Court. The question arises as to whether the aforesaid phraseology used in the agreement would be regarded as a 'date fixed' within the meaning of Article 113 or not. It may be observed that it is not necessary that a specific date must be fixed; such a date can be inferred from the contents of the agreement. Thus, the term 'date fixed' used under Article 113 of the Limitation Act would be inclusive of any date so ascertained. A reference may be made to cases reported as Hut Chegowda v. H.M. Basaviah AIR 1954 Mysore 29 and R.Muniswani Goundar (died) and another v.
B.M. Shamanna Gouda and others AIR 1950 Madras 820, in support of the said view. Therefore, in the instant case the suit should have been instituted within three years of termination of litigation between Khalid Shamsi and others which took place on 10-1-1974. The contention of the learned counsel that the suit could not be instituted earlier because the factum of termination of the said litigation was concealed by the plaintiff is not tenable because no such plea has been taken in the plaint nor any application for the condonation of delay on such ground was made.
' In the light of what has been stated above, the appeal is dismissed on the ground that the suit filed by the plaintiff-appellant was time-barred and was rightly dismissed.