On 22-2-1982 the appellant filed a suit for specific performance. It was stated in the plaint that the suit land stood allotted to Muhammad Saeed Qureshi son of Mian Muhammad Hayat who agreed to sell the same to the appellant for a consideration of Rs.89,600 at the rate of Rs.1,280 per acre. A sum of Rs.10,500 was paid as earnest and the said Muhammad Saeed Qureshi executed agreement, dated 4-3-1971. Possession was delivered to him where he installed a tubewell and started cultivating the land. Conveyance deed was executed by the Provincial Government in favour of the said vendor on 2-12-1975. The terms of this conveyance restrained the allottee from transferring the land for a period of five years. The said Muhammad Saeed Qureshi died and was survived by the present respondents. Out of the respondent, respondents Nos.3 and 4 ratified the said contract by executing an agreement on 16-12-1976. After the lapse of the said period of five years the appellant requested the respondent to complete the contract who refused to do so the month preceding the date of filing of the suit. With these averments the appellant claimed decree for specific performance. The respondents filed written statement objecting that the suit is barred by time; that the agreement is hit by section 19 of the Colonization of Government Lands (Punjab)
Act, 1912. On merits also the agreement was attached on the said ground. Regarding the latter agreement it was averred that there are several heirs of Muhammad Saeed Qureshi and some of them cannot bind the others. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of the appellant vide judgment and order, dated 5-1-1988. The respondents filed an appeal which was heard by a learned Additional District Judge, Sahiwal who proceeded to allow the same and dismissed the suit of the appellant vide judgment and decree, dated 14-5-1989.
2. Learned counsel for, the appellant contends that evidence has been grossly misread by the learned Addition District Judge while setting aside the impugned judgment and decree of the learned trial Court. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge.
3. I have gone through the record of the learned trial Court, with the assistance of the learned counsel for the parties. I find that in the heading of the original plaint as also the several amended plaints filed thereafter the appellant has sought specific performance of agreements, dated 4-3- 1971, 26-3-1971 and 16-12-1976. Similar is the allegation in para. 7 of the plaint. However, in the body of the original plaint there is no reference to the said agreement, dated 26-3-1971. Be that as it may, copies of the said agreement, dated 4-3-1971, 26-3-1971 and 16-12-1976 were filed alongwith the plaint on the date of institution of the suit i.e. 22-2-1982.
4. I find that the said agreements, dated 4-3-1971 and 26-3-1971 are Exhs.P.I and P.2 on the record.
The appellant has produced Faqir Muhammad, P.W.1 who is scribe of both the said agreements. He has stated with reference to entries in his Register that the documents were scribed by him and were read over to Mr. Muhammad Saeed Qureshi, who was known to the witness and who signed the same. A.I Akbar Chishti is a marginal witness of the document EXhS.P.I and P.2. He has stated that Saeed Muhammad Qureshi was known to this ,witness and has signed the said document.
The; appellant himself entered witness-box as P.W.7 and made a statement in line with plaint. As against this one of the defendants/ respondents .Khuda Bakhsh entered the witness-box as D.W.1.
In his very examination-in-chief he stated that he is not aware as whether his father entered into an agreement regarding suit land with the appellant. However, he did state that ERhS.P.I and P,2 were not got scribed by his father. Admitted that appellant is in possession of the land since 1971 and that he had not been paying any share of the produce. It may be pertinent to note here that like in the written statement the said defendant who is sole witness for the respondent did not at all deny that Exhs.P.I and P.2 did not bear the signatures of his father. He, however, did deny his.
Signature on agreement, dated 16-1i 1976 which is Exh.P.3 on record his cross=examination again he stated that he is not aware as to whether his father agreed to sell the suit land to the appellant or not. He also expressed his ignorance as whether his father received some earnest money from the appellant or not. To my mind the evidence led by the appellant to prove agreements Exhs.P.1 and P.2 by the late Saeed Qureshi has gone absolutely unrebutted. So far as the agreement, dated 16-12-1976 Exh.P.3 is concerned, the same has not even been relied upon by the learned trial Court.
However, the fact remains that basically if the agreements Exhs.P.1 and P.2 are needed to be specifically performed and the execution thereof stands proved.
5. Coming to the reasons forwarded by the learned Additional District Judge for upsetting the findings of the learned trial Court I may state that the learned Additional District Judge has not only failed to read the evidence but has acted under a misconception. He has relied upon Article 79 of the Qanun-e-Shahadat Order, which according to him having come into force on 28-11-1984 was applicable to the proceedings as evidence was recorded during the period 1985 to 1987. While doing so he forgot two things; one that said Article 79 is another verbatim reproduction of section 68 of the erstwhile Evidence Act, 1872 and that the said dispensation speaks of a document required by law to be attested. Now an agreement to sell is not a document required by law to be attested and as such the production of the second marginal witness was not obligatory. The learned Additional District Judge has not recorded a single reason for disbelieving the testimony of P.W.1 Faqir Muhammad while I find no mention of P.W.2 A.I Akbari Chishti in the impugned judgment.
Similarly no reference at all has been made to the testimony of appellant as P.W.7. It is, thus, a clear case of not only misreading but non-reading of evidence by the learned Additional District Judge while passing the impugned judgment and decree this finding on Issue No.5 are set aside and those of the learned trial Court are restored. The findings of the learned Additional District Judge on Issue No.2 pertaining to limitation are also result of misconstruing the law failing to read Article 113 of the Schedule to the Limitation Act, 1908. In the agreement Exhs.P.I and P.2, particularly Exh.P.2 todate is fixed for performance of the agreement. It is true that it is written Exh.P.2 that a sale--deed shall be executed and registered or a mutation shall be got attested within one year of the conferment of the proprietary rights. However, it cannot be said that this means that a date was fixed for performance within the meaning of Article 113 of the said Act. By now it is well-settled that a date fixed for the purpose within the meaning of said provision of law is a date by calendar.
Reference be made to the case of Javed Masih and 3 others v. The State PLD 1994 SC 314. Thus, no date of evidence fixed for the purpose of the agreement and limitation would be governed by the second part of Article 113 i.e. It shall commence from the refusal to perform the agreement.
According to the plaint such refusal was made during the month prior to the date of institution of the suit. There is nothing on record to suggest that the said claim of the appellant is incorrect. In this view of the matter the suit was very well within time and is held to be so.
6. As a result of the above discussion this R.S.A. Is allowed. The judgment and decree, dated 14-5- 1989 of the learned Additional District Judge, Sahiwal is set aside while that, dated 5-1-1988 of the learned trial Court is restored with costs throughout.