' The brief facts relating to the present case are that the predecessor of the respondents Eidoo Khan filed a suit for redemption of land mortgaged through deed dated 19-10-1963. The suit was filed on 12-12-1981. As against this another suit was filed by the petitioner against the predecessorin-interest of the respondents for specific performance of contract dated 19-10-1963.
The suit was filed on 14-2-1982. Both the suits were consolidated and consolidated issues were framed and the proceedings were conducted in the suit filed by Eidoo Khan. The property in dispute is 1/2 share of House No,108 Block-K situated in Dera Ghazi Khan.
2. According to the petitioner he had paid entire sale price of Rs,1,800 and the possession was taken by him and agreement of sale dated 19-10-1963 was executed in his favour which was placed on record as Exh.P.1. It is also the case of the petitioner that since sale-deed could not have been executed due to bar contained in Settlement Scheme No,1 Part 37(ii) so the mortgage deed was also executed on 19-10-1963 wherein it was specifically mentioned that Rs,1,700 were paid and the shall be executed on payment of balance amount of Rs,100.
3. On the other hand the case of the respondents is that they have not entered into agreement to sell dated 19-10-1963 with the petitioner, however, the mortgage deed dated 19-10-1963 is accepted by both the parties to have been executed and on that ground the respondents claimed redemption of the suit property. Learned trial Court after recording evidence vide judgment and decree dated 26-10-1986 decreed the suit of the petitioner for specific performance of the agreement to sell while the suit of the respondent's predecessor was dismissed through a single judgment against which the predecessor of the respondent filed single appeal which was allowed by the learned Additional District Judge vide judgment and decree dated 25-2-1988 against which the present revision petition is being pressed by Eidoo Khan.
4. Learned counsel for the petitioner has contended that under section 58 of the Transfer of Property Act the definition of mortgage contained a necessary pre-condition that some loan was obtained for putting the property to mortgage but in the instant case there is not even a single word showing that any loan was obtained by the predecessor of the respondent rather document Exh.D.2. Which is the impugned mortgage clearly indicate that for all intents and purposes the said document was not meant to create a mortgage but was objected only towards creating a sale, and they in order to avoid the difficulties of Settlement Scheme No,1 had given it the colour of mortgage, in fact it was a sale in favour of the petitioner. He further argued that to prove the documents Exh.D.1 and Exh.D.2 he has produced D.W.2 Haji Qadir Bakhsh who is scribe of both the documents and has fully supported the version of the petitioner and the petitioner himself appeared as D.W.3 and has explained that out of other two marginal witnesses one has died and the other is aged more than 100 years old and has lost his mental balance. It is further submitted that even if Exh.D.1 which is agreement to sell is presumed not to have been proved, still Exh.D.2 is an admitted document between the parties and the same can also be treated as agreement to sell. It is further argued that P.W.1 who has been produced by the respondents, namely, Abdul Majid is not trustworthy for the simple reason that while appearing in Court he claims himself that he never remained member of any Municipal Committee while on the other hand he also claimed to have identified the parties before the Tehsildar while Exh,D.2 shows that the person Abdul Majid who identified the parties before Tehsildar was a member of Town Committee, therefore, this witness is not trustworthy. It is further submitted by learned counsel that no question of limitation would arise because his case falls under second part of Article 113 of the Limitation Act. According to him there was no date or time fixed by the parties in agreement to sell, therefore, under second part of the said Article the cause of action would accrue when execution is denied. According to him the suit for redemption was filed by the respondents on 12-12-1981 so this was the first denial to his right, therefore, even its limitation is taken from that date his suit is well in time. Learned counsel while referring to 1987 CLC 795 contends that there is no bar under the law that a property cannot be subjected to sale and mortgage at one time. He further submits on the strength of 1982 SCMR 75 that phraseology used in the document should be used as a touchstone to determine the real intention of the parties whether the document is an agreement to sell or mortgage.
5. On the other hand the learned counsel for the respondents while referred to Exh.D.2 and Exh.P.2 which is impugned mortgage deed, contends that it is settled principle of law that "once a mortgage always mortgage" and secondly that since respondents had no authority in the year 1963 to alienate the property through sale nor he had any lawful authority to enter into an agreement of sale because of the constraints imposed by Exh.P.1 and the Settlement Scheme No,1 .
He has also referred to PLD 1958 Dacca 132, to contend that the construction of the documents is to be made in a specific way (i) if the recitals are clear and the operative part is ambiguous, the recitals govern the construction, (ii) if the ,recitals are ambiguous and the operative part is clear, the operative part must prevail and (iii) if both the recitals and the operative parts are clear, but they are inconsistent with each other, the operative part is to he preferred. In the instant case according to him the operative part is that for all purposes it was a mortgage and not a sale. It is next contended that the appellants failed to prove Exh.D.1 which is the sale agreement as only one witness D.W.2 Ghulam Qadir scribe was produced and no attesting witness has confirmed the said document. It is further contended on the strength of 1986 CLC 770 that admittedly Exh.D.2 was written prior in time and Exh.D.1 which is impugned sale agreement was written thereafter, therefore, Exh.D.2 has to be given preference over Exh.D.1. It is further submitted while referring to section 22 of the Specific Relief Act and relying on PLD 1971 Lah. 199 that the relief of specific performance of contract is absolutely discretionary relief and the Court must take into consideration that the other party is not burdoned with undue disadvantage. It is further contended that the form of the suit is also incorrect, according to him since the appellant was claiming full ownership of the suit property, therefore, he should have filed a suit for declaration instead of ,specific performance of contract. Next contention is that suit of the appellant for specific performance which was filed on 14-2-1982 was clearly barred by time to substantiate his this argument, he has referred to Exh.D.1 wherein it .Is mentioned that whenever the respondent gets the proprietary rights, in the suit property he will transfer the same to the appellant and since PTD was issued to the respondent on 28-6-1974 which is placed on record as Mark 'A', therefore, the suit filed in the year 1982 was absolutely beyond the period of limitation. The learned counsel has also referred to para. 5 of the written statement filed by the respondent and para. 3 part (iii) of the plaint and also para. 6 of the plaint filed by the appellant and has also referred to the statement of the D.W.3 wherein he had stated that after the issuance of PTD he had asked many times the respondents to execute sale-deed in his favour. The contention is that the accumulative effect of all these pieces of evidence is that the cause of action in the instant case arose to the appellant on 28-6-1974 when the PTD was issued in favour of the respondent.
6. In reply to the arguments of the learned counsel for the respondent the learned counsel for the appellant contends that D.W.3 has categorically stated that he had no knowledge of the issuance of PTD to Bundoo and more so Exh.D.5 which is the mutation based on the said PTD was sanctioned on 1-3-1980, therefore, according' to him Eidoo came to know about the issuance of PTD only on . 1- 3-1980 after the sanction of the mutation. It is further submitted that the appellant had no notice of the issuance of PTD in favour of the respondent prior to 1-3-1980. It is further submitted that para. 6 of the appellant's plaint has to be read in continuation of para. 5 which indicates that ownership rights were given to the respondent on 1-3-1980, where after the appellant started claiming the execution of sale-deed in his favour.
7. I have considered the arguments advanced by the learned counsel for the parties. It is to be gathered from the intention of the parties, that, what in fact was the intention of the parties while entering into the agreement to sell Exh.D.1 or the alleged Exh.D.2. It is not the form of expression, or the literal sense, which is not tc be given so much regard as the real meaning of the document which the transaction discloses. It is for the Court to ascertain she real intention for the parties by looking at the substance and essence of the transaction and not the mere form of the deed. Even if the deed calls itself a mortgage but its substance is disclosing something else other than the mortgage, then it ,is for the Court to decide that what was the real import of the documents. The document Exh.D.2 relies the following two expressions:-
8. The above two expressions although given in the mortgage deed expressly and clearly show that the intention of the parties was to enter into a sale agreement and not to mortgage the property.
9. The arguments of the learned counsel for the petitioner is absolutely well-founded, that under section 58 of the Transfer of Property Act, all the mortgages can be made of a specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. All these ingredients of mortgage are missing in the Exh.D.2, therefore, by any stretch of imagination the same cannot be termed as a mortgage deed.
10. Exh.D.l and Exh.D.2 both these documents were executed on 19-10-1963. Both these documents were scribed by the same person D.W.2 Haji Qadir Bakhsh and both these documents were attested by the same marginal witnesses, namely, Muhammad Ismail and Nizam Din. Out of the two, Exh.D.2 is admitted by the respondents and Exh.D.1 is denied. To my mind since both these documents were written at the same time rather by the same person and attested by the same witnesses thus, there is no reason to disbelieve one of them and to believe the other.
11. So far as the question of limitadtion is concerned; undoubtedly there is no date fixed for the performance of the agreement to sell either in Exh.D.1 or Exh.D.2. The sale was to take-place after the respondents' predecessor obtained proprietary right with respect to the suit land which incidently he obtained on 28-6-1974 through PTD placed on record as Mark 'A'. D.W.3 in cross- examination has categorically denied that he ever had the knowledge/notice of the said document prior to 1-3-1980 when the PTD was incorporated through mutation placed on record as Exh.D.5.
On the other hand there is nothing on record from the respondents' side to show that the petitioner had any knowledge/notice of the said PTD before its entry in mutation Exh.D.5 Under Article 113 of the Limitation Act if no date is fixed for the performance of the contract then the limitation would start from. The notice when the performance is refused. In the instant case there was no date fixed for the performance of the contract. The petitioner had no knowledge about the issuance of PTD in favour of the respondents. According to their claim they came to know about the same after the attestation of the Mutation Exh.D.5 on 1-3-1980 whereafter they have been asking the respondents for the performance of the contract and ultimately they filed the instant suit in the year 1982, therefore, their suit for specific performance was filed within time. It is held by the Hon'ble Supreme Court of Pakistan in PLD 1995 SC 314 Inam Naqshband v. Haji Sheikh ljaz Ahmad----505 "The words 'date fixed' in the first clause of the third column of Article 113 of the Limitation Act are of great significance. The 'date fixed' means a particular date fixed expressly by the parties for the performance of the agreement. In the instant case, no particular date was expressly fixed by the parties. No doubt, the agreement was to be performed within one week from the date of the agreement but this does not tantamount fixing a date for the performance of the agreement. So, it can safely be said that in the instant case no date was fixed for the performance of the contract within the meaning of first clause of the third column of Article 113 of the Limitation Act. So, the case was not governed by first clause of the third column of this Article. Point at No,(i) raised by the learned counsel for the petitioner is answered accordingly." The case of the petitioner, thus clearly falls under second part of Article 113 of the Limitation Act. Even otherwise time is never considered to be essence of the contract in cases of immovable property.
12. So far as the right of the respondents to get the property redeemed is concerned, the following words in the alleged mortgage deed clearly negates their rights to redeem the property:- {{URDU TEXT}} ' Therefore, no question of redemption arises. So far as the suit filed by the respondents for the redemption of the property is concerned it could not have been decreed in any way.
13. The contention of the learned counsel for the respondents that the principle of "once a mortgage always a mortgage" is not applicable in the instant case inasmuch as the transaction has to be a mortgage, so that it can be kept as a mortgage but since as earlier held in this judgment the document Exh.D.2 was never indicated to be mortgage, therefore, the same cannot be termed as a mortgage even at latter stage. Judgment cited by him as PLD 1958 Decca 132 does not support the case of the respondents rather it goes a long way in support of the petitioner's case. The contention of the learned counsel that Exh.D.5 was not properly proved as the marginal witnesses were not produced is also without any substance as it has been explained by D.W.3 that one of the witnesses had died and the other was aged more than 100 years and has also lost his- mental balance. Furthermore, D.W.2 scribe has appeared and has proved the execution of both the Exh.D.1 and Exh.D.2, out of which Exh.D.2 is an admitted document, scribed and attested by the same witnesses. No do not that under section 22 of the Specific Relief Act, the grant of relief is discretionary and in the circumstances of the case 1 do not find any reason why the discretion should not be exercised in favour of the petitioner who a-e in possession of the suit property since 1963 and had also paid the entire sale price since then.
14. The objection of the learned counsel for the respondents that form of the suit was incorrect is also without substance inasmuch as the petitioner's were in possession of the suit land under an agreement to sell and no document of title was as yet in their favour, therefore, they had no option but to file a suit in the form of specific performance of contract.
15. For what has been stated above, this civil revision is allowed. The suit of the petitioners for specific performance is decreed, while the suit of the respondents for redemption is dismissed, with no order as to costs.