Through this Civil Revision Application under section 115, C.P.C., the applicant has impugned the judgment and decree dated 4-4-1998 and 11-4-1998 passed by IV-Senior Civil Judge Larkana, whereby suit for specific performance of contract and injunction filed by the applicant was dismissed and also the judgement and decree dated 25-6-1999 and dated 30-6-1999 passed by the First Additional District Judge, Larkana whereby he dismissed the appeal of the applicant and maintained the judgment and decree passed by the lower Court.
2. Facts leading to this litigation, as stated in the plaint of F.C. Suit No. 12 of 1996, are that one Sikandar A.I, the predecessor-in-interest of the respondent No.1(a) to (d) was granted S.No.47/1 (area 4-21 Acres in Deh Dhori Mubarak; Taluka Mirokhan hereinafter referred as suit land) on full rate condition, 'A' .Form was issued in his favour and on payment of full instalments of the suit-land same was mutated in his favour in the Revenue Record vide Entry No.132 dated 10-11-1976. During the year 1985 Siknadar A.I leased out suit-land to the plaintiff for a period of four years and accordingly possession was handed over to him. In the year 1987 Sikandar A.I intended to sell the suit land and made such offer to the plaintiff which was accepted by him. According to the mutually agreed terms and conditions, out of lease money paid earlier by the plaintiff, Rs.17,600 were adjusted towards sale consideration of the suit-land and the plaintiff further paid a sum of Rs.46,400 i.e. In all Rs.66,000 to Sikandar A.I and entered into a written agreement of sale with him on 23-4-1987 which was duly attested by Notary Public. In the said agreement it was mentioned that on. Payment of remaining amount of Rs.15,000 and completion of documents registered deed will be executed by 30-6-1988. After the death of Sikandar A.I, the plaintiff approached his legal heirs several times but all in vain. Not only this but legal heirs of Sikandar A.I adopted coercive methods to dispossess the plaintiff from the suit-land, giving cause of action to the plaintiff for filing of present suit for specific performance of contract and perpetual injunction. In the suit the plaintiff also joined official respondents as party as they threatened to forcibly dispossess him from the suit-land.
3. The legal heirs of Sikandar A.I, in their written statement admitted grant of 4 years lease to the plaintiff from 1985 to 1988 and stated that after completing the said period of lease the possession of the plaintiff over the suit-land was that of their hari, as they are the Zamindars and owners of the suit-land. The private defendants/respondents categorically denied the existence or execution of any agreement of sale between the plaintiff and their predecessor-in-interest, Sikandar A.I, and further stated that said Sikandar A.I died on 3-2-1986 and, therefore, there was no question of execution of any agreement of sale with him on 23-4-1987 or payment of any sale consideration amount to him. They challenged the sale agreement as forged and fabricated document.
4. From the above pleadings of the parties lower Court framed following five issues in the suit.
(1)Whether the alleged agreement of sale dated 23-4-1987 is false, bogus and managed document and what its effect?
(2)Whether the suit land in question was leased out by the defendant Sikandar A.I to the plaintiff for 4 years period from 1985 to 1988 and on completion of the lease period the defendant was entitled for its possession?
(3) Whether the plaintiff is entitled for the relief sought by him?
(4) Whether the suit is not maintainable?
(5) What should the decree be?
5. At the stage of evidence from the side of plaintiff, the plaintiff examined his son and attorney Mumtaz as Exh.49, who produced various documents as Exh.50 to Exh.61. The plaintiff also examined another witness Muhammad Ibrahim as Exh.66 and thereafter closed his side for evidence vide statement dated 16-8-1998 as Exh.67. From the side of private defendants one Abdul Ghafoor appeared in the witness-box as attorney of the defendant No.1(a). This witness produced general power of attorney as Exh.69, attested copy of the death certificate of deceased Sikandar A.I as Exh.70 and thereafter, side for evidence of the private defendants was closed vide statement dated 20-3-1989 as Exh.71.
6. The lower Court after hearing the arguments of the learned counsel for the parties answered Issues Nos.1 and 4 in affirmative, Issue No.3 in negative and on the basis of such findings dismissed the suit of the present applicant/plaintiff.
7. Appeal preferred by the applicant against the judgment and decree of the lower Court being Civil Appeal No.52 of 1998 also met with the same fate and was dismissed by the Court of learned First Additional District Judge, Larkana vide its judgment and decree dated 25-6-1999 and 30-6- 1999. Such concurrent findings of facts recorded by the two Courts below have been 'impugned by the applicant in the present revision application.
8. Mr. Moohanlal K. Makhijani, Advocate for the applicant in his arguments mainly contended that the two Courts below misread the evidence led by the parties in the suit as a result of which the suit filed by the applicant was illegally dismissed. Learned counsel further contended that in their pleadings the private respondents did not raise any plea of limitation, and therefore, no issue of limitation was framed in the suit but the lower Court at the time of passing the judgment illegally held the suit as time--bared. In support of his contention on the point of limitation, that in spite of the fact that some specific date was fixed in the agreement of sale viz. 30-6-1988 but still the period of limitation would not commence from such date and that suit instituted on 28-3-1996 was within time, learned counsel placed reliance upon the cases reported as Mst. Munawar Bibi v. Mst.
Meheen Quddusi (1986 CLC 1887) and Messrs Tanzeem Overseas v. Mst. Zainab Bai and another (PLD 1965 (W.P.) Karachi 274). On the legal point that if a plea has not been raised by a party in his pleading same cannot be made basis for deciding a suit, learned counsel placed his reliance on the case of Abdul Hafiz and another v. Muzaffar Karim (PLD 1973 Karachi 253). Referring to the death certificate Exh.70 produced by the private respondents, learned counsel contended that this was an inadmissible piece of evidence, and therefore, any findings based on such document are liable to be set aside in revision, being unwarranted by law. With reference to this contention learned counsel placed his reliance on the case of Muhammad Hussain v. Abdul Razzaq and another (1970 SCM R 506).
9. On the other hand Mr. Rehmat A.I Rajput learned counsel for the private respondents strongly controverted submissions of Mr. Moohanlal and contended that through this case a poor illiterate widow and her minor children were fraudulently and dishonestly dragged into litigation by the applicant. Learned counsel contended that it is clearly established from the oral as well as documentary evidence produced by the respondents that Sikandar A.I expired, on 3-2-f986 and in such circumstances alleged execution of agreement of sale dated 23-4-1987 was a complete fraud practised by the applicant. Learned counsel further contended that non--appearance of applicant himself in the witness-box was fatal to his case and appearance of his son, who was not even present at the time of alleged execution of agreement of sale dated 23-4-1987, as witnesses was of no consequence. In this regard learned counsel placed his reliance on the case of Muhammad Rafique v. Muhammad (1989 CLC 1318). Referring to the evidence of other alleged attesting witness of Exh.52 viz. Muhammad Ibrahim, learned counsel contended that from the evidence of this witness it is proved beyond doubt that this witness was totally ignorant of any such agreement as according to him the agreement Exh.52 was executed and attested before the Mukhtiar kar Mirokhan while the perusal of agreement Exh.52 shows that it was only attested by a Notary Public. Referring to the contents of this document learned counsel also contended that at three places where round seal of the Notary Public has been affixed on this agreement, the date of attestation is shown 23-7-1987 while under the signature of the attesting Notary so also under the alleged signatures of some counsel identifying the parties the date is mentioned as 23-4-1987. All these facts are more than sufficient to show the fraudulent and forged nature of document Exh.52.
The learned counsel lastly referred cases reported as Muhammad Bux v. Muhammad A.I (1984 SCM R 504); Abdul Hakeem v. Habibullah and 11 others (1997 SCM R 1139) and Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCM R 431) to fortify his- submission that concurrent findings of facts recorded by the two Courts cannot be disturbed in revisional jurisdiction, unless it is shown the same suffer from misreading of evidence, jurisdictional defect or some patent illegality or irregularity and mere fact that on the assessment of evidence led by the parties before lower Court, the revisional. Court could arrive at some other conclusion would not justify exercise of revisional powers to interfere with such concurrent findings. The learned counsel, therefore, urged for dismissal of this revision application with special costs.
10. Mr. G.A. Shahani, learned Additional Advocate-General representing the official respondents in this case, at the outset stated that since no Government interest is involved in this case therefore, the official respondents are not interested in contesting this matter. In this regard, learned Additional Advocate-General also placed on record a statement in writing signed by the respondent No.2.
11. I have carefully considered the arguments advanced before me, perused the material placed on record and with the assistance of learned counsel also gone through the evidence led by the parties before the lower Court.
12. It is an admitted position that in the year 1985.a lease agreement was executed between the applicant and Sikandar A.I, the predecessor-in---interest of the private respondents and at that time possession of the suit-land was delivered to the applicant. Thereafter, for the first time on filing of this suit on 28-3-1996 the applicant came forward with the claim of existence of an agreement of sale in. His favour allegedly executed by the predecessor-in---interest of the private respondents on 23-4-1987 in respect of the same land which was already on lease with him. In this background of the matter the whole claim of the applicant subject-matter of the suit hinged upon the proof of execution of agreement dated 23-4-1986 (Exh.52) purportedly executed by Sikandar A.I in his favour. This assertion of the applicant was not only strongly denied by the legal heirs of Sikandar A.I in their written statement on the ground that such agreement was a forged and fabricated document but they had gone one step further by taking the plea that their predecessor-in---interest, Sikandar A.I, had expired on 3-2-1986 i.e. More than one year before the date of alleged execution of agreement of sale dated 23-4-1987. However, in the instant case to prove the execution of agreement of sale (Exh.52), at the stage of evidence the applicant even did not care to enter into the witness-box to depose about the relevant facts in this regard. While Mumtaz A.I the son of the applicant, who deposed on behalf of applicant as his attorney in this case was admittedly a boy of tender age at the time of alleged execution of agreement Exh.52 and he in his evidence did not utter a single word to show, that the execution of Exh.52 took place in his presence. Thus, the evidence of witness Mumtaz A.I was also of no help to prove the execution of Exh.52, being hearsay evidence. I have no hesitation to observe that in the given facts and circumstances, non-appearance of applicant in the witness-box was fatal to his case. This view of the matter is fortified from the judgment of a Division Bench o--- this Court in the case of Muhammad Rafique v. Muhammad (1989 CLC 1318). Relevant observations rea follows:-- "The appellant was a necessary witness to throw light about the transaction pleaded by him. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case."
(also see PLD 1982 SC (AJ&K) 76).
13. Coming to the evidence of applicant's other witness Muhammad Ibrahim who claimed himself to be the attesting witness of Exh.52 it may be mentioned that during his evidence this witness was neither shown/confronted with document Exh.52 nor he deposed anything about the alleged signature of the parties over it or even about his own signature on this document. Not only this but in his cross-examination he gave replies to the questions put to him in such a manner that leaves no room of doubt to hold that he had no knowledge about the execution of Exh.52. Besides, on perusal of contents of Exh.52 the shortcomings in this document as highlighted by Mr. Rehmat A.I are also clearly visible.
14. From the above discussion I am of the view that the applicant miserably failed to prove the execution of Exh.52 and the findings of facts recorded by the two Courts below in this regard against the applicant are thus, based on proper appreciation of evidence. Learned counsel for applicant also failed to show any misreading of evidence or any jurisdictional defect in the judgments of the two Courts below challenged in this revision. Following the dicta laid down in the reported cases Muhammad Bakhsh v. Muhammad A.I (1984 SCM R 504); Abdul Hakeem v.
Habibullah and 11 others (1997 SCM R 1139) and Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCM R 431) this revision application is liable to be dismissed on this score alone.
15. During the course of arguments Mr. Mohan Lal learned counsel for the applicant, attempted to show some superficial deficiencies in the case of private respondents, specially with reference to the death certificate Exh.70. In this context, it may be observed that not only the private respondents produced in their evidence such death certificate issued by the Chairman Union Council Bahrain but their witness Abdul Ghafoor; who was the real brother of the deceased also categorically deposed about the death of his brother Sikandar A.I in the year 1986. Admittedly the applicant was stranger to the family of the deceased and in such circumstances a mere denial of such fact by- him was not sufficient to dislodge the plea of the private respondents about the death of their predecessor Sikandar A.I on 3-2-1986. In addition to this, it may be observed that by now it is well-settled legal position that a party approaching the Court for seeking some relief has to stand on his own legs and any weakness in the case of other side, would neither improve his case nor he will be entitled for any relief on that basis. If any case law is needed, reference may be made to the following decisions of the Hon'ble Supreme Court of Pakistan in Sudhangshu Bimal Biswa s v. MD. Mustafa Chowdhary (1968 SCM R 213) and MD. Anwarullah Mazumdar v. Tamina Bibi and 5 others (1971 SCM R 94).
16. Lastly coming to the question of limitation, where reference to the findings of two Courts below on Issue No.4 it may be observed that section 3 of the Limitation Act casts a duty upon the Court to examine the question of limitation irrespective of the fact whether such plea was raised by a party in his pleadings or not. In the present case if the contents of the agreement of sale Exh.52 are examined then it will be seen that in the said agreement it was clearly mentioned that the registration of deed would be effected till 30th June, 1988. For the purpose of limitation, a suit for specific performance of contract is governed by Article 113 of the Limitation Act, which provides three years period of limitation for such suits to be computed from the date fixed for performance in the agreement as in the instant case. Thus, from the material available on record it is evident that suit when instituted on 28-3-1996 was clearly time-barred.
17. For the foregoing reasons this revision application was found without substance and was accordingly dismissed with costs by short order dated 18-9-2000.