' On 29-6-1982 the petitioners filed a suit ,against the respondent. In the plaint it was stated that the suit-land was confirmed in favour of respondent who agreed to sell to the petitioners for a consideration of Rs,11,660; that a sum of Rs,1,500 was paid as earnest money and an agreement was executed on 6-3-1963 which was registered and possession was delivered; that on 10-7-1963 a further sum of Rs,2,693 was paid in terms of the agreement while amount due to the Government by way of price of land was also paid by the petitioners; that a week ago the petitioners acquired the knowledge that the proprietary rights have been conferred upon the respondent by means of Mutation No,215 attested on 4-5-1977 but the same was kept secret. With these averments the petitioners sought a decree for specific performance of the said agreement, dated 6-7-1963. The respondent in his written statement objected that the suit is barred by time; that the agreement is illegal. On merits it was stated that since the respondent was not owner of the property on the date of agreement he was not competent to enter into same and if some agreement has been fabricated the same is illegal, void and result of fraud. Issues were framed by the learned trial Court relevant being Issue No,1 which is as follows:-- "Whether the suit is barred by time? OPD"
' Evidence of the parties was recorded. Learned trial Court decreed the suit vide judgment and decree dated 30-4-1991. A first appeal filed by the respondent was heard by a learned Additional District judge, Sheikhupura, who while holding that the agreement was executed by the respondent and performed by the petitioners, as alleged, reversed finding of the learned trial Court on the said Issue No,1 and held that the suit is barred by time. Consequently, the appeal was allowed on 27-9- 1995 with the result that the suit filed by the petitioners was dismissed.
2. Syed Muhammad Kaleem Ahmad Khurshid, learned counsel for the petitioners argues that the learned Additional District Judge has acted with material irregularity in exercise of his jurisdiction inasmuch as he has proceeded to hold the suit to be paned by time, by misconstruing Article 113 of Schedule to the Limitation Act. According to the learned ocunsel there was no date fixed for performance of the agreement and as such the case falls within the second part of the Article and in the absence of any evidence to contrary, averments of the petitioners that they had notice of refusal of the performance a week before the suit had to be believed. He relies on the cases of Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 and Muhammad Yasin v. Allah Din 1991 CLC 1457.
3. Malik Saeed Hassan, learned ocunsel for the respondent on the other hand contends that term "the date fixed" does not mean a date by calendar and can be fixed with reference to the happening of an event. Relies on the case B. Muniswani Goundar and another v. B.M. Shamanna Gounda AIR 1950 Mad.
820. According to the learned counsel this was a contingent contract and its performance depends upon the happening of an event i,e, the conferment of proprietary rights upon the respondent. With reference to documents Exh.P.13 and sale-deed Exh.D.2 contend-s that the petitioners had the knowledge that the proprietary rights stands conferred upon the respondent.
Further contends that since the relief of specific performance is primarily a relief of equity, petitioners stand disentitled to said relief by taking incorrect plea in the plaint that they were not aware of the said fact. Relies on the cases of Mir Hasmat Ali v. Birendra Kumar Ghosha and others PLD 1965 Dacca 56 and Manick Lal Seal and antoher v. K.P. Chowdhury AIR 1976 Cal. 115 argues that the words "notice" in Article 113, with reference to refusal to perform means knowledge and this knowledge is not dependant upon physical act of service of a notice in writing or in any other express manner but can be implied by drawing inference reasonably arising out of the facts and circumstances of the present case.
4. I have gone through the copies of the records, appended with this civil revision, with the assistance of the learned ocunsel for the parties. The learned Additional District Judge, after holding that Ghulam Muhammad petitioner appeared as attorney of the respondent in the matter of transfer deed Exh.D.2 while Khushi Muhammad appeared as an attorney at the time of attestation of Mutation Exh.P.13 and as such they were aware of the fact that the proprietary rights have been conferred upon the respondent. Thereafter, has proceeded to observe as follows:-- "They thus, had the knowledge that the sale-deed has been executed in favour of the defendant by Provincial Government. The period of limitation in this case, therefore, would commence from 30- 4-1977 that is to say the execution of sale-deed which took place when one of the plaintiffs was present, so there was no need to the defendant to give notice of sale-deed in his favour as mentioned in para 2 of Article 113 of Limitation Act."
5. A bare reading of the said observations would show that the learned Additional District Judge has completely misconstrued Article 113 of the Limitation Act, 1908. Needless to state that the Article contemplates of two states of facts one where a date has been fixed by the parties for performance in the agreement itself and second where no such date is fixed. In the second case the prescribed period of 3 years is to start from a point of time when the plaintiff had the notice that the defendants has refused to perform the contract.
6. Now as to the said first contention of the learned counsel for the respondent that the date fixed does not mean a date fixed by calendar. To my mind the contention stands fully answered in the said judgment Inam Nagashband PLD 1995 SC 314 relied upon by the learned counsel for the petitioners. According to the said dictum the date has to be fixed by calendar. It may be noted here that in the said case the agreement provided that the contract will be performed within one week of its execution.
7. It is true that the agreement in question was contingent upon conferment of proprietary rights and it is matter of record that proprietary rights were conferred on the respondent on 30-44970.
However, agreement Exh.P.2. Does not lay down that the sale-deed will be executed in terms of agreement on very date that the proprietary rights are conferred. The relevant portion of the agreement reads as follows:- {{URDU TEXT}} 'Thus, it was to be at a point of time after conferment of the said rights that the respondent was to execute sale-deed and to get the same registered in favour of the petitioners. Thus, the date of conferment of Cproprietary rights cannot be said to be a date fixed for performance within Article 113 as interpreted by the Supreme Court in the case of Inam Naqshhband PLD 199.) SC 314.
8. Coming to the question of equity. I may refer to the said judgment in the case of Manick Lal being relied upon by the learned counsel for the respondent. The learned Judge has observed in para.4 of the report that as to whether a party got notice of refusal or not depends upon the substantive evidence to that effect or inference from the surrounding facts and circumstances. In the present case the respondent had come out with clean denial of agreement. He had not laid any foundation in his pleading to the effect that the petitioners had the notice of refusal of performance of contract. As it happened, in the course of evidence, both the learned Courts below have found that agreement had in fact been executed by the respondent and he had received money thereunder in accordance with its terms. Thus, there is no question of any substantial evidence being there on record to the said effect.
9. Coming to the question of inference. The document Exh.D.2 does narrate that Ghulam Muhammad son of Mallah appeared for the vendee (i,e, respondent) before the Registrar on 30-4- 1977. Similarly in Mutation Exh.P.13 it is stated that Khushi Muhammad attorney has presented the register-deed, on the basis whereof the mutation was entered and then attested on 4-5-1977. Now these documents do go to say that the said persons were present at the time of registration of sale-deed and attestation of mutation. Further I find that said Ghulam Muhammad appeared as P.W.3 and has stated that whereas they had performed their part of the contract,, the respondent did not perform his part. In the first instance he was not confronted with the said sale-deed and in the second no suggestion has been given to him that at any point of time after conferment of the proprietary rights, the respondent had refused to perform. On the other it has been suggested to the witness and he has denied it that respondent is not owner and that the Provincial Government is the owner. Nothing, therefore, turns on the said contention of the learned counsel.
10. So far as the factual position on the record is concerned, agreement was executed by the respondent. It was registered. He received the amounts that were payable to him under the agreement while petitioners paid the instalments of the price to the Government. Admittedly the possession is with the petitioners. So far as the question of limitation is concerned, respondent has not said a word except that he denied the execution of agreement: There is thus, nothing on the record to suggest that the petitioner had the notice of refusal of performance at any time before one week of institution of the suit.
11. For all that has been discussed above, I do find that the learned Additional District Judge has acted with material irregularity in exercise of his jurisdiction while proceeding against the law as interpreted by the superior judiciary of the country.' This civil revision is accordingly allowed. The impugned judgment and decree, dated 27-9-1995 of learned Additional District Judge, Sheikhupura, is set aisde while that passed by the learned trial Court on 30-4-1991 decreeing the suit of the respondent is restored. No order as to costs.