' MIAN SAQIB NISAR, J.---Appellant's suit for specific performance was dismissed by the learned Civil Judge, vide judgment and decree, dated 12-12-1989.
2. Brief facts of the case are, that on 7-12-1986, appellant filed a suit for the specific performance of an agreement to sell with regard to the land measuring 19 Kanals and 11 Marlas, out of 36 Kanals and 12 Marlas, described in the title of the plaint, claiming that respondent No,1 through an agreement Exh.P.1, dated 7-12-1982, agreed to transfer the aforesaid land in favour of the appellant for a total consideration of Rs,9,75,000 out of which, the appellant paid an amount of Rs,1,00,00,000 to the said respondent as earnest money i,e, Rs,20,000 at the time of execution of the agreement and the remaining Rs,80,000 were paid subsequently. Respondent No,1 was bound to convey/transfer the said land to the appellant, within a period of one year, from the date of execution of the agreement Exh.P.1, on payment of balance amount of consideration. However, thereafter, it was orally agreed between the parties, that plaintiff would be permitted to sell some land, out of the afore-mentioned in the shape of plots; first the total consideration shall be realized by the defendant and thereafter, the remaining land shall be conveyed to the plaintiff/appellant. It is alleged in the plaint that in this manner, land measuring 17 Kanals and 1 Marla, has been sold and amount of Rs,8,63,066 has been received by the respondents, thus on the payment of balance amount of Rs,11,934, out of the total consideration, stipulated in the agreement to sell, respondent No,1 be directed to convey the remaining land measuring 19 Kanals and 11 Marlas in favour of the appellant.
3. The suit was resisted by the respondents, who though admitted the execution of the agreement to sell, but stated that appellant did not perform his part of the agreement and violated the same.
It was denied that the appellant was permitted to sell the plots under any subsequent arrangement/agreement between the parties, rather it was stated in the corresponding paragraphs Nos.5 and 6 of the written statement to the plaint that the appellant, by practising fraud, had got executed and registered certain sale-deeds from the respondents. In this regard, paragraph No,5 of the written statement, is relevant in which an amount of Rs,3,00,000 has been claimed. Anyhow, out of pleadings of the parties, following issues were framed:-
(1) Whether the defendant No,1 entered into agreement to sell, dated 7-12-1982 with the plaintiff in respect of suit land in consideration of Rs,9,75,000?
(2) Whether the defendant received Rs,1,00,000 as a token money subject to the receipt dated 7- 12-1982 through two instalments?
(3 Whether the plaintiff is entitled for the specific performance of the contract?
(4) Whether the plaintiff has no cause of action locus standi to file the present suit?
(5) Whether the suit is time-barred?
(6) Whether the plaintiff is estopped to bring the present suit due to his words and conduct?
(7) Whether the suit is undervalued for the purposes of court-fee and jurisdiction?
(8) Whether impugned agreement to sell in respect of suit land is not executable?
(9) Whether the suit is subject to dismissal under Order 7, rule 11, C.P.C.?
(10) Whether the suit is not maintainable due to non-joinder of necessary parties?
(11) Relief.
4. Parties produced evidence. Appellant examined P.W.1, a bank officer, who stated that appellant was maintaining a bank account with the UBL, Jamil Chowk, Karachi, and amount of Rs,54,000 and Rs,25,000 were respectively paid to respondent No,1 through cheques. This amount, the plaintiff/appellant claims towards the payment of earnest money. P.W.2, is the scribe of Exh.P.1 and the receipt Exh.P.2, and has proved these documents. P.W.3. Is the marginal witness of agreement Exh.P.1, whereas P.W.4 has stated that he had purchased a plot out of the aforesaid land in the name of his wife through the appellant from respondent No,1 P.W.5. Is the plaintiff himself who has stated about the execution of the agreement to sell and subsequent arrangement arrived at between the parties, whereby according to him, respondent agreed to execute the sale-deeds of the plots in favour of various persons and an amount of Rs,8,63,066 has been received by the respondents in this manner.
5. Conversely, respondents have examined D. W.1, who has stated that the appellant violated the agreement to sell. D.W.2, deposed that the appellant did not pay the balance amount of consideration. D.W.3. Has also deposed in line with the defence of the respondent No, 1.
6. Learned Civil Judge, dealing issues Nos.1 and 2. Together, found these against the appellant by concluding, that the appellant had failed to prove execution of the agreement to sell Exh.P.1 and receipt Exh.P.2. According to the learned trial Judge, the marginal witnesses of these documents had not been examined. Issues Nos.3 and 8 were discussed together and it was found that agreement to sell, Exh.P.1, is not a complete and clear document. It is vague inasmuch as it does not disclose the time, when the agreement to sell was to be performed; it does not specify the price of the land, etc.. Therefore, such agreement cannot be enforced in terms of section 21 of the Specific Relief Act. Issues Nos.4 to 7, 9 and 10, were also decided against the appellant on the basis of the finding on issues Nos.1 and 2.
7. Learned counsel for the appellant contends that according to the written statement filed by respondent No,1, execution of the agreement to sell and amount of Rs,1,00,00,000 as earnest money have been duly admitted, therefore, any fact so admitted in the pleadings needs no proof. It is further contended that according to the case of the appellant, parties, through subsequent arrangement, had agreed that the appellant would execute the sale-deeds of certain plots out of the land agreed to be sold, to the buyer arranged by the appellant and first would receive the balance amount of consideration and then was bound to execute the sale-deed in favour of the appellant for the remaining land. In this manner, as only Rs,11.934 remain payable. Therefore, specific performance of the unperformed part of the agreement was sought on the payment of aforementioned amount. It is also stated that learned trial Court has given erroneous findings on the other issues, particularly issue of limitation has not at all been discussed, but has been decided against the appellant in a cursory manner.
8. We have heard learned counsel for the parties. As far as the contention of learned counsel for the appellant that the respondent admitted the execution of the agreement to sell Exh.P.1 and receipt Exh.P.2 is concerned suffice it to say that obviously from the written statement, it stands established that respondent No,1, did admit the execution of these two documents. Therefore, the appellant was not obliged to prove Exh.P.1 and Exh.P.2. It is further proved on the record that respondent No,1 had received Rs,100,000 in pursuance of the agreement to sell dated 7-12-1982.
Therefore, the finding of the learned trial Court that the agreement to sell has not been proved on the record, is not tenable, because the facts admitted in the pleadings need no proof. However, that is not the end of the matter. According to the case, set up by the appellant, the parties had subsequently agreed to vary the terms of the original agreement, by virtue whereof respondent No,1 had agreed to the sale of certain plots out of the total land and after receiving full consideration amount of Rs,9,75,000, would execute the sale of the balance land in favour of the appellant. But this fact, in the written statement has been totally denied by the respondents.
Repeated references have been made by the learned counsel for the appellant to paragraphs Nos.5 and 6, of the written statement, to argue that the fact of subsequent arrangement/agreement has also been admitted by the respondent, therefore, there was no need for the appellant to prove the same. We have considered the pleadings of the parties and find to the contrary; the said respondent in clear and unambiguous words had denied the averments of the corresponding paragraph of the plaint. Only for the reason that he claimed an amount of Rs,3,00,000 due to him on account of sale-deeds fraudulently asserted to have been procured from him would not tantamount to any admission. Thus, no inference of admission can be drawn as suggested by the appellants' learned counsel. In view of the above denial, it was incumbent upon the appellant to prove the aforesaid subsequent arrangement/agreement between the parties. We have scanned the evidence on record and find that except P.W.4, no buyer was examined by the appellant, who is stated to have purchased the plots. According to the above arrangement and the price was received directly by respondent No,1, but his statement without any corroborative evidence cannot be given much weight. Even the sale-deeds have not been brought on the record, wherefrom it could be verified that those sales were in pursuance of the original agreement between the parties. There is also nothing on the record to establish that on account of such sales, which the appellant claims to have been made under the subsequent arrangement between the parties, an amount of Rs,8,63,066 was received by respondent No, 1 . This position has also been conceded by the learned counsel for the appellant.
9. It is settled law that the parties are bound to perform the terms of an agreement as originally entered between them, but according to the provisions of section 26(e) of the Specific Relief Act, an agreement can also be enforced in the light of the subsequent variation subject to the condition that the original agreement was not completely abandoned by parties. As held earlier, this change in the agreement was never proved by the appellant. Now, if this aspect is excluded from consideration, it stands proved on the record that the appellant did not make the payment of the balance consideration to respondent No,1, as agreed through Exh.P.1, within a period of one year from the date of the agreement i,e, 7-1-1982. Therefore, when the appellant himself was not ready and willing to perform his part of the agreement, rather had violated the terms of the same, he was not entitled to seek the specific performance.
10. As regards the issue of limitation, suffice it to say that as per Exh.P.l, the period for completion of the transaction was fixed as one year from the date of agreement i,e, 7-12-1982, but the present suit was filed on 7-12-1986, which is beyond the period of three years. According to Article 113 of the Limitation Act, a suit for specific performance filed after three years from the date agreed between the parties, would be beyond the period of limitation, resultantly, suit of the appellant is also barred by time.
' In the light of what has been discussed above, we find no merit in this appeal, which is hereby dismissed.