Sher Baz Khan son of Janabat Khan, presently resident of Khasht Batah Badda Mir Abbas Bannu, has filed this regular first appeal against the judgment and decree dated 22-7-1999 of Senior Civil Judge, Bannu whereby his suit for declaration, for recovery of amount and for permanent injunction against Mir Adam Khan son of Gul Baz Khan of Village Bangash Khel Bannu, was dismissed.
2. Sher Baz Khan brought a suit for recovery of Rs,9,43,500, giving it a shape of declaratory suit, based on a deed dated 28-8-1992 alleged to be a promissory note. He also sought a decree for permanent injunction that the defendant be directed to transfer 14 Kanals, 6 Marlas of land in his favour as agreed upon in the second portion of deed dated 28-8-1992.
3. The defendant Mir Adam Khan contested the suit on the grounds, inter alia, that it was barred by time, that the plaintiff ought to have had brought a suit for specific performance of contract and that the deed dated 28-8-1992 was a forged and fictitious deed. He claimed compensatory cost under section 35-A of the Civil Procedure Code. After recording the evidence of the parties the learned Senior Civil Judge, Bantuu dismissed the suit.
4. Learned counsel for the appellant argued that the learned trial Court has wrongly determined the deed to be doubtful on the grounds that it was not scribed by a petition-deed writer, that the- marginal witnesses of the deed were never discussed but still discarded, that the non-production of Notary Public was not fatal to the plaintiff's case because the deeds are required to be proved through the marginal witnesses and not the Notary Public. It was further alleged that the plaintiff was not supposed to bring a suit for specific performance of contract because the deed was not an agreement to sell but was one of confirmation about a sale that had already taken place. That no fraud has been proved by the defendant and the burden shifted by the plaintiff had never been discharged.
5. Learned counsel for the respondent met the arguments by saying that the witnesses had properly been discussed and discarded on grounds of being the party men of the plaintiff having joint business.
6. I have gone through the evidence on record and also the judgment of the learned trial Court wherein the witnesses have properly been discussed.
7. Prior to the present suit Mir Adam Khan defendant had brought a suit against Sher Baz Khan in the year, 1992. In that suit Sher Baz Khan had filed written statement but in such written statement he had not given any reference to the present deed dated 28-8-1992. I am convinced that had this deed been in existence, Sher Baz Khan would have given the same in defence.
8. When once the parties had got involved in civil as well as criminal litigation, there was no reason at all as to why Mir Adam Khan would have given the deed in question in writing.
9. A close perusal of the deed dated 28-8-1992 would indicate that it contains two separate portions. The first portion appears to be a promissory note whereby the executant undertakes to make payment of debt amounting to Rs,5,65,000. If the execution of promissory note is kept in view then the plaintiff was supposed to have had brought a suit within three years, whereas, the suit brought on 11-4-1997 is hopelessly time-barred. On the reverse of the deed there is an acknowledgement whereby the executant appears to have paid a sum of Rs,10,000 and to have acknowledged the remaining loan of Rs,5,55,000. It is claimed by the plaintiff/appellant that such acknowledgement operates to give start to a fresh period of limitation. The fact before me seriously confronts the arguments because it is a settled principle of law that an acknowledgement giving fresh start to the period of limitation must be made within the period of limitation. In the instant case, the deed was executed on 28-8-1992 and thus the suit was to be brought on or before 28-8-1995. The acknowledgement alleged by the plaintiff on the reverse of the deed was undisputedly made on 24-5-1996 which was most certainly much beyond the initial period of limitation and hence, the acknowledgment made, in the circumstances, cannot be benefited from this suit qua the money claim is barred by time.
10. Another interesting feature about the acknowledgement is that there is a difference of almost four years between the execution and the acknowledgement but still the marginal witnesses on both the occasions are the same, i,e, Dilawar Khan and Gul Yousuf Khan. This apparently is too good to be true. Another interesting feature of the promissory note is that it contains marginal witnesses who are never associated in the writing of a promissory note. So far as the witnesses are concerned, they are only, associated with the receipt of payment connected with the promissory note, if at all. In the instant case, there is no receipt of payment and it is also rightly held by the learned trial Court that the payment of money, as such, has not been proved on record.
11. Learned counsel for the appellant met the objection by saying that the making of payment in connection with a promissory note does not require to be proved and it is sufficient if the execution of promissory note is either proved or admitted. No doubt, the argument is correct in principle but in the instant case, the plaintiff is blowing hot and cold together. In the deed two separate aspects are joined together, one being of promissory note and the other being of agreement. Such misjoinder of claim given in the deed cannot be benefited from by the plaintiff because qua the agreement portion of the deed the witnesses are necessary and so associated whereas qua the money claim in the deed they were not necessary but still they are there. The plaintiff himself has damaged the quality of the deed as promissory note.
12. If we turn to the second portion of the deed, prima facie, it is indicated to be an agreement to sell, for, the executant undertakes to sell certain portion of the land. I believe and hold that for this portion the plaintiff ought to have had brought a suit for specific performance of contract.
13. There are some factual discrepancies as well. In the plaint the plaintiff is claiming the performance of an agreement on the basis of some previous mutation but the said mutation is alleged by the plaintiff himself to be one of exchange and not sale. It is based on some previous Mutation. No,6775 attested on 21-4-1979 but in order to avoid discrepancy, I suppose, such mutation was never brought on record. If we accept the previous transaction as exchange, it excludes the sale and if it is alleged to be a sale then what transaction of exchange is alluded to in the plaint. The plaintiff himself does not seem to be fairly clear about what he claims and about what he ought to have claimed.
14. The deed dated 28-8-1992 Exh.PW.4/1 was purchased on 27-8-1992 by a stamp vendor named Tufail Ahmad. By the time the evidence was recorded, he was dead and, as secondary evidence, his son-in-law Initia7. Khan was produced as P.W.8. There is no evidence on record as to whether the recording of secondary evidence was permitted by the trial Court because no secondary evidence can be produced unless allowed by the Court in the given circumstances.
15. Be that as it may, Imtiaz Khan (P.W.8) produced the register of the stamp vendor according to which the last entry made in the register was Entry No,300 of 27-12-1991 whereas the stamp paper in question (Exh.P.W.4/1) bears Entry No,305 which in totally non=-existent in the register, no. Entry being beyond No,300. This makes the matter further doubtful. In view of the detailed discussion it is held that the learned trial Court has rightly appreciated the evidence and has rightly arrived at the conclusion. There being no merit in the appeal either on account of fact or on account of law, it is hereby dismissed. No order as to costs.