' This second appeal is directed against the judgment and decree dated 14-6-1995 of the learned Additional District Judge, Shorkot, whereby while reversing the judgment and decree dated 19-5- 1992 passed by the learned trial Court the suit for specific performance filed by the appellants were dismissed.
2. The case of the appellants was that on 20-11-1984, respondents Nos.1 to 4 executed an agreement whereby they agreed to sell their land measuring 84 Kanals, 14 Marlas at the rate of Rs,15,000 per acre. An amount of Rs,75,000 was paid to respondents Nos.1 to 4 as earnest money and the date fixed for completion of the transaction was 15th Jaith. This date, according to the learned counsel for the parties, comes to 28-5-1985. It was averred that on the execution of the agreement and receipt of earnest money respondents Nos.1 to 4 had delivered possession of the disputed land to the appellants. On the date contemplated for completion of the transaction, respondents Nos.1 to 4 approached the appellants for payment of Rs,5,000 and it was stated by said respondents that they were not in a position to transfer the land to the appellants because mutation of inheritance of their deceased father had also been sanctioned in favor of respondents Nos.5 to 12 (the coheirs in the (property)). It was further averred that on obtaining the copy of the mutation of inheritance, it was found to have been attested on 13-11-1984, whereas in fact it was attested in December, 1984. It was further asserted that the appellants repeatedly asked respondents Nos.1 to 4 to transfer the land of their share but they have been putting it off, on the pretext that they were trying to get the mutation of inheritance aforesaid reviewed and finally refused on 3-1-1988.
3. The suit was contested. The agreement was not denied. However, it was averred that on 9-6- 1985 respondent Nos.1 to 4 had addressed a registered notice to the appellants through a learned counsel for performing their part of the contract and that the appellants were in default in performing their part of the contract.
4. Necessary issues were framed and the suit tried. On Issue No,7, it was found by the learned trial Court that the agreement to sell was in respect of land measuring 84 Kanals and 14 Marlas but according to the mutation of Inheritance No,995 attested on 13-11-1984 the share of respondents Nos.1 to 4 was 56 Kanals, 8 Marlas, the ownership of the defendants was defective and the defect of ownership was not removed by them. On the basis of this finding the learned trial. Court answered Issue No,7 it favor of the appellants. However, while answering Issue No,6 the learned trial Court found that payment of Rs,5,000 to defendants Nos.1 to 4 was not established and according to the learned trial Court "plaintiffs have played a trick so that a written acknowledgement be received from defendants to show that they have extended the date of performance of agreement to sell".
The suit of the appellants was decreed.
5. The respondents filed an appeal. The learned First Appellate Court re-appraised the evidence and came to the conclusion that it was not established that the appellants were ready and willing to perform their part of the contract. The learned Appellate Court disbelieved the version of the appellants that the question of ownership of respondents Nos.1 to 4 was not settled and therefore, the agreement could not be performed by the due date. It was observed that mutation of inheritance had already been sanctioned on 13-11-1984, while the agreement was executed on 20- 11-1984. It was also noted that the appellants concocted the story that an amount of Rs,5,000 was paid to respondents Nos.1 to 4 on 8-6-1985 which controversy was subject-matter of Issue No,6 and was decided against the appellants. The learned First Appellate Court also noted that the appellants brought the suit on 4-1-1988 without paying the requisite court-fee and thus had no money even on 4-1-1988. It was also observed that the appellants were offered to make an oath that they were ready to perform the contract by the target date but they refused to make the oath.
The learned First Appellate Court also relied on Exhs.D.1, D.2 and D.3, respectively the envelope the acknowledgement receipt and the postal receipt. There is a photocopy of the notice dated 9-6- 1985 also on the record of the learned trial Court.
6. The learned counsel for the appellants contended that the evidence of Bashir, appellant No,1, who appeared as P.W.1 and innocent P.W.2, was ignored by the learned First Appellate Court in returning an adverse finding against the appellants on Issue No,7. He further contended that in fact respondents Nos.1 to 4 have been delaying execution of the sale transaction on the pretext that they will execute as sale-deed after getting mutation corrected in their favor. He further submits that merely because a suit was filed without court-fee it could not be said that the appellants were not ready and willing to perform their part of the contract. The observation of the learned First Appellate Court that the appellant did not appear before the Registrar or before the Tehsildar on the contemplated date was also attacked on the ground that there was no such requirement in law.
7. On the other hand the learned counsel for the respondents submits that the question whether the appellants were ready and willing to perform their part of the contract is a question of fact which stands concluded by finding of fact of the learned First Appellate Court and no interference is called for.
8. I have considered the submissions made by the learned counsel for the parties and have perused the record. The only dispute raised before this Court is in respect of Issue No,7. The learned trial Court duly noted that according to the D.W.1 and D.W.2 the appellants were asked to perform their part of the contract but decided the issue on the basis of the finding that the defect in title of respondents Nos.1 to 4 was not removed. This reasoning was wholly sustainable because respondents Nos.5 to 12 were not party to agreement to sell and even the case of the appellants in the plaint was that on getting a copy of the mutation, they asked respondents Nos.1 to 4 to perform the contract to the extent of their share but they refused.
9. Bashir, Appellant No,1, appeared as P.W.1 and stated that the defendants had told them that they will complete the transaction after getting the mutation in their favor. He did not specifically assert that after getting the copy of the mutation which was supplied on 11-10-1985 (Exh.P.5) he had ever approached respondents Nos.1 to 4 to transfer the land to the extent of their share. However, in cross-examination he stated that they have been going to the defendants. P.W.2 testified to the execution of the receipt for Rs,5,000 (Exh.P.2) which was disbelived by the learned trial Court. In examination-in-chief did not assert that the appellants were ready and willing to perform their part of the contract. However, in cross examination, in reply to question, he stated that he. Alongwith the appellants had gone to the defendants for execution of the registered sale-deed after 15th Jaith three times. Haq Nawaz, Chowkidar was examined as P.W.3. He did not say anything about the controversy involved in Issue No,7. As against that Lal, respondent No,1 appeared as D.W.1.
According to him, he wanted to purchase land in Sindh and therefore, they had agreed to sell the disputed land. He further stated that on the contemplated date he alongwith others attended that Tehsil office and thereafter, went to Bashir, appellant No,1, who stated that he had no money and asked for 3/4 days time. He further stated that even thereafter, they have been approaching the appellants to perform their part of the contract and on 9-6-1985 a notice was addressed. D.W.1 was supported by D.W.2. Lazar, respondent No,2 appeared as D.W.4, who also stated that the appellants were in default. Suleman, the postman was examined as D.W.5, who proved Exh.D.1, the envelope and Exh.D.2 the acknowledgement.
10. The onus of Issue No,7 was on the appellants. The evidence of P.W.1 and P.W.2 that the appellants were prepared to perform their part of the contract was adequately rebutted by the evidence of D.W.1, D.W.2 and D.W.4. It was, therefore, at best a case of word against word and onus being on the appellants they must trial.
11. Appellant No,1, who appeared as P.W.1 admitted that the suit was filed without the proper court- fee and request for time was made because they had no money. Thus, even on 4-1-1988 (the date of the suit) the appellants could not be said to be ready and willing to perform to their part of the contract.
' The copy of the mutation Exh.P.5 was supplied to the appellants on 11-10-1985 and even thereafter they took more than two years to seek specific performance of the agreement. Delay simpliciter could not be a ground to refuse specific performance if the suit is otherwise within time but the undue delay in bringing the suit supports the version of the respondents that the appellants were not willing and ready to perform their part of the contract. The registered notice was shown to have been duly dispatched and according to the averments of the written statements it was dated 9-6- 1985.
12. For what has been stated above, I find no merit in this appeal which is dismissed.