2008 PLP 288 (CLC)

MIAN SAQIB NISAR, J.

The dispute between the parties relates to the land measuring 20 Kanals and 3 Marlas, which under the decree, dated 1-12-1973, on the basis of which; the Mutation No.974, dated 28-7-1986 was sanctioned, was given to Mairaj Din respondent No.1, who was the real brother of Sardar Muhammad, the predecessor of the petitioners; subsequently, the legal heirs of Sardar Muhammad, being aggrieved that Mairaj Din, was not entitled to the land mutated in his favour, approached him and on account of a settlement arrived at between them and respondent No.1, an agreement, dated 28-3-1987 was executed, whereby the latter acknowledged that he was not entitled to any land under the decree, dated 1-12-1973 and the Mutation No.974 and thus, agreed that in case, a suit is brought against him, he will concede the claim of the petitioners; accordingly, the petitioners filed a suit for the declaration on the basis of the agreement, in which respondent No.1, purportedly filed the conceding written statement obviously in consonance with the agreement, dated 28-3-1987; but due to some technical reason, the petitioners on 14-12-1989, withdrew the said suit with permission of the Court to file a fresh; they, however, also filed an application under section 12(2), C.P.C. challenging the decree, dated 1-12-1973, which according to the learned counsel for the respondents, was withdrawn on 16-4-1994, but there is nothing on the record in this behalf.

2. Anyhow, the petitioners instituted the instant suit, again on the foundations of the agreement, dated 28-3-1987, and the conceding written statement filed by respondent No.1, in the earlier suit; this suit has been contested by respondent No. 1, on the legal and factual premises, as being hit by the provisions of section 11, Order II, rule 2 and Order VII, rule 11 of the Civil Procedure Code; besides that he never entered into the agreement, dated 28-3-1987 and also did not file the conceding written statement; accordingly, issues were framed; parties were put to trial and the learned Civil Judge, finding that the agreement, dated 28-3-1987, Exh.P.1, was executed by respondent No.1 and that he did file the conceding written statement, yet dismissed the suit vide judgment and decree, dated 19-7-2001, holding that instead of the suit for the declaration, the petitioners should have brought the suit for the specific performance; the suit of the petitioners was also dismissed as being barred by time, holding that had it been the suit for the specific performance, the limitation of three years under Article 113 has lapsed by applying either of the two parts of the said Article; besides taking it to be a suit for the declaration and for the cancellation of the mutation, the suit having not been brought within six years from the date of the agreement, dated 28-3-1987, was out of limitation; against this judgment and decree, the petitioners preferred an appeal, but without any success. The learned Appellate Court has not upset the findings of the trial Court about the valid execution of the agreement, dated 28-3-1987; however, has come to the conclusion that the conceding written statement filed in the earlier suit, cannot be made the basis for the declaration of the petitioners' claim in the instant suit and also that the agreement, dated 28-3-1987, being without consideration is void and therefore, cannot be enforced and given any legal effect; the learned Appellate Court too is of the view that the petitioners should not have filed the suit for the declaration, rather the specific enforcement was the only appropriate remedy; the finding of the trial Court on the issue of limitation, has also been upheld. Hence this revision.

3. I have heard learned counsel for the parties. As far as the execution of the agreement, dated 28-3-1987 is concerned, this has been so proved by the petitioners through two marginal witnesses of the document; no effective cross-examination, has been conducted on their statements to discredit their testimonies about the execution of the instrument; the findings of the trial Court about the valid execution of the agreement by respondent No.1 has not been upset by the appellate forum. As far as the conceding written statement by respondent No.1, in an earlier suit, which is in lines with the agreement, dated 28-3-1987 is concerned, the certified copy of the document has been tendered in the evidence through the statement of P.W.3, one of the plaintiffs as Exh.P.3 and at the time, when the document was being taken into evidence, no objection about its mode of proof has been raised by the respondents; besides, when respondent No.1, has appeared as D.W.1, he has not denied the execution of the agreement, dated 28-3-1987; he has also conceded about the filing of the consenting written statement in a way, because when questioned in this behalf, he stated that he signed a plain paper, which tacitly means that such paper has been used for the conceding written statement; thus, having admitted to have put his signature, upon the document, which has been imputed as a conceding written statement on his behalf, the onus to prove that the signatures were put on a plain paper and that it " was never intended to be a conceding written statement and was either the result of the lack of the free consent or was meant for any other purpose, has shifted upon his shoulder, but he has failed to discharge the burden; besides, while cross-examining P.W.3, a very important suggestion has been given that Meaning thereby that I he himself admitted to have filed the conceding written statement, thus, I have no hesitation to hold that both the agreement Exh.P.1, dated 28-3-1987 and the conceding written statement Exh.P.3, were duly proved by the petitioners. Now the question, whether on the basis of the agreement, dated 28-3-1987, the suit for the specific performance was the only competent remedy of the petitioners, or they could seek the declaration of their ownership on the basis of the above documents. From the contents of the agreement Exh. P.1, it is very much clear that respondent No. 1 acknowledged that the mutation in his favour has been wrongly attested and he also accepted that the petitioners are intact the real owners of the disputed property and that they may seek their remedy of getting cleared the cloud cast on their title, this is exactly what the petitioners have done; there is no question of any specific enforcement involved in the above circumstances, thus, when the rights of the petitioners under the agreement, were denied by the respondent No.1, he approached the Court of law and his case squarely falls within the purview of section 42 of the Specific Relief Act.

4. The argument of learned counsel for the respondents that the alleged conceding written statement should have been independently proved according to the mode of proof provided in the Qanun-e-Shahadat Order, 1984, suffice it to say that at the time, when the document Exh.P.3, was tendered in the evidence, no objection about its proof was raised by the respondents, which means that the respondents have waived their right in this behalf; besides, as stated above, the version set out by the respondent No. 1 that his signatures were procured on a plain paper, which tacitly he admitted to have been used for the conceding written statement, the onus had shifted to prove this version in a positive manner but he has failed; moreover, in the cross-examination of P.W.3, the filing of the conceding written statement as mentioned above, has been accepted, thus, for all intents and purposes, the conceding written statement also stands established on the record, therefore, the view formed by the Courts below that the petitioners should have filed the suit for the specific performance is absolutely misconceived.

5. As far as the question that the suit of the petitioners was hit by section 11, Order II, rule 2 and Order VII, rule 11, C.P.C., no evidence has been led by the respondents to prove, his plea. For the point of limitation, as has been held that the suit for the specific performance could not be filed by the petitioners and their suit for the declaration was the competent remedy, the question to be examined is as to when the cause of action has arisen to the plaintiff; the cause of action would arise, when cloud upon the title of the plaintiff is cast. In the instant case, because of the agreement, dated 28-3-1987 and the conceding written statement filed by respondent No.1, his title was throughout admitted, therefore, he had no cause of action to file the suit, the moment his right to the property was denied, the petitioners approached the Court and the counsel for the respondents has failed to show that in such circumstances, the limitation should run from the date of the agreement or from that date when the title of the petitioners was refuted. The burden of the issue was accordingly upon the shoulder of the respondent, which has not been discharged. In the light of above, by allowing this petition, the impugned judgments and decrees are set aside and the suit filed by the petitioners against the respondents stands decreed as prayed for. H.B.T./M-591/L Revision petition allowed.