1969 PLP 1287 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 31st January 1968, in Civil Regular First Appeal No. 99 of 1956). --Art. 58 (3)‑Civil suit-- Material evidence of a witness not challenged in cross‑examination and yet lower Court failing to take into consideration his evidence Special Leave to Appeal granted by Supreme Court. ORDER ABDUS SATTAR, J.‑This petition for leave to appeal arises out of a suit filed by respondents Nos. 1 and 2 and the predecessor- in‑interest of respondents Nos. 3 (i) and 3 (ii) for possession of half share of land measuring 435 kanals. The plaintiffs' case was that Maula Dad had four sons, Ahmad Din (father of the petitioners), Muhammad Din (father of respondents Nos. 1 and 2), Jahan Khan Predecessor of respon dents Nos. 3(i) and3(ii) and Ibrahim Predecessor of respondents Nos. 4(i) to 4(vi). All the said four brothers sold their joint property situated in District Sialkot and purchased a joint mare on which they obtained the suit land on mare breeding grant. This land was procured in the name of Ahmad Din, but was to be shared by all the brothers. In 1940, mare breeding conditions were modified and the grantees became eligible to acquire proprietary rights in the land on payment of its price in instalmerits. The further case of the plaintiffs was that they paid their respective share of price of the land to the petitioners who promised that on execution of the sale deed they would get their respective shares mutated in the names of the plaintiffs but the petitioners, however, did not do so. Ibrahim one of the co‑sharers of land filed a suit for possession of his share which was decreed on 28‑5‑1951 and the decree was confirmed by the High Court on 28‑5‑1953. The present suit was decreed by the Trial Court. An appeal was filed in the High Court of West Pakistan, Lahore. During the pendency of the appeal, Jahan Khan died and it was held that the appeal in respect of his 1 /4th share had abated. The decree in favour of the respondents Nos. 1 and 2 was confirmed. It has been contended that the Courts below wrongly decided the issue regarding limitation. The present suit was filed on the 4th October 1949 and the last instalment of the price of the land was paid by Ahmad Din on the 8th of November 1944. The contention of the learned counsel for the petitioner is that as the suit was filed more than three years after the payment of the last instalment it was barred by limitation. The learned Judges of the High Court, however, held that there was no written contract between the parties in regard to the transfer of the land by Ahmad Din in favour of his brothers. There was no time limit for the performance of the contract and as the contesting defendants failed to show as to when the demand for transferring the shares after the acquisition of proprietary rights in the land was made and when the defendants refused its performance, the suit was not barred irrespective of the fact as to whether it was governed by Article 113 or Article 120 of the Limitation Act. We have, on hearing the learned counsel for the petitioners, found no reason to differ from the view taken by the learned Judges of the High Court. It is then contended that the defendants asserted that they had planted a garden covering an area of 18 acres of the disputed land and in that connection spent a sum of Rs. 30,

000. The evidence in this regard furnished by petitioner No. 2, Muhammad Alam (D. W. 10) does not appear to have been challenged in cross‑examination on behalf of the plaintiffs. The point raised is that the respondents Nos. 1 and 2 can get possession of the land provided they compensate the petitioners for the improve ment made on the land. The question raised merits consideration. We, therefore, grant leave to consider the above question. Security in the sum of Rs.

500. Stay already granted will continue till the disposal of the appeal. Leave granted.