2014 PLP 1548 (YLR)

QAISER RASHID KHAN J.

Aggrieved from the judgments and decrees dated 13-12-2010 and 5-5-2011 of the learned Civil Judge-VIII and learned Additional District Judge-V, D.I. Khan respectively, Shah Jehan petitioner has assailed the same through the present revision petition. 2 Concise facts of the case leading to the instant revision petition are that the petitioner brought a suit for specific performance of agreement to sell dated 28-3-1989, vide which Ghulam Hussain, respondent No.1, had agreed to transfer the suit property measuring 84 kanals and 7 marlas situated in Mouza Gandi Umer Khan Tehsil Daraban, District D.I.Khan for sale consideration of Rs.21,000 through a registered deed or mutation and that Mutation No.1497 attested on 30/12/2004 by respondent No.1 in favour of Abdul Qayum Khan, respondent No.2, is against the law, forged, without lawful authority, hence liable to be cancelled, being collusive in nature and thus ineffective upon the rights of the petitioner. The plaintiff further sought permanent mandatory injunction to restrain the respondents from interfering in the suit property.

3. It was further averred in the plaint that respondent No. 1 was the original owner of the suit property who agreed to transfer the same to the petitioner through agreement to sell dated 28-3-1989 for a sale consideration of Rs.21,000 duly paid to him and accordingly the possession of the suit property was also handed over to the petitioner and the respondent No.1 committed to transfer the same through mutation or registered deed in favour of the petitioner and in the event of his death, his legal representatives would be bound to transfer it in the name of the petitioner. However, because of greed and in order to cause loss to the petitioner, respondent No.1 in a clandestine and collusive manner transferred the suit property to respondent No.2 through the alleged Mutation No.1497 dated 30-12-2004.

4. The defendants filed their respective written statements controverting the allegations made in the plaint. Keeping in view the divergent pleadings of the parties, the learned trial Court framed as many as ten issues including relief. Finally, it was respondent No.2 who offered resistance to the claim of the petitioner when the respective evidence of the parties was recorded.

5. Learned counsel for the petitioner argued that both the learned courts below had taken an erroneous view of the evidence produced by the parties and despite the fact that the 'Iqrar Nama' with its contents was duly proved by the petitioner in his evidence as well as through the evidence of the marginal witnesses, but such evidence was discarded by both the courts below. He urged that during the course of recording evidence, respondent No.1 never objected to the 'Iqrar Nama' produced by the petitioner, nor for that matter he appeared himself as a witness to refuse the claim of the petitioner. He further argued that the relief of specific performance being equitable, the same could not be refused by the court merely on the ground that equities are against the petitioner.

6. I have carefully gone through the record and considered the valuable arguments of the learned counsel for the petitioner.

7. The petitioner allegedly purchased the suit property through the agreement to sell dated 28-3-1989. Needless to mention that the suit property was granted/ transferred to respondent No.1 vide Mutation No.168 attested on 10-6-1974. As per the terms and conditions for grant of land (Gazette of N.W.F.P, Extraordinary, 19th March, 1973) vide Para-9(1)(a) of Notification No.474/LC, he was not entitled to alienate the landed property granted to him by sale, gift, mortgage or otherwise during a period of 25 years from the date of the grant. As such, the petitioner could not claim specific performance of the agreement to sell within twenty five years after the aforesaid date, i.e. 10-6-1974 and could thus at best make a claim after 10-6-1999.

8. Moreover, under Article 113 of the Limitation Act, 1908, period of limitation for a suit for specific performance agreement to sell is three years. Though the agreement to sell was allegedly executed between the petitioner and the respondent No.1 way back on 28-3-1989, but the suit was instituted by the petitioner on 11-4-2005 i.e. long after the prescribed period of limitation of three years and thus hit by the aforesaid provision of law.

9. As per the Revenue Record, the petitioner has been recorded as tenant-at-will over half of the suit property and not as an owner and thus does not confer ownership rights upon him.

10. After a careful study of the case and for reasons stated above, I have come to the irresistible conclusion that the impugned judgments and decrees are based on correct legal footings and neither suffer from any misreading/non-reading of material evidence, nor any illegality or irregularity has been pinpointed by the learned counsel for the petitioner so as to warrant interference therein.

11. Even otherwise, the concurrent findings of the learned two Courts below being based on facts cannot be set at naught by this Court in exercise of its revisional jurisdiction under section 115 C.P.C., unless it is proved and established through cogent and reliable evidence available on record that the same are either perverse, erroneous or fanciful and are the result of misreading or non-reading of evidence in view of the dicta handed down by the Apex Court in the cases titled Abdul Rahim and another v. Mst.Jannatay Bibi and others (2000 SCMR 346), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 Supreme Court 291) and Muhammad Rasheed Ahmad v. Muhammad Siddique (PLD 2002 Supreme Court 293).

12. As a corollary to what is discussed above, I find no merit in this revision petition which is accordingly dismissed in limine along with C.M.No.273 of 2011. JJK/77/P Petition dismissed.