1995 PLP 1977 (CLC)

On appeal preferred by the respondents, the learned Appellate Court Judge reversed the finding on the first and second points as it was found by him that there was an agreement of sale between appellant No.l and the respondents and the respondents being in possession of the land, the father of appellant No.2 ought to have verified the nature of their possession and as such he cannot be considered to be bona fide purchaser without notice. *On the third point, the finding of the trial Court was reversed as according to the learned Additional District Judge, no time was fixed in the agreement for performance thereof and, therefore, the time for the purpose of calculating limitation will be construed from the date of refusal on the part of appellant No.l to execute the sale‑deed. According to the learned Appellate Court, such refusal was made in the year 1973 and the suit having been filed in the same year is within time.

4. I have heard the learned counsel Mr. Hassan Mahmood Baig for the appellants and Mr. Shamsuddin Memon for the respondents. With regard to the alleged agreement between appellant No.l and the respondents, it was contended that the alleged agreement is a forged document. The learned Appellate Court has misread the evidence inasmuch as it had overlooked the contradictory and inconsistent evidence relating to the execution of the alleged agreement between appellant No.1 and the respondents and has not given any cogent reason for reversing the finding of the trial Court for discarding the evidence of P.W.4 Noor Muhammad examined by the respondents as attestation witness of the said agreement. It was lastly contended that the preponderance of the evidence if looked into its totality, would not warrant conclusion in affirmative with regard to the execution of the alleged sale agreement. The learned counsel for the appellants contended that the sale‑deed in favour of the father of appellant No.2 was registered on 20‑1‑1970 and the plaint was presented before the trial Court on 8‑3‑1973. Under Article 113 of the Limitation Act, the limitation prescribed is three years from the date fixed for the purpose, or, if no such date is fixed, when the plaintiff 'has notice that performance is refused. Relying on Explanation I to section 3 of Transfer of Property Act (IV of 1882), it was contended that where any immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of or share, or interest in such property, have notice of such instrument as from the date of registration thereof. In reply to the above, the learned counsel for the respondents relying on Mrs. Nussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189) contended that where a person acquires an immovable property, he shall be deemed to have notice of the title, if any, of the person for the time being in possession of the property. In this regard, he also sought support from Mst. . Khair‑ul‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Muhammad Safdar Ansari and another v. Abdul Majeed (PLD 1980 Lahore 216). With regard to the limitation, the learned counsel, on the basis of the rule laid down in Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) urged that no time having been specified in the agreement of sale for execution of the sale‑deed, the limitation will commence from the date of refusal by appellant No.l to perform his part of the contract, which in this case is the date of knowledge of sale of property by appellant No.l. It was contended that the first appellate Court has scrutinized the evidence in detail on each of the issues and as such no inference is warranted in second appeal.

5. The most important question in the dispute relates to the alleged execution of the agreement of sale by appellant No.2 in favour of the respondents. The findings of the Courts below are at variance. The said agreement was allegedly executed at Hyderabad in the office of Khair Muhammad, a petition‑writer. The said Khair Muhammad was not examined. The execution of the said agreement was witnessed by five persons, out of whom only P.W.4 Noor Muhammad was examined, in addition to respondent No.l Abbas Ali. Plaintiff No.l Abbas Ali Shah in his examination‑in‑chief had disclosed that for the purpose of execution of the agreement of sale, all the plaintiffs, defendant No.l and all the five witnesses "had come together to Hyderabad from village Husri". In cross‑examination, he stated: "On the day of execution of Exh.40 I had brought my witness Noor Muhammad from his douse situated at Latifabad No.10, Hyderabad. We reached the office of Khair Muhammad at 11‑00 a.m. or 12‑00 noon." P.W.4 Noor Muhammad also in his examination‑in‑chief stated that they all had come to Hyderabad from village Husri. In cross‑examination, he changed his version and deposed that a day prior to execution of the agreement, plaintiff Abbas Ali Shah had come to his house at Latifabad and told him that he was purchasing the property and he and his said uncle would execute sale agreement on the next day at Hyderabad. He was asked to be present at that time. `He then deposed, "on the day of execution of Exh.40, I was at Hyderabad and the parties and witnesses met me on the road near railway crossing bridge from where I accompanied them to the office of stamp vendor:" The Courts below did not apply their mind to the above contradictory and inconsistent evidence which amply demonstrates the falsehood of the story relating to the execution of the sale deed. If the witness had come together to Hyderabad from village Husri, for the purpose of the execution of the agreement, they would have been consistent with regard to the said version. Both the witness in their respective cross‑examinations changed the versions, the said versions being absolutely irreconcilable with each other. If Abbas Ali had brought P.W.4 Noor Muhammad from Latifabad No.10 to the office of Khair Muhammad, the presence of said Noor Muhammad at Hyderabad and his coming across the parties and the witnesses near railway crossing bridge would never had happened. The above contradictory and inconsistent evidence of the two witnesses does not inspire confidence to accept them as witnesses of the truth. Their evidence in no manner warrants the conclusion that the above agreement was executed between appellant No.l and the respondents as alleged by them. The learned trial Court Judge after assessment of the evidence had disbelieved execution of the said agreement although on different count. The learned first Appellate Court Judge had not applied his mind to the evidence and reversed the finding of the learned trial Court Judge.

6. The learned advocate for the appellants submitted that the sale‑deed in favour of appellant No.l was executed by appellant No.2 on 20‑1‑1970. Explanation I to section 3 of the Transfer of Property Act provides that where any transaction relating to immovable property is required by law to be and has been affected by registered instrument, any person acquiring such property or any part of it, or share or interest in, such party shall be deemed to have notice of such instrument as from the date of registration. In view of the above law, respondent had constructive notice of the sale of the property by appellant No.l to appellant No.2 as from the date of registration of the sale?deed. The suit was therefore liable to be dismissed having been filed after expiry of 3 years from the date of knowledge, which in the instant case is the date of registration of documents and is to be treated the time when the plaintiff had notice that performance of the agreement was refused. The learned counsel for the respondents, however, contended that the limitation in the present case is to be computed when the respondents had the knowledge of execution of the sale‑deed by appellant No.l in favour of the father of the appellant No.2 and such fact was disclosed to them by appellant No.1 two weeks before the institution of the suit. However the learned counsel did not make any submission with regard to Explanation I to section 3 of the Transfer of Property Act. Under the said provision by fiction of law, constructive knowledge of the execution of the sale‑deed is to be presumed from the date of registration of the sale‑deed. The time having commenced from that date, cannot be interrupted or stopped by the alleged subsequent knowledge acquired by the respondents on the disclosure of sale of the property to the predecessor of appellant No.2. Once the limitation commences under Article 113 of the Limitation Act, it continues to run, unless the case can be shown to fall within any of the exceptions provided for in the limitation Act. The suit is, therefore, to be held to have been filed after the expiry of the limitation prescribed, computing the same from the date of registration of the sale‑deed executed by appellant No.

1. Explanation II to section 3 of the Transfer of Property, Act is not attracted to the facts of this case in view of the finding that no agreement was executed between the appellant No.l and the respondents. In so far as the possession of the respondents of the suit property is concerned, it was admittedly by virtue of five years lease granted by appellant No.l which was subsisting at the time of execution of the sale‑deed in favour of appellant No.l.? Consequently this appeal is allowed with costs. The judgment of the lower appellate Court is reserved. The judgment and decree of the trial Court is restored. AA./G‑394/K ???????????????????????????????????????????????????????????????????????? Appeal accepted.