1986 PLP 1802 (CLC)

(3) Whether defendant No. 4 is entitled to get any special costs from the plaintiff under section 35-A, C.P.C.? (4) Whether the suit has been under-valued for the purposes of Court-fee and jurisdiction, if so, what is its effect? (5) Whether Jehangir Khan deceased had entered into an agreement for sale of the land in suit in favour of the plaintiff on 1-5-1961 and whether Rs.15, 000 were paid to Jehangir Khan under this agreement? (6) Whether the plaintiff is entitled to get a decree for specific performance of the aforesaid agreement of sale in his favour and whether the sale-deed registered on 4-2-1979 is liable to be cancelled? (7) Relief? The trial Court decided issues Nos. 1, 2, 5 and 6 against the petitioners/ plaintiffs. Issue No. 3 was not pressed. Issue No. 4 was found in favour of the petitioners/ plaintiffs. In view of his findings on the issues, the trial Court dismissed the suit on 3-2-1981. Feeling aggrieved, the petitioners herein filed an appeal which was dismissed on 17-7-1982, hence, this revision.

2. The learned counsel for the petitioners has challenged the findings of the learned Courts below on issues Nos. 1, 2, 5 and

6. As for issue No. 1, he submitted that under Article 113 of the Limitation Act, the suit was very much within time inasmuch as no date for the performance of the contract having been mentioned in the agreement, the limitation would run from 4-2-1972 when respondents Nos. 1 to 3 transferred the land through registered deed to respondent No. 4 which tentamounts to a notice of the refusal of the performance of the contract. On issues Nos. 5 and 6, the learned counsel submitted that respondents Nos. 1 to 3, the successors of Jehangir Khan have not entered into the witness-box to rebut the case of the petitioners/ plaintiffs and that the evidence of Faqir Muhammad P.W. 1 and Niaz Muhammad P.W. 2 have not been properly appreciated by the Courts below which proved his case.

3. After hearing the learned counsel and going through the record,, I find that the Courts below have applied their mind to the factual and legal aspects of the case and have give cogent and sound reasons in support of the conclusions arrived at by them. As for issues Nos. 5 A and 6, these are issues of facts and the fate of issue No. 2 depends upon the decision of issues Nos. 5 and

6. To my mind, the learned Courts below have appreciated the evidence properly. The learned counsel has failed to point 'out any material misreading or non-reading of the evidence. Since respondents Nos. 1 to 3, the successors of Jehangir Khan were proceeded against ex parte, there was no occasion for them to appear in the witness box to rebut the case. As for issue No. 1, I find that the learned Courts below have discussed the legal position and have come to the conclusions that the intention of the parties to the agreement was that the transferee of the house shall transfer house to the plaintiff /petitioner and execute sale-deed in his favour as soon as he gets P.T.D. and that no specific date was specified in agreement Exh. P.

1. The learned appellate Court in para. No. 10 of his judgment has stated:- "According to the plaintiff's own pleadings as well as the evidence produced by him, since under the agreement, he was authorized by Jehangir Khan to obtain the P. T. D. from the Settlement Department, therefore, after the death of Jehangir Khan, he obtained the P.T.D, from the said Department in the name of Jehangir Khan on 17-1-1967 while the present suit was instituted on 26-2-1979, i.e. 12 years after the issuance of the P.T.D. In these circumstances, I understand that the suit of the appellant/plaintiff was barred by time." I do not see any reason to disagree with it. Even otherwise, I am 4 the opinion that in case, the finding of the Courts below on issue No.1 is reversed, the same may not make any difference in view of the findings on issues Nos. 5 and 6 which are sufficient to non-suit the petitioner/ plaintiff . For what. has been .stated above, there being no merit in the revision, the same is dismissed in limine. H. B. T. Revision dismissed.