1987 PLP 1866 (CLC)

"(1) Whether the predecessor‑in‑interest of the defendants entered into an agreement of sale with the plaintiff if so whether the plaintiff is entitled to perform the same specifically? (2) Whether the suit is maintainable in its present form? (3) Relief." Parties led their evidence and the suit was, in the earlier round, decreed by the then Civil Judge on 17‑9‑1980 and upon an appeal it was remanded on 3‑5‑1982 by an Additional District Judge by allowing amendment of the. written‑statement upon payment of Rs.200 as costs. In consequence, another issue bearing No. 3‑A was framed as under:‑‑ "3‑A. Whether the suit is time‑barred?" In all 11 witnesses, including the plaintiff himself were examined in support of the case and the defendants examined 5 witnesses including the statement of one of them. Upon consideration of the evidence of the parties the learned trial Judge accepted the evidence led by the plaintiff and upon holding that the alleged agreement had in fact been entered into by Jhenday Khan with the plaintiff, he decreed the suit on 6‑3‑1986 by repelling the objection about the limitation on the premises that the fact of gifting the land by the defendants in favour of two sons of one of them in disregard of the said agreement, constituted a refusal to perform the agreement and the suit filed soon thereafter, in the same year was within time under Article 113 of the Limitation Act.

2. In an appeal thereagainst filed by the defendants, a learned Additional District Judge reconsidered the evidence and affirming the findings of the trial Court, dismissed the appeal on 11‑5‑1987 by upholding the decree of the trial Court. The four defendants have now come up to this Court on revision.

3. It is contended that the evidence led by the plaintiff was not entitled to be accepted for the reason of its being of partisan nature and also inadequate. This contention, I am afraid, is not available to be raised in a revision petition wherein jurisdiction does not become liable to be exercised on the mere ground that the evidence is scanty. The existence or otherwise of the agreement sued about is a question of pure fact and concurrent findings thereabout reached by the two Courts below on the basis of evidence led on the record are not liable to be interfered with on such a ground. There is no error of jurisdiction of the nature of misreading or non‑reading of evidence pointed out to have been committed in reaching those findings which have, therefore, to be regarded as sacrosanct.

4. The only other contention half‑heartedly raised is that since the promisor Jheenday Khan had died on 23‑1‑1973, therefore, the suit filed on 20‑9‑1978, more than five years after his death, would not be liable to be considered as within time. This contention is only misconceived in the presence of the gift made by the principal defendants on 5‑3‑1978 in favour of the other two defendants who are the sons of one of them and since the agreement sued about is oral, therefore, there is no question of any date for performance having been fixed in the agreement and this case will fall under the later part of column No. 3 of the entry made against Article 113 of the Limitation Act which provides the date of knowledge about the refusal to perform the agreement as the sine qua non for filing the suit and the gift made in favour of the said defendants is undoubtedly an act of refusal of performance in so far as no other date about such a denial has been proved by the defendants on whom the onus of proof of issue No. 3‑A had been laid. Since the suit had been filed within six months of the making of that gift, therefore, it is clearly within time. Both the contentions of the learned counsel, therefore, fail.

5. There is no case made out for interference. Hence, dismissed in limine. K.B.A./D‑16/L Petition dismissed in limine.