2002 PLP 3959 (YLR)

Faiz Muhammad Bilal for Petitioners. Mian Shah Abbas Shah for Respondents. Dated of hearing: 22nd January, 2002. This civil revision under section 115, C.P.C. is directed against the judgment and decree dated 11‑10‑2000 dismissing the appeal of the petitioners against the judgment and decree dated 6‑2‑1993 passed by the learned Civil Judge, Bhakkar, whereby the suit for specific performance of the petitioners was dismissed.

2. Brief facts necessary for the disposal of this revision petition are that the petitioners herein plaintiffs purchased land measuring 332 Kanals and 8 Marlas vide registered sale‑deed dated 9‑9‑1950 from one Gulshare respondent‑defendant, who has died and represented by his legal heirs and his brother Ghulam Muhammad, who was minor at the time of registration of the sale‑deed dated 9‑9‑1950. It is stated in the plaint that legally a sale transaction on behalf of the minor could have not been effected. A special indemnity clause in the said sale‑deed (Exh.P.2) was mentioned that in case of denial of sale by the minor Ghulam Muhammad on his attaining at the age of majority the other vendor i.e. Gulshare will make up the deficiency and the loss to the purchaser from his own land. The said Ghulam Muhammad had become adult repudiated the sale entered into on his behalf by his elder brother Gulshare, he, therefore, brought a civil suit for this purpose on 19‑12‑1978 against the petitioners and his brother Gulshare challenging the said sale dated 9‑9‑1950. His suit was decreed on 9‑7‑1980, whereby not only the sale of his share of land in favour of the petitioner by his elder brother Gulshare was set aside but the ex pane decree in favour of the petitioner dated 6‑11‑1977 Exh.D.4 was also cancelled. The suit was resisted by Gulshare respondent defendant. Necessary issues were framed by the learned trial Court, and by giving the finding on Issues Nos. 1, 3, 4 and 6, the suit was dismissed. On appeal the finding on Issue No.3, i.e. on res judicata were reversed but finding of Issues Nos. 4 and 6 regarding limitation, locus standi and petitioner's entitlement of decree for possession on the basis of sale‑deed/agreement dated 9‑9‑1950 were maintained by the learned First Appellate Court. Consequently, this appeal was also dismissed.

3. The learned counsel for the petitioner have contended that Article 143 of the Limitation Act providing the period of 12 years is applicable in the case as the petitioner's suit for specific performance of the indemnity clause in registered sale‑deed and not based on just an agreement to sell. According to the learned counsel, the learned Additional District Judge wrongly applied the Article 113 of the Limitation Act. Further contends that the judgment and decree of both the Courts below are the result of misreading of evidence on the record.

4. Admittedly, the sale‑deed was executed by Gulshare by himself and on behalf of his brother Ghulam Muhammad, who was the minor on 16‑9‑1950. Ghulam Muhammad negated the sale‑deed on the attaining of the age of majority. Ghulam Muhammad after attaining the majority filed a suit in the year 1978 which was decreed in his favour on 3‑7‑1980 (Exh.P.4) and Exh.P.5 the indemnity clause in the sale‑deed Exh.P.2 stipulates that the Gulshare shall compensate the petitioners from his own land if Ghulam Muhammad minor brother of Gulshare denied the sale‑deed after the attaining the age of the majority. In this view of the matter, the limitation will run against the petitioners when the decree dated 3‑7‑1980 was passed and plaint of the suit was filed by Ghulam Muhammad. Exh. P.4 shows that the suit was filed in 19‑12‑1978. Article 113 of the Limitation Act three years provides for a suit of specific performance of the contract. In this view of the matter, the suit of the petitioners was time‑barred. The learned Civil Judge has rightly recorded the finding on issue of limitation against the petitioners. Since there is no title or sale‑deed on behalf of Ghulam Muhammad in favour of the petitioners and the sale‑deed dated 16‑9‑1950 executed by his real brother Gulshare was void. The suit for possession filed by the petitioners was not maintainable. Since Gulshare has no authority to enter and execute an agreement to sell in favour of the petitioners on behalf of Ghulam Muhammad, therefore, the petitioners had no locus standi to file the suit. The petitioners has concealed the fact of awarding the decree dated 6‑11‑1977 in favour of the respondent. The petitioners have no right in the suit‑land on the basis of Exh.P.2. The learned Civil Judge, Bhakkar, has rightly dismissed the suit of the petitioners. The learned Additional District Judge has also committed no irregularity or illegality in dismissing the appeal. There is concurrent finding of fact recorded by the two Courts below on the basis of the evidence having the jurisdiction in the matter which cannot be interfered by this Court in the exercise of revisional jurisdiction under section 115 of the C.P.C. Resultantly, this civil revision fails and the same is dismissed. H.B.T./G‑215/L Revision dismissed.