1970 PLP 200 (SCMR)

WAHIDUDDIN AHMAD, J.‑The petitioners brought a suit for specific performance of a contract for the sale of 200 kanals of land situate at Chak No. 14/D. N. B., Sub‑Tehsil Yazman, District Bahawalpur, together with Ahata situate at the said Ckak. This land was originally allotted to Siddique Bhutta of Tehsil Sargodha, who died and was survived by Slier Khan, Ghulam Hussain and Fateh Sher, his sons acid Muhammad Iqbal and Mohammad Afzal, grandsons by his fourth son Sardar Ali. The petitioners alleged that sometime before 1943, the said grant was confiscated on account of non‑compliance with the conditions of the grant. Thereupon, Sher Khan acting for himself and Mukhtar‑e‑Aam of other co‑sharers entered into an agreement with them to the effect that if they got the grant restored at their expense and paid the Government dues, Sher Khan and others would transfer the said land arid Ahata to them in consideration of Rs. 4,

000. Rs. 2,000 being payable forthwith and Rs. 2,000 being payable at the time of the attestation of the mutation. They further alleged that they got the grant restored at the expense of Rs. 600, in addition to this, they paid Rs. 500 to Sher Khan and deposited a sum of Rs. 1,031‑4‑0 on the 26th April 1944 and another sum of Rs. 1,031‑4‑0 on the 13th February 1947, by way of payment to Government and that on payment of Rs. 2,000 to Sher Khan they secured the possession of the said land and Ahata. Their case is that ever since then they continued to be in possession of the land and they were always ready and willing to perform their part of the contract but the respondents resiled from the contract in the first week of December 1958, and refused to have the land mutated in their favour. In the alternative they pleaded that they are in adverse possession of the property in dispute and have thereby become its owners. The petitioners, therefore, instituted the above suit on the 2nd May 1960. The suit was resisted on behalf of the respondents. They denied the alleged agreement of sale. They further denied Sher Khan's authority to enter into the alleged agreement on their behalf. They pleaded that the instalments deposited by way of payment to Government had been deposited by them, but the receipts for the same had been left with the petitioner Ghulam Mohyyuddin. They also denied that the possession of the property in dispute was given to the petitioners under the alleged agreement and explained that Ghulam Mohyyuddin, the petitioner was in its possession in his capacity as a tenant under them. They also contended that the suit for specific performance was barred by time. The adverse possession of the petitioners was also denied. The learned Sub‑Judge framed as many as nine issues which it is unnecessary to reproduce here. On these issues, the learned Sub‑Judge held that the suit for the specific performance was barred by time. He further held that the petitioners were in possession of the 3 /4th of the land for more, than 12 years and they had become its owners by adverse possession. He, therefore, granted the petitioners a decree for a declaration that they were owners of 3/4th share of land in‑ dispute against respondents Nos. 1 to

3. The suit for specific performance was dismissed. From this judgment both the petitioners and the respondents filed appeals in the Court of the District Judge, Bahawalpur. The learned District Judge upheld the finding of the learned trial Judge that the suit for specific performance of the contract was barred by time. He further held that the petitioners had failed to prove the terms of the alleged agreement of sale. On the question of adverse possession he held that the Petitioners entered into possession with the permission of the owners and therefore it cannot be held that they had become owners through adverse possession. He, therefore, set aside the judgment of the trial Court and dismissed the suit. This judgment was challenged in Regular Second Appeal No. 17 of 1968, in the High Court of West Pakistan, Bahawalpur Circuit, Baghdad‑ul- Jadid, which was dismissed by a Division Bench of the said High Court on the 4th July 1969. The learned Judges of the High Court upheld the finding of the Courts below that the suit for specific performance was barred by limitation. They further held that Sher Khan was not competent so enter into an agreement with the petitioners on behalf of the other heirs of Siddique Bhutta. The finding of the learned District Judge that the petitioners had not become owners of the property in dispute through adverse possession was also upheld. The petitioners have challenged this judgment in this petition for special leave to appeal. In support of the petition Mr. Muhammad Mahmood Bhatti the learned counsel for the petitioners, has urged that the evidence on the record indicates that the respondents have avoided the specific performance of the contract but there have not been a definite demand or refusal and, therefore, the Courts below were not justified in holding that the suit for specific performance was barred by time. He further contended that the evidence of P. Ws. 1 to 5 clearly proved the terms of the agreement between the parties but the High Court has not considered this important evidence. In the alternative he contended that there is ample evidence on the record to show that the petitioners were given the possession of the suit property under an oral agreement in 1946, that since then they are in adverse possession of the property in their own right as owners and their plea was fully corroborated by the entries in khasra gridawari of 1951. The contention of the learned counsel has not impressed us. There are number of hurdles in his way. According to the allegations made in the plaint, the agreement was entered into between the petitioners and Sher Khan in 1943. The power of autorney was executed by the other heirs of Siddique Bhutta in1946. It is, therefore quite clear that Sher Khan was not competent to enter into Mahayyud din any agreement on behalf of the other heirs of deceased sher Khan Siddique Bhutta in 1943. It is alleged in the plaint that Sher Khan refused to perform the contract specifically in 1949. The learned wahiduddin counsel has urged that the allegations made in the plaint should Ahmad, is not be taken into consideration in proof of the case of the petitioners and that the evidence produced by them should be look ed into for this purpose. The contention urged by the learned counsel is without substance. It is well‑settled principle of law that the allegations in the plaint are to be taken into consideration for finding out the truth of the case set up at the trial. In these circumstances the learned Judges of the High Court were fully justified in relying on the allegations made in the plaint. The oral statements of the witnesses at the trial also do not help the petitioners. P. W. 2 Arshad Ali stated that Sher Khan was at first agreeable to abide by the agreement but three ox four years thereafter he resiled from it. According to his statement the respondents resiled from their agreement sometime in 1953. Even if the period of limitation is counted from 1953, the suit filed by the petitioners was clearly barred by time under Article 113 of the First Schedule of the Limitation Act. Mr. Bhatti contended, that P. W. Arshad Ali had only stated that the respondents avoided to perform the contract. He has referred us to the Urdu version of the said witness. We are satisfied that according to the statement of this witness, the respondents had refused to perform contract in 1953. Thus the plaintiffs had knowledge of the repudiation of the contract in 1953. This is a question of fact and the finding of the learned Courts below on this question cannot be said to be based on misreading of the evidence. The next contention on behalf of the petitioners that there was ample oral evidence on the record to establish the terms of the agreement has also no force. This evidence is in conflict with the case set up in the plaint. Therefore much reliance cannot be placed on it. The Courts below were, therefore, quite justified in not placing any reliance on such evidence. On the question of adverse possession also the finding of the Courts below is based on the proper appreciation of the evidence led before the trial Court. As pointed out by the Courts below the Revenue record shows that Ghulam Mohyyuddin petitioner entered into possession of the land for the first time in Rabi 1948 as a tenant and it was only in 1951 that he claimed to be in possession on the basis of the agreement of sale. These entries clearly show that the case set up by the petitioners that they entered into possession of the property in dispute in 1943 or 1946, is not correct. The entry of 1951 in the Revenue record is discredited by the entries in the Jammabandi of 1954‑55, according to which it is stated that petitioner Ghulam Mohyyuddin was tenant‑at‑will‑paying batai bashara khatoni No.

2. Even if the petitioners' possession is taken to be from 1951 in their own right it cannot be said that they had acquired adverse possession by 1960, when they filed the suit. We are, therefore, satisfied that the learned Courts below have based their finding on the question of adverse possession on proper appreciation of the evidence. It may be that Sher Khan had entered into an agreement for sale of the property in dispute but that cannot be on behalf of the other heirs of Siddique Bhutta. In any case, the petitioners did not approach the Civil Court for the specific performance of the contract within time and their suit was rightly dismissed by the Courts below. After goring through the judgment of the High Court we are satisfied that they have approached the question before them in accordance with law. It is based on proper appreciation of the evidence. We, therefore, do not consider this a fit case for interference. The petition is dismissed. Leave refused