2023 PLP 504 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The concurrent judgments and decrees dated 04.01.2003 and 09.03.2006, whereby suit for specific performance of sale contract dated 14.12.1967 besides cancellation of Mutation No.6411 of 06.12.1990 instituted by late respondent No.1 (now represented through LRs) against the present petitioners as well as other respondents was decreed and appeal of the petitioners dismissed, are the subject of petition in hand.

2. Undisputedly, the subject land exclusively vested to late Muhammad Yaqoob/predecessor of respondents Nos.2 to 10 (original vendor), which vide oral sale Mutation No.6411 dated 06.12.1990 was transferred to Muhammad Ayub/ascendant of present petitioners (subsequent transferee). Muhammad Hashim/respondent No.1 (Plaintiff) earlier instituted declaratory Suit No.342 on 01.06.1991 for confirmation of his sale reflected in agreement to sell dated 14.12.1967 and cancellation of oral sale Mutation No.6411 of subsequent transferee, whereas in contra, the latter on 10.06.1991 filed Civil Suit No.366 for recovery of possession through, ejectment against former. These two suits though tried independently, yet by one and the same Judicial Officer. After due trial, the one instituted by plaintiff was finally dismissed on 24.09.1992, whereas that of subsequent transferee decreed via judgment of even date (Exh:D1). Although plaintiff preferred two appeals against dismissal of his earlier suit and the decree for possession pronounced in favour of subsequent transferee, yet he withdrew his suit through order dated 15.12.1994 (Exh:P9) with liberty to file fresh one, whereas the next appeal was dismissed on merit vide decision dated 20.12.1997 (Exh.D3) by the Appellate/District Court. Though said concurrent decrees for possession in favour of subsequent transferee were assailed by means of W.P.No.2364 of 2000 before this Court, yet it was dismissed being not maintainable via order dated 04.11.2003, thus the unanimous decrees of possession made against the plaintiff having not been assailed any further stood final. The plaintiff per spirit of order dated 15.12.1994 (Exh.P9) instituted second suit in hand on 03.03.1998, but after more than three years of such permission, which was resisted by the subsequent transferee and learned Trial Court framed following issues:-

1. Whether plaintiff purchased suit land from Muhammad Yaqoob (deceased) the predecessor in interest of the defendants Nos.1 to 9 under a written agreement dated 14.02.1967?OPP

2. If issue No.1 is proved whether plaintiff is entitled for the specific performance of the said contract?OPP

3. Whether mutation No.6421 dated 06.12.1990 executed by defendants Nos.1 to 9 in favour of defendant No.10 is illegal, against facts and liable to be cancelled?OPP

4. Whether the suit is time barred?OPD.

5. Whether this suit is not maintainable?OPD

6. Whether this suit is improperly valued for the purposes of Court fee?OPD

7. Whether this suit is false and frivolous and defendants are entitled for the special costs under section 35-A, C.P.C?OPD

8. Relief. It was a hard fact that prior to trial of suit in hand, the Marginal Witnesses of sale contract (Exh.P1), had already died and the plaintiff though examined Naimat Khan (PW2) and Abdul Rauf (PW3), yet they admittedly were not signatory thereof. Anyways, the suit lastly was decreed by learned Trial Court, which further sustained before the Appellate Court through judgments cited in preceding para and this caused subsequent transferee to file Civil Revision in hand.

3. Mr. Zaheer Ahmed Qadri, ASC, learned counsel for the subsequent transferee emphasized with great vehemence that the alleged agreement to sell was executed on 14.12.1967 in favour of the plaintiff, whereas via oral sale Mutation No.6411 of 06.12.1990, the subject property was alienated to the subsequent transferee, thus at the most cause of action stood accrued to the plaintiff immediately on its attestation; that although earlier suit for cancellation was filed promptly on the basis of alleged sale contract (Exh:P1), yet it was dismissed via judgment dated 24.09.1992; that in appeal on 15.12.1994 indeed said suit was withdrawn subject to filing of fresh one, but the subsequent lis in hand was instituted on 03.03.1998 after more than three decades of the execution of .Exh:P1 as well as beyond more than three years of the withdrawal of earlier lis, thus in any event, suit in hand was hopelessly time barred and intended decree could not ensue, whereas both the Courts below without considering said vital aspect erred in law to pass impugned judgments. Mr. Qadri, further added that decree for possession had already been granted to the subsequent transferee and declaration of title was its inbuilt, therefore without reversal thereof, which attained finality, subsequent decree could not be passed in favour of the plaintiff. He also submitted that not an iota of direct affirmative evidence was brought on suit file so as to prove the sale transaction detailed in agreement (Exh.P1) and the Courts below committed material irregularity/patent illegality while relying upon copies of statements of PWs smuggled from file of earlier suit, which even remained unsuccessful.

4. On the other hand, Malik Amjad Ali learned counsel for the plaintiff supported impugned decrees while adding that concurrent findings of facts returned by Courts below could not be interfered with, thus prayed for dismissal of petition in hand.

5. Arguments heard and record scanned.

6. The basic onus to prove agreement dated 14.12.1967 (Exh.P1) was upon the plaintiff. The perusal of said hub document reveals that it was attested by Sher Afzal and Waris Khan being marginal witnesses. It was a hard fact that in this round of litigation, both of them having already passed away were not available to be produced. No doubt, plaintiff (PW1) in his support examined Naimat Khan (PW2) and Abdul Rauf (PW3), but admittedly both of them were not signatory of Exh.P

1. Although PW2 deposed that sale was effected in his presence, yet he could not give essential detail viz year, month or date when Exh.P1 was scribed, which being relevant is given below:- Thus his statement so as to prove Exh.P1 was of no help to plaintiff. Moreover, Abdul Rauf (PW3) in his statement-in-chief candidly admitted as under:- whose evidence was also not sufficient to hold that alleged sale transaction had ever struck before him. It was a hard fact that the Courts below while passing impugned decrees relied upon copies of statements (Exh.P2 and Exh.P3) made in earlier suit on behalf of Waris Khan and Sher Afzal, the alleged marginal witnesses of Exh:P1, which was initially dismissed by the Civil Court, but subsequently withdrawn from the Court of learned Addl. District Judge. The Exhs:P2 and 3 even were tendered in statement of counsel for the plaintiff. The latter before exhibiting these documents neither made any request to lead secondary evidence nor these earlier statements could be relied upon until and unless those were confronted to its maker. The argument of learned counsel for the plaintiff that the marginal witnesses, who recorded these statements, had already died, thus could not be confronted therewith was not enough to dispense with such legal/requisite formality. The appropriate course for the plaintiff was to make request for examination of persons familiar with signatures/handwriting of late marginal witnesses for roof of Exh.P1 via said mode, which was never followed, thus Exhs:P2 and 3 neither could be taken as admissible evidence nor by itself were sufficient to prove its execution, therefore it remained unproved. Moreover, in earlier declaratory suit, the said statements of Sher Afzal and Waris Khan were disbelieved as ate said lis regretted by the Civil Court via judgment dated 24.09.1992. No doubt, thereafter at appellate stage, the suit was withdrawn, but the evidence once discarded by Court of competent jurisdiction cannot be made basis for success of a subsequent lis instituted by a bootless party. The contention of Malik Amjad Ali, ASC learned counsel for plaintiff that suit, if allowed to be withdrawn with liberty to bring fresh one, it should be regarded as never brought and avails to no purpose is not correct. The Civil Court after scanning of entire evidence had rejected claim of the plaintiff in earlier suit and thereafter simple withdrawal thereof in appeal would not frustrate/wash away the well-reasoned determination made by Court of law. Had the earlier suit been dismissed as withdrawn by showing inherent and formal defects so found therein prior to final decision thereof, in such situation it can be assumed that same would have never been instituted, but the moment it was decided, then the effect of final culmination could not be disregarded in the days to come..

7. The admitted position of fact was that original vendor via mutation dated 06.12.1990 (Exh:P5) had transferred the subject property to the plaintiff. Not only earlier suit for cancellation of said mutation was filed by the plaintiff on the basis of his alleged sale contract dated 14.12.1967, rather subsequent transferee also brought Civil Suit No.366/91 for possession against the former on the basis of his title matured through Exh:P

5. As a matter of record, the suit of subsequent transferee was decreed vide judgment dated 24.09.1992 (Exh.D1) by learned Civil Court, which despite being assailed in appeal was sustained on 20.12.1997 (Exh.D3), whereas WP No.2364 of 2000 filed there-against (Exh:D1 and 3) by the plaintiff being incompetent was dismissed on 04.11.2003, thus decree for possession in favour of subsequent vendee stood final. The apex Court in judgment reported as Hazratullah and others v. Rahim Gul and others (PLD 2014 SC 380) already held that in suit under section 8 of the Specific Relief Act, 1877, the declaration of ownership was an inbuilt relief granted to the decree-holder. Once he is found to be entitled to the possession, it means that he has been declared to be titleholder, thus subsequent vendee having already been granted decree for possession in terms of section 8 (supra), undoubtedly the alleged sale agreement dated 24.12.1967 in favour of the plaintiff would render it as nugatory and redundant because the title of subsequent vendee shall be valued on the basis of the judicial verdict i.e. the decree (Exh.D1) and the alleged agreement shall not be a hindrance in his way For these reasons, the plaintiff failed to discharge onus of issues Nos.1 and 2, but both the Courts below erroneously returned its positive findings, which being tainted with misreading and non-reading of evidence besides violative to the law on subject cannot be sustained, thus are reversed and answered in negative.

8. So far as issue No.3 is concerned, mutation No.6411 dated 06.12.1990 (Exh.P5) despite its assail via earlier suit was not only approved, rather on its basis decree for possession entailing declaration of ownership was already passed in favour of subsequent vendee, thus the onus was successfully discharged that said mutation was validly executed, therefore findings of two Courts below on this issue being erroneous are set aside and answered in favour of the latter.

9. Now comes the vital issue, viz issue No.4 with regard to limitation. The alleged agreement to sell (Exh.P1) was executed on 14.12.1967. No doubt, it contained clause that title of property would be transferred after the finalization of consolidation operation, but statement of Abdul Rauf (PW3) examined by the plaintiff was relevant to this effect, who admitted that the consolidation was conducted in 1970 and sanction of mutation dated 06.12.1990 in favour of the subsequent transferee was otherwise reflective of the fact that on said day, the suit area was free for alienation in any manner. The plaintiff to call in question said mutation while asserting his sale via agreement to sell (Exh.P1) promptly instituted earlier suit on 10.06.1991, thus the moment in violation of alleged sale contract, the property was transferred to the subsequent transferee, the cause of action definitely accrued to the former, who in terms of Article 113 of the Limitation Act, 1908 instituted suit within three years, which proceeded till 15.12.1994, but was withdrawn on said day. No doubt, the plaintiff was granted leave to bring fresh suit, which was filed on the same cause of action and limitation was to be reckoned from the date of commencement of earlier proceedings as once limitation started on same cause of action, then it could not stop running. The first suit might be filed within time, but the subsequent was instituted on 03.03.1998 even after three years of the withdrawal of first suit, which definitely was beyond the prescribed period of limitation. The time span consumed in proceedings of the earlier suit cannot be condoned per spirit of section 14 of the Limitation Act, as it is not fulfilling the essential conditions laid down therein. Even the institution of suit in hand beyond three years of the withdrawal of earlier one was again time barred. It is settled principle of law that the compliance of statutory period within which a right has to be exercised or enforced is mandatory and the Court cannot ignore period stipulated in the above referred enactment even if no objection was raised by the opposite party in this regard. The law of limitation imposes some embargo in filing the suits appeals as well as other remedies to save the parties from endless litigation. The said embargo can only be condoned, if the circumstances so detailed in this behalf are found to be beyond control of litigant(s) and some plausible reason has been assigned, but the evidence to this effect, on the face of it, is otherwise, thus both the Courts below committed material irregularity/ illegality while deciding issue under discussion against the subsequent transferee. See Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247) and for ready reference relevant para-7 of the said judgment is reproduced hereunder:- "

7. Before proceeding further in the matter and being still on the subject of limitation (Article 113 ibid), we would also like to dilate upon another submission of the learned counsel for the petitioners that in view of the general principle and on account of the peculiar circumstances of this case the time was not the essence of the contract, therefore, the period of limitation shall be covered as per paragraph No.18 of the plaint attracting second part of the Article. In this regard, in our candid view the noted rule has nothing to do with the proposition of limitation of the specific performance cases. The said rule is not an enunciation of any statutory instrument, but has emerged as the principle of equity for the exercise of discretion by the Courts in specific performance cases. It only touches on the right to enforce the contract and has relevance and nexus in respect of the judicial consideration, whether the agreement/contract should be enforced or not by the court in the set of facts of a given case, by resorting to the said rule and nothing more. Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced." Thus findings on this issue are also reversed and decided in favour of subsequent transferee.

10. At the fag end of his arguments, learned counsel for the plaintiff has argued that concurrent findings recorded by both the Courts below cannot be interfered with by this Court while exercising jurisdiction under section 115 of the Code, 1908 is without any force. Although, the scope of interference with concurrent findings of fact is limited, but same can be interfered with by this Court under the said provision, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view, this Court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem v. Abdullah and 11 others (1997 SCMR 1139) and the relevant portion thereof is reproduced as under:-- "

6. Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C is veny limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record." This question has also been dealt with by the august Supreme Court of Pakistan in the judgment reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) while holding that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly or in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, this Court can decide in which cases the interference is warranted. The impugned judgments and decrees, which are found to be illegal, unlawful and perverse being the result of misreading and non-reading of the evidence on the record and surely suffered from excess of jurisdiction exercised by the learned Courts below, which is exceptionable by this Court in the exercise of revisional jurisdiction.

11. Consequent to afore discussion based upon appreciation of available material, this Court does find that learned fora below had not only misread the evidence on suit file, but also escaped notice of the law on subject while equipping the plaintiff with the desired decree, therefore this Petition merits acceptance, which accordingly is allowed, the impugned decrees are hereby set aside and the suit instituted on his behalf is dismissed with costs throughout. ZH/M-28/L Order accordingly.