1994 PLP 464 (MLD)

By this petition under section 115, Civil P.C., the plaintiff in the suit for specific performance of agreement to sell the house sought revision of the orders of the lower Courts by which his prayer for grant of temporary injunction for protection of his possession on the house was declined. A residential house situated in Muhallah Qamar Kota, Pindi Bhattian in Tehsil and, District Hafizabad was owned by widow of Khuda Bakhsh, namely, Mst. Zohra Bibi and her sons and daughters from him. On 2-6-1967, she agreed for the sale of the above house to Ata Muhammad petitioner for a sum of Rs.5,

000. Rs.2,000 were received as earnest money and the balance was payable at time of completion of the sale, on 1-5-1968. Sale agreement was reduced in writing on the same day. Agreement was thumb-marked by Mst. Zohra Bibi and its execution was witnessed by two marginal witnesses. One of them put his thumb-impression on it and the other signed it in Urdu. Rs.500 were received, on 26-6-1967 by Mst. Zohra Bibi. In acknowledgement of it, another agreement was reduced in writing. Same set of witnesses attested its execution. A further sum of Rs.400 was received by Mst. Zohra Bibi .on 4-9-1967 and another document was reduced in writing. It was thumb-marked by Mst. Zohra Bibi and its execution was witnessed by the same persons who had witnessed the execution of earlier two documents. Same person had scribed the above three documents. Out of the sale price, a sum of Rs.2,100 remained to be paid. Sons and daughters of Mst. Zohra Bibi were not parties to the sale agreement. They were not shown to have signed the agreement. Date for the completion of the sale of the house in the agreement was fixed on 1-5-1968. Mst. Zohra Bibi died, in the year 1988 and her share in the house also devolved upon her sons and daughters who are defendants No. 1 to 6 in the suit for specific performance. On 25-9-1990, the house was sold by them to Dost Muhammad defendant No. 7, in the suit. On 30-9-1990, petitioner brought a suit for enforcement of his right under agreement to sell for completion of the sale of the house by the defendants. The suit was resisted. Agreement to sell by Mst. Zohra Bibi and receipt of 'sale-price under it was denied by them. In addition, Dost Muhammad claimed to be a bona fide transferee of the house for value without notice of any alleged agreement to sell respecting it. Alongwith the plaint, petitioner filed a petition for temporary injunction for protection of his possession on the house. Except for the Baithak, the house was in his possession. He claimed its possession on the basis of agreement to sell in his favour. Defendants asserted that he was a tenant in occupation of the house and upon receipt of notice for payment of rent filed the suit for forestalling the ejectment action against him. On consideration of merits, the trial Court rejected the petition for temporary injunction. Its decision was maintained in appeal. At the hearing, it was urged that petitioner was equipped with a prima facie case, inasmuch as, he was in possession of the house and had an agreement to sell respecting it in his favour. Till the matter was finally resolved, petitioner was entitled to protection of his possession on the house from disturbance at the hands of respondents. Upon hearing the learned counsel at length and examination of existing record, I see no ground to interfere with the exercise of discretion by the lower Courts. Original agreement to sell alongwith its two repetitions were unregistered documents. Mst. Zohra Bibi appeared to be an illiterate woman. Though she was alleged to have entered into agreement for sale of the house in the year 1967 and the date for finalization of the sale fixed on 1-5-1968, but no action was taken by the petitioner for having the sale completed in her lifetime, muchless to say, within the period prescribed by the Limitation Act in Article 113 for completion of the sale by filing of the necessary suit. Mst. Zohra Bibi died in the year 1988. The house was sold on 25-9-1990, and the suit was filed on 30-9-1990. There was no explanation for delayed enforcement of the claim after expiry of about two decades. Apart from Mst. Zohra, the other heirs of Khuda Bakhsh who were co-owners in the residential house were not signatories to the sale agreements and receipt of considerations under them. It is yet to be seen, whether they had agreed for sale of their shares in the house. Fixation of time for completion of the sale on 1-5-1968 might raise a serious question about period of limitation for filing of the suit for specific performance. These and other questions including genuineness of sale agreement shall receive serious consideration at the trial of the suit. Nonetheless, the pleas raised in defence were not without substance either. Possession of the house was conceded in defence. However, there was a dispute on its nature between the parties. Petitioner claimed his possession under the agreement to sell, whereas, defendants asserted that he was a tenant of the house with liability to pay rent to the owner of the house. Be that as ii may, the possession of the petitioner on the house is admitted. It was not the case of the respondents that the petitioner shall be dispossessed from the house by force. In fact, a notice for payment of rent was given to the petitioner. It showed that the owner-respondent No.7 had a legal recourse in mind for dealing with the possession of the petitioner on the house in question. That shall suffice for disposal of the civil revision in limine by observing that petitioner's possession shall be dealt with in accordance with law by respondent No.7. I think, this innocent modification could be made in the impugned order of the trial Court without hearing the respondents and it was on this assumption that I proceeded to make it to avoid delay and unnecessary expense. With this observation, the civil revision is disposed of at the preliminary stage. AA./A-514/L Order accordingly.