2002 PLP 3330 (YLR)

(7) Whether the plaintiff is estopped to bring the suit? OPD (8) Whether the plaintiff has got no cause of action? OPD (9) Relief. After recording evidence of the parties, the trial Court decreed the suit on 27‑10‑1993. The petitioners appeal was dismissed by the learned Additional District Judge, Mandi Bahauddin vide his judgment and decree dated 14‑1‑2000.

3. The petitioner's learned counsel contends that the suit filed by the respondent is hopelessly time‑barred; that the plaint itself showed that the agreement was made about 14 years before the institution of the suit; that the payment of consideration is evidenced by receipts, Marks‑A. B and C, all executed in the year 1977; that in the written statement tiled by Allah Ditta, the execution of the agreement to sell was admitted that he also admitted that he had received a sum of Rs.10.500 but added that the plaintiff/respondent did not come forward to have the sale deed executed and subsequently cancelled the agreement; that the Khasra Girdawari for the year 1992 (Ex. D.1) shows possession of land remained with the petitioners/successors‑in‑interest of defendant; that the plaintiff/respondent himself stated that he had gone to the defendant for about 30 times since the year 1979 and tiled the suit on the defendant's refusal to execute sale deed; that the refusal has taken place some time during the year 1979 but the suit was filed after about 14 years that the findings of Courts below on Issue No.3 are contrary to the record because the Khasra Girdawari (Ex. D.1) clearly shows that the petitioners/successors‑in‑interest of defendant was in possession of the land and not the. respondent.

4. The respondent appeared in person and submitted his written arguments, which are re‑produced below for ready reference:‑‑ (1) That the bargain for the sale of land is admitted as also the receipt of the consideration. The price of suit‑land having been paid by me to the petitioner, therefore, there is no justification, and equity for the petitioner for not executing the sale deed through Registration. (2) That the suit is not time‑barred section 113 of the Limitation Act says that the limitation for the specific performance of contract is three years which will commence from the date fixed for the performance. And if no such date is fixed then when the plaintiff has, a notice that performance is refused. The petitioner has not taken the plea that the respondent. Prof. M.A.R. Khokhar has the notice of refusal by the petitioner for the performance of contract or that the respondent has ever refused to perform the contract. In fact the plaintiff has stated" therefore, the question of Limitation, does not arise. (3) That in agreement of Sale of Immovable property, the time is not the essence of the contract. It has been so held by the Honourable High Courts and Supreme Court. (4) That, after the possession, the petitioner, having entered into the agreement of Sale with the respondent and having received the sale price, has practically washed‑off his hands and nothing is left for him except that he is bound to execute the registration of sale deed. The suit land is lying vacant and fallow and hence the respondent Prof. M.A.R Khokhar, having purchased the land through agreement of sale (an admitted fact) shall be considered to be in possession of the suit‑land. The plaintiff has admitted himself that he has not cultivated the land for the last five or six years (actually since the agreement of sale as made) which means that the land is lying vacant and shall be presumed to be in possession entitled to it. I, the respondent, having purchased it from the petitioner, who admits this fact, have every title to the suit‑land and, therefore, I the respondent can be taken to be in possession of the suit land. (5) That the principle of Res judicata is not applicable in my case. It applies to a case which had already been heard and decided on merit. The previous suit was not so heard and decided on merit but only dismissed on account of failure to deposit the fee of Commission. This dismissal of the previous suit does not operate as resjudicata. And even the Order 17 of Rule‑3 is not attracted. The case was neither fixed for the evidence of the respondent, nor the evidence of the respondent were closed. The applicability of Order 17 Rule 3, C.P.C. to my case is out of question and out of place. The failure to deposit the fee of Commission has not arrested the proceedings of the Court nor has it been mentioned in the order of dismissal that the suit is dismissed under Order 17 Rule

3. It is not open to the petitioner to refer to the provision of law at his own free‑will, when it has not been so mentioned by the Honourable Lower Courts."

5. I would first like to take up Issue No.3, relating to limitation for the suit. The agreement to sell was made by Allah Ditta deceased, predecessor‑in‑interest of the petitioners, with the present respondent in the year 1979. The plaintiff stated in para 2 of the plaint that Allah Ditta deceased entered into an agreement to sell the disputed land in consideration of Rs.10,

500. The sale consideration was paid to the vendor in three installments. In reply the defendant stated in para. 2 of the written statement that he had entered' into an agreement to sell with respondent about 14 years ago and received the sale price of Rs.10,

500. However he added that he asked the respondent several times to have the sale deed executed but he did not do the needful and instead cancelled the agreement. At the end he stated that he was ready to return the sale price to the respondent/plaintiff. These averments proved that the agreement to sell was executed between the predecessor‑in‑interest of the petitioners and the respondent; that the entire sale price was paid to the vendor but according to the defendant/petitioner the respondent had failed to have the sale deed executed and then cancelled the agreement. Now the question arises whether the plaintiff/respondent had cancelled the agreement or the defendant had at any stage refused to execute the sale deed. The onus of Issue No.3 was upon the defendant. Allah Ditta, defendant, appeared as DW.1 and nowhere stated that the respondent/plaintiff have ever cancelled the agreement. He stated that respondent/plaintiff never came to him for execution of the sale deed. Again he stated that once the plaintiff/respondent came to him for the said purpose but I told him that he was not ready to transfer the land to him and that he could get the sale price back. He did not give any specific date when he had refused to transfer the disputed land to the plaintiff/respondent. It is not believable that after paying the entire sale price the plaintiff/respondent would not have asked the defendant to execute the sale deed. It appears that the parties had not fixed any specific date or period for execution of the sale deed. There was mutual trust between the parties. The plaintiff/respondent had been contacting the defendant but he had been assuring him that he was like his son and should not have any anxiety and that he could have the sale deed registered at his will. It is true that the plaintiff while appearing as PW.1 stated that he had gone to the defendant about 30 times but this per se cannot be construed to mean that the execution of sale deed was refused by the defendant. It appears that the respondent/plaintiff had been trusting the assurances of the defendant and for that reason the matter regarding execution of the sale deed was delayed. The respondent/plaintiff cannot be penalized for having paid the entire sale price and then allowing a fairly long period to the defendant due to mutual trust to have the sale deed executed in his presence. The petitioner's offer to return the sale price to the respondent at this stage is not just and fair as with the passage of time the prices of land have increased manifold and currency has been greatly devalued. The Courts below, despite weak reasoning, have rightly returned findings on Issue No.3 in favour of the respondent/plaintiff. There is no cogent reason to hold that the said findings suffer from any material irregularity or are without jurisdiction.

6. On merits, the contest between the parties is on Issue No.1, regarding the plaintiff's entitlement to specific performance of the contract. As mentioned above, the contract between the parties is admitted. It is also admitted that the entire sale price had been paid to Allah Ditta, predecessor‑in- interest of the petitioners. The agreement was oral but payment of price was made through written receipts Mark‑A, B and C. In the last receipt dated 11‑2‑1978 it was mentioned that the entire sale price had been received by Allah Ditta deceased. It is note worthy that in the year 1977‑78 the currency had much higher value. With the passage of time the currency was devalued but prices of land were considerably increased. Probably this situation prompted Allah Dita‑deceased to back out from the agreement. While appearing as DW.1 Allah Dita admitted the agreement to sell in examination‑in‑chief but denied it in cross‑examination. He stated Obviously he was telling a lie. He had admitted the factum of agreement to sell in the written statement as well as in his examination‑in‑chief. It is unfortunate that the respondent had paid a fairly big amount in the year 1977‑78 but was not only deprived of his money but also of the benefit of a formal sale deed in his favour to enable him to exercise the rights of ownership. Allah Ditta, defendant, stated in the written statement as well as in his statement before the Court that he was ready to return the plaintiff's money but actually it was never returned to him till today. Thus the defendant utilized the sale price of the land and also prolonged the execution of the sale deed in favour of the plaintiff/respondent on one pretext or the other. The facts on the record as well as equities of case heavily weigh in favour of the respondent/plaintiff. Therefore, I concur with the findings of the Courts below on Issue No. 1.

7. The Courts below had concurrently held that the respondent/plaintiff in possession of the land after appraisal of the evidence on the record. The petitioners' learned counsel has referred to entries in the Khasra Girdawari (Ex.D1) to show that Allah Dita was in self cultivating possession of the land from 31‑10‑1991 to 30‑3‑1992. After the said date the land was not cultivated by Allah Ditta or his successors‑in‑interest and was lying vacant. This solitary entry pertaining to a period of about five months does not necessarily negate the respondent's claim of possession over the land in dispute. It may be mentioned that this entry pertains to land measuring 2 kanals and 4 marlas and land has been shown as "Bunjar Qadeem" under Columns Nos.5 and 6 of the Khasra Girdawari. However, after the said date there is no entry regarding cultivation of land by Allah Ditta or his possession over the same. As mentioned above the agreement between the parties was oral and therefore, as claimed by the respondent possession of 1‑kanal and 1 marla of land was delivered to him verbally. The plaintiff while appearing as P.W.1 stated that: He denied the suggestion in cross‑examination that the possession was not delivered to him. His claim regarding delivery of possession was supported by P.W.2 Allah Dita son of Jan Muhammad. The defendant, Allah Ditta, who appeared as D.W.1 does not appear to have made a truthful statement before the Court. As mentioned above he admitted the execution of the agreement in examination‑in- chief but denied it in cross‑examination. He claimed that be was cultivating the disputed land but the Khasra Girdawari shows that it was `Bunjar Qadeem'. Keeping in view the facts and circumstances of the case I am not persuaded to give weight to his denial regarding delivery of possession to the plaintiff/respondent. Even if on re‑appraisal of the evidence another view regarding delivery of possession to the respondent/plaintiff is possible, I refrain to adopt it keeping in view the justice of the cause and equities of the case which heavily lean in favour of the respondent.

8. For the foregoing discussion, I am not inclined to exercise my jurisdiction under section 115 of the C.P.C. to interfere in the impugned judgments and decrees of the Courts below. Hence the petition is dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./M‑1042/L Revision dismissed.