2015 PLP 488 (CLC)

RAUF AHMAD SHEIKH, J.

The petitioners have assailed the vires of judgment and decree dated 8-3-2010 passed by the learned Additional District Judge, Jhang, whereby an appeal filed by them against the judgment and decree dated 26-2-2007 of the learned Senior Civil Judge, Jhang, decreeing a suit for possession filed by the respondent was dismissed.

2. The facts, in brief as emerge on perusal of the record are that the respondent filed a suit for possession of the property, fully described in para No.1 of the plaint. It was contended that he purchased the plot and constructed the house along with four walls thereon; that he has been in possession of the property since its purchase; that about two years prior to the institution of the suit, the petitioners/defendants asked the respondent/plaintiff to allow them to live in the house as licensees and due to mutual relations and trust, he granted permission in this regard; that about one month prior to the institution of the suit, he asked the petitioners to vacate the house as it was required for personal occupation but they refused and that they are under obligation to vacate the house.

3. The defendants/petitioners contested the suit. It was contended that an agreement to sell was entered into between them and the plaintiff/respondent for a sum of Rs.2,30,000; that agreement deed dated 13-6-1995 was executed by the parties and a sum of Rs.1,30,000 was paid vide receipt; that they had raised construction from their pockets and that in case of a decree, they are entitled to a sum of Rs.2,00,000 as compensation for the construction made by them.

4. After recording the evidence and hearing the arguments, the learned trial court proceeded on to pass a decree for possession in favour of the plaintiff/respondent. The appeal filed by the petitioners was dismissed by the learned 1st appellate court through the impugned judgment and decree.

5. Learned counsel for the petitioners has contended that the petitioners were in possession of the property under the agreement to sell after part performance of the same so have the protection of section 53-A of the Transfer of Property Act, 1882 and as such can't be dispossessed; that the matter was referred to the sole referee by the learned trial court vide order dated 7-9-1998 and the referee made a clear statement to the effect that an agreement to sell was entered into by the parties and the earnest money was paid; that the petitioners were entitled to the execution of the sale deed on payment of the remaining amount and as such the learned trial court was required to dismiss the suit so committed material irregularity in passing the decree and that the learned Additional District Judge also failed to rectify the illegality committed by the learned trial court.

6. On the other hand learned counsel for the respondent has contended that the referee was only required to give the statement regarding the questions of fact involved in the lis and could have not decided the matter as arbitrator; that the statement negated the contentions of the petitioners; that no suit for specific performance of the contract was pending before the learned trial court so the referee could have not given any opinion for transfer of the property in favour of the petitioners on payment of the remaining sale price; that the order of the learned trial Court, whereby the statement of the referee was discarded was not assailed so the contention in this regard can't be raised again; that the petitioners never filed the suit for specific performance of the contract although they had the knowledge that the fixed date or performance was mentioned in the agreement deed, the execution of which is not admitted by the respondent/plaintiff; that finally they attained the knowledge on filing of the suit by the plaintiff/respondent that he had raised to perform his part of the contract, if any and as such could have filed the suit for specific performance of the contract within three years of the filing of the suit for possession on 23-5-1997 but they opted to file the same on 17-3-2007, which has already been dismissed by the learned trial court and as such they don't have the protection under section 53-A of the Transfer of Property Act, 1882.

7. It is true that the statement of the referee amounts to admission of the concerned party to the extent of information furnished by such person but he is only supposed to make the statement as to the matter referred to him or to furnish information as required in pursuance of the statement of the parties. He cannot decide the matter as is done by an arbitrator under section 14 of the Arbitration Act, 1940. His statement does not amount to award within the meanings or section 2(b) of the Act ibid. No suit for specific performance of the contract was pending before the learned trial court so the referee transgressed the terms of reference by holding that subject to payment of Rs.1,10,000 till 25-2-1999, the petitioners/defendants would be entitled to the transfer of the property in their favour. Under the terms of the reference, he could have not decided this matter and was only supposed to furnish information about the factual position qua the dispute over the alleged agreement. In this respect, reliance is placed on Ghulam Farid Khan v. Muhammad Hanif Khan and others (1990 SCMR 763) and Nazir Ahmad and others v. Muhammad Qasim and others (2004 SCMR 1292). The statement even otherwise did not support the correctness of contention of either of the parties in toto and could have not been acted upon. The contention that the petitioners were entitled to a decree for specific performance in terms of this statement, therefore, is without force.

8. It is true that as per concurrent findings recorded by both the courts below, the petitioners got possession under the contract after part performance of the same and as such have the right to retain it but the question arises till which date and for what period, this protection is admissible? Naturally a person without making the full payment or acquiring the title is not entitled to keep the possession till eternity. The rider clause as laid down in section 53-A of the Act ibid, inter alia provides in clear terms that the promisee is entitled to retain possession. If he has performed or is willing to perform his part of the contract. It is thus obvious that the promisee may enjoy this protection, if he performs his part of the contract or takes some positive step in this regard before expiry of the period of limitation as provided under the law. In this case, the alleged agreement to sell was executed on 13-6-1995 and the last date fixed for performance was 13-6-1996, which appears to have been extended till 30-1-1997. The suit for possession was filed by the respondent on 23-5-1997. From the said date, it was crystal clear to the defendants/petitioners specific performance was refused by the respondent/plaintiff. They did not take any step towards enforcement of their rights under the agreement within the stipulated period and even within three years the knowledge of the refusal on part of respondent. The suit for specific performance of the contract was filed on 17-3-2007 after decision of the learned trial court. A suit for specific performance of the contract can be filed within three years of the date fixed and if no such date is fixed from the refusal on part of the promisor to perform his part of the contract as is clearly provided under Article 113 of the Schedule of the Limitation Act, 1908. In these circumstances, the petitioners are not entitled to retain the possession on the plea that they are in occupation of the property under the agreement to sell after part performance of the same.

9. The concurrent findings recorded by the two courts of competent jurisdiction do not suffer from any illegality or infirmity. The civil revision is without merits and the same is hereby dismissed. SAK/S-60/L Revision dismissed.