2010 PLP 2608 (YLR)

MIAN FASIH-UL-MULK, J.

Petitioner filed a suit for declaration through specific performance of the agreement dated 6-7-1981 in respect of property bearing Khasra Nos.90 and 91 measuring 19 kanals 11 marlas situated in the revenue estate of Eisa Ghazi and recovery of Rs.2,20,000 against the respondents. According to averment of plaint the defendants have mortgaged the suit property with the plaintiff on the basis of agreement deed dated 7-6-1981 in lieu of Rs.36,

000. It was allegedly agreed that possession of the suit property will remain with the defendants and they will pay Rs.10,000 per annum to the plaintiff as chakota; that initially the suit property was mortgaged for three years, however, the period was extendable. The defendants have paid an amount of Rs.36000 but have not paid the amount of chakota, that though the respondents are in physical possession of suit property but the plaintiff being in legal possession of the suit property is entitled to return of the mortgage money with chakota from the year 1981 till date or the property be entered in his name in the revenue record as mortgage.

2. The defendants appeared and contested the suit by filing written statement. The learned Civil Judge, Ghazi vide judgment and decree dated 22-5-2006 dismissed the suit. Feeling aggrieved, the petitioner preferred appeal which also met the same fate vide impugned judgment and decree dated 5-9-2006, hence this revision petition.

3. Petitioner reiterated almost the contents of plaint and contended that both the Courts below have misread and non-read the evidence on record and wrongly and illegally passed the impugned judgments and decrees by dismissing his suit. He further argued that agreement deed executed between the parties is still in existence and has not been cancelled by the respondents so far and therefore, the question of limitation would not arise in the circumstances of the case. It was concluded that petitioner had raised fourteen grounds in his memo. of appeal but all the grounds were either not considered or ignored and the suit was wrongly dismissed as time barred.

4. On the other hand, learned counsel for respondents opposed the contentions of petitioner and contended that impugned judgments of learned lower court being based on proper appraisal of evidence were passed in accordance with law and warrants no interference. Reliance was placed on 2010 SCMR 5, 2009 SCMR 1435 and 2010 MLD 749.

5. I have heard the petitioner and learned counsel for the respondents at great length and perused the record.

6. The agreement deed was executed between the parties and was scribed on a stamp paper of Rs.10 on 7-6-1981. Suit for declaration through specific performance of agreement and recovery of Rs.2,20,000 was filed on 13-1-2004. The respondents submitted written statement wherein they admitted the agreement deed dated 7-8-1981 and took the plea that they had made the payment of principal amount as well as the mortgage money of chakota. Petitioner appeared as a sole witness (P.W.1) and respondents produced one Nawazih Ali DW.1 who was one of the defendants and attorney of defendant No.1. Defendant asserted the evidence that they have not only paid the principal amount but also paid the mortgage money of chakota but could not substantiate the plea of payment by any oral or documentary evidence except his own statement as to when and through which means the payment was made.

7. On the other hand the petitioner, however, accepts the receipt of payment to the extent of Rs.36,000 (principal amount) in instalments within a period of twenty years but could not give the exact date(s) of any instalment or even the last instalment. Petitioner during the course of arguments before this court was asked about the amount of last instalment or date but he categorically replied that this burden has to be discharged by the other side. According to him, he does not remember nor is in possession of any record, therefore, is unable to show any date of payment of any instalment. Both the parties though stated that the payment was made through cheques of MCB Ghor Ghashti Branch but no evidence to that effect was produced by either side. Perusal of record would show that the agreement deed allegedly executed between the parties was scribed on a stamp paper of Rs.10 and is unregistered document. Mortgage cannot be effected by unregistered document particularly when the principal amount secured is more than Rs.100, therefore, the agreement deed dated 7-6-2981 could not be treated as mortgage deed. Similarly, the suit was not for foreclosure or sale, therefore, Article 147 of Article 148 of the Limitation C Act are not attracted to the case in hand. Petitioner has brought suit for specific performance of the agreement, which is governed by Article 113 of the Limitation Act. The period prescribed for such suit and for suit of recovery would be 3 years. Both the Courts have rightly held that the suit was hopelessly barred by time. I find no force in his contentions that since the agreement is intact and partial payment was made, therefore, question of limitation would not arise.

8. In the case of Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446), the apex Court held that "public interest requires that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitations and prescription are, thus, Statute of peace and repose in order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period, otherwise his rights, if any will be forfeited as penalty for his neglect. In other words the law of limitation is a law, which is designed to impose quietus on legal dissensions and conflicts. It requires that person must come to court and take recourse to legal remedies with due diligence". The above referred case applies on all four corners to the case in hand. The petitioner has not approached the courts for long 19 years, his right, if any, will be forfeited as a penalty for his neglect who was required to take recourse to legal remedies with due diligence.

9. In the wake of what has been discussed above, it is held that findings recorded by the learned appellate court in substance maintaining the judgment and decree of trial Court are unexceptionable and would, therefore, not call for interference by this Court in revisional jurisdiction. The revision petition in hand, being meritless, is dismissed with no order as to costs. H.B.T./226/P Petition dismissed.