2017 PLP 677 (YLR)

MOHAMMAD AZAM KHAN, C.J.

A suit for specific performance of agreement-to-sell in respect of the land measuring 3 marla, comprising survey No.37, situate in village Matialamaira, Tehsil Rawalakot, filed by the plaintiff-appellant, herein, against the defendants-respondents, herein, was dismissed by the Additional District Judge Poonch/ Rawalakot, being time barred. An appeal filed in the High Court was dismissed through judgment and decree dated 25th April, 2014, hence this appeal by leave of the Court.

2. Sardar Nazar Muhammad Khan, Advocate, counsel for the appellant has filed written arguments, wherein he submitted that the judgment and decree of the trial Court as well as the High Court is against law and the record. The suit was within time from the date of refusal by the defendants to execute the agreement. The relevant date for determining the limitation was refusal of the defendants and from the said date the suit was within time. The limitation for filing the suit for specific performance is 6 years. The suit was filed within one year from refusal of the defendants, therefore, the judgment and decree of the trial Court as well as the High Court is not maintainable. The learned counsel further submitted in the written arguments, that on merit the plaintiff-appellant has proved the case, it was enjoined upon the trial Court as well as the High Court to decide the case on merit. The plaintiff has proved the agreement-to-sell, therefore, he was entitled for declaration to the effect that after 30th June, 2002, he has become owner of the land. The learned counsel further submitted in the written arguments that alternately, the appellant is entitled for receipt of amount paid to the predecessor-in-interest of the defendants-respondents as price of the land. The learned counsel referred to the cases reported as Custodian of Enemy Property, Islamabad v. Hoshang M. Dastur and 6 others (PLD 1977 Karachi 377), Dewan Ali Khan v. Jehandad Khan and others 1995 CLC 136, Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 and Amanat Ali v. Mst. Sardar Bibi and 2 others 2003 MLD

299. He requested for acceptance of appeal. In the case reported as Custodian of Enemy Property, Islamabad v. Hoshang M. Dastur and 6 others [PLD 1977 Karachi 377], it has been resolved that Article 113 of the Limitation Act presupposes the existence of a concluded and finalized contract between the plaintiff and the defendant, the performance of which has been refused by the defendant and of which the plaintiff has notice. In the case reported as Dewan Ali Khan v. Jehandad Khan and others 1995 CLC 136, it was observed by this Court that Article 142 of the Limitation Act, is not applicable in the suit filed by the landlord against a tenant. The proposition is not relevant for the purpose of this case. In the case reported as Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others [2001 CLC 946], this Court held that Article 113 of the Limitation Act provides that in a suit for specific performance of a contract the limitation provided at the relevant time was three years from the date fixed for performance or if no such date is fixed when the plaintiff has notice that performance is refused. The case reported as Amanat Ali v. Mst. Sardar Bibi and 2 others 2003 MLD 299, is a case of right of prior purchase. The proposition resolved in the case are relevant to cause of action, the Right of Prior Purchase Act and Order VII, Rule 11, C.P.C. The judgment is not relevant for the case in hand.

3. While controverting the arguments, Sardar Shamshad Hussain Khan, Advocate, counsel for the respondents, submitted that the judgment of the High Court is perfectly legal. The suit was filed beyond the period of limitation. The execution of agreement (Iqrarnama) is denied by the defendants, it is not proved. The marginal witnesses were not produced by the plaintiff. There are two marginal witnesses of the document. Only one witness was produced. The learned counsel submitted that the suit for correction of revenue record is not maintainable. He further argued that survey No.37 which is subject of the suit is not in the ownership of the defendants. He requested for dismissal of the appeal.

4. We have heard the learned counsel for the respondents and perused the written arguments filed by the counsel for the appellant along with the available record of the case.

5. The plaintiff, appellant filed a declaratory suit for specific performance of agreement in respect of land measuring 3 marla, comprising survey No.37, situate in Matialmaira, Tehsil Rawalakot on the basis of an agreement-to-sell executed on 20th June, 2002 by Muhammad Hanif against a price of Rs.10,5000/-, on 16th June, 2010 in the Court of Additional District Judge Poonch/Rawalakot. The trial Court dismissed the suit on the ground of limitation. Although, the counsel for the parties have addressed the arguments on merit but the trial Court as well as the High Court have decided the case only on the question of limitation, therefore, we will confine ourselves only on to the question of limitation. For deciding the question of limitation it is necessary to examine the agreement-to-sell, which is reproduced as under:-- A perusal of the agreement-to-sell reveals that 10 days time was fixed for returning the amount. According to the recital, the amount of Rs.10,5000/- was paid on 20th June, 2002. It was to be returned on 30th June, 2002 and in case of failure the plaintiff shall become owner of the land on 1st July, 2002. Here it may be observed that the plaintiff has alleged in the plaint that Muhammad Hanif after 11 months of the execution of agreement died and his legal heirs in year 2010 refused to execute the sale-deed, therefore, after their refusal he has filed the suit. In the written statement, the defendants denied the execution of agreement-to-sell and have taken the position that it is a fake, fictitious and based on fraud. The agreement is an unregistered document. Be that as may, without going into the merits of the case we have to resolve the question of limitation.

6. Article 113 of the Limitation Act, deals with the question of limitation for filing a suit for specific performance of a contract. The same is reproduced as under:-- *

113. For specific performance of a contract. Six years The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused. Article 113 in an unambiguous term provides that for filing a suit for specific performance of contract the limitation is 6 years from the date fixed for performance and if no date is fixed when plaintiff has notice that performance is refused. The proposition has been dealt with by this Court in the case reported as Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946, whereby this Court in para 10 of the judgment held as under:-- " Article 113 of the Limitation Act provides that in a suit for specific performance of a contract the limitation provided at the relevant time was three years from the date fixed for performance or if no such date is fixed when the plaintiff has notice that performance is refused. Thus, as stated earlier, at the time of seeking amendment the suit having become barred by limitation a valuable right had accrued in favour of defendant-respondents which could not have been taken away by inserting an amendment as that will amount to circumvent the process of law." A perusal of the agreement relied upon by the plaintiff-appellant, herein, reveals that the date has been fixed for performance as 1st July, 2002. The limitation for filing the suit starts from 1st July, 2002. The plaintiff was entitled to file the suit without 6 years from 1st July, 2002, which expired on 3rd July, 2008. The suit was filed on 16th July, 2010. There is no illegality in the judgment and decree of the High Court. The appeal has no merit.

7. We have also considered the argument of the counsel for the appellant that if the decree for specific performance is not passed then the appellant is entitled for payment of the amount of Rs.10,5000/- paid by him to the predecessor-in-interest of the defendants respondents, herein. It is correct that the Court has power to grant the moulded relief but the fact remains that the defendants have denied the execution of agreement-to-sell. The trial Court as well as the High Court has not recorded the findings whether the agreement-to-sell was executed by the predecessor-in-interest of the defendants or not, therefore, moulded relief cannot be granted to the plaintiff-appellant, herein, without drawing the conclusion that agreement-to-sell was executed by Muhammad Hanif, or not. The result of the above discussion is that the appeal has no merit, it is hereby dismissed with no order as to costs. ZC/29/SC(AJ&K) Appeal dismissed.