ABDULLAH HANIF Versus BAKHSH
MUDASSIR KHALID ABBASI, J.--- Through this revision petition, petitioner has challenged the vires of judgment and decree dated 26.04.2007 passed by learned Civil Judge, Jampur and judgment and decree dated 18.02.2010 passed by learned Additional District Judge, Rajanpur.
2. Concisely, facts of the case are that petitioner filed a suit for permanent injunction before learned Civil Judge, Jampur stating therein that predecessor of respondents Bakhsh being owner of disputed property sold the same to the petitioner against total consideration Rs.7000/- through sale deed dated 18.11.1977. Possession was handed over to the petitioner who erected construction on it. Thereafter predecessor of respondents has filed two suits which were subsequently withdrawn and he started interfering in the possession over the suit property. Predecessor in interest of respondents Bakhsh had failed to honour his word and refused to alienate the property in favour of the petitioner. Suit was contested by the predecessor in interest of respondents. Learned Civil Judge, Jampur vide impugned judgment and decree dated 26.04.2007 dismissed the suit. Feeling aggrieved, petitioner filed an appeal before learned Additional District Judge, Rajanpur which met with the same fate vide impugned judgment dated 18.02.2010.
3. Learned counsel for the petitioner contends that judgments and decrees of both the courts below are the result of misreading and non-reading of evidence on the record. Further argued that in terms of Ex-P-I sale had attained finality after payment of consideration amount and delivery of possession. Further states that Ex-P-10 to Ex-P-16 were not taken into consideration by the courts below. Reliance has been placed on 2001 MLD 563, 2004 SCMR 515, 1983 CLC 136 Lahore, 1985 Karachi 674, 1993 CLC 2316 and 1998 CLC 555.
4. On the other hand, learned counsel for respondents opposed the contentions raised by the learned counsel for the petitioner and argued that there is no illegality and infirmity in the impugned judgments and decrees. Furthermore, there is no misreading and non-reading of evidence available on the record. Moreover, the said Bakhsh deceased neither sold the property nor received consideration thereof, nor delivered the possession to the petitioner. States that this petition is not maintainable; therefore, same is liable to be dismissed. He has placed reliance on 2005 SCMR 152 and PLD 1986 SC 497.
5. Arguments heard. Record perused.
6. Initially, petitioner had filed a suit for declaration to the effect that he had purchased the suit property through sale deed dated 18.11.1977 for a consideration of Rs.7000/- and got his possession. Subsequently, plaint was amended wherein additionally the decree for possession was also sought and specific performance of agreement as alternate relief. Issue No.6 was framed that as to whether the plaintiff/petitioner has become owner of the suit land by virtue of agreement dated 18.11.1977 and maintained possession whereas issue No.8-A was framed that as to whether plaintiff is entitled for a decree of specific performance as alternate.
7. At the very outset, it is important to highlight that on 23.04.2007, learned counsel for the plaintiff had made a statement before the trial court that he does not press issues Nos.6, 7 and 8. Accordingly, these issues were decided in negative being not pressed, as observed in paragraph No.12 of the judgment passed by the trial court.
8. Main thrust of the arguments urged by the learned counsel for the petitioner is that petitioner is entitled for a declaration of ownership on the ground that agreement dated 18.11.1977 is a complete sale on account of payment of consideration amount and delivery of possession.
9. Petitioner himself has retrieved from the claim regarding the declaration that is why the trial court has focused on issue No.8-A regarding the execution of the sale agreement and issue No.5 pertaining to the question of limitation.
10. Petitioner throughout has laid his stress on the ground that documents Ex-P-10 to Ex-P-16 have not been taken into consideration and it was overlooked by the courts below that Ex-P-1 constitutes an absolute sale. This stance of the petitioner is of no significance in view of the above cited statement made by the counsel for the petitioner before trial Court. Only option left with the petitioner was to establish the existence/authenticity of the agreement to sell as the respondent/ defendant had categorically denied its execution.
11. Both the marginal witnesses had passed away. One Muhammad Ismail appeared as PW-2 and identified the signatures of Bakhsh deceased respondent. However, his statement cannot be relied, on two counts, firstly, he has categorically stated that at the time of execution, in the year 1997, he was 7/8 years old and secondly, that the deceased did not signed the deed in his presence. It is important to note that at the time of recording of evidence the sons of deceased respondent were alive and none of them was produced as witness to identify the signatures of the deceased father which could have been the best evidence.
12. So far as the question of limitation is concerned, admittedly, on 12.02.1986, deceased respondent Bakhsh filed a suit for permanent injunction against the petitioner Ex-P-3. Defendant/petitioner appeared, however, subsequently, the suit was withdrawn on 06.04.1986 for filing a fresh one. Second suit was filed by the deceased respondent on 11.05.1986, present petitioner/defendant again appeared and contested the suit which was dismissed. It has been established through the evidence that present petitioner, in the year 1986, was denied the ownership of the suit property. In terms of Article 113 of the Limitation Act, period of three years has been given from the date performance is refused, therefore, suit filed in the year 1995 was hopelessly time barred and no plausible explanation has been advanced by the petitioner in this regard.
In view of foregoing discussion, I am not inclined to interfere in the impugned judgments and decrees passed by the courts below, this petition does not succeed and is dismissed. No order as to cost.
ZC/A-74/L Revision dismissed.