MUHAMMAD YASIN vs ALLAH DIN

ORDER

' On 28-7-1985, Allah Din respondent filed a suit for specific performance of agreement to sell dated 22-3-1972 against Muhammad Yasin petitioner in the Court of Civil Judge, Kharian. The suit was resisted, issues were framed. The parties led their evidence. The Plaintiff produced. Muhammad Ismail P.W. 1, Jamal Din P.W. 3 and Mian Muhammad Akram P.W.

4. He, himself, appeared as P.W.2. Agreement to sell was exhibited and proved as Ex.P1. To rebut this evidence, the petitioner produced Khuda Bakhsh D.W.1, Muhammad Shafi D.W.

2. Muhammad Shafi D.W. Is son as well as general attorney of the petitioner. The trial Court decreed the suit on 20-6-1989. The appeal filed by the petitioner against this judgment and decree was dismissed by the learned Additional District Judge, Gujrat on 29-5-1990, hence this revision.

2. Before me, the learned counsel has challenged the findings of the Courts below on issues. Nos.1 to 4, which are as under:- ISSUES:

(1) "Whether the defendant sold the suit property to the plaintiff for a consideration of Rs,1,800 vide agreement dated 22-3-1972 and also handed over its possession to him? OPP.

(2) If issue No,1 is proved, then whether the plaintiff is entitled to decree for specific performance of the contract? OPP.

(3) Whether the suit is time barred ? OPD.

(4) Whether the plaintiff is tenant under the defendant and suit is not maintainable in its present form ? OPD"

As for issue No,3, the learned counsel submitted that since no specific date of denial by the petitioner/defendant to perform his part of agreement has been stated by the respondent/plaintiff, so the suit was time barred. So far as issues Nos.1 ,2 and 4 are concerned, he maintained that the findings of the Courts below on these issues suffer from mis-reading/non-reading of material evidence which supported the case of the petitioner. Learned counsel for the petitioner further argued that since Muhammad Shafiq D.W. 2 was General Attorney of the petitioner/defendant and he has appeared as witness, therefore, no adverse inference on account of the non-appearance of the petitioner/defendant could have been drawn by the Court and that father of the respondent/plaintiff was in possession of the disputed property as a tenant of the father of the petitioner.

3. I have considered the submissions made by the learned counsel with care. I do not feel persuaded to agree with him. Agreement to sell was executed in 1972. The suit for specific performance of agreement was filed in year 1985. In para 3 of the plaint it has been stated that it was a week before the filing of the suit that the defendant had refused to get the sale deed registered in favour of the plaintiff. In his statement as P.W. 2, the respondent/plaintiff Allah Din stated:- {{URDU TEXT}} ' In cross examination, he again stated that the petitioner/defendant had refused to get the agreement to sell registered one week before the filing of the suit. Since the time was not the essence of the contract and no specific date for the registration of the sale deed was given in the agreement to sell, therefore, the suit which was filed within a week from the denial of the petitioner/defendant to get the sale deed registered was well within time. As for the findings of the trial Court on issues Nos.1, 2 and 4, the learned counsel has not been able to point out any misreading/non-reading of material evidence by the Courts below. An examination of the judgments of the Courts below will show that the suit has not been decreed solely on the adverse inference drawn by the trial Court from the non appearance of the petitioner/defendant as a witness. The other reasons given by the trial Court for decreeing the suit are quite weighty. The onus to prove issue No,4 was on petitioner/defendant. There is nothing in evidence to the effect that the disputed house was given on rent by the petitioner/defendant to the respondent/plaintiff.

DW1 has also stated that the plaintiff had never paid any rent to the defendant. I do not see any legal infirmity in the impugned judgments. The learned counsel has also not been able to point out any illegality, material irregularity or jurisdictional defect in the judgments of the Courts below.

Pursuant to the above discussion, there being no merit, the revision is dismissed in limine.