ABBAS ALI SHAH and 5 others vs GHULAM ALI and another

' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court has been directed against the judgment, dated 30-4-1995 passed by a learned Single Judge of the High Court of Sindh, Circuit Bench, Hyderabad, in a second appeal arising out of a suit for specific performance of the contract.

2. The dispute between the parties relates to agricultural land measuring 4 Acres 30 Ghantas situated in Deh Penhwari Tapo Husri, Taluka Hyderabad. The appellants filed a suit for specific performance of the contract on the basis of an agreement to sell of the above land in the Civil Court at Hyderabad and the learned trial Judge dismissed the suit but it was decreed in appeal by the First Appellate Court. In the second appeal filed by the present appellant in the High Court of Sindh, Circuit Bench, Hyderabad, a learned Single Judge while setting aside the judgment and decree passed by the First Appellate Court, allowed the second appeal and dismissed the suit.

Leave was granted in this appeal vide order, dated 10-12-1996 as under:- "The petitioners seek leave to appeal against the judgment of the learned Judge in Chamber whereby second appeal filed by the respondents against the judgment of the Additional District Judge was allowed.

2 The petitioners had filed a suit for specific performance ofcontract, declaration and permanent injunction against respondent Not. And one Nishan Ali, father of respondent No,2. It was pleaded that respondent No,1 under an agreement, dated 8-12-1969 had agreed to sell agricultural land measuring 2 Acres, 10 Ghuntas in Survey No,400, 25 Ghuntas in Survey No,336 and 1 Acre 25 Ghuntas in Survey No,336 situated in Deh Penhwari Tuppo Hoosri Taluka and District Hyderabad for total consideration of Rs,5500. A sum of Rs,500 was paid as earnest money at the time of execution of agreement and balance was to be paid at the time of registration of sale-deed before the Sub- Registrar. It was claimed that the petitioners were in possession of the disputed land being lessees which commenced from 20-2-1968 and was to continue till March, 1973. As the land had been allotted to the vendor by the Rehabilitation Authorities, he had agreed to complete the sale after the land was mutated in his name. The respondent did not execute the lease deed, but as the lease period was expiring on 31-3-1973, the petitioners, two weeks before filing of the suit, asked respondent No,1 to execute the sale-deed, which he refused. In fact respondent No,1 had sold some of the land agreed to be sold to the petitioners to Nishan Ali father ofrespondent No,2. The petitioners then filed suit for specific performance of the contract. A joint written statement was filed by the respondents in which it was pleaded that the agreement of sale was a forged document and the petitioners after expiry of the lease period were in unauthorized possession and that the suit is barred by time. The learned trial Court held that the agreement was forged one and that the suit was barred by time. The petitioners filed an appeal against the judgment of the learned trial Court, which was allowed. The respondents then challenged the said judgment in the High Court, which was allowed by the impugned judgment in second appeal and the judgment and decree of the learned Court was restored.

3 Mr. M. Aqil Awan learned counsel for the petitioners contendedthat the period of limitation under Article 113 of the Limitation Act should be computed from the date the respondents had refused to specifically perform the agreement and reliance could not be placed on Explanation 1 to -section 3 of the Transfer of Property Act to compute the period of limitation. The learned counsel further contended that the evidence on record has not properly been appreciated and the principle for perusal of evidence have not been followed. Leave is granted. The interim order passed on 20-11- 1996 is confirmed."

3. Learned counsel for the appellants has contended that the High Court under misconception of law wrongly held that suit was barred by time and the execution of agreement to sell was not proved. In support thereof he argued that the suit-land was an evacuee property and the respondents at the time of execution of sale agreement being still temporary allottees, have given undertaking in the agreement that sale-deed would be executed on confirmation of the allotment in their nameand they on completion of legal formalities in the Settlement Department, were under obligation to inform the appellants for finalization of the transaction and execution of sale-deed.

The learned counsel argued that since the appellants were in possession of the land as lessees prior to the execution of agreement, therefore, the same was acknowledged in part performance of the agreement but the respondents on acquiring the proprietary rights instead of execution of sale-deed in favour of appellants sold the land to Nishan Ali which fact came to their knowledge two weeks before filing the suit., Learned counsel argued that since the completion of sale had to take place on execution of sale-deed by the respondents on confirmation of allotment in their name and no period was fixed in the agreement, therefore, the limitation for filing the suit for specific performance of the contract would start from the date of knowledge of the breach of contract which in the present case, would be from the date of refusal to perform the contract and not from the date ofregistration of sale-deed or from the date of execution of agreement. Learned counsel argued with vehemence that the limitation for filing the suit for specific performance in such cases is governed by Article 113 of Limitation Act, 1908 and the High Court was misdirected in holding that the period of limitation would be computed in terms of Explanation 1 to section 3 of Transfer of Property Act, 1908. Learned counsel next argued that the High Court on the basis of ignorable discrepancies in the evidence, held that the agreement to sell was not a genuine document and consequently, upset the finding of the First Appellate Court on the question of fact without pointing out any misreading or non-reading of evidence. In nutshell the learned counsel argued that High Court on the basis of misconception of law and facts 3f the case, has drawn wrong inferences and thereby came to the conclusion contrary to the record.

4. Learned counsel appearing on behalf of respondents, on the other hand has argued that the first Court having come to the conclusion that the execution of agreement to sell was not proved by any reliable evidence, held it a forged document and this finding of fact was upheld by the High Court in second appeal which being not suffering from any legal defect would not call for interference of this Court. Learned counsel on the question of limitation submitted that since the sale was entered through registered sale-deed, therefore, the appellants would be deemed to have notice of the sale from The date of registration of sale-deed and the suit even under Article 113 of Limitation Act, 1908 would be barred by time. The First Appellate Court having taken a contrary view of the evidence and question of limitation reversed the finding of the trial Court but the High Court in second appeal while restoring the Judgment of the trial Court, dismissed the suit.

5 This is an admitted fact that appellants obtained possession ofland under a lease agreement in 1968 whereas the vendors on confirmation of allotment, sold the land on 20-1-1970 to Nishan Ali through a registered sale-deed whereas the suit was filed by the appellants on 18-3-1973. The respondents on the other hand, in the written statement while straightaway denying the execution of agreement to sell pleaded that it was a forged document. Thus primarily, the controversial question of fact arising out of the pleadings of the parties and evidence brought by them on record would be relating to the execution of the agreement to sell which is the foundation of the case of appellants and not the question of limitation.The document which is registered under Registration.

Act, 1908 acquires the status of public document and general presumption of notice is attached with a registered A document from the date of its registration and unless we lack of knowledge is proved through the convincing evidence, the presumption 01 notice stall be raised from the date of registration of document. In thepresent case, except the oral assertion of lack of knowledge, no evidence was brought on record and thus the presumption of the knowledge of sale or the registration of sale-deed would remain unrebutted. It may be pointed out that the parties are closely related to each other and are also resident of the same area and the appellants being, in possession of land as tenants in the ordinary circumstances would not be unaware of the bargain between the vendors and the vendees of the land, therefore, the plea that appellants had no knowledge of sale till filing the suit would not appeal to mind. There can be no cavil to the proposition that in a case in which no date is fixed for performance of contract in the agreement, the limitation for the purpose of suit for B specific performance is computed from the date of breach of contract and the breach in the present case in absence of any evidence to the contrary would be deemed from the date of registration of sale-deed. The appellants have not pleaded that during the intervening period, they approached the allottees or made an inquiry from the Settlement Department about the factual position or took any step for performance of their part of the contract and the inaction on the part of appellants for a period of more than three years of making no effort for finalization of sale would provide a strong circumstance to draw an inference that no valid agreement was in existence between the parties. In a case in which the execution of a document is denied, the party producing such document is under heavy burden to prove its execution or genuineness and in absence of any reliable evidence. The document shall remain unproved. In the case in hand, out of five marginal witnesses theand so much so the petition writer was not called to the witness-box to appellants produced only one witness who was also not found reliableestablish the execution of the agreement. The examination of the record would show that no convincing evidence was brought by the appellants in support of the existence of a valid agreement of sale between the parties and without proof of the execution and existence of such an agreement, the very foundation of the case of appellants would demolish, therefore, the question of limitation would have no significance.

6. The findings of the First Appellate Court on the question of execution of a valid agreement to sell is at variance to that of the trial Court and ordinarily the findings of First Appellate Court are not interfered in the second appeal if the same are found to be substantiated by evidence on record and are supported by logical reasoning. However, if the findings of the two Courts are at variance, the conflict would naturally be seen to assess the comparative merits of such findings in the light of the facts of case and reasons in support of the two different findings given by the two Courts. On a question of fact. If the findings of First Appellate Court are not supported by evidence on record and the same are found without logical reasons or are found arbitrary or capricious, would be rejected in second appeal. In the present case, the First Appellate Court reversed the findings of trial Court without logical reasons and also committed the error of misreading of the evidence, therefore, the learned Judge in the High Court was right in disagreeing with the First Appellate Court and reversing its finding in second appeal.

7. We having heard the learned counsel for the parties and perused the record with their help, have not been able to find out any defect of misreading or non-reading of evidence by the High Court in coming to the conclusion contrary to the First Appellate Court and thus take no exception to the finding of fact arrived at by the High Court in second appeal. In this view of the matter, the question of limitation which was not in issue before the trial Court and the First Appellate Court would need no discussion.

8. For the foregoing reasons, this appeal is dismissed. The parties are left to bear their own costs.