Mahmood Khan etc. vs Bashir Ahmad etc.

Form No: HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Civil Revision. No. 1583/2010

hmood Khan, etc Versus Bashir Ahmad, etc.

Date of order/ Order with signature of Judge and that of roceeding parties or counsel, where necessary.

08.12.2021 M/s Ch. Iqbal Ahmad Khan and Zeeshan Munawar Khan Advocates for petitioners.

Rana Muhammad Anwar, Advocate for respondents.

C.M No. 1/2021

This application seeks permission to place certain documents on record, which are taken on record subject to all just and legal exceptions.

Main case

2.Civil Revision is directed against findings / decisions at variance. Petitioners hereby assail judgment and decree dated 19.03.2010, whereby appeal filed by respondents was allowed and their suit for specific performance of agreement was decreed, while setting-aside judgment and decree dated 08.02.2010 of the learned trial court, in terms whereof suit of the respondents was dismissed.

3.Facts of the case are simple. Respondents allegedly claimed purchase of property from the predecessor in interest of the petitioners – Sameer Khan s/o Sow Singh – through agreement of sale dated 14.12.1983. It was the case of the respondents, as evident from contents of the plaint, that at the time of agreement property in question was allegedly mortgaged with the Zarai Bank and it was represented that upon redemption conveyance deed would be executed. It was further alleged that petitioners [defendants] surreptitiously redeemed the property and attempted to alienate the property, which fact came to the knowledge of respondents three days ago, whereupon respondents were constrained to file suit on 03.09.2001 - after 18 years of alleged agreement. Petitioners categorically denied

existence, execution, and payment of consideration, who also denied claim of possession of the respondents. In the wake of contesting claim, learned court framed issued and called for the evidence. Upon conclusion of trial, suit was dismissed. Respondents were successful before the first appellate court and their suit was decreed. Hence, this Civil Revision.

4.Learned counsel for petitioners contends that execution of alleged agreement was not proved, as evidence led was deficient and unconvincing, besides being discordant. Learned counsel drew attention towards plaint to show absence of material details qua alleged agreement, where date, time, and place of execution was conspicuously missing. And any improvement subsequently by referring to evidence – outside scope of pleadings – extends no assistance for the purposes of proving alleged transaction. Learned counsel highlighted contradictions in paragraph 12 of the decision of learned appellate court. Further submits that decision by learned trial court is in accordance with law. Lastly submits that no evidence was led to show that property was redeemed, or alleged performance declined by the petitioners, to justify filing of the suit after long-time.

5.Conversely, learned counsel for the respondents has drawn the attention to the Court Exh-P2 to highlight alleged reference to mortgage therein, to respond to the objection of limitation. Adds that factum of mortgage is of least significance as charge travels with the transfer, which fact does not render the transaction void.

Adds that suit filed was within limitation, to be reckoned in terms of second part of section 113 of the Limitation Act 1908 – when no such date is fixed, when the plaintiff has notice that performance is refused. Further submits that Lambardar, one of the attesting witnesses had died and other witness was produced, whereby transaction and consideration was proved. Learned counsel has placed reliance to the cases reported as “Amjad Ikram Vs. Mst. Asiya Kausar and 2 others” (2015 SCMR 1), “Mrs. Tehmina Bashir Vs. Abdul Rauf and another” (1995 CLC 973),

“Ghulam Qadir Vs. Khandu” (PLJ 2004 SC 193), “Muhammad Sattar and others Vs. Tariq Javaid and others” (2017 SCMR 98).

6.Arguments heard. Record perused.

7.Plaint was silent regarding date of the agreement, and persons allegedly present at the time of negotiations. Agreement was allegedly executed in the year 1983 however suit was filed in September 2001. Muhammad Aslam – PW-1 – while appearing as witness alleged that negotiations for sale were conducted 8 to 10 days before agreement, which details were missing in the plaint. It is alleged in the statement that Chotey Khan and Khan Bahadur – PW-2 – were present at the time of negotiations. Chotey Khan was not produced, which leads to adverse presumption in terms of section 114(g) of the erstwhile Evidence Act 1872 – as the agreement was dated 14.12.1983, which was before the promulgation of Qanoon-e- Shahadat Order 1984. Khan Bahadur has not averred any word regarding conduct of negotiations, 8 to 10 days before the alleged agreement.

8.Learned counsel referred to Exh.P-2 to show factum of mortgage charge but failed to refer to any evidence to substantiate allegation of surreptitious redemption – which was the sole ground for filling suit after 18 years. It is argued that mortgage travels with the transfer, if so, why no effort was made to file the suit after 1983 and why no steps were taken to procure record of the bank and to ascertain factum of mortgage and any debt thereunder. Why would an honest and genuine purchaser blindly incur liability of mortgage debt?

Question of filing of suit after 18 years is critical, when examined in the context of absence of any evidence to show that any effort made by the respondents to seek performance from the deceased – from the time of the agreement and till filing of suit for bringing suit within limitation. Respondents filed suit on the premise that mortgage was surreptitiously redeemed, who failed to prove this fact and to bring their case within the second part of the section 113 of

the Limitation Act 1908. Since no evidence was led to prove alleged redemption, basis of alleged cause of action, suit filed is beyond the period of limitation provided under part second of section 113, ibid. Seeking guidance from the ratio in the case of “Muhammad Sadiq and others Vs. Muhammad Mansha and others” (PLD 2018 S.C 692), it is clear that mortgage of the property, leaving equity of redemption with the mortgagor, does not restrict or bar enforcement of agreement to sell and the suit can be filed. In this case, alleged delay of 18 years cannot be condoned on this ground that property was mortgage and right to seek enforcement was allegedly eclipsed or not available. In terms of the ratio of decision in the case of “Mst. Jaiwanti Bai Vs. Messrs Amir Corporation and others” (PLD 2021 S.C 434), this Court is competent to ascertain, in the light of evidence that when the claimant respondents/plaintiffs had notice that performance was refused. It is alleged that suit was filed three days after the alleged redemption, but no evidence was led to prove this fact – having relevancy to the question of limitation. No evidence was led to substantiate or prove the date when performance was refused. In the wake of such material lapse, no benefit whatsoever could be extended to the respondents under second part of section 113 of the Limitation Act, 1908.

9.Factum of possession was disputed by the petitioners, which essentially obligates the respondents to prove their possession, pursuant to alleged agreement.

Mere production of copies of Girdawari was not enough when no official witness was called for or record procured to prove possession. Mere placement of copies of Girdawari and shielding behind presumption of correctness, in respect thereof, is not enough when factum of possession was denied specifically. Nothing is available on record that any application for appointment of local commission was

made to prove claim of possession. Reliance on Article 126 of the Qanoon-e- Shahadat Order, 1984 is misplaced – even if submission is examined in the context of section 110 of the Evidence Act 1872. Ownership cannot be claimed based on executory agreement; enforcement whereof was sought and had to be proved before claiming rights therein.

10.Factum of consideration was not proved through compelling evidence. PW-2 alleged that payment was made in front of scribe of the document – agreement – who failed to even allege this fact. Producing of witnesses to prove writing on the back of the agreement, after death of scribe, would not prove payment of consideration. Co-purchaser – Bashir Ahmed – had not appeared and no plausible explanation was provided, which amounts to withholding of best evidence in terms of Article 114(g) of erstwhile Evidence Act 1872. Respondents fail on two counts limitation and merits.

11.In view of the above, this Civil Revision is allowed, judgment and decree dated 19.03.2010 by learned appellate court is set-aside and judgment and decree of learned trial court dated 08.02.2010 is affirmed, consequence whereof is that suit of the respondents stands dismissed. No order as to costs.

(Asim Hafeez) Judge

Announced in open Court on this 31st Day of December, 2021.

(Asim Hafeez) Judge Approved for Reporting.