Facts:: 2019SCMR880 AINUDDIN and Others - Petitioners Versus ABDULLAH and Another - Respondents

2019 S C M R 880
AINUDDIN and others---Petitioners

Versus
ABDULLAH and another---Respondents
Facts:
The petitioners instituted a suit for declaration and permanent injunction against the Respondents.
Whereas, they were claimed that they were the legal heirs of Haji Muhammad Ali and Haji Abdul Wahid,
while the Respondents were legal heirs of Baha- ud-Din. In 1957, an agreement dated 24.01.1957, Haji
Muhammad Ali and Haji Abdul Wahid entered into an agreement with Baha-ud-Din for purchase share in
the of his suit property for a consideration of Rs.625/-. This amount was allegedly received by Baha-ud-
Din and it was claimed that possession was also handed over to the predecessors of the petitioners. It was
further claimed that since taking possession in 1957, the petitioners had continued to hold possession till
filing of the suit in the year 2009. It was stated that at the time of handing over possession, a declaration
was given by Baha-ud-Din that a sale deed will be executed shortly. but Baha-ud-Din subsequently died.
The petitioners claimed that the legal heirs of Baha-ud-Din were approached who guaranteed them that
once inheritance mutation had been entered in their respective names, they will transfer the suit property
to the petitioners. however, such mutation was made in 2002. It was claimed that this fact came to the
knowledge of the petitioners on 04.04.2009, whereafter they filed a suit for declaration and permanent
injunction. The trial Court gives a judgment in the favor of the petitioners, vide judgment and decree
dated 29.11.2013. The Respondents appealed. The appellate forum set aside the judgment and decree of
the trial Court, vide judgment and decree dated 11.04.2014 which was upheld by the revisional Court vide
impugned judgment dated 24.11.2017.
Issues:
1) Whether oral evidence is sufficient to establish the existence of an agreement to sell
between the above-mentioned parties?
2) Whether the decision taken by appellate court dated 24.11.2017 is justifiable?
3) Whether the question of limitation was a mixed question of law and fact? And if so,
could it have been decided without the application of judicial mind?
4) Whether the suit of the petitioners was patently barred by time?
5) Whether credibility of witness should be questioned?
Rules:
1) It is significant to note that if the suit was based upon an agreement to sell, ordinarily a
suit for specific performance should have been filed.
2) Parties should be vigilant enough to approach to court within time limitation.
3) In civil matters, cases are required to be decided on the principle of preponderance of
evidence.
Applicable Laws:
Section 12 of Specific relief act:
Cases in which specific performance enforceable. Except as otherwise provided in this Chapter, the
specific performance of any contract may in the discretion of the Court be enforced—
(a) when the act agreed to be done is in the performance, wholly or partly, of a trust;
(b) when 1 [their] exists no standard for ascertaining the actual damage caused by non-
performance of the act agreed to be done;
(c) when the act agreed to be done is such that pecuniary compensation for its non-
performance would not afford adequate relief; or
(d) when it is probable that pecuniary compensation cannot be got for the nonperformance of
the act agreed to be done.
Section 42 of Specific relief act:

Discretion of Court as to declaration of status or right. Any person entitled to any legal character, or to
any right as to any property, may institute a suit against any person denying, or interested to deny, his title
to such character or right, and the Court may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further relief: Bar to such declaration. Provided
that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a
mere declaration of title, omits to do so.
Section 54 of Specific relief Act:

Perpetual injunctions when granted. Subject to the other provisions contained in, or referred to by, this
Chapter, a perpetual injunction may be granted to prevent the breach of an
obligation existing in favor of the applicant, whether expressly or by implication. When such obligation
arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this
Act.
When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the
Court may grant a perpetual injunction in the following cases (namely):
(a) where the defendant is trustee of the property for the plaintiff ;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Section 3 of Limitation Act:

Dismissal of suit, etc. instituted, etc. after period of limitation. ---Subject to the provisions contained in
sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period
of limitation prescribed therefore by the First Schedule shall be dismissed although limitation has not
been set up as a defense.
Conclusion/ Judgment/ Reasoning:
The petition is dismissed and leave to appeal is refused.
According to Honorable Supreme Court: We have heard the learned counsel for the parties and
examined the record. We note that despite the fact that the alleged agreement was executed on
24.01.1957, the petitioners waited till 2009 to file a suit for declaration and permanent injunction against
the Respondents. It is significant to note that if the suit was based upon an agreement to sell, ordinarily a
suit for specific performance should have been filed. We have asked the learned counsel for the
petitioners to explain to us why such course of action was not adopted. He has made an effort to justify
the mode adopted by the petitioners. We are however not satisfied with the explanation attempted by the
learned counsel for the petitioners and uphold the findings of the lower fora in this regard.
We further notice that the petitioners let more than 52 years lapse before approaching the Court for
asserting their rights. This is despite the fact that they alleged that on the demise of Baha-ud-Din they had
approached his legal heirs who had promised to transfer the property in their favour in accordance with
the terms and conditions of the agreement to sell. Admittedly, the property was transferred through a
mutation of inheritance in the year 2002, yet the petitioners waited for another seven years to approach
the Court. They were obviously not vigilant in claiming and asserting their rights and as such let the
period of limitation expire before approaching the Court. The delays have not been explained in even a
remotely convincing manner.
The petitioners also failed to prove the alleged agreement to sell. It appears that out of two marginal
witnesses who had allegedly witnessed the execution of the agreement to sell, only one was produced. His
credibility was questionable in view of the fact that he had purportedly signed the document. However,
when he was cross-examined, he produced his CNIC which bore his thumb impression instead of
signatures. No explanation was offered explaining failure of the petitioners to produce the other witness.
We have also perused the evidence produced by the petitioners and find that despite a claim that the
Respondents had given assurances to the petitioners that the property will be transferred in their names
once the same had been mutated in their favour, no evidence of any credible nature was produced to
substantiate such claim. The record also indicates that a portion of the adjacent land which had also been
allegedly purchased by the petitioners was transferred in favour of Respondent No.2 in the year 2002
being his sole legal heir. However, no objection was raised by the petitioners at any stage regarding such
transfer. Perusal of the entire evidence placed on record has not shown any misreading or non-reading of
the same.
We have gone through the judgments of the appellate as well as the revisional Court and examined their
reasoning in the context of the reasoning adopted by the trial Court. We are satisfied that the appellate as
well as the revisional Courts aptly applied their minds to the facts and circumstances of the case, correctly
read and appraised the evidence, examined the record and gave cogent and legally sustainable reasons to
upset the finding of the trial Court. In addition, the learned counsel for the petitioners was unable to show
us any legal, procedural or jurisdictional error, defect or flaw in the impugned judgment that may
necessitate interference by this Court. We are therefore not persuaded to grant leave to appeal in this case.

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2019 S C M R 880

AINUDDIN and others---Petitioners

Section 42 of Specific relief act:

Section 54 of Specific relief Act:

Section 3 of Limitation Act:

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