MUHAMMAD AYUB (DECEASED) vs HASHIM KHAN (DECEASED) S — 2023 CLC 504 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD AYUB (DECEASED) VS HASHIM KHAN (DECEASED) S.8---Qanun-e-Shahadat (10 of 1984), Arts. 47 & 75---Specific performance of sale contract---Subject land was transferred by predecessor of respondents (admitted/original vendor) to predecessor of petitioners (subsequent transferees) through oral sale mutation---Respondents instituted declaratory suit for confirmation of his sale contract of 1967 and cancellation of oral sale mutation of 1990---Petitioners filed suit on 10/06/1991 for recovery of possession through ejectment against respondents---Respondents' suit was dismissed and petitioners' suit was decreed---Respondents filed two appeals against both judgments, yet withdrew his suit with liberty to file fresh one; whereas the other appeal was dismissed which stood final---Pursuant to order of the Court respondents filed the present "fresh suit" which was concurrently decreed---Petitioners contended that the alleged sale contract was executed in favour of the respondents; that via oral sale mutation, the subject land was alienated to the subsequent transferee, thus at the most cause of action stood accrued immediately on its attestation; that respondents' suit was filed promptly but the same was dismissed; that during the appeal, respondent withdrew their suit subject to filing of fresh one, but the present "fresh suit" was instituted after more than three decades of the execution of alleged sale contract of 1967; that present suit was instituted more than 3 years of the withdrawal of earlier lis, hence the same was time barred; that decree for possession had already been granted to the petitioners and declaration of title was inbuilt, which attained finality and subsequent decree could not be passed in favour of the plaintiff; and that no piece of direct/affirmative evidence was produced by petitioner as to prove the sale transaction detailed in sale contract---Basic onus to prove sale contract was upon the respondents---Two marginal witnesses having already passed away were not available to be produced and two witnesses produced were admittedly not the signatories---Courts below had relied upon copies of statements made in earlier suit on behalf of deceased marginal witnesses by which earlier suit was dismissed by Civil Court and was also dismissed by Appellate Court as withdrawn with permission to file afresh---Said copies of statements were tendered in statement of the counsel without any prior request to lead secondary evidence and the same could not be relied upon until/unless those were confronted to its maker---Since the petitioners were granted decree for possession, the alleged sale agreement was rendered as nugatory/redundant because the title of subsequent vendee had to be valued on the basis of the judicial verdict/decree and the alleged agreement had not been a hindrance in his way---Mutation was not only approved in earlier suit, rather on its basis decree for possession was already passed in favour of petitioners, thus the onus was successfully discharged---Respondent was granted leave to bring fresh suit, which was filed on the same cause of action and limitation was to be reckoned from the date of commencement of earlier proceedings as once limitation started on same cause of action, then it could not stop running---First suit might be filed within time, but the subsequent was instituted even after three years of the withdrawal of first suit, which definitely was beyond the prescribed period of limitation---Institution of present suit beyond 3 years of the withdrawal of earlier suit was again time barred---Revision petition was dismissed accordingly.

MUHAMMAD AYUB (DECEASED) vs HASHIM KHAN (DECEASED) S — 2023 CLC 504 LAHORE-HIGH-COURT-LAHORE

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