2012 C L C 1483
[Balochistan]
Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J
Haji ABDUL MAJEED and others ----Appellants
Versus
AMJAD KHAN and others ----Respondents
Regular First Appeals Nos.46 and 47 of 1999, decided on 14th May, 2012.
(a) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 42--- Qanun- e-Shahadat (10 of 1984), Art. 129(e) ---Entries of first ever settlement record
of a revenue estate---Presumption of truth---Scope ---Presumption of truth of highest degree
would attach to such entries ---Strong evidence would be required in order to dislodge such
presumption.
(b) Contract Act (IX of 1872)---
----S. 55---Time as essence of the contract relating to immovable property---Scope ---Where a
substantial pe rformance of such agreement had been made, then time specified for performance
of remaining part of liability would not generally be treated as essence of the contract, rather
intention of parties would look into while construing such document ---Discretion exercised by
court would not be ordinarily interfered with.
Flt. Lt. (Retd.) Mumtaz Khan v. Mst. Amtul Batool 1984 CLC 3462 and Sandoz Limited v.
Federation of Pakistan 1995 SCMR 1431 rel.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Art. 79 ---Proof of execution of document ---Scope ---Where a document by law was required
to be attested, then in case of denial of its execution, production of attesting witness, if alive,
would be mandatory requirement ---Where a document was not requi red by law to be attested by
a witness, then there would be no legal requirement to produce witness to prove same.
(d) Qanun- e-Shahadat (10 of 1984) ---
----Art. 79---Proof of execution of document ---Non-production of an attesting witness ---Effect ---
Where party could otherwise prove execution of a disputed document, then non- production
of an attesting witness simplicitor would not warrant drawing of an adverse inference.
Abdullah Baloch for Appellants (in both cases).
Kamran Murtaza for Res pondents (in both cases).
Date of hearing: 26th November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- The Hon'ble Supreme Court vide order dated
17th October, 2005 remanded the aforesaid matters to this Court, with the following
observations: ---
"Heard the learned counsel at length and perused the entire record with their eminent assistance. It transpired from scrutiny of record that all the contentions raised and agitated before the learned High Court were neither dilated upon nor decided.
With consent, the above captioned petitions are converted into appeal, the impugned judgment is
set aside and the above captioned petitions are remanded to learned High Court for rehearing. The parties would be at liberty to raise all the contentions as may be deemed fit and proper which
shall be decided in accordance with law after affording proper opportunity of hearing to all concerned."
2. The dispute between the appellants and the respondents is in respect of the properties,
falling under Khasra Nos.950 to 956, 958 to 1022, 1035 to 1041, 1043 to 1045, 1047 to 1051, measuring 267 acres, 1 rod and 6 poles, Khasra Nos.1023, 1025 to 1029, 1031 to 1033, 1042
art/d 1052, measuring 57 acres, 2 rods and 39 poles, the subject -matter of Civil Suit No.6 of
1998 a nd the Property bearing Khasra No.1034, measuring 101 rods and 18 poles, the subject -
matter of Civil Suit No.7 of 1998, situated in Mahal and Mouza Sugh, Halqa Poonga, Tehsil Bori, District Loralai (the "land in question"). The aforesaid suits for declarat ion, possession and
permanent injunction were filed by the respondents (the "plaintiffs") against the appellants (the "defendants").
3. Civil Suit No.7 of 1998 was filed before the court of Qazi, Bori/Sanjavi at Loralai by
plaintiff Muhammad Ashraf against the defendants, in respect of property, falling under Khasra No.1034, with the averments that he is owner of the said land and the defendants, taking advantage of his absence, being a resident of Quetta, illegally excavated wells and installed a transfo rmer over the same, thus, prayer was made for restoration of the possession and
restraining the defendants from interference or intermeddling in the said piece of land.
4. Subsequently, the plaintiffs instituted Civil Suit No.6 of 1998 before the Majlis -e-Shoora,
Loralai against the defendants in respect of the property, falling under Khasra Nos.950 to 956, 958 to 1022, 1035 to 1041, 1043 to 1045, 1047 to 1051 and Khasra Nos.1023, 1025 to 1029, 1031 to 1033, 1042 and 1052, wherein it was asserted that the y are lawful owners of the said
land, but about one and half year back, the defendants illegally and unlawfully started interference in their peaceful possession and also excavated wells thereon in order to justify their possession.
5. It was claimed in both the suits that the plaintiffs approached different authorities by
submitting various complaints and applications, but with no fruitful results, hence, compelling them to institute the aforesaid suits.
6. The appellants contested the suits and filed their written statements, wherein numerous
objections were taken regarding maintainability of the suits and on merits, the claim of the
plaintiffs was strongly repudiated. It was asserted that an agreement was executed between the predecessors -in-interest of the plaintiffs and that of the defendants, namely, Chaudhry Siraj -ud-
Din and Sheikh Haji Abdul Haleem respectively, whereby the land in question was sold out to late Chaudhry Siraj -ud-Din for Rs.33,067/ - (Rupees thirty three thousand and sixt y seven only),
out of which he paid an amount of Rs.2,067/ - (Rupees two thousand and sixty seven only), while
the remaining amount was to be paid in instalments, but since Chaudhry Siraj -ud-Din did not
abide by the terms and conditions of the Agreement dat ed 27th June, 1958 (the "Agreement")
and did not pay the remaining instalments, therefore, the Agreement stood cancelled and the amount, which had been paid towards the instalments, was forfeited.
7. It may be noted here that since the valuation of Civil Suit No.7 of 1998, pending before
the Qazi, exceeded Rs.50,000/ - (Rupees fifty thousand only) and as Qazi's jurisdiction was only
up to Rs.50,000/ - in view of section 4 of the Balochistan Civil Disputes (Shariat Application)
Regulation, 1976 (the "Regulat ion"), therefore, on objection of the defendants, the same was
transferred to the Majlis -e-Shoora, Loralai, where Civil Suit No.6 of 1998 was sub judice and it
was ordered that both suits be consolidated. And since common questions of law and facts were involved in the matters, therefore, the evidence, in both the suits, was ordered to be recorded
together.
8. The trial Court, after framing issues and recording evidence of the respective parties, vide
separate judgments and decrees both dated 25th August, 1999, decreed the suits, against which
appeals, i.e. R.F.A. Nos.46 and 47 of 1999, were filed before this Court, which were dismissed vide common judgment dated 6th January, 2004. The appellants assailed the aforesaid judgment before the Hon'ble Supreme C ourt and the said appeals remanded to this Court, as stated above.
9. On remand of the appeals, notices were directed to be issued to the respective parties,
who, in response thereto, addressed the arguments and they also filed written arguments in support of their respective contentions.
10. Learned counsel for the appellants contended that the suits were hopelessly barred by
time, as the Agreement was executed between the parties in the month of June, 1958, and the respondents (plaintiffs in the suits ) to purportedly overcome the point of limitation instead of
filing a suit for specific performance of the Agreement, instituted a suit under section 42 of the Specific Relief Act 1877 (the "Specific Relief Act"). He next stressed that the suits were also barred by time under the Specific Relief Act, as the appellants remained in continuous possession of the land in question. Execution of the Agreement was admitted, but it was stated that since Chaudhry Siraj -ud-Din did not abide by the terms and conditions of the Agreement,
the instalments paid by him stood forfeited, the Agreement stood cancelled and the title of the land in question remained with the owner or alternatively reverted back to him. In this behalf, he
referred to section 55 of the Contract Act , 1872 (the "Contract Act"), which stipulates that in
certain contracts like the said Agreement time is of the essence. Learned counsel further
submitted that the burden of proof was upon the plaintiffs to prove that the entire payment had been made an d within the specified period, but no proof of payment was filed and
instead they placed on record irrelevant documents, which could not be taken into
consideration in view the provisions of Article 79 of the Qanun- e-Shahadat Order , 1984 (the
"Order"). The revenue entries were stated to be wrongly recorded in favour of the respondents
and the learned counsel for the appellants prayed for setting aside the judgments and decrees impugned herein.
11. On the other hand, learned counse l for the respondents vehemently opposed the
contentions raised by the learned counsel for the appellants and supported the impugned judgments and decrees. He urged that the suits were filed well within time. The plaintiffs were the recorded owners of the land in question and their title was not challenged at any point of time. Learned counsel further stated that the requirements of Article 79 of the Order were fulfilled, the oral and documentary evidence produced by the respondents was confidence inspiring and established their claim, thus, the impugned judgments and decrees were not open to interference.
12. We have considered the contentions put forth by learned counsel for the parties and
perused the record of the case. Before appreciation of the evide nce, it would be appropriate to
encapsulate the oral and documentary evidence produced by the parties in both the suits in support of their respective contentions. 13. Plaintiff witness (P.W.)1 Lal Khan, Patwari, produced the extract of title document s of
the land in question as Exhibit (Exh.) P/1, Exh.P/2 and site inspection report Exh.P/3 of the revenue staff.
14. P.W. -2 Babu Muhammad Rafiq, the son of late Haji Siraj -ud-Din and father of the
plaintiffs, deposed that in the year 1958, his fa ther purchased the land in question for Rs.33067/ -
on instalments from the predecessor -in-interest of the appellants, namely Sheikh Abdul Haleem,
through the Agreement (Exh.P/4). According to him, some instalments were paid by his late father, while the remaining instalments were paid by him. He produced the receipts of the instalments as Exh.P/5 to Exh.P/14. He further deposed that the possession of the land in question remained with them from 1958 to 1987 and the mutation entries were also carried out in their favour in the Revenue Record from time to time and they developed the land in question by growing fruit trees, houses and tube -wells. However, since they shifted from Loralai after 1987,
the appellants, taking advantage of their absence, illegally st arted occupying the land in question.
He further deposed that the predecessor -in-interest of the appellants submitted various
applications to different authorities and inquiries were carried out, but the same were dismissed. He produced the record of inqui ry and related documents as Mark/P.1, 2 and 3 and the Court
record as Exh.P/15 to Exh.P/19. He also deposed that in the year 1982- 83, he sold out a piece of
land in question, measuring two acres to the Irrigation Department and received the sale amount in the year 1984 without anyone raising objection in respect thereof.
15. P.W. -3 Rahim Khan stated that he was a witness to the instalment of Rs.3,000/ - (Rupees
three thousand only) paid by Babu Rafique to the predecessor -in-interest of the appellants in th e
year 1965 in respect of sale of property situated in Mouza Saghar and produced the receipt of
the payment as Exh.P/14, signed by him as well as the parties.
16. P.W. -4 Darya Khan a Junior Clerk/Record Keeper of the Irrigation Department, Loralai,
produced Letter No.2734/58- Land, dated 13th December, 1984, addressed to Babu Rafique
(Exh.P/4- A), letter dated 16th August, 1984, addressed by Deputy Commissioner to XEN
Irrigation, Loralai (Exh.P/4- B), Iqrar Nama dated 16th February, 1982, execute d between Babu
Muhammad Rafique and Irrigation Department (Exh.P/4- C), letter dated 21st August,
1984, addressed by XEN Irrigation Department, Loralai to Superintending Engineer, Irrigation Department, Quetta (Exh.P/4 -D) and letter No.4372- 77, dated 5th December, 1988, addressed
by Superintending Engineer, Irrigation Department, Zhob/Loralai to Haji Abdul Ghaffar Shabozai, Chairman Municipal Committee, Loralai (Exh.P/4- E). He identified the aforesaid
documents to be correct according to t he record of the Department.
17. P.W. -5 Ghulam Hussain, Saddar Qanungo, Loralai, produced the original record of letter
dated 4th January, 1968, addressed by the Deputy Commissioner -cum-Political Agent, Loralai to
Sheik Abdul Haleem Utmankhel (Exh.P/5- A), Letter No.14544 dated 23rd December, 1967,
addressed by the Assistant Political Agent, Loralai to the Deputy Commissioner -cum-Political
Agent, Loralai (Exh.P/5 -B), Letter No.1260 dated 6th May, 1969 addressed by the Deputy
Commissioner -cum-Political Age nt, Loralai to Sheikh Abdul Haleem Utmankhel (Exh.P/5-
C), Letter No.4565 dated 22nd July, 1972, addressed by the Deputy Commissioner, Loralai to Assistant Commissioner, Loralai (Exh.P/5 -D), application dated 23rd June, 1972 (Exh.P/5- E),
murasila date d 9th September, 1972 of Deputy Commissioner, Loralai (Exh.P/5- F), Letter
No.3859 dated 28th September, 1972, addressed by the Deputy Commissioner, Loralai to
the Chief Minister Balochistan (Exh.P/5- G), application dated 2nd August, 1972 of Haji
Abdul Haleem to Deputy Commissioner, Loralai (Exh.P/5- H), application dated 21st
September, 1967 of Haji Sheikh Abdul Haleem addressed to the Governor of West Pakistan and the Commissioner, Quetta Division, Quetta (Exh.P/5- J), applications dated 29th December, 1969
and 3rd January, 1970 of Haji Abdul Haleem, addressed to the Deputy Commissioner, Loralai (Exh.P/5- K and M), applications dated 1st January, 1970 and 26th July, 1972 of Haji Abdul
Haleem, addressed to the Assistant Commissioner, Loralai (Exh.P/5- N and P).
18. P.W. -6 Faizullah a representative of the then Agricultural Development Bank of Pakistan
("ADBP") now Zarai Taraqiati Bank Limited ("ZTBL"), Loralai branch, produced documents
pertaining to an agricultural loan sanctioned in favour of Babu Muhammad Rafique in lieu of mortgage of the land in question i.e. acceptance letter as Exh.P/6 -A, redemption
certificate dated 2nd January, 1986 a s Exh.P/6- B, terms and conditions of loan as Exh.P/6- C,
letter dated 20th September, 1965 as Exh.P/6- D, mortgaged deed dated 12th December,
1964 as Exh.P/6- E, letter dated 7th December, 1964 as Exh.P/6- F and redemption certificate
Exh.P/6- G.
19. P.W. -7 Rehmatullah the representative of the Sub- Registrar, Bori/Loralai, verified the
factum of mortgaged deed dated 12th December, 1964 (Exh.P/6- E), registered on 15th January,
1965 in their office.
20. P.W. -8 Kazim Ali a representative of Police Station, Loralai, produced police record,
pertaining to registration of F.I.R. No.91 of 1991 dated 16th November, 1991 lodged by
Muhammad Ashraf against Abdul Majeed as Exh.P/8- A, reports of S.H.O. dated 19th October,
1991 and 4th December, 1994 respectively as Exh.P/8- B and Exh.P/8- C.
21. P.W. -9 Ghulam Hussain, Saddar Qanungo a representative of Assistant Political Agent,
Loralai, produced record pertaining to reports dated 19th July, 1972 and 24th July, 1972
(Exh.P/9- A and Exh.P/9- B).
22. P.W.-10 Lal Khan Patwari, representative of the Tehsildar, Loralai, produced report dated
19th November, 1991 along with map regarding lands bearing Khasra Nos.1002 to 1011 and 1014 to 1018 as Exh.P/10- A and record of receipt of Malia (revenue fee) pertaini ng to years
1971- 1972 and 1982- 1983 as Exh.P/10- B.
23. The respondent/plaintiff Amjad Khan appeared before the trial Court and recorded his
statement on oath for himself as well as for rest of the respondents/plaintiffs as attorney. He deposed that the l and in question was owned by Sheikh Abdul Haleem, which was purchased
from him by his great grandfather Haji Siraj -ud-Din in the year 1958 for the sale consideration of
Rupees thirty three thousand and sixty seven through a written agreement. The amount of sale
consideration used to be paid in instalments. In the first settlement, the land in question was recorded in the name of his grandfather Haji Babu Muhammad Rafique and from the date of purchase, they were in possession thereof; where they had planted trees and his grandfather had also obtained agricultural loan from the bank. After 1967, Sheikh Abdul Haleem started teasing his grandfather and great grandfather by making several applications, which are available on the record. In the year 1982- 83, they had sold out a portion of the land in question measuring about
two acres to the Irrigation Department and sale price thereof was received by them in the year 1984 and no one raised any objection on such sale. In the year 1992- 93 they sold out another
porti on of the land in question measuring about 5- 6 acres to the Building and Roads (B&R)
Department and received sale consideration for it. The land in question was transferred on their names by their predecessor -in-interest and they also paid Malia and Ushr t hrough receipts. The
land in question is recorded on their names in the Revenue Record, however, in the year 1987, due to some unavoidable circumstances, they shifted from Loralai and settled at Quetta, when taking advantage of their absence, the defendant s started interference etc. in the land in question.
24. In rebuttal, the defendants produced six witnesses. Defendant witness (D.W.)1 Abdul
Karim who deposed that he is a relative of the defendants and saw the land in question in possession of the defen dants for a considerable time and that they grew trees, installed tube -
wells, constructed houses etc and he remained Buzgar thereon for about 3 to 4 years.
25. D.W. -2 Muhammad Umar also deposed that he remained Buzgar on the land in question
for about three years, where Haji Abdul Majeed had orchards, tube -wells and houses.
26. D.W. -3 Wahid Bakhsh, Saddar Qanungo, deposed that he was appointed as Local
Commissioner by the trial Court and he, along with the respective parties, visited and inspected the site and prepared report Exh.D/1.
27. D.W. -4 Fateh Muhammad produced record pertaining to direct complaint filed by Babu
Muhammad Rafique against Haji Abdul Haleem before District Magistrate, Loralai as Exh.D/2,
which, according to him, is correct as per their record Exh.D/2- A, whereas direct complaint
Exh.D/2- B, in view of their record Exh.D/2- A, is incorrect, as the words "and occupied the
property of the complainant" are not mentioned therein. Similarly, he also produced and verified
record Exh.D/3, Exh.D/4 and Exh.D/5 with the original record.
28. D.W. -5 Akhtar Muhammad deposed that the land in question is situated in Mouza Mahol,
Tehsil Loralai, which is owned and possessed by the defendants. They have developed the land in question by insta lling tube -wells, constructed houses, planting trees bearing fruits,
crops, etc.
29. D.W. -6 Abdul Shakoor deposed that the land in question is situated in Mouza Sughar
Tehsil Bori, which is owned and possessed by the defendants, having tube -wells, houses , trees
bearing fruits, crops, etc.
30. The defendants were represented by their attorney, namely, Zahir Shah son of Haji Abdul
Majeed, who in his statement on oath deposed that the land in question is owned and possessed by the defendants, where they ha ve grown up fruits bearing trees, crops, installed tube -wells, etc.
The land in question was given to Siraj -ud-Din on two conditions that he would water the land
through Karez and would pay some amount to Abdul Haleem for levelling the other property, but since the first condition was not fulfilled, therefore, Abdul Haleem cancelled the agreement and possession of the land in question was returned. He further deposed that there are 30 houses constructed by the defendants by spending an amount of Rs.60 to 70 lacs and an electricity
connection also exists in the name of the defendants. The plaintiffs have wrongly described the
boundary walls of the land in question and the defendants have paid the Ushr etc of the land in question. 31. Reverting to the first contention of the learned counsel for the appellants that the suits
were hopelessly barred by time and, at the best, the plaintiffs ought to have instituted suits for specific performance of the agreement arrived at between the parties and if the same were filed,
even then the same were hit by the point of limitation. It may be noted that the case of the plaintiffs is absolutely different from that of the arguments addressed, particularly when the plaintiffs, in both the suits, claimed restoration of posses sion of the land in question, occupied by
the defendants in their absence and restraining them from making interference. It may further be noted that the plaintiffs had never entered into sale agreement with the appellants and they are recorded owners of t he land in question and their title was never challenged. The respondents
had derived their title from their predecessors, viz Siraj -ud-Din and Babu Muhammad Rafique;
their title based on revenue entries, sale transaction, coupled with possession, admittedly, delivered to late Siraj -ud-Din in pursuance of agreement Exh.P/4, therefore, the question of
specific performance of the agreement did not arise at all. Moreover, the respondents had obtained agricultural loan by mortgaging the land in question with ZT BL, had paid Malia and
Ushr, and had also sold out certain pieces of land to the Irrigation and B&R Departments; however, in the year 1987, taking advantage of the respondents' absence the appellants occupied the land in question, resulting in the filing of the said suits in the year 1991. On the question of limitation even if the starting point of limitation is reckoned from the year .1987, i.e. the. date of
filing of the suit, the suits were filed within 12 years, therefore under Article 142 of the
Limita tion Act, 1908, which provides for, the suits were well within time.
32. It has come on record, through both oral as well as documentary evidence, that the
plaintiffs are recorded owners of the land in question. The revenue extracts i.e. Exh.P/1 and
Exh.P/2 (pages 211 to 227 of the paper book of R.F.A. 46 of 1999) unequivocally show in the
first settlement of the year 1966 -67, mutation entries regarding land in question in favour of the
predecessor -in-interest of the plaintiffs, namely, Muhammad Rafique and, subsequently, in the
year 1988 -89, the same were transferred in favour of the plaintiffs. Those entries in the record of
rights have not been challenged by the defendants at any point of time, rather they have come
forward with a strange plea that since the predecessor -in-interest of the plaintiffs did not abide by
the terms and conditions of the agreement of the year 1958, therefore, the amount so paid by them towards the instalments stood forfeited and the agreement stood cancelled, consequently the mutation entries ought to have been reverted back on their names. Though the predecessor -
in-interest of the defendants, namely, Haji Abdul Haleem approached different authorities by
filing applications, but the documentary evidence i.e. letters 4th January, 1968 (Exh.P/5- A), 23rd
December, 1967 (Exh.P/5- B), 6th May, 1969 (Exh.P/5- C) and 9th September, 1972 (Exh.P/5- F),
reflect that the authorities scrutinized and examined the case of the predecessor -in-interest of the
appellants in detail and were of the opinion that he may approach the civil court having jurisdiction for redressal of his grievances, but till today no suit has been filed on behalf of the
appellants or their predecessor -in-interest for specific performance of the agreement or
cancellation of the mutation entries recorded in favour of the plaintiffs. It is a settled p rinciple of
law that presumption of truth of the highest degree is attached to the entries of the first ever settlement record of a revenue estate and in order to dislodge the entries, strong evidence is required, which, in the present case, is completely lacking. Since the defendants did not
challenge the mutation entries, therefore, the suits on the point of limitation or otherwise were maintainable. Moreover, the plaintiffs through oral as well as documentary evidence proved their ownership over the land in question, as they have obtained agricultural loan by mortgaging the
land in question with ZTBL, paid Malia and Ushr and also sold out certain pieces of land to the Irrigation Department as well as B&R Department, but such transactions were never challenged by the defendants, nor did they produce any oral or documentary evidence in rebuttal. 33. The next contention of the learned counsel for the appellants is in respect of receipts
regarding payment of the instalments under the Agreement alleging that the same were inadmissible in view of Article 79 of the Order, as the marginal witnesses of such receipts were not produced as witnesses and that the great grandfather of the plaintiffs did not abide by the terms and conditions of the agreement regarding payments of instalments within the due dates therefore under section 55 of the Contract Act, which stipulates that, time was of the essence of the contract, no reliance on such receipts or Agreement could be placed. Despite the fact that the defendants did not challenge the mutation entries at any point of time, P.W. -2 Babu Muhammad
Rafique produced the receipts of the entire payment of the sale consideration of Rs.33067/ -
(Exh.P/5 to Exh.P/l4), paid to the predecessor -in-interest of the appellants as under: ---
S.
No. Dates Amount paid
through
instalments Amount received by
1. 4th August,
1956 Rs.2067/ - Haji Abdul Haleem
in person
2. 9th May,
1959 Rs.2500/ - Haji Abdul Majeed
son of Sheikh Abdul
Haleem
3. 3rd July,
1959 Rs.5000/ - Abdul Rasheed son
of Haji Abdul
Haleem
4. 26th
September,
1960 Rs.5000/ - Haji Sheikh Abdul
Haleem in person
5. 24th May,
1961 Rs.2500/ - Haji Abdul Haleem
in person
6. 21st March,
1962 Rs.2000/ - Haji Abdul Majeed
son of Haji Abdul
Haleem
7. 28th June,
1963 Rs.5000/ - Haji Sheikh Abdul
Haleem in person
8. 8th July, 1964 Rs.2500/ - Haji Sheikh Abdul
Haleem in person
9. 17th May,
1965 Rs.1500/ - Haji Sheikh Abdul
Haleem in person
10. 5th July, 1965 Rs.5000/ - Haji Sheikh Abdul
Haleem in person
Total Rs.33067/ - ----
34. The terms and conditions of the agreement stipulated that the great grandfather of the plaintiffs/respondents had to pay the total sale consideration to the predecessor -in-interest of the
defendants/appellants in instalments, and tha t he had paid an amount of Rs.2067/ - in advance,
while the remaining amount of Rs.31,000/ - (Rupees thirty one thousand only) was to be paid by
him annually. The date of the execution of the agreement was 27th June, 1958, thus the instalments were to be pai d by or before the 27th June of every succeeding year. The agreement
further stipulated that in case of default in payment of instalments within three months of the succeeding year, the amount already paid shall stand forfeited and Haji Abdul Haleem shall again be the sole owner of the land in question. The mode of payment of the instalments, as described in the above table, clearly shows that the same were regularly paid by or before the stipulated date, except certain instalments, which were made on 3rd J uly, 1959, 26th September,
1960, 28th June, 1963, 8th July, 1964 and 5th July, 1965, but within the grace period of three months, and neither the defendants nor their predecessor -in- interest raised any objection in
respect thereof. Had there been any sort of dispute regarding payment of the instalments, they
would have immediately moved forward either for the cancellation of the agreement or for the restoration of the mutation entries carried out in favour of the plaintiffs. Moreover, the great grandfather made the payment of instalments twice in a year as is evident from the said table.
Though there might be some variation in the mode of payment of the instalments, but the same cannot be termed to be a breach of the terms and conditions of the agreement, particularly when the entire amount has been paid and received by the defendants' predecessor without objection.
It would be useful to reproduce section 55 of the Contract Act, relied upon by the appellants:
"55. Effect of failure to perform at fi xed time in contract in which time is essential. When a party
to a contract promises to do a certain thing at or before a specified time or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract,
or so much of it as has not been performed, becomes voidable, at the option of the promisee, if
the intention of the parties was that time should be of the essence of the contract."
The aforesaid section states that if a party fails to do anything at or before the specified time, the
contract, or so much of it as has not been performed, becomes voidable, at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. In order to determine as to whether the time specified in the agreement is the essence of the
contract, we have to look into the contents of the agreement as a whole with reference to its clauses relevant in the context, particularly which reveal or reflect upon the intention of the
parties and the other material particulars and circumstances of the case in the light of the relevant provisions of law. After having gone through the sale agreement Exh.P/4, we are of the view that time was not of the essence of the contract, because the specification of the time period for
payment of the balance amount of sale transaction and punitive clause of the agreement, if read together, show the intention of the parties about the agreement. In the instant case the entire payment was paid in time, received by the other side and without objection, therefore, section 55 has no application. The record further reveals that the agreement was performed by the predecessor -in-interest of the respondents and pursuant to the agreement, the possession of the
land in question too was handed over and the revenue entries were also carried out. It is a settled
law that in case of immovable properties, where a substantial performance of the agreement has been made, the time specified for the performance of the remai ning part of liability would not
generally be treated, as essence of the contract; rather the intention of the parties is to be looked into while construing such document and in such cases where the discretion has been exercised by the Court it is not to be ordinarily interfered with. We are fortified in our view with the judgments of Flt. Lt. (Retd.) Mumtaz Khan v. Mst. Amtul Batool 1984 CLC 3462 Karachi and Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431.
35. For the sake of argument even if the time was of the essence of the contract or
there had been a breach of contract on the part of the respondents' predecessor, viz Haji Siraj -ud-
Din, the trial Court could not have refused to decree the suits in favour of the respondents within
the purview of Section 73 of the Contract Act, reproduced hereunder: ---
"73. Compensation for loss or damage caused by breach of contract.--- When a contract has been
broken, the party who suffers by such breach is entit led to receive, from the party who has
broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likel y to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach."
The consequences of breach of a contract and the basis on which compensation for any loss or
damage i s to be assessed by providing that when a contract has been broken, the party, who
suffers by such breach, is entitled to receive from the party, who has broken the contract,
compensation for any loss or damage, caused to him thereby, which naturally arose in the usual
course of things from such breach. The appellants, admittedly, did not seek redressal of their alleged grievance, rather came with a strange plea that since Chaudhry Siraj -ud-Din did not
abide by the terms and conditions of the agreement date d 27th June, 1958 and also did not pay
the remaining instalments, therefore, the agreement stood cancelled and the amount, which had been paid towards the instalments, was forfeited.
36. As regards the contention regarding attestation of the receipts by the marginal witnesses
in view of Article 79 of the Order, before making any observation in respect thereof, it would be advantageous to reproduce Article 79 of the Order, which reads as under: ---
"79. Proof of execution of document required by law to be attested. If a document is required by
law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the, provision of the Registr ation Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to
have been executed is specifically denied."
A bare reading of the above quoted section clearly demonstrates that if a document by any law is required to be attested, the production of an attesting witness, if alive, is a mandatory
requirement, if the execution of the same is denied. It is, therefore, evident that in order to press into service the above section, one has to ascertain whether under any law a particular document, which is to be proved, was required to be attested. If there is no legal requirement for attestation of a particular document by a witness, then there is also no legal requirement to produce the witness to prove the same. Mr. Abdullah Baloch, lear ned counsel for the appellants, was unable
to cite any provision of law, which requires that a receipt should be attested by one or more witnesses. Even otherwise, the respondents produced and examined P.W.- 3 Rahim Khan, who is
an attesting witness of last receipt Exh.P/14, whereby the final instalment of Rs.3000/ - was paid
to Sheikh Abdul Haleem. The factum of payment and acceptance of the last instalment having been established presumes payment of earlier instalments too, therefore, even if for the sake of argument Article 79 of the Order was applicable, compliance therewith had been made. It may be observed that even otherwise simplicitor non- production of an attesting witness will not
warrant drawing of an adverse inference, if the plaintiff can otherwis e prove the execution of a
disputed document. Even otherwise, the defendants failed to produce any evidence to slow that the said witnesses were alive, therefore it cannot be presumed that they were.
37. The trial Court, after proper appraisal of evidenc e, rightly decreed the suits and the
learned counsel for the appellants failed to point out any irregularity or illegality in the impugned judgments.
Thus, in the given circumstances, the impugned judgments and decrees both dated 25th August,
1999 passed by the Majlis -e-Shoora, Loralai in Civil Suits Nos.6 and 7 of 1998 are upheld and
the appeals are dismissed. Parties are left to bear their own costs.
S.A.K./36/Q Appeals dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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