If proceedings brought before Court are barred by time, Court cannot assume jurisdiction and shall have no jurisdiction in matter unless delay is condoned first, and disposal of suit on merits alone is not sufficient for presuming that delay was condoned.

 PLJ 2021 Quetta 134

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Specific Relief Act, (I of 1877), Ss. 9, 12, 39 & 54--Suit for declaration, possession, cancellation of mutation entries and permanent injunction--Dismissed--Appeal Dismissed--Knowledge of mutation entries--Concurrent findings--Challenge to--Petitioner/ plaintiff challenged mutation entries of 1978 by means of filing suit that after lapse of more than 34 years and petitioner  averred that she was not aware about registration of mutation entries and when they come to know they filed a suit but non of witness produced by petitioner stated a single word about knowledge of petitioner in respect of mutation entries--Suit filed by petitioner challenging mutation entries of year 1978 was barred by time--It has time and again been held by Hon'ble Supreme Court than an aggrieved person has to pursue his legal remedy with diligence and if suit is filed beyond period of limitation, each day's delay is to be explained--No explanation whatsoever was given in this respect--Petitioner had neither specified date, when she came to know about impugned mutations nor gave any explanation tenable under law to justify her contention--Respondents Nos. 7 to 10 not only have mutations on their names but they also produced record of Jamabandi or register of holdings of owners and tenants pertaining to years 1978-79, 1982-83 and 1986-87 whereby settlement authorities have from time to time verified both their possession and ownership over property in dispute--There is nothing in evidence to indicate that impugned mutation was collusive and fictitious--Admittedly, predecessor-in-interest was alive for 28 years after mutation, and he never challenged mutation entries--There are concurrent findings against petitioners which cannot be reversed in revisional jurisdiction of this Court until and unless there is some gross illegality, irregularity, misreading or non-reading of evidence and record therein which could not be proved by counsel for petitioner--No interference is called for--Revision petition dismissed.

                                      [Pp. 137, 138, 139 & 140] A, B, C, D, F, G & H

2012 MLD 1085 and PLD 1985 SC 153 ref.

Obligation of Court--

----It is obligatory on Court to decide question of limitation first and only thereafter proceed to decide matter on merits.                                                                                        [P. 138] D

Condonation of delay--

----If proceedings brought before Court are barred by time, Court cannot assume jurisdiction and shall have no jurisdiction in matter unless delay is condoned first, and disposal of suit on merits alone is not sufficient for presuming that delay was condoned.                                [P. 138] E

Mr. Iqbal Kasi, Advocate for Petitioner.

Mr. Behlol Kasi, Advocate for Respondent.

Mr. Ahmed Ali Baloch, Additional Advocate General ("A.A.G.") for State.

Date of hearing: 2.8.2019.

 PLJ 2021 Quetta 134
Present: Rozi Khan Barrech, J.
BIBI MOASHARA--Petitioner
versus
SAHIB JAN and 10 others--Respondents
C.R. No. 133 of 2016, decided on 24.9.2019.

Judgment

Through this Civil Revision Petition the petitioner has challenged the legality of the judgment and decree dated 21.11.2014 (hereinafter "the Order") passed by learned Civil Judge, Ziarat, (hereinafter "the trial Court") whereby the suit filed by the petitioner/plaintiff was dismissed and the judgment and decree dated 26.02.2016 (hereinafter "the impugned Judgment") passed by the learned Additional District Judge, Ziarat, (hereinafter "the appellate Court") whereby the appeal of the appellant/petitioner also met the same fate.

2. Facts of the case are that the petitioner/plaintiff filed a suit for declaration, possession, cancellation of mutation entries and permanent injunction before the learned Civil Judge, Ziarat, with the averments that the petitioner/plaintiff and Respondents Nos. 1 to 6 are descendants of late Khalo son of Nazeer. The said Khalo had various properties situated in Mohal and Mouza Gogai, Tehsil and District Ziarat. The predecessor-in-interest of the petitioner/plaintiff and Respondent Nos. 1 to 6 died in the year 2006 due to natural death. The properties left in legacy are still on his name in the revenue record. The petitioner/plaintiff further averred that out of various set of properties the predecessor-in-interest of the petitioner/plaintiff and Respondents Nos. 1 to 6 had a landed property bearing Khewat/ Khatoni No. 22/25-Min, Khasra No. 447, measuring 1 Rod 37 Poles situated in Mohal and Mouza Gogai Tehsil and District Ziarat (hereinafter referred to as "property-in-question"). In beginning of year 2012 the Respondents Nos. 7 to 10 started leveling property-in-question and excavating channel to facilitate flow of rainy/floody water, upon which the petitioner through her son approached them and requested to restrain themselves from making interference by encroaching upon ancestral property as the Respondents Nos. 7 to 10 have/had no right over the same, to which they replied that they have purchased the property-in-question from the predecessor-in-interest of petitioner and Respondents Nos. 1 to 6, to which the petitioner stunned, as in lifetime of late Khalo no one ever made claim over the suit property over which they are doing excavation work and same is mutated in Tehsil record in their names. It is further contended in the plaint that the petitioner/plaintiff through her son approached to the office of Respondent No. 11 and obtained the copy of so-called Mutation No. 74 and perusal thereof revealed that the mutation was attested on 03.08.1978. It is further submitted that endorsing order on so-called mutation is lacking and there is no signature or thumb impression on either side of so-called mutation of seller, purchaser, identifier and Tehsildar, meaning thereby the so-called mutation is classic example of fraud and misrepresentation.

3. Notices were issued to the respondents, as such, the Respondents Nos. 7 to 10 through Respondent No. 8 filed written statement and controverted the claim of petitioner/plaintiff and contested the same on legal and factual grounds and denied the claim of the petitioner/plaintiff, whereas Respondent No. 2 filed written statement and formally admitted the claim of petitioner/plaintiff while Respondents Nos. 1 and 3 to 6 were proceeded against ex-parte. However, the learned trial Court framed the following issues:--

"(i)     Whether the suit of the plaintiff maintainable in view of preliminary legal objections A, C, E and F raised by respondents?

(ii)      Whether since the plaintiff and Respondents Nos. 1 to 6 are legal heirs of late Khalo son of Nazeer, hence they are entitled to get inherited property bearing Khewat/Khatooni No. 22/25, Khasra No. 447 measuring 1 Rod, 37 Poles situated in Mahal and Mouza Gogai, Tehsil and District Ziarat according to their respective shares?

(iii)     Whether Mutation No. 74 being outcome of fraud and misrepresentation and Mutation No. 22 to the extent of property bearing Khewat/Khatooni No. 35/37 situated in Mohal and Mouza Gogai Tappa Kach Tehsil and District Ziarat having no legal sanctity and Respondents Nos. 7 to 10 are required to hand over peaceful possession of property in question to all legal heirs of late Khalo son of Nazeer?

(iv)     Whether the plaintiff is entitled for the relief claimed for?

(v)      Relief?

4. After framing of issues, the parties were directed to produce evidence in support of their respective claim, whereby the petitioner/ plaintiff produced four witnesses and lastly the petitioner/plaintiff through attorney got recorded her statement. In rebuttal, the Respondents Nos. 7 to 8 produced three witnesses and lastly the Respondent No. 8 appearing for himself and as attorney for Respondents Nos. 7 to 10 got recorded his statement.

5. After hearing arguments of the learned counsel for the parties, the learned trial Court dismissed the suit of the petitioner/plaintiff on 21.11.2014.

6. Being aggrieved from the judgment and decree dated 21.11.2014 passed by the learned District Judge, Ziarat, the petitioner/plaintiff filed appeal under Section 96, P.P.C. before the Additional District Judge, Ziarat and the same was dismissed on 26.02.2016. Hence this revision petition.

7. I have the learned counsel for the parties and have gone through the available record. The petitioner/plaintiff challenged the mutation entries of 1978 by means of filing the suit that after lapse of more than 34 years and the petitioner/plaintiff averred that she was not aware about registration of the mutation entries and when they come to know they filed a suit but non of witness produced by the plaintiff/petitioner stated a single word about the knowledge of plaintiff/petitioner in respect of mutation entries. The time period applicable to file a declaratory suit under Article 120 of Limitation Act is six (06) years and for cancellation of mutation entries is three (03) years and the respondents/defendants were in possession ever since the mutation till filing of the suit. The petitioner/plaintiff also prayed for possession. In terms of Article 142 of the Limitation Act, the period of limitation for filing such a suit is twelve (12) years. In the instant case the suit filed by the petitioner challenging the mutation entries of the year 1978 was barred by time. It has time and again been held by the Hon'ble Supreme Court than an aggrieved person has to pursue his legal remedy with diligence and if the suit is filed beyond the period of limitation, each day's delay is to be explained. In the instant case no explanation whatsoever was given in this respect.

8. A bare perusal of the plaint would reveal that the petitioner/ plaintiff had neither specified the date, when she came to know about the impugned mutations nor gave any explanation tenable under the law to justify her contention. The mutation entries were transferred from the name of predecessor-in-interest of the petitioner/plaintiff in the name of predecessor-in-interest of Respondents Nos. 7 to 10 and it is also alleged in the plaint that in the year 2006 the predecessor-in-interest of the petitioner/plaintiff died. The question arises here that why the processor-in-interest of the petitioner/plaintiff did not file any suit or for that matter challenge the mutation entries in his life time and as soon as he died the petitioner/plaintiff filed the instant suit, therefore, inference can easily be drawn that the property in question was not fraudulently mutated by the Respondents Nos. 7 to 10.

9. Section 3 of the Limitation Act provides that the institution of the suit after the limitation period shall be subject to the provisions of the Limitation Act irrespective of the fact that the limitation has not been pleaded as defense. It is obligatory on the Court to decide the question of limitation first and only thereafter proceed to decide the matter on merits. The Court is bound to address the question of limitation irrespective of the fact that whether it was agitated or not. A suit barred by time should be dismissed even if nobody has pointed out such lacuna. If the proceedings brought before the Court are barred by time, the Court cannot assume jurisdiction and shall have no jurisdiction in the matter unless the delay is condoned first, and disposal of the suit on merits alone is not sufficient for presuming that the delay was condoned. The suit/plaint is to be rejected forthwith even without resorting to the evidence or framing of any issues under Order VII, Rule 11, C.P.C. if it appears from the plaint that the suit is barred by limitation. While dealing with the issue of limitation in the case of Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) the Hon'ble Supreme Court has laid down the following guidelines:

"The words of Section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of Sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defense. If from the statement of the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (ILR 38 Mad. 374), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff’s application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it". The same Court in subsequent case, Ramamurthy v. Gopayya (ILR 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram (AIR 1940 Lah. 75), and held that "there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up against by the parties waiving them or by the Courts themselves."

10. As far as the case on merit is concerned, the important document which was challenged by the petitioner/plaintiff i.e. mutation Entry No. 74 whereby the property in dispute was transferred from the name of late Khalo to Muhammad Fazal (father of Respondent No. 10), Saeed Muhammad (father of Respondents Nos. 8 and 9) and Respondent No. 7 Noor Muhammad and its subsequent mutation of inheritance No. 22. Record of both theses mutations were produced by PW-3 Muhammad Rafique Patwari, as the record produced was of Pert Sarkar which does not bear signatures/thumb impression of the parties. On the basis of that record Pert Sarkar was called which was produced by PW-4 Muhammad Afzal Saddar Qanoongo as Ex.P/3 and its record as Ex.P/3-A. However, said record also did not bears signatures/thumb impressions of the Executants regarding which the witness during the cross-examination clarified that record of Pert Sarkar of District Ziarat was destroyed in fire therefore, it was re-prepared from the record of Pert-e-Patwar. The Respondents Nos. 7 to 10 not only have mutations on their names but they also produced record of Jamabandi or register of holdings of owners and tenants pertaining to the years 1978-79, 1982-83 and 1986-87 whereby the settlement authorities have from time to time verified both their possession and ownership over the property in dispute.

11. It may be seen that the mutation was attested in the year 1978. The provision regarding obtaining of signatures/thumb impressions of the vendor/executant on mutation become mandatory after issuance of notification somewhere in the year 1980. Reliance is placed on the case titled as Mst. Gul Farosh Jan v. Mehr Angez and 13 others 2012 MLD 1085.

12. Even otherwise there is nothing in evidence to indicate that the impugned mutation was collusive and fictitious. Admittedly, the predecessor-in-interest was alive for 28 years after mutation, and he never challenged the mutation entries.

In view of the above circumstances, I am in consonance with the findings of the learned Courts below. There are concurrent findings against the petitioners which cannot be reversed in revisional jurisdiction of this Court until and unless there is some gross illegality, irregularity, misreading or non-reading of evidence and record therein which could not be proved by learned counsel for the petitioner. No interference is called for.

For what has been discussed, this Civil Revision is without any substance. The same is dismissed. No order as to costs.

(Y.A.)  Revision dismissed