PLJ 2023 Peshawar 11
Specific Relief Act, 1877 (I of 1877)--
----Ss. 39, 42, 54 & 55--Suit for declaration, cancellation of mutations, permanent and mandatory injunction--Dismissal of suit and appeal--Gift mutations by petitioner’s father in favour of respondent--Gift mutations were never challenged by donor in his life time--Limitation--Petitioner was remained silent after death of his father--Petitioner challenged authenticity of gift Mutations executed by his father in favour of brother of petitioner Defendant No. 1, by contending that both said mutations are based on fraud--Donor was a man of prudent mind and he, during his life time, did not raise objection over alienation of suit property by Respondent No. 1--Documentary evidence not only portrays knowledge of petitioner about suit transactions but' also that he remained silent, and after death of his father, he filed present suit--This fact not only constitutes estoppel and never on part of petitioner but also exposes him before law of limitation--As far proof of execution of impugned gift mutations is concerned, suffice it to say that petitioner, during his evidence, categorically admitted same. PW-3 admitted that (father) had given his property to Respondent No. 1--Where petitioner failed to prove his initial burden and his claim too is hit by law of limitation, whereas, respondent produced all alive witnesses who supported suit mutations coupled with fact that conduct of petitioner by itself goes in line with proof of execution of mutations in question--Revision petition dismissed.
[Pp. 13, 14, 15 & 16] A, B, C, D & E
2002 SCMR 1330, PLD 2014 SC 167 and 2007 SCMR 1446 ref.
Mr. Ahmad Ali Advocate for Petitioner
Mr. Arif Raheem Ustarana Advocate for Respondents.
Date of hearing: 21.6.2022.
PLJ 2023 Peshawar 11
[D. I. Khan Bench]
Present: Muhammad Faheem Wali, J.
ABID SHERANI--Petitioner
versus
TAHIR SHERANI through Legal Heirs and others--Respondents
C.R. No. 36-D of 2016, decided on 21.6.2022.
Judgment
Petitioner has filed this petition within the contemplation of Section 115 of the Code of Civil Procedure (Act-V) 1908 calling in question the vires of Judgment & Decree dated 19.11.2015 passed by the learned Additional District Judge-I, D.I.Khan, whereby appeal of petitioner, filed against dismissal of his suit vide Judgment & Decree dated 23.04.2014 rendered by learned civil Judge-VI D.I.Khan, stood dismissed.
2. Facts forming factual canvas of the instant petition are that the petitioner filed a declaratory suit seeking therein cancellation of Mutations No. 62 dated 21.12.1974 and No. l40 dated 13.05.1978, pertaining to the land described in the head-note of plaint, executed in favour of Respondent No. 1 by the father of parties namely Shah Muhammad on the ground that sale were based on fraud; and therefore, revenue record to this extent is liable for correction. He also prayed for issuance of permanent prohibitory and mandatory injunction, restraining Respondent No. 1 from claiming his rights on the basis of suit mutations and to get correct entries entered in the record of rights. Besides, he prayed for decree of possession.
3. The Respondent No. 1 contested the suit, filed his written statement; whereafter the learned trial Court framed issues and recorded pro & contra evidence per choice of the parties. Finally, upon hearing arguments, the suit stood dismissed vide Judgment & Decree dated 23.04.2014 rendered by learned Civil Judge-VI, D.I.Khan. The Petitioner preferred an appeal against the dismissal of his suit, which too was dismissed by the learned Additional District Judge-I D.I.Khan, vide Judgment & Decree dated 19.11.2015; hence, the petitioner/plaintiff filed instant petition before this Court.
4. Arguments of the learned counsel for parties heard at length and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
5. According to record, the petitioner challenged the authenticity of gift Mutations No. 62 attested on 21.12.1974 and No. 140 attested on 13.05.1978, executed by his father Shah Muhammad in favour of brother of petitioner namely Tahir Sherani, the Defendant No. 1, by contending that both the said mutations are based on fraud. There can be no denial of the fact that Shah Muhammad Sherani, father of parties, was serving as Divisional Engineer in PTCL and he remained alive for 30 years after the execution of impugned gift mutations and died somewhere in 2003. In this case though the beneficiary of Defendant No. 1, Tahir Sherani, he is under the legal obligation to prove the execution of both the gift mutations, but as the petitioner alleged fraud, therefore, initial burden lies upon the petitioner to prove that how, when and who committed the fraud and under what mode and manner. Rule 4 of Order VI, CPC provides
that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful or undue influence, and in all other cases in which particulars may be necessary beyond such as are in the form exemplified aforesaid, particulars with dates and items, if necessary, shall be stated in the pleadings. In case of Bal Gangadhar Tilk and others vs. Shrinivas Pandi and others (AIR 1915 Privy Council 7), it was held by the Privy Council that general allegations in pleadings, however strong may the words in which they are stated to be, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. In view of the dictum laid down by the Honourable Supreme Court in the case of Messrs, SAZCO (Pvt.) Ltd. vs. Askari Commercial Bank Limited (2021 SCMR 558), it can be safely concluded that the plaint of this Suit and the claim made thereunder, which are based solely on the allegations of fraud, are not compliant of the mandatory requirement of Rule 4 of Order VI, CPC.
6. As mentioned above, the donor of the impugned gift mutations was a literate person who remained posted as Divisional Engineer in PTCL and remained alive till the year 2003. Therefore, the donor was a man of prudent mind and he, during his life time, did not raise objection over the alienation of suit property by Respondent No. 1 through Mutations No. 2333, 2355, 2370, 2666 etc during the period 1999 to 2000 as referred in Ex.P.W.1/5 and even mortgage of some of the land in favour of Zarai Taraqiati Bank Ltd and Habib Bank Limited, by the Respondent No. 1, has also been referred in the Ex.P.W.l/6. Silence of father over sale and mortgage of property by the son (Respondent No. 1) amount to recognition of the fact that father deliberately transferred the property in favour of his elder son; and therefore, the petitioner being another son cannot challenge the impugned mutations. Worthy Supreme Court in a number of cases has held that if a transaction was not challenged by the father, then his son, after his death, will lack locus standi to challenge the same. Reliance in this regard is placed on the case of Abdul Haq and another vs. Mst. Surrya Begum and others (2002 SCMR 1330) wherein it was held:
"11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."
Same view was reiterated in the case of "Mst. Grana through Legal Heirs and others vs. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167). Hence, in view of the guidance derived from the above verdict of the worthy Apex Court, the petitioner has no locus standi to challenge the suit mutations as same were not challenged by his father.
7.Besides, it is evident from the record that after attestation of impugned Mutation No. 140 dated 13.05.1978, the Respondent No. 1 transferred an area measuring 10 Kanals in favour of the petitioner through Mutation No. 141 dated 13.05.1978. Thereafter, petitioner himself sold the said landed property through various, mutations available on the file as Ex.P.W.2/D-4 to Ex.P.W.2/D-7; and out of these mutations, vide Mutation No. 1675 dated 27.03.1990 (Ex.P.W.2/D-5) petitioner sold an area measuring 01 Kanal to the Respondent No. 1. This documentary evidence not only portrays the knowledge of petitioner about the suit transactions but' also that he remained silent, and after the death of his father, he filed present suit on 29.03.2011. This fact not only constitutes estoppel and waiver on the part of petitioner but also exposes him before law of limitation. In the case of "Atta Muhammad vs. Maula Bakhsh and others" (2007 SCMR 1446) august Supreme Court of Pakistan held:
"Findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which disentitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, rewritten the law of limitation. "
8. In this view of the matter, two aspects which constitute knowledge of petitioner are, first, the date of attestation of Mutation No. 141 in favour of petitioner i.e. 13.05.1978, and second, the date of attestation of Mutation No. 1675 by petitioner in favour of respondent No. 1 i.e. 27.03.1990; whereas, the suit in hand was instituted before the Civil Court on 29.03.2011, and as such, the suit is badly and hopelessly time-barred. Thus, a stale claim under the law of limitation cannot be enforced legally as the passage of time sets the law of limitation in operation and there can be no exception unless the relaxation is granted by the Limitation Act 1908 by itself. Reliance is placed on the case of “Umer Baz Khan through L.Hrs vs. Syed Jehanzeb & others" (PLD 2013 S.C. 268), “Mst. Grana through Legal Heirs and others vs. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167).
9. As far the proof of the execution of impugned gift mutations is concerned, suffice it to say that petitioner, during his evidence, categorically admitted the same. PW-3 admitted that Shah Muhammad (father) had given his property to Respondent No. 1. Likewise, petitioner in his statement recorded as PW-8 stated that
"جب والد صاحب سے کہتے کہ رقبہ ہمیں بھی دو تو والد صاحب یہ کہتے تھے کہ طاہر شیرانی آپ کو رقبہ دے دے گا۔"
This portion of the cross-examination of PW-8/petitioner affirms that petitioner was in the knowledge of gift mutations. Respondent No. 1 produced and examined the alive witnesses of the suit mutations, whereas, some of the witnesses are dead, whose testimony went in line with the claim of Respondent No. 1.
10. As such, in the attending circumstances, where petitioner/ plaintiff failed to prove his initial burden and his claim too is hit by the law of limitation, whereas, respondent/beneficiary produced all the alive witnesses who supported the suit mutations coupled with the fact that conduct of petitioner by itself goes in line with the proof of execution of mutations in question, both learned Courts below have rightly non-suited the petitioner. The decision so arrived at by the two learned Courts below is unexceptional and need not to be interfered with by this Court in its limited revisional jurisdiction. Consequently, this revision petition fails which stands dismissed with no order as to cost.
(Y.A.) Petition dismissed
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