PLJ 2024 Lahore (Note) 9
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
ANWAR BIBI, etc.--Petitioners
versus
PROVINCE OF PUNJAB, etc.--Respondents
C.R. No. 502-D of 2011, decided on 23.5.2023.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), S. 115--Limitation Act, (IX of 1908), Art. 120/142--Civil Revision--suit of petitioners is barred by time--Respondents No. 8,9 & 12 to 15 raised a specific objection that suit of petitioners is barred by time--Trial Court with regard to said objection framed issued No. 4 and decided same in favour of petitioner mainly in light of observation made on Issue No. 1, whereas, Appellate Court decided said issue against petitioners and declared that suit is barred by time--For computing limitation, period of six years would commence from date of accrual of right to sue--To ascertain, when does right to sue accrue, to seek a declaration of her ownership right over suit property shown to have been transferred to see another provision of law, that is, Section 42 of Specific Relief act, 1877--A suit for declaration of any right, as to any property is filed under Section 42 of Specific Relief Act, 1877--Right to sue accrues to a person against other for declaration of his right, as to any property, when latter denies or is interested to deny his such right--It was necessary for purported owners to challenge said mutations within limitation period of 06 years provided by legislature under Article 120 of Limitation Act, 1908 & Article 142 of Schedule to Limitation Act, 1908 from that date--A sweeping statement that there was no limitation in case of inheritance would in fact tantamount to have re-written law of limitation. Public interest requires that there should be an end to litigation. Whoever wishes to dispute presumption of co-incidents of facts and right must do so within period provided by law, otherwise, his right if any will be forfeited as a penalty for such neglect. Law requires that persons aggrieved by any order of an authority must come to Court and take recourse to legal remedies with due diligence--Real dispute was whether a particular person was or not a legal heir of one--The findings of appellate Court with regard to limitation does not require for any interference--Instant Civil Revision is dismissed.
[Para 8, 10, 11, 12, 13, 14 &15] A, B, C, D, E, F, G
2022 SCMR 1009; PLD 2014 SC 167; 2005 SCMR 1278; PLD 2011 SC 657; 2007 SCMR 1446; 2022 SCMR 1558 ref.
Mr. Kanwar Farhan Ahmad, Advocate for Petitioners.
Syed Wajid Hussain Rizvi, Assistant Advocate General Punjab for Respondents No. 1-3.
Muhammad Tufail Alvi, Advocate for Respondents No. 8, 9, 12, 15.
Date of hearing: 23.5.2023.
Judgment
Through this Civil Revision filed u/S. 115 of Code of Civil Procedure, 1908, petitioners have challenged the vires of judgment & decree of learned Appellate Court dated 10.03.2011 whereby while accepting the appeal of Respondents No. 8, 9 & 12 to 15, judgment & decree of learned Trial Court dated 13.10.2010 was set-aside and suit of the petitioners was dismissed.
2. Tersely, necessary facts forming background of proceedings in hand are that petitioners instituted a suit on 05.09.2007 whereby they sought declaration of their ownership qua the suit property measuring 54 Kanals situated in Khata No. 13/3 being legal heirs of their deceased father namely Ghulam Rasool with the contention that their predecessor was owner of land measuring 216 Kanals including the suit property; that he died leaving behind two widows namely Mst. Lalan & Mst. Bahar, two sons namely Muhammad Usman & Ghulam Rasool and four daughters namely Mst. Ameer Bibi, Jamal Khatoon, Durr Bibi and Anwar Bibi; that with regard to land situated at Moza Meeranpur, Tehsil Jampur, District Rajanpur Mutation No. 997 was rightly sanctioned on 09.12.1960 in favour of his all legal heirs but through Mutation No. 1828 dated 11.03.1960 and Mutation No. 2029 dated 26.11.1962 petitioners were deprived from the inheritance of their father; that Defendants No. 4 to 7 (sons & daughters of Ghulam Rasool) transferred the suit property through various mutations i.e. Mutation No. 2029 dated 26.11.1962, Mutation No. 1848 dated 11.03.1960, Mutation No. 2030 dated 26.11.1962, Mutation No. 2031 dated 21.11.1963, mutations No. 2032 & 2262 dated 13.07.1965, Mutation No. 392 dated 13.05.1980, Mutation No 9/2263 dated 13.07.1965, Mutation No. 10/2264 dated 13.07.1965 and Mutation No. 2119 in favour of Defendants No. 8 to 15 and challenged said mutations by praying for decree of their suit.
3. On the other hand, Defendants No. 8, 9 & 12 to 15 hotly contested the suit by filing written statement in contrast whereby they raised certain legal as well as factual objections. On legal side, they averred that suit is barred under Section 42 of the Specific Relief Act, 1877; that Defendants No. 1 to 3 are unnecessary parties, therefore, suit of the petitioners is defective due to joinder of unnecessary parties; that Defendants No. 8, 9 & 12 to 15 purchased the suit property bonafidely and suit is liable to be dismissed to their extent; that the suit is barred by time; that plaintiffs instituted the suit malafidely, therefore, defendants are entitled to get special cost amounting Rs. 10,000/-; that plaintiffs are estopped due to their words and conduct to institute the suit. While reply on facts, they showed their ignorance with regard to the pedigree table mentioned in Para No. 1 of the plaint and prayed that plaintiffs have knowledge with regard to alienation of the suit property from the day first, denied the facts pleaded in the plaint and prayed for dismissal of the suit.
4. Owing to the divergent pleadings of the parties, learned Trial Court framed necessary issues and invited the parties to produce their respective evidence. In support of their version, petitioners got examined one of the petitioners namely Anwar Bibi as P.W.1 and produced 15 documents as Exh.P.1 to Exh.P.15. In rebuttal, Defendant No. 8 Taj Muhammad appeared as D.W.I and produced 03. Documents as Exh.D1 to Exh.D.3. Learned Trial Court, after affording the parties an opportunity of hearing, decreed the suit vide judgment & decree dated 13.10.2010. Feeling aggrieved, Respondents No. 8, 9 & 12 to 15 preferred an appeal which was allowed vide impugned judgment & decree dated 10.03.2011, as a consequence thereof judgment & decree of Trial Court dated 13.10.2010 was set-aside and suit of the petitioners was dismissed mainly on the ground of limitation.
6. I have heard learned counsel for the parties at length and perused the record with their able assistance.
6. It evinces from the record that petitioners claimed their right of inheritance from the legacy of their deceased father namely Ghulam Rasool. Petitioners pleaded that at the time of demise of their father, he left behind two widows namely Mst. Lalan & Mst. Bahar, two sons namely Muhammad Usman & Ghulam Rasool and four daughters namely Mst. Ameer Bibi, Jamal Khatoon, Durr Bibi and Anwar Bibi and with regard to his property situated in Moza Meeran. Tehsil Jampur, District Rajanpur, inheritance Mutation No. 997 (Exh.P.1) was rightly sanctioned in favour of all of his legal heirs on 09.12.1960 but petitioners were deprived from Mutation No. 1828 dated 11.03.1960 (Exh.P.3) and Mutation No. 2028 dated 26.11.1962 (Exh.P.2). Petitioners impleaded his two brothers namely Jam Usman and Jam Sarwar as Defendants No. 4 & 5 and two sisters namely Meeran Bibi and Jamal Bibi as Defendants No. 6 & 7 but they failed to implead widows of Ghulam Rasool namely Mst. Lalan and Mst. Bahar.
7. It is evident from the record that Mst. Lalan widow of Ghulam Rasool transferred her land through Mutation No. 2022 dated 26.11.1962 (Exh.P.4) in favour of Molvi Abdul Rehman s/o Molvi Abdul Ghafoor (predecessor of Respondents No. 12 to 15) and Haider S/o Hussain (predecessor of Respondents No. 8 to 11) in equal share. Defendant No. 4 & 5 transferred their land through Mutation No. 2030 dated 26.11.1962 (Exh.P.5) in favour of Molvi Abdul Rehman (predecessor of Respondents No. 12 to 15) and Haider (predecessor of Respondents No. 8 to 11) in equal share. Defendant No. 7 namely Mst. Jamal through Mutation No. 2031 dated 21.06.1963 (Exh.P.6) transferred her entire land in favour of Abdul Rehman and Haider in equal share. Respondents No. 4 & 5 through Mutation No. 2262 dated 14.07.1965 (Exh.P.5) transferred their land situated at Khata No. 13 and Khata No. 165 in favour of Abdul Rehman (predecessor of Respondents No. 12 to 15). Mst. Lalan widow of Ghulam Rasool transferred her land situated at Khata No. 13 & 165 through Mutation No. 10/2264 dated 28.10.1965 (Exh.P.11) in favour of Abdul Rehman (predecessor of Respondents No. 12 to 15). Defendant No. 7 namely Mst. Jamal Khatoon transferred her land situated at Khata No. 13 and Khata No. 165 through Mutation No. 9/2263 dated 28.10.1965 (Exh.P.12) in favour of Abdul Rehman (predecessor of Respondents No. 12 to 15). Perusal of said mutations transpires that legal heirs of Ghulam Rasool transferred their shares inherited through mutations No. 1828 dated 11.03.1950 (Exh.P.3) and Mutation No. 2028 dated 26.11.1962 (Exh.P.2) in favour of Molvi Abdul Rehman (predecessor of Respondents No. 12 to 15) and Haider (predecessor of Respondents No. 8 to 11) and became landless from the Khewat. Respondents No. 8, 9 & 12 to 15 pleaded in their plaint and also deposed while recording the statement as D.W.1 that petitioners instituted the suit on the instigation of their brothers/Respondents No. 4 & 5. They claimed that they are bona-fide purchasers for consideration and without notice regarding any dispute of inheritance. Petitioners failed to rebut the Stance of said respondents.
8. Respondents No. 8, 9 & 12 to 15 raised a specific objection that suit of the petitioners is barred by time. Learned Trial Court with regard to said objection framed Issue No. 4 and decided the same in favour of the petitioner mainly in the light of observation made on Issue No. 1, whereas, learned Appellate Court decided said issue against the petitioners and declared that suit is barred by time.
9. The limitation period of six years provided in Article 120 of the Limitation Act, 1908 is to be computed from the time mentioned in the said Article, that is, when the right to sue accrued. It reads:
Description of suit | Period of limitation | Time from which period begins to run. |
120. Suit for which no period of limitation is provided elsewhere in this schedule | Six years. | When the right to sue accrues. |
10. The provision clearly declares that for computing the limitation, the period of six years would commence from the date of accrual of right to sue. To ascertain, when does the right to sue accrue, to seek a declaration of her ownership right over the suit property shown to have been transferred to see another provision of law, that is, Section 42 of the Specific Relief Act, 1877. A suit for declaration of any right, as to any property is filed under Section 42 of the Specific Relief Act 1877; which reads:
“42. 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 wake therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
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.
11. It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. The august Supreme Court of Pakistan in its recent judgment titled “Rabia Gula and others vs. Muhammad Janan and others” (2022 SCMR 1009) while interpreting two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right, held as under:
“8.13 Now, what “action” can be termed as an “actual denial of right” and what a mere “apprehended or threatened denial of right” in the Context of adverse entries recorded in the revenue record. It is important to note that a person may ignore an “apprehended or threatened denial” of his right taking it not too serious to dispel that by seeking a declaration of his right through instituting a suit, and may exercise his option to institute the suit, when he feels it necessary to do so, to protect his right. For this reason, every “apprehended or threatened denial of right gives a fresh cause of action and right to sue to the person aggrieved of such apprehension or threat However, this option to delay the filing of the suit is not available to him in case of “actual denial” of his right: where if he does not challenge the action of actual denial of his right, despite having knowledge thereof, by seeking declaration of his right within the limitation period provided in the Limitation Act, then his right to do so becomes harred by law of limitation.
8.14 Admittedly, entries in the revenue record do not create or extinguish Proprietary rights. Such an entry may at most be termed as a mere “apprehended or threatened denial” of right, and not an “actual denial” of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration.
8.15. The situation is, however, different in a case where the beneficiary of an entry in the revenue record also takes over the possession of the land on the basis of sale or gift transaction, as the case may be, recorded in that entry His action of taking over possession of the land in pursuance of the purported sale or gift is certainly on “actual denial” of the proprietary rights of the purported seller or donor. Therefore, in such a case, if the purported seller or donor does not challenge that action of “actual denial” of his rights, within the prescribed limitation period. Despite having knowledge thereof, then his right to do so becomes barred by law of limitation”
12. It is apparent from the record that predecessor of Respondents No. 8 to 15 after purchasing the suit property got the possession in the years 1962-63 and 1965, since the dates of sanctioning of mutations. Their act of taking over possession was “actual denial” of the proprietary rights of the purported owners, therefore, it was necessary for the purported owners to challenge the said mutations within the limitation period of 06 years provided by the legislature under Article 120 of the Limitation Act, 1908 or to seek recovery of the possession of the suit property within the limitation period of 12 years as envisaged under Article 142 of the Schedule to the Limitation Act, 1908 from that date. Petitioners instituted the suit on 06.09.2007 and challenged the sale mutations after lapse of 42 years, therefore, their suit was hopelessly barred by limitation. In such circumstances, learned Appellate Court has rightly allowed appeal of respondents and set-aside judgment & decree of Trial Court which resulted into dismissal of the suit of petitioners. Learned counsel for the petitioners remained unable to point out any illegality, irregularity, jurisdictional defect or mis-reading/non-reading of evidence in the impugned judgment & decree of the Appellate Court which is based on the correct application of the law in peculiar circumstances of the case, which warrants no interference of this Court while exercising revisional jurisdiction.
13. A sweeping statement that there was no limitation in case of inheritance would in fact tantamount to have re-written the law of limitation. Public interest requires that there should be an end to the litigation. Whoever wishes to dispute the presumption of Co-incidents of facts and right must do so within the period provided by law, otherwise, his right if any will be forfeited as a penalty for such neglect. Law requires that persons aggrieved by any order of an authority must come to the Court and take recourse to the legal remedies with the due diligence.
14. The august Supreme Court of Pakistan while observing that law of limitation was not to be ignored entirely or brushed aside whenever property was claimed on the basis of inheritance, in a case titled “Mst. Grana through Leal Heirs and others versus Sahib Kamala Bibi and others” (PLD 2014 SC 167) held as under:
“6 It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the lawe of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali’s case the Court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant. This Court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintiff material in suits of inheritance. In Mst. Phaphan v. Muhammad Bakhsh (2005 SCMR 1278) a suit for declaration and possession was filed in the year 1983 by the plaintiff/petitioner claiming to be the owner of the inherited property. The suit was held to be barred by time wherein mutations of the year 1959 and 1967 were challenged in the year 1983 when the plea of the defendants was that the plaintiffs had alienated the property of her own free-will. The plaintiff’s plea of being pardanashin lady and reliance on the case of Ghulam Ali was not accepted as the plaintiff was found to have remained in deep slumber for 24 years despite the fact that the physical possession of the land was passed on to the defendant Recently in the case of Lal Khan v Muhammad Yousaf (PLD 2011 SC 657) this Court had set aside the concurrent findings of the three Courts and dismissed the suit filed on 13-5-1970, where the Plaintiff had challenged inheritance mutation of 13-2-1947: the Court held it to be barred by time. The rationale of the law of limitation has been reiterated in Atta Muhammad v. Maula Bakhsh (2007 SCMR 1446) where the concurrent findings of the three Courts were set aside and the suit filed by the respondents/plaintiffs in the year 1988 questioning the inheritance mutation of 1942 was declared to be barred by time The Court held:
“The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. There have been cases where even to claim inheritance law of limitation was applied.”
The Court found that the real dispute was whether a particular person was or not a legal heir of one, Mst. Khairan, whose inheritance mutation was attested in favour of appellant, Atta Muhammad.
“7. It emerges from the afore discussed case-law that the law of limitation is not entirely to be ignored or brushed aside whenever property is claimed on the basis of inheritance. The conduct of such claimant may become relevant and material when the bar of time limitation is pleaded by the adversary. A defendant may show that the plaintiff by her or his acts, overt or implicit, had demonstrated acquiescence in the defendant’s title to the suit properly thereby allowing him to deal with it as exclusive owner for instance regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff. When in such circumstances the defendant/heirs transfers the property for valuable Consideration the transferee is entitled to believe that the transferor had a valid title to transfer. It may be reiterated that in Ghulam Ali’s case the question of interest protection of transferees from a legal heir in a suit of inheritance was left open as the transferees were not impleaded as defendants. That is not the case here. The very facts of this case would demonstrate that the plaintiff had acquiesced in the various transfers made of the suit property from time to time.
In a recent judgment, the Hon’ble Supreme Court of Pakistan Tilted “Syed Kausar Ali Shah and others versus Syed Farhat Hussain Shah and others” (2022 SCMR 1558) held as under:
10. In our opinion there is a clear distinction between (a) cases in which an heir alleges that his/her rights to inheritance have been disregarded and his/her share not mentioned in the inheritance mutation, and (b) those cases in which such an heirs its idly by, does not challenge mutation entries of long standing, or acquiesces, and only comes forward when third party rights in the subject land have been created. To succeed in respect of the latter (b) category cases an heir must demonstrate that he/she was not aware of having been deprived, give cogent reasons for not challenging the property record of long standing, and show complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of such heir’s interest yet proceeded to acquire the land. If these two categories are kept in mind, then the judgments of this Court, respectively relied by both sides, which are apparently at variance, become reconcilable.
It was further held that:
“The learned Judges of the subordinate Courts and the learned single Judge of the Islamabad High Court disregarded the abovementioned judgments of this Court, the principle of acquiescence, and the fact of third party interest having been Created in the said Land, and that further third parties had acquired proprietary rights in the said Land. And, that such interest was acquired in land which was shown in the record of rights of long standing, which remained unchallenged. The learned Judges also ignored the fact that Ummat-ul-Aziz took no action for forty-five years, and that she submitted her application to the revenue authorities only after the creation of the third party interest in the said Land. The plaintiffs, having stood idly by “allowed third party interest to be created in the said Land, and could then not complain and claim the said Land.”
Therefore, the findings of learned appellate Court with regard to limitation, does not require for any interference.
15. For what has been discussed above, the instant Civil Revision is without any merits, hence, the same is hereby dismissed with no order as to costs.
(K.Q.B.) Civil revision dismissed
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