1995 PLP 176 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑‑ . ‑‑‑‑S. 100‑‑‑Practice and procedure‑‑‑Inconsistent pleas taken in written statement and during trial by defendant‑‑‑Effect‑‑Defendant's case before lower Courts was that plot was gifted to him by his deceased ancestor to the exclusion of other heirs (plaintiffs)‑‑‑Defendant changed his stance in second appeal by taking plea that plot in question, was leased out to him by the Authority because of his continuous possession, though he admitted that he had applied for the transfer of same on ground of inheritance‑‑‑Such inconsistent pleas could not be allowed to be raised in second appeal. Khaliq Hamayun for Appellant. S.H. Qizalbash for Respondent No.11. This Second Appeal has been filed challenging the concurrent findings of the two Courts below. Briefly the facts for the purposes of this appeal are that the respondents had filed a suit for partition, rendition of accounts and cancellation of lease executed on 5‑5‑1982 in favour of the present appellant. The case of the respondents who are plaintiffs in Suit No. 1933 of 1982 is that the ancestor of the parties namely, Mufti Fayaz Noor Khan was allotted a plot bearing No. 651/30, 80 sq.yds situate in Faisal Colony, Karachi; and that the said ancestor expired on 5‑8‑1962. Thereafter the lease was granted to the appellant on 12‑8‑1978 in his exclusive name and to the exclusion of other heirs. According to the plaintiffs the Lease Deed was executed on 5‑5‑1982 and it was in the year 1982 that they had filed the suit. The matter was contested before the trial Court and the trial Court was pleased to pass the decree in favour of the plaintiffs as prayed. The matter went in appeal and was remanded back with the direction that the KDA should be joined as party to the suit. After remand the KDA was joined as defendant No.2 and the issues were amended. The present respondent had led further evidence on amended issues while the appellant did not lead any further evidence but relied upon his earlier evidence in the suit. The trial Court thereafter decreed the suit against the present appellant. Being aggrieved, the appellant preferred First Appeal No. 12 of 1993 which was dismissed by IVth Additional District Judge, Karachi (East). Being aggrieved, the appellant has preferred this Second Appeal. I have heard the l earned counsel for appellant and Mr. S.H.Qizalbash, the learned counsel appearing for respondent No.11, who is on pre admission notice. The present appeal is preferred against the concurrent findings of fact which cannot be gone into at this stage unless they are shown to be perverse and contrary to the evidence on record. However, the only point urged by the learned counsel is that the suit was barred by limitation as the same has been instituted 16 years after the death of the ancestor of the parties. In the present case, the suit was filed in the year 1982, whereas, admittedly the plot was leased out to the appellant in the year 1978. Though the succession opens on the death of propositus but in the instant case after the death of the ancestor all the heirs became entitled to property in accordance with their respective shares and constructively they came into joint possession of the same. In such case I am of the view that Article 127 of the Limitation Act would be applicable which provides for a limitation of 12 years from the date the exclusion becomes known to the plaintiff. In the present case the exclusion of the plaintiff has been made in the year 1978 when the entire plot was leased out to the appellant alone excluding all other heirs. Accordingly, I am of the view that the suit before the trial Court was very much within time. It may further be observed that the case of the appellant before the lower Courts is that the disputed plot was transferred to the appellant by the deceased father by way of gift. There is nothing on the record to prove the said contention. However, during the course of arguments today the learned counsel has taken a plea that the transfer was made in his favour by the KDA on the ground of continuous possession although he conceded that he had applied for such transfer on the ground of inheritance as well. This is a plea inconsistent to the plea of gift taken by the appellant and cannot be permitted to be raised at this stage. Accordingly, I find no force in this appeal, which is dismissed summarily alongwith Miscellaneous application. A.A./H‑388/x. Appeal dismissed.