2003 PLP 1521 (CLC)

"In this Constitutional petition the prayer is that impugned order dated 22-4-1970 passed by respondent No.1 (Registrar, Cooperative Society) be declared to have been passed without lawful authority as against the petitioner. This order is stated to be order of remand. It is also submitted that respondent No.2 Mazhar-ud-Din Baqai has filed a civil suit bearing. No.895 of 1979 in the High Court for declaration, possession and damages in which petitioner has been impleaded as defendant. By consent this Constitutional petition is allowed in the result whereof the impugned order mentioned above is hereby set aside. It is also agreed by both the learned counsel that this order is without prejudice to the contentions of respondent No.2 raised in the civil suit mentioned above. There will be no order as to costs. Applicants filed an application under Order VII, Rule 11, C.P.C. rejection of the plaint on number of grounds including the ground that the suit is time-barred to which counter-affidavit was filed by respondents 1 to

4. On 6-8-1999 the trial Court passed order by which the plaint was rejected holding that the suit was time-barred. Respondents 1 to 4 filed appeal in which the impugning judgment has been passed. Mr. Tasawar Ali Hashmi, learned counsel for the applicants has argued that the right to sue arose to the respondents 1 to 4 on 27-1-1969 the date of death of Lieut.-Col. M.A. Baqai and at best on 19-3-1969 when the respondent No.5 refused to transfer the shops in question in their favour on the ground that the applicants have sought transfer of shops on basis of inheritance being heir of Lieut.-Col. M.A. Baqai. He stated that the respondents 1 to 4 did not file suit but opted for determination of question of nomination under the provisions of Cooperative Societies Act in 1969. He further stated that when the respondents 1 to 4 failed to obtain any relief in proceedings commenced by them under the Cooperative Societies Act, the present suit was filed in 1979 which was time-barred having been filed after ten years of arising of cause of action. He further argued that proceeding under Cooperative Societies Act is not covered by the provisions of section 14 of Limitation Act and its benefit cannot be extended to the suit of respondents 1 to

4. In this respect he has relied upon the following reported cases:-- Muhammad Akbar Shah v. Muhammad Yousuf Shah PLD 1964 SC 329, Muhammad Mubarak Hussain Siddiqui v. Saajjad Hussain Khan-PLD 1992 Kar. 167, Asghar Ali v. P.K. Shahani 1992 CLC 2282, Shafaatullah Qureshi v. Federation of Pakistan 1999 CLC 364, State Life Insurance Corporation of Pakistan v. Mst. Safia Begum 2001 CLC 408, Raja Karamatullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892. Mr. Tasawar Ali Hashmi has further argued that the respondents 1 to 4 claim for ownership of two shops in the proceedings under Cooperative Societies Act was based on nomination. He stated that nominee does not acquire right of ownership of property on the death of nominator and has relied upon PLD 1974 SC 185: Referring to last para. of impugned judgment he has argued that it is none speaking as no reasons have been given by the Appellate Court for setting aside the order of trial Court and has relied upon 1999 YLR 1694. Lastly he has contended that in view of the order dated 13-10-1981 passed in the applicant's Writ Petition No. 1004 of 1970 the award has become final and relied upon AIR 1935 Bom.

91. He has supported the order passed by trial Court. On the other hand Mr. Shahanshah Hussain learned counsel for the respondents 1 to 4 has referred to para. 9 of the plaint and stated that the respondents 1 to 4 were in possession of the said two shops which was forcibly taken over as alleged in para. 18 of the plaint. He referred to prayer made in the suit and stated that the main relief of respondents 1 to 4 is that of possession and declaration of ownership is ancillary to the question of possession. He has stated that under Article 142 of the Limitation Act, limitation for suit for possession is twelve years and thus the suit was within time. He has supported the impugning judgment and relied upon the following reported cases:-- Delhi Cloth and General Mills Company Ltd. v. Federation of Pakistan PLD 1964 Lah. 444, Chandi Prasad v. Awadh Narain Jal AIR 1952 Pat. 143, Pun Aung v. Briajlal AIR 1923 Rang. 11, Randutt Ramkissen Dass v. E.D. Sassoon & Company AIR 1929 PC

103. I have considered the submissions of the learned counsel for the applicants and respondents 1 to

4. None appeared for respondents 5 and

6. I have gone through the record. From the contents of the plaint, it is abundantly clear that the claim of the respondents 1 to 4 in the proceedings under the Cooperative Societies Act was based upon "nomination" with the plea that the question of transfer of property to the legal heirs of the nominator would arise only where there is no nomination. Respondents 1 to 4 elected to the proceedings under the Cooperative Societies after the respondent No.5 through litter dated 25-3-1969 has called upon them to obtain Letter of Administration from Court of Law and yet again when the respondent No.5 has already recognized the applicants to be entitled to the shops in question as legal heirs of a Member and transferred and handed over their possession to the applicants on 27-3-1969. With regard to the claim on the basis of nomination reference is made to the case of Mst. Amtul Habib v. Mst. Musarrat Parveen PLD 1974 SC 185 wherein at page 191 the Honourable Supreme Court has observed as follows:- "Apart from this, it appears to us that, unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid-gift under the Muhammeden Law, because such gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted. In the case of plots allotted to Muhammad Yaqoob, there could be no delivery of possession at the time the nomination was made, for, at that time, no plot had even been allotted to him." Thus as per established law, nomination does not stop succession of the estate of the deceased to his legal heirs as per succession law applicable to him. Respondents 1 to 4 in para. 9 of the plaint have themselves alleged that on 30-11-1965 they took possession of the shops as attorney of the deceased Lieut.-Col. M.A. Baqai from Messrs Sam Corporation of respondent No.5. Thus the possession was with the respondents 1 to 4 as agent of the deceased on the basis of power of attorney and such power of attorney as per law came to an end on the demise of Lieut.-Col. M.A. Baqai and succession opened. Respondents 1 to 4 have not pleaded gift of the shops to them by the applicants. In the plaint of the suit, the respondents 1 to 4 have however, set up an altogether different case of "Benami" owner made the following prayer:-- (i) declaration that the plaintiff is the actual and real owner of Property No.43-C admeasuring 90 sq. yrd. with two shops within the commercial area of Pakistan Defence Housing Society Limited, Karachi, and is entitled to the benefits thereof which is being unlawfully enjoyed by the defendant No.1 at the conniyance and conspiracy of other defendants. (ii) Possession of the said property with mesne profit at Rs.600 p.m. from the date of dispossession till restorating thereof, to plaintiff. (iii) Permanent injunction restraining the defendant from transferring and/or selling or otherwise transferring the said property to any other person. (iv) Any other/further/additional relief this Hon'ble Court may deem fit in the circumstances of the case. It is apparent from the contents of the plaint that the main claim of the respondents 1 to 4 was of ownership which in the proceedings under the Cooperative Societies Act was based on "nomination" and in the suit is based on "Benami" and the, claim for possession is merely consequential because until right to possession is established, no question of allowing relief of possession arises. Reference is made to Allah Bux v. Dr. Abdul Waheed PLD 1996 Kar.

458. Mr. Hashmi has relied upon the case of Muhammad Akbar Shah (supra) in support of his contention that the respondents 1 to 4 suit is to be reckoned on the limitation period provided for the prayer for declaration of ownership of the shops. In the cited case, the Honourable Supreme Court of Pakistan at page 335 has observed as follows:-- "We turn now to the question of limitation. The suit before us is one for possession and prima facie should be governed by Articles 142 or

144. It is a settled principle however, that when the relief which a plaintiff seeks cannot be granted unless he succeeds in securing as a foundation for his relief another relief the suit cannot be filed after expiry of the limitation for a suit for such other relief. If this principle were not adopted the provisions of the Limitation Act would be defeated. If an order to obtain the relief of possession in this case it be essential for the plaintiff to secure a decree for setting aside the will before he is granted possession then the suit would be governed by the Article which applies to a suit for setting aside the will." Thus from the principle laid down by the Honourable Supreme Court of Pakistani, it is clear that respondents 1 to 4 in order to get relief of possession essentially has to secure relief of declaration of ownership of the two shops and the suit will be governed by the Article of Limitation which applies for declaration of ownership of two shops. Thus the argument of the learned counsel for the respondents 1 to 4 that the main relief in the suit is for possession and Article 142 of the Limitation Act providing for twelve years for filing of the suit is applicable to the case is, of no substance and is accordingly repelled. The Appellate Court in its judgment has referred to some facts of the case and then reproduced quotations from cited law and thereafter gave its findings as follows:-- "The learned counsel for the respondent could not controvert that the order passed by the Hon'ble High Court in Constitutional Petition No.949 of 1978 was not having force in the field. I fear to agree with the finding of trial Court it has failed to conceive the facts available on the file of the case and has not correctly applied Order VII, Rule 11, C.P.C. hence having gone through case-law produced by the respective parties and would advise to the trial Court to record the evidence as issues have already been framed and litigation is pending since last 30 years between the parties and about more than 21 years have passed to the present suit which has seen different forums." The above findings, I am afraid is not an speaking one inasmuch as neither contents of the plaint have been examined nor its effects have been discussed and merely on case-law the matter has been decided without at all examining that such case-law is applicable to the facts and circumstances of the case. The finding of the Appellate Court on its face is not sustainable in law. The trial Court has examined the matter and concluded that the suit was time-barred and rejected the plaint under Order VII, rule 11, C.P.C. There is no dispute that limitation period for, filing of suit for declaration of ownership of the two shops will be governed by Article 120 of Limitation Act which provides for six years from the date when right to sue accrues. Right to sue accrued to the respondents 1 to 4 on 27-1-1969 when Lieut. Col. M.A. Baqai died or on 19-3-1969 when respondent No.5 refused to transfer the shops in their favour on the basis that applicants have applied for transfer of these shops on the basis of inheritance or further on 25-3-1969 when the respondent No.5 asked for production of Letter of Administration and finally on 27-3-1969 when the shops possession was transferred to the applicants. In para. 52 of the plaint, the respondents 1 to 4 have themselves claimed that cause of action for the suit has arisen on 25-3-1969. Looking from any angle, the respondents 1 to 4 suit filed in 1991 was hopelessly time-barred. Learned counsel for the respondents 1 to 4 has not argued any other ground to support the impugned judgment. Accordingly this revision application is allowed. The impugned judgment of the Appellate Court is set aside and that of the trial Court restored and in the circumstances there will be no order as to costs. S.A.K./S-297/K Petition allowed.