P L D 1969 Lahore 418 (PLP)

The following pedigree the correctness of which is not disput ed will help in understanding the facts leading to this second appeal :‑ KARAM DIN _________________|____________________ | | Budhr Khan Gaus | | |________________ |_________ ________________|____________ | | | | | Qutub Din Ali Muhammad Ali Ahmad | (plaintiff) | | | Siddiq | | (defendant 1) | | _______________| | ___________________| __________ | | | | Bashir (defendant 2) Nazir (defendant 3) | | __________________________________| | Sardar=Mst. Qadar Nishan (deceased) (widow) The dispute concerns the estate of Sardar, a displaced person, and Rajput by caste, who was confirmed land against his entitle ment in Chak No. 100‑GB, District Lyallpur. He died issueless in 1951 and on his death the Assistant Rehabilitation Commis sioner, vide mutation No. 10, dated 14‑12‑1952 (Exh. D. 2) mutated his land as follows :‑ Mst. Qadir Nishan ... 1/4th share Qutub Din (plaintiff) ... 1/4th share Siddiq (defendant No. 1) ... 1/4th share Bashir and Nazir ┐ (Defendants Nos. 2 and 3) } 1/4th share. sons of Ali Muhammad ┘

2. It is, however, common ground between the parties that Ali Muhammad and Ali Ahmad predeceased Sardar and, there fore, normally defendants Nos. 1 to 3 were to be excluded from inheritance to Sardat deceased by Qutab Din plaintiff under the Muslim Law of Inheritance, by which the matter was governed vide paragraph 46 of the Rehabilitation Settlement Scheme. Aggrieved by the above order dated 14‑12‑1952 of the Assistant Rehabilitation Commissioner, Qutab Din filed an appeal on 12‑5‑1962, which was dismissed by the D. R. C (Land), Lyallpur, vide order dated 16‑6‑1962 on the short ground that it was barred by limitation. On 23‑5‑1963, plaintiff brought the suit (out of which the present appeal arises) for a declaration that he was entitled to 3/4th share in the estate of Sardar deceased, his two brothers Ali Muhammad and Ali Ahmad having predeceased Sardar would exclude their sons defendants Nos. 1 to 3 from any share in the inheritance to the deceased.

3. The defendants resisted the plaintiff's suit on the plea that he was a consenting party to mutation No. 10 dated 14‑12‑1952, and, was thus estopped from questioning its validity. The jurisdiction of the civil Court to entertain the suit was also questioned and so also the frame of the suit. Lastly, bar of limitation was also pleaded.

4. The parties went to trial on the following issues :‑ (1) Whether the civil Court has jurisdiction to try this case ? (2) Whether the plaintiff is estopped from filing the suit ? (3) Whether the suit is barred by time ? (4) Whether the suit is not maintainable in the present form ? (5) Whether the defendants are entitled to a share in the inheritance of Sardar deceased ?

5. The learned trial Court found all the issues in favour of the plaintiff and, therefore, passed a decree in his favour declaring that he was entitled to 3/4th share in the estate of Sardar deceased with the result that defendants Nos. 1 to 3 were excluded from the inheritance. Aggrieved by the above decree of the learned trial Judge, defendants Nos. 1 to 3 filed appeal which was heard by the learned II Additional District Judge, Lyallpur, who vide his judgment dated 26‑5‑1964, maintained the findings of the learned trial Court on the first and the fourth issues, but reversed its findings on the second, third and fifth issues. As a result, the lower appellate Court accepted the appeal of defendants Nos. 1 to 3 and dismissed the plaintiff's suit. Hence this second appeal by the plaintiff.

6. Mr. Rafiq Ahmad, learned counsel for the plaintiff appellant assailed the findings of the learned Additional District Judge on issues Nos. 2, 3 and

5. The main reason which weighed with the learned Additional District Judge to set aside the findings of the trial Court was, that according to the evidence of Muhammad Siddiq defendant (who incidentally was the only witness examined in the case), Qutab Din plaintiff was present at the time of the attestation of mutation No. 10 (Exh. D. 1), but he did not object to it and, therefore, must be deemed to have acquiesced into it. The question whether Qutab Din plaintiff was present at the time of attestation of the mutation and accepted the mutation of 1/14th share in the estate of Sardar deceased in his favour and consented to the mutation of 1/4th in favour of Siddiq, defendant No. 1, and the remainder 1/4th in favour of Bashir and Nazir, defendants Nos. 2 and 3, is essentially one of fact. The mutation, however, does not actually record the presence of Qutab Din. It was attested on the statement made by Muhammad Siddiq which apparently was accepted by the Assistant Settlement Commissioner. Qutab Din was identified by Khair Din Lumbardar. The learned Additional District Judge, however, did not attach any significance to the fact that the mutation order did not specifically name the plaintiff as being present. Rather he thought that if the plaintiff had not been present then the Assistant Settlement Commissioner should have recorded the negative fact that Qutab Din was absent and that it was not so recorded furnished a corroboration of what Muhammad Siddiq had stated in his evidence that the mutation was attested in the presence of the plaintiff Qutab Din, against which there was no rebuttal. In my opinion, the learned Addi tional District Judge viewed the question in a wrong perspective. It is a common knowledge that ordinarily the mutation Officers record the presence of all the persons by referring to them by their names if they are concerned in the mutation. In the instant case, I have no manner of doubt that among the persons who claimed inheritance to the deceased, only Muhammad Siddiq was present. Apparently, there is no reason why the presence of the plaintiff should not have been recorded, if it were a fact that lie was also present besides Muhammad Siddiq and Khair Din Lumbardar. On the allegation of the defendants, it became all the more necessary to record the presence of the plaintiff Qutab Din because his acquiescence in the mutation amounted to relinquishment by him of his right and title in one‑half of the estate of Sardar deceased in favour of the defendants. The fact that the mutation order does not refer to any relinquishment of his right and title in one‑half of the share of the estate of the deceased goes a long way to prove the absence of the plaintiff at the time of the attestation of the mutation.

6. Even assuming for the sake of argument that Qutab Din was present at the time of the attestation of the impugned mutation and did not raise any objection, the question will still be whether his failure to raise objection will create estoppel against him so as to extinguish his right and title one‑half of the estate of the deceased to which he was entitled under paragraph 46 of the Rehabilitation Settlement Scheme. It is well established principle that estoppel operates as a bar to the suit; it does not however operate to extinguish a right. Estoppel deals with questions of fact and not questions of right. In other words, there is no general rule of law that a man is estopped from asserting his right which he said he will not assert, though it may 4 be that a man who agrees not to assert a right may in certain cir cumstances be bound by his agreement. The latter case, however, is of relinquishment of right which is a contractual act and as such must be distinguished from mere estoppel. In other words,' it amounts for an agreement to release or not to assert one's right and may, therefore, constitute a cause of action different in content from a mere estoppel under section 115 of the Evidence Act.

7. Section 115 of the Evidence Act, 1872, reads as under :‑ "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he not his representative shall be allowed, in any suit or proceeding between himself and such person, or his representative, to deny the truth of that thing." It is clear from a plain reading of the section that to estop person from asserting his right, it is necessary to prove that he had made representation intentionally to another person. Mere silence or failure to object may not amount to intentional representation in every case. Secondly, as pointed out by Minor in Principles and Digest of the Law of Evidence, 3rd Ed., at page 909, among others, the constituent elements of estoppel are that representation was of a nature which induced the person to whom it was made to alter his position to his detriment and further that the latter has actually altered his position to his detriment on the faith of the representation made. All these elements must co‑exist to create estoppel against a person, In the instant case, none of these conditions has been satisfied. Even if Muhammad Siddiq defendant is to be taken at his word, all that he says is that the plaintiff was present and did no object to the attestation of the mutation in favour of the defendants. This falls far short of creating estoppel within the meaning of section 115 against the plaintiff.

8. Moreover, in my opinion, in the circumstances of this case, mere silence or failure to object would not create estpppel against the plaintiff. It is not denied that the family of Sardar deceased was governed by custom which recognized the right of representation in matters of succession. Under custom the defendants, notwithstanding the fact that their respective fathers had predeceased Sardar would have nonetheless succeeded the latter along with the plaintiff. The possibility cannot be entirely excluded, that the plaintiff at the time of attestation of mutation was labouring under a mistaken belief that the succession to the deceased would be regulated by custom by which the parties were governed in the village of their origin in India. Failure to object in these circumstances, in the absence of evidence of conscious acquiescence by the plaintiff in the imagine mutation would not create estoppel against him.

9. For the foregoing reasons, I reverse the finding of the learned Additional District Judge on issue No. 2, which, in my opinion, was rightly decided by the learned trial Judge.

10. On issue No. 3, the learned trial Court held the plain tiffs' suit to be within limitation primarily on the footing that there was nothing to show that the plaintiff was fixed with the knowledge of the attestation of the impugned mutation on 14‑12‑1952. The learned trial Judge was further influenced by the fact that the plaintiff was "in exclusive possession" of land in dispute and had not prayed for the correction of the entries in the revenue record. This in the opinion of the learned trial Judge, would bring the case within the dictum in Gobind Ojha v. Sita Ram Ojha (163 I C 408) In that case it was held by a learned Single Judge of Patna High Court that if the plaintiff was in exclusive possession of the land and if his prayer was for a mere declara tion of his title without the consequential relief for the correction of the revenue entries, then the case is not governed by Article 120 of the Limitation Act, 1908. The learned Judge, if I may say so with respect, did not address himself to the further question that if Article 120 was not applicable which other Article of the Limitation Act would apply to the case. In the instant case, there is nothing, whatever, to show that the plaintiff was in exclusive possession of the entire land in dispute. In answer to a question asked from Muhammad Siddiq in his cross‑examination, he admitted that the plaintiff' was in possession of only a portion of the land in dispute and that is perfectly understandable because under the impugned mutation 1/4th share in the estate of Sardar deceased was mutated in favour of the plaintiff. The plaintiff himself did not enter the witness‑box to assert his exclusive possession of the land, nor did he care to produce the revenue entries to prove his exclusive possession of the land. In this state of evidence, therefore, the precedent case relied upon by the learned trial Judge would not avail the plaintiff to avert the bar of limitation to his suit.

11. There is ample judicial authority in support of the view that Article 120 of the Limitation Act applies to ,declaratory suits not falling under any of the Articles 90, 92, 118, 119, 124 and 129 of the Act, which make special provisions for certain classes of declaratory suits. Therefore, where the declaration of title is sought in respect of immovable property without any further relief, as in this case, it will be governed by Article 120 which provides a period of six years from the date of the accrual of cause of action or right to sue. Privy Council case Satia Narain v. Ram Lal (52 I A 109) is clear authority in point. Francis Legge v. Behram Singh (I L R 20 All. 35) is also to the same effect. Accordingly, the learned Additional District ‑Judge rightly reversed the finding of the learned trial Judge on the third issue.

12. It was, however, argued by learned counsel for the plaintiff‑appellant that the presence of the plaintiff not being proved at the time of the attestation of the impugned mutation, the limitation would not start against him unless it is proved as a fact that he had knowledge of the attestation of the mutation. The argument, in my opinion, is wholly devoid of substance. According to the entry in the third column of Article 120, the terminus a quo for the limitation of six years is "when the right to sue accrues" and not from the date of knowledge of the plaintiff: When ever the starting point for limitation is made dependent upon knowledge of the plaintiff, the law of limitation always, makes an express provision to that effect. See, for instance, Articles 92, 95, 96, 113 and 164 of the Limitation Act, wherein‑' the limitation is to commence either from the date of the knowledge or from the date of the notice to the plaintiff, as the case may be. It can scarcely be controverted that in this case, the cause of action immediately arose when the; impugned mutation was attested on 14‑12‑1952, under which the plaintiff was allowed to succeed to, 1/4th share in the estate of the deceased instead of 3/4th share which was his due under paragraph 46 of the Rehabilitation Settlement. Scheme. Even otherwise, it is impossible to suggest that the plaintiff appellant had no knowledge of the impugned muta tion. At any rate he did not venture into the witness‑box to say that he did not become aware of the attestation of mutation until six years before his suit. The mutation was. sanctioned under the Rehabilitation and Settlement Scheme and not under the Punjab Land Revenue Act, 1887 (since repealed). The Scheme read with the provisions of the Pakistan. Rehabilitation Act, 1956, constituted a complete Code for the allotment of evacuee lands and succession to the Refugee right‑holders. Section 11 of the Act makes provision for appeal against the orders of the 1Zehabilitation Officer. '1 he plaintiff did not take appeal against the impugned mutation until after the lapse of more than 9 years by which time it had become hopelessly barred by limitation and was, therefore rightly dismissed on 16‑6‑1962 by the D. R. C. (Lands) Lyallpur. The dismissal of the appeal did not on any dis coverable principle give a fresh start to limitation in favour of the plaintiff. Accordingly, the learned Additional District Judge rightly held the plaintiff's suit to be barred by limitation.

12. Mr. Hamid‑ud‑Din, learned counsel appearing for the respondents, while supporting the judgment of the learned. Add]. District Judge on the point of limitation, questioned his finding on the first issue concerning the jurisdiction of the civil Court to entertain the suit. It was urged by learned counsel that what is sought to be questioned by the plaintiff by means of suit leading to this second appeal is the validity of the' mutation order, Exh. D‑2, made by the Rehabilitation. Authorities in exercise of the powers under the Pakistan. Rehabilitation Act, 1956, section 18 of which completely bars the jurisdiction of the civil Courts to entertain any suit to call in question any order made by the Rehabilitation Authorities under the Act. Mr. Rafiq Ahmad learned counsel for the appellant, on the other hand, tried .o checkmate the argument by what was in the nature of s preliminary objec tion. It was urged that both the Courts below found in favour of the competency of the civil Courts to entertain the suit. The respondents not having filed any cross‑objection as required by O. XLI, rule 22, C. P. C., it is no long open to the respondents to question the jurisdiction of civil Court to try the suit, the fact that they raised this plea it the trial Court notwithstanding.

13. Rule 22 of the O. XLI, C. P. C., for the material purpose reads :‑ "(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross‑objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow . . . . . ." On a plain reading of the above provision, it becomes abundantly clear that it is wrong to read into this rule general prohibition against the respondent to object to a part of the judgment of the lower Court, unless he has preferred to cross‑objection as prescribed in the later part of the above rule. The rule makes two distinct provisions. This become clear, if we omit the parenthetical words "not only". Firstly, the rule in its opening part makes it permissible to a respondent to support the decree even on the ground decide against him by the Court below. This part of the rule i in unqualified terms and will therefore avail to the respondent in every case in which the decree is wholly in his favour. It is obvious that an appeal can be preferred only by a party to a suit adversely affected by the decree. If the suit was wholly dismissed against a defendant, there hardly remains any occasion for him to prefer appeal even if some of the issues are decided against him. So also about the plaintiff whose suit has been decreed in its entirety. The second part of the rule which provides for the filing of cross‑objection begins with the conjunction "but" which because of the parenthesis "not only" in earlier part of the rules, must be read in the sense of "and". This part of the rule contemplates taking of "cross‑objection to the decree (which) . . . . . could have been taken by way of appeal . . . . . "Thus taking of cross‑objection co‑related with the competency of appeal by the respondent. In other words, unless remedy by way of appeal is available to a respondent he need not file cross‑objection to agitate against the point decided against him by the lower Court. This will happen in a case, where a suit is wholly dismissed against or decree . in favour of a respondent, as in this case, or wholly decree in favour of the plaintiff, as the case may be, and therefor he could not possibly file appeal against any issue decided against him by the lower Court.

14. There is abundant authority in support of the view that a respondent may support the decree appealed from, not on the grounds decided in his favour but also on the grounds decided against him and for this purpose it is not necessary for him to file any cross‑objection. See, for instance, Henry Stanley Ramster v. S. M. Fazail & Co. (P L D 1964 Kar. 290). That was a suit for the recovery of damages in the such of Rs. 4029/6/4 arising out of breach of contract and assessed on the basis of difference between the contract price and the market price prevailing on the date of the breach, of the contract. The suit was tried by a learned Single Judge of the Karachi Bench on the original side who found that the defendant firm, though in breach of the contract and therefore liable to pay damages to the plaintiffs, but nevertheless dismissed the suit on the ground that there was no proof for the damages suffered by the plaintiffs in consequence of the breach of contract by the defendant firm. On appeal to a Division Bench, after examination of addi tional evidence on the question of damages, the judgment of the learned Single Judge was reversed and the plaintiff's suit was decreed. Learned counsel for the defendant firm in that case addressed the Division Bench upon all the defences urged before the learned trial Judge besides the question of damages although no cross‑objection was filed on behalf of the defendant‑firm against any of the issues found by the learned trial Judge against the firm. It was obvious that suit having been dismissed by the leaned trial Judge as a whole against the defendant‑firm, it could not have possibly filed appeal against the decree in its favour. This authority, in my opinion, clearly covers the instant case. The question also came up for consideration before a Full Bench of the Lahore High Court in Mhand v. Mst. Amutul Hafeez (P L D 1954 Lah. 278), in which it was held that it is open to a plaintiff who has neither appealed from the decree of the trial Judge nor has taken any cross‑objection to a partial decree as against him to urge in opposition to the appeal of the defendant a contention which, if accepted, by the trial Court would have necessitated a total decree in the suit. The main judgment was delivered by Kaikaus, J. The matter was, however; succinctly stated in the concurring judg ment of Rahman, J. (as he then was) in the following words :‑ " . . . . . It is obvious that the construction of Order XLI, rule 22, C. P. C. should be such as would, cover the case of a full decree as well as of a partial decree. In terms, this rule applies to first appeals but by virtue of Order XLII, rule 1, C. P. C., the same provision would govern second appeals so far as may be. The right of the respondent to agitate a ground decided against him by the Court or Courts below, under this rule, is subject only to the qualification that the ground would be available to "support the decree" i.e. only as a weapon of defence and not of offence, in order to maintain the status quo ante. To use a familiar expression, it can be used as a shield and not as a sword so that the burden of liability on the respondent, is not increased beyond what is imposed by the lower Courts' decree . . . . ." The same view was taken recently in the Indian Jurisdiction in the Management of Itakhoolie Tea Estate v. Its Workmen (A I R 1960 S C 1349.). I, therefore, overrule the preliminary objection raised by Rafiq Ahmad the learned counsel for the appellant and hold that it is permissible to the respondents to support the judgment and decree of the lower appellate Court even on F issue No. 1, relating to the want of jurisdiction of civil Court even though decided against the respondents.

15. The basis of the assumption of jurisdiction by the learned trial Court as it appears from its judgment was that the suit was for a mere declaration of title of the plaintiff in 3/4th share in the suit land without any consequential relief in the form o C a decree for possession. Therefore, the decree in the suit would not affect any evacuee property and as such would not be hit by the prohibitory provisions of section 18 of the Pakistan the Rehabilitation Act or 16 of the Pakistan Administration of Evacuee Property) Act, 1957. The learned trial Judge further opined that with the acquisition of evacuee land by the Provincial Government in pursuance of the notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958, the disputed land had ceased to be evacuee and, therefore, was no more immune from the jurisdiction of the civil Court. The learned Additional District Judge maintained the finding of the learned trial Judge on the issue though he partially agreed with the reasons which weighed with the learned trial Judge. The learned Additional District Judge rested his finding mainly on the ground that the relief claimed was for "a bare declaration" and, therefore, did not affect the evacuee property. The learned Additional District Judge, however, opined that notwithstanding the enactment of the Displaced Persons (Land Settlement) Act, the land retained its evacuee character and, therefore; the civil Courts' jurisdiction was excluded with regard thereto.

16. The question whether the evacuee land after its acquisition by the Provincial Government under section 4 of the Displaced Persons (Land Settlement) Act remains evacuee property recently came up for consideration in Muhammad Husain v. Mumtaz Hassan (PL D 1965 Lah. 35) and it was held on the basis of a Full Bench decision of the Lahore High Court in Umar Daraz Ali v. Khurshid Ali (P L D 1960 Lah. 834) and the Supreme Court's judgment in Mst. Zainab v. Mst. Raj (P L D 1960 S C 229) that the land continues to be evacuee property even after its acquisition and would, therefore, be immune from the jurisdiction of the civil Courts. It was further held that the allotment of such land by the Rehabilitation Authorities or the questions relating to inheritance to the deceased right holder are within the exclusive jurisdiction of the Rehabili tation Authorities. In reaching that conclusion, the learned Judge not only based himself on the provisions of section 18 of the Pakistan Rehabilitation Act, but also on the provisions of section 9 of the C. Y. C., which also excludes the jurisdiction of civil Courts, because of the above provisions in the Rehabili tation Laws. As pointed out already, the cause of action arose in favour of the plaintiff in 1952 when the impugned mutation was attested. Therefore, the plaintiff's suit fell within the mischief of section 18 of the Pakistan Rehabilita tion Act. The suit will also be barred by section 25 of the Displaced Persons Land Settlement act, which "Save a otherwise provided in the Act" bars the jurisdiction inter all of civil Court "in respect of any matter which . . . . . an officer appointed under (the) Act is empowered by or under) (the) Act to determine . . . . ." The A. S. C. in exercise) of the above power attested the impugned mutation, Exh. D. 2 on 14‑12‑1952 appeal against which was dismissed a barred by limitation by the Deputy Settlement Commissions on 16‑6‑1962. The suit out of which this appeal arises i directly hit by above prohibitory provision which ab initio makes the suit unentertainable by civil Court. This section is in categorical terms, and its application is not dependent upon the retention of the evacuee label of the property, unlike the provisions of section 16 of the Pakistan (Administra tion of Evacuee Property) Act, 1957.

17. For the above reasons, I reverse the finding of the two Courts below on issue No. 1 and hold that the suit was not entertainable by the civil Court.

18. Accordingly, I dismiss the appeal, though for some what different reasons, namely, that the suit ~ was ab initio not entertainable by civil Court and further it was barred by limitation. In the circumstances of the case, I leave the parties to bear their own costs throughout. A. E. Appeal dismissed.