2008 PLP 1720 (CLC)

SAGHIR AHMAD, J.

Briefly the facts are that Bashir Ahmad (predecessor-in-interest of the respondents) and Muhammad Aslam, both real brothers, filed a suit against Muhammad Ashraf and others seeking a declaration that they are owners in possession of the dispute property as legal heirs of Rehmat Ali (deceased).; that defendants/petitioners have no concern whatsoever with the same and that alleged Tamleeq dated 7-9-1981 is forged, fictitious, based on fraud and collusion as such liable to be cancelled. It was further averred in the plaint that alleged power of attorney dated 26-7-1981 and on the basis of same, Mutation No.515, dated 12-6-1984 is also illegal, ineffective and has no effect on their rights. The suit was contested by the petitioners/defendants by way of filing written statements, wherein, apart from taking preliminary objections, they pleaded that gift in favour of petitioner/defendant was in fact a family settlement according to which their father Rehmat Ali had also gifted some land in favour of Muhammad Aslam and Bashir Ahmad.. The learned trial Court keeping in view the divergent pleadings of the parties framed the following:

Issues: (1) Whether Mr. Rehmat Ali deceased validly executed the general power of attorney, dated 26-7-1981 in favour of the defendant No.2? OPD (2) Whether Mr. Rehmat Ali deceased through the defendant No.2 validly made gift of the suit-land in favour of the defendant No. 1 by gift-deed dated 7-9-1981? OPD (3) Whether the suit is time-barred? OPD (4) Whether the plaintiffs are stopped, from bringing the present suit by their words and conduct? OPD (5) Whether description of the suit-land is incorrect? OPD (6) Whether the suit is not maintainable in its present form? OPD (7) Whether the suit is bad for non-joinder of the parties? OPD (7-A) If the above-said issues are not proved, then whether the plaintiffs are entitled to obtain the decree as prayed for? OPP (8) Relief. Both the parties led their respective evidence and on the conclusion of the trial, the learned Civil Judge 1st Class, Hasilpur vide judgment, dated 2-7-2004 decreed the suit of the respondents/plaintiffs. Against the said judgment and decree the present petitioner/defendant filed an appeal, which was also dismissed by the learned Additional District Judge, Hasilpur vide judgment and decree, dated 19-10-2006, hence, this civil revision.

2. The contention of learned counsel for the petitioner is that both the judgments of two Courts below are result of misreading and non-reading of evidence; that Tamleeq in favour of the petitioner was executed on 7-9-1981, whereas, the suit was instituted on 19-9-1993 as such the same was barred by time. It is next argued that it has been wrongly held by the Courts below that it was an inheritance dispute to bring the same within limitation. In this behalf learned counsel has referred to the case-law reported in Khalil-ur-Rehman v. Taj Din and another 2006 SCMR 1132. The next contention of learned counsel is that it was a family settlement, according to which, Rehmat Ali their predecessor-in-interest had gifted out his urban property in favour of Bashir Ahmad and Muhammad Aslam, whereas, agricultural property to the petitioner through a validly executed power of attorney and which materialized by way of a duly sanctioned mutation. It is argued by learned counsel that Tamleeq Nama is a registered document which has a legal sanctity. It is further contended that under Article 91 of the Limitation Act the suit is barred by time, thus, the suit was nothing but a mala fide attempt on the part of the respondents to deprive the petitioner of his valuable property. It is thus, concluded by the learned counsel for the petitioner that both the judgments and decrees of the two Courts below are illegal and liable to be struck down.

3. Arguments considered. Record perused.

4. So far as the first contention of learned counsel for the petitioner with regard to the limitation is concerned, it is specifically pleaded in the plaint that Rehmat Ali never executed power of attorney in favour of Niaz Muhammad and that he never authorized said Niaz Muhammad to get his land mutated in favour of the petitioner/ defendants and this entire exercise was kept concealed by Muhammad Ashraf and Niaz Muhammad in collusion with each other by practising fraud upon the respondents/plaintiffs. It is also evident that on the basis of alleged Tamleeq, dated 6-2-1976 why the mutation was got sanctioned before 13-3-1991. It is also settled law that limitation would not apply to enforce a right of inheritance. Reliance is placed on Mohsin Khan and 3 others v. Ahmad Ali and 2 others PLD 2004 Lah. 1 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC

1. It is also principle of law that no limitation runs against co-sharer, as held in Fateh Sher and others v. Muhammad Hayat and others PLD 2005 Lah.

578. This fact is fully corroborated by Muhammad Aslam P.W.1/respondent/defendant. Furthermore, the relationship between the petitioner and respondents as brothers inter se is not disputed, thus, the respondents/plaintiffs being real sons of Rehmat Ali co-sharers in the estate left by Rehmat Ali deceased. In this view of the matter, they were well within their right to claim their inheritance, which was being denied bar the petitioner/defendant on the basis of forged documents based on fraud, especially when the limitation would run from the date of knowledge and not from the date of fraud, as held in Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859. Thus, the findings of two Courts below on Issue No.3 are right in accordance with law, therefore, this argument of the learned counsel is overruled. The judgment cited by learned counsel for the petitioner Khalil-ur-Rehman v. Taj Din and another 2006 SCMR 1132 is not attracted to the facts of the case in hand.

5. It is also visible from the record that earlier to the disputed Tamleeq Muhammad Ashraf petitioner got executed a power of attorney in his favour from Rehmat Ali, his father, on 13-4-1978, which was however, got cancelled. This attempt on the part of the petitioner also speaks a lot about mala fide effort of the petitioner to grab the urban property. The disputed power of attorney dated 26-7-1981 (Exh.D.1) is alleged to have been executed at Bahawalpur, whereas, according to D.W.1 Niaz Ahmad the Sub-Registrar was available at Hasilpur. This fact of getting the power of attorney executed at a place far from Hasilpur also proves that said transaction was being tried to be concealed from the plaintiffs/respondents, especially when according to D. W.1 Rehmat Ali was unable to walk therefore, it would have been much suitable to produce Rehmat Ali at Hasilpur instead of carrying him to Bahawalpur for registration of Exh.D.1. Muhammad Munir D.W.2 who is alleged to be marginal witness of registration, admitted during cross-examination that he was not present when Tamleeq was executed by Rehmat Ali and he also did not know as to who was in possession of the disputed property at that time. Whereas, to prove a valid gift, it was duty of the petitioner/defendant to have proved the three prerequisites i.e. offer, acceptance and delivery of possession whereas, no cogent evidence is available on the record to establish these factors, as laid down in Muhammad Sarwar and 3 others v. Jahangir Ahmad and 5 others 2002 CLC 1865. In this view of the matter, the finding of two Courts below under Issues Nos.1 and 2 are in accordance with the evidence produced by the parties and it has rightly been held that the petitioner/defendant failed to prove the execution of a valid general power of attorney in favour of Niaz Ahmad and also failed to establish execution of a valid gift in his favour.

6. For what has been discussed above, I see no misreading or non-reading of evidence by two Courts below nor the findings recorded by the lower Courts suffer from any jurisdictional defect. This petition, therefore, fails and is accordingly dismissed in limine. H.B.T./M-310/L Petition dismissed.