2016 PLP 365 (MLD)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the court arises out of the judgment and decree of the High Court dated 7th September, 2013, whereby second appeal filed by the appellants, herein, has been dismissed.

2. Necessary facts for disposal of this appeal are that the respondents filed a suit for declaration-cum-possession in respect of land measuring 11 kanal 10 marla, alleging therein that Mst. Arshi was owner of the land. After death of Arshi her father, Muhammad Suleman and Mst. Sobi, the daughter were the real owners of the disputed land. Mutation No.88 was sanctioned in the name of one Wazir Muhammad against the true facts, law and Shariah. After necessary proceedings, the trial Court vide judgment dated 28.2.2004 passed a decree for declaration and possession in respect of the disputed land. The appellants, herein, filed an appeal before the District Judge which was dismissed vide judgment and decree dated 21.06.2005. A second appeal was preferred before the High Court which also met the same fate vide impugned judgment. Feeling aggrieved, the appellants have now approached this Court through the instant appeal by leave of the court.

3. Sardar Abdul Sammie Khan, Advocate, the learned counsel for the appellants discussed the facts of the case in detail. While referring to para 2 of the plaint of the suit filed previously, he submitted that the plaintiff-respondents by attraction of principle of res judicata and estoppel are barred to seek remedy on the same subject through the instant suit. He submitted that the findings recorded by the Courts below on issue No.5 are totally against the settled principle of law. The Courts below have miserably failed to make proper appreciation of principle of constructive res judicata and estoppel. He further submitted that even otherwise, the present suit was not maintainable on the ground of limitation. The parties while accepting the entries of revenue record by their conduct have effected different transactions all the facts were in the knowledge of the parties. The validity of mutation has been challenged after 53 years, hence, the suit on the face of it is time barred and not maintainable. Thus, these are legal questions which have not been properly attended by the Courts below, therefore, the impugned judgments are against law requiring interference of this Court through acceptance of this appeal and recalling the impugned judgments consequently dismissing the suit filed by the plaintiff-respondents. He referred to the cases reported as Muhammad Najeeb v. Muhammad Javed and 4 others (2013 SCR 172) and Pardool and 3 others v. Gulzada and others (PLD 1995 SC 410) in support of his contention.

4. Conversely, Sardar Pervaiz Akhtar, Advocate, the learned counsel for respondents Nos. 1 and 2, strongly opposed the appeal and submitted that the points agitated before this Court were neither raised before the Courts below nor argued, hence, it is not permissible for the appellants under law to built a new case before the apex Court. He submitted that the sanctioned mutation on the face of it is void and illegal as the same resulted into deprivation of the right of inheritance devolved upon the legal heirs of deceased. According to the settled principle of law and pronouncements of the Superior Courts, there is no bar in claiming the share of inheritance. Even otherwise, in the instant case the mutation was sanctioned on the basis of misstatement of facts and practicing fraud and according to the celebrated principle of law, fraud vitiates the most solemn proceedings, therefore, in such like cases, the limitation starts when the fraud is discovered or the same comes in the knowledge of the aggrieved person. He submitted that all the three courts below have recorded concurrent findings of facts after appreciation of the whole material, therefore, the same cannot be called in question because no question of law is involved, hence, this appeal merits dismissal with costs.

5. We have considered the arguments of the learned counsel for the parties and also examined the record. All the three courts below have recorded findings of facts on the basis of proper appreciation of the material brought on record by the parties. So far as the first argument of the learned counsel for the appellants relating to the attraction of principle of res judicata and estoppel is concerned, the examination of plaint filed previously, reveals that such suit was of the adverse possession regarding specific survey number. Neither the whole property nor any dispute regarding the inheritance was subject matter of that suit. The compromise decree was passed on the basis of cogonovit admitting the adverse possession. Thus, strictly speaking in this state of affairs, the courts below have rightly concluded that the principle of constructive res judicata as well as estoppel is not attracted in the light of peculiar facts of this case.

6. The next moot point is the validity of mutation No.88 sanctioned on 21-11-1998 Bik, according to which the legacy of one Arshi w/o Peer Muhammad was sanctioned in favour Wazir Muhammad showing him the son of Mst. Arshi, whereas from the analysis and appreciation of evidence produced by both the parties, it is an admitted fact that Wazir Muhammad was not the son of Mst. Arshi rather she was the step mother of Wazir Muhammad. Infact, Wazir Muhammad was son of Saabi w/o Peer Muhammad. Muhammad Miskeen, one of the appellants, in his own statement has deposed that Wazir Muhammad was son of Saabi and not Arshi and Mst. Sobi was the only daughter of Arshi, deceased. In his statement, he has taken quite different stand regarding the suit property and deposed as under:-- Same like, one of the witnesses produced by the defendant-appellants namely, Abdul Rasheed son of Abdul Hameed deposed that:-- In the cross examination, he deposed that:-- Thus, the appellants themselves and his witness have admitted that Wazir Muhammad was not son of Arshi and the legacy of Arshi was not transferred to Wazir Muhammad in inheritance rather the property was transferred to him through oral gift. Thus, the statement of one of the appellants himself sufficiently proves that mutation No. 88 is not correct as Wazir Muhammad was not son of Mst. Arshi. It is established that the mutation was illegally sanctioned against the facts in favour of a person who was not legally entitled for the inheritance. Therefore, on this material issue the findings recorded by the Courts below even find support from the appellant's own statement.

7. So far as the question of limitation is concerned, in view of the above stated peculiar facts of this case and the appellant's own statement, it has lost its importance because the fraud vitiates the most solemn proceedings. Under the provisions of section 18 of the Limitation Act, 1908 any transaction or act based on fraud can be challenged when it is discovered to the concerned aggrieved party. Even otherwise, the substantial amendments have been introduced in section 3 of Limitation Act, 1908 according to the spirit of which the suit cannot be thrown out merely on the basis of question of limitation rather the question of limitation has to be resolved by the Courts keeping in view the peculiar facts and circumstances of the case. Through the amendment, the mandatory application of prescribed limitation for filing suit, has been termed into the discretionary relief of the Court by substitution of the word "shall" with the word "may". The relevant observation made in the case titled Mst. Muridan Bibi and another v. Ghulam Fareed and 7 others (2014 CLC 1362) reads as follows:-- "

9. So far as the question of limitation is concerned, the instant suit has been filed for the shari share in inheritance by the plaintiffs out of legacy of their mother for which no limitation runs. Even otherwise the wrong entries in jamabandi repeated in the subsequent jamabandi, gives fresh cause of action to the plaintiffs and as such the suit cannot be termed as time-barred. In the impugned judgment the learned appellate court has observed that though the petitioners being legal heirs of the deceased were entitled to inherit the legacy of their predecessor to the extent of their respective shares and the burden of proof lies on beneficiary of mutation, Exh.P.W.2/1 but decided the matter against the petitioners on the ground that the witnesses have admitted the transfer of suit-land by Mst. Allah Wasai to respondents and she was divorced by her husband in old-age, the admissions of the statements made by witnesses of the plaintiffs are totally misconceived as no such admission has been made rather a fact has been narrated that Mst. Allah Wasai was divorced by her husband and that she had transferred the property in favour of her nephews. It was never admitted that the plaintiffs had the knowledge at that time or the free consent of the donor was available for the transaction which cannot be termed as admission, even otherwise fact admitted, if any, by witness in cross-examination would be treated as inferential evidence and would not be binding upon the parties. Moreover, admission of fact is only relevant and are not conclusive may be shown to be wrong. Law expressly proved that admissions are not conclusive proof of the matter even if amounts to clear admission. Admission of party in ignorance of legal right is not binding and admission on the wrong title of fact is not admissible in evidence.

8. As on the points of vital importance we have drawn the conclusion that the unanimously recorded findings of facts by the Courts below do not suffer from any legal infirmity, thus, it hardly requires any further deliberation on ancillary issues and questions raised by the appellants.

9. So far as the case law referred to by both the parties is concerned, in view of the conclusion drawn hereinabove, we do not feel any necessity for discussion of the same separately as being distinguishable and having no nexus with the peculiar facts of this case. For the above stated reasons finding no force this appeal stands dismissed with no order as to costs. ZC/19/SC(AJ&K) Appeal dismissed.