2018 PLP 98 (CLCN)

MUHAMMAD SHERAZ KAYANI, J.

The above titled appeal calls in question the legality and validity of the judgment passed by the District Judge Rawalakot on 07.12.2013, whereby, while setting aside the judgment and decree passed by the learned Senior Civil Judge Rawalakot dated 15.07.2013, the case has been remanded for decision on merits, after recording evidence.

2. Precise facts of the case are that Muhammad Rafique Khan and others plaintiff/respondents herein, brought a suit for declaration and possession in respect of the suit land comprising survey No. 382 measuring 7 kanals 18 marals situated in village Horana Mara Tehsil Rawalakot against Muhammad Ishfaq and others defendants/appellants herein, stating therein that the suit land has been in the ownership and possession of Sardar Sajawal Khan, the predecessor in interest of plaintiffs which was mortgaged to one; Muhammad Yousaf Khan, the predecessor in interest of defendant/appellants herein, in 1947 in lieu of rupees 500/-. It has been claimed that defendant/appellant's herein, fraudulently got executed sale deed dated 18.01.2003 Bik and also got attested mutation No. 104 dated 20.03.1959. A decree of declaration and possession was solicited. Along with the suit an application for temporary injunction was also filed whereupon, the learned trial Court obtained objections, and after hearing the parties, vide judgment and decree dated 15.07.2013 rejected the plaint under Order VII, Rule 11 of the C.P.C. Feeling aggrieved from the above judgment and decree, the plaintiff/respondent herein, preferred an appeal before the Court of District Judge Rawalakot, which after hearing the parties, has been accepted and while setting aside the judgment and decree of the trial Court, the case has been remanded to the trial Court for decision afresh after recording the evidence vide judgment dated 07.12.2013 and the said judgment is subject matter of the above appeal.

3. Sardar Javed Munwar, Advocate, the learned counsel for the appellants vehemently contended that the suit of the plaintiffs was clearly time barred and the learned trial Court had rightly rejected the same under Order VII, Rule 11 of the C.P.C. and no illegality has been committed by the trial Court. The learned counsel further contended that the learned 1st Appellate Court was not competent to remand the case on flimsy grounds. In support of his contention the learned counsel placed reliance on the following case law:

1. PLD 2007 Quetta 1;

2. PLD 1985 SC 153; 3. 1985 CLC 1072;

4. PLD 1997 AJ&K 11;

4. Sardar Muhammad Ejaz Khan, Advocate, the learned counsel for respondents, on the other hand, submitted that no sale deed was executed by the predecessor in interest of the respondents rather the suit land was mortgaged and up to year 2012 the defendant/appellants did not deny the ownership and title of the plaintiffs upon the suit land and the cause of action accrued to the plaintiffs, when the defendants refused to accept their ownership. The learned counsel submitted that as the plaintiffs remained abroad and due to this reason would not file suit well within time. The question of limitation is a mixed question of law and facts, which cannot be resolved without recording evidence, he added.

4. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

5. It is the case of plaintiff/respondents that in-fact, the suit land was mortgaged and they have the right to redeem the same under the law but according to Article 148 of the Limitation Act, any suit for redemption of mortgage or recovery of possession would be filed within a period of sixty years, when the right to recover the possession accrues. According to para No. 4 of the plaint the suit land was mortgaged in year 1946-47 and if the period of limitation is calculated, then the plaintiffs have filed the suit in year 2013 i.e after a period of 67 years and on this angle, the suit is clearly time barred, particularly, when it is not mentioned that for what period it was mortgaged. According to the version of the defendant/appellants, there was no mortgage and in fact the suit land was purchased by the predecessor-in-interest of the defendants in year 2003 Bik (1946 AD) and on the basis of this sale-deed, mutation No. 104 was also attested on 20.03.1959 in their favor. Nowhere, in the plaint, it has been mentioned that after year 1959 there was any entry in the revenue record in favor of the plaintiffs and when all the entries regarding the ownership of the suit land were continuously recorded in favor of the defendants, than, it was for the plaintiffs to challenge the same under section 53 of the Land Revenue Act read with Article 120 of the limitation Act, within the period of six years and also for recovery of possession, maximum within a period of 12 years but when period is calculated from year 1959, they have filed the suit in 2013, after 54 years and if from the date of sale deed, the same has been filed, after 67 years, hence, in both the eventualities, the suit is clearly time barred.

6. As far the contention of the learned counsel for the respondents that question of limitation is a mix question of law and facts, this principle is not applicable in the instant case due to the reason that mere a vague and ambiguous version is not sufficient to direct the trial Court for exercise of recording of evidence. In a generalized manner it has been stated in para No.4 of the plaint that the plaintiffs remained abroad but the file shows that there are also proforma respondents and it has not specifically explained that which plaintiff was abroad, when he went abroad and how much period is to be excluded from the limitation period. The plaintiffs and proforma respondents are 13 in number and nowhere it has been mentioned that all these 13 persons were abroad and under law, even a single person can file the suit and there is no restriction that all the co-sharers must be present in the country for filing the suit. The plaintiff/respondents had not come in the Court with clean hands and the relief under the specific relief act is also of discretionary nature. The plaintiffs kept mum on their own cause for decades and now, without giving explanation of delay, this suit is not maintainable because the law is well settled on the point that if any suit or appeal is filed beyond the prescribed period of limitation, then it is for the plaintiff to give explanation of delay of each and every day. No such explanation is available even in contents of para No. 4 of plaint. So, in my opinion recording of evidence regarding limitation would be a futile exercise and will bear no fruit, whatsoever. This view of the Court support from the case law reported as;

1. PLD 2007 Quetta 1;

2. PLD 1985 SC 153.

7. In case titled Hakim Muhammad Buta and another v. Habib Ahmed and others, PLD 1985 SC 153, it has been held as under:- "

4. The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation; the plaint shall have to be rejected also under Order VII, rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the court itself. There is a chain of authority and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party, waiving if any by the Courts themselves."

8. In such circumstances, this Court is constrained to hold that the learned District Judge was not justified to remand the case on the point of limitation and the learned trial Court had rightly rejected the plaint under Order VII, Rule 11 of C.P.C.

9. The net consequences of above discussion is that the above captioned appeal is hereby accepted and the judgment of learned District Judge Rawalakot dated 07.12.2013 is hereby set aside. Resultantly, the judgment and decree passed by the learned trial Court stands restored. ZC/21/HC(AJ&K) Appeal allowed.