2017 PLP 70 (YLRN)

ABDUL RASOOL MEMON, J.

This Revision Application is directed against the order dated 17.01.2004 passed by learned IInd Additional District Judge West Karachi in Civil Appeal No.112/2001, whereby appeal against the order of rejection of plaint under Order VII Rule 11, C.P.C. in Civil Suit No.92/2001 was allowed.

2. The background of the case is that Sofan and others filed above cited suit against Qaim and others on 09.02.2001 for declaration, cancellation and permanent injunction with the following prayers:-- (i) This Honorable Court may be pleased is declared that the sale deed vide registration No.9720 dated 21.11.1979 is without lawful authority of the Plaintiffs and is false, fraudulent, forged, bogus and is of no legal effect and force and is hereby cancelled. (ii) This Honourable Court may be pleased to declare that entry No.965, dated 15.09.1980, of V.F. Vii, Deh Narathar Karachi West, is illegal, void ineffective in operative at law and is of no legal effect and force and deem as cancelled. (iii) This Honourable Court may further be pleased to declare that Plaintiffs being legal heirs of deceased Jamaluddin son of Sofan Jokhio are entitled to be entered as owners of the land in V.F. Vii Deh Narathar, Karachi West. (iv) Issue perpetual injunction restraining the Defendants Nos. 1 to 3, from dispossessing the Plaintiff from suit land or alienating the suit land to any person and the Defendants Nos. 5 to 7 may be restrained from effecting further mutation entries on the basis of sale deed likely to be executed by Defendants Nos.1 to 3 in pursuance to sale deed registered No.9720 dated 21.11.1979. (v) Award costs of the suit. (vi) Any other equitable relief which the Honourable Court may deem fit and proper in the circumstances of the case be granted.

3. The defendants instead of filing Written Statement choose to file an application under Order VII, Rule 11, C.P.C. for rejection of plaint by attacking on maintainability of the suit on two legal propositions (i) that law of limitation was attracted as the Sale Deed in question was executed in 1979 and suit for cancellation of said deed was filed belatedly in 2001 and (ii) the jurisdiction of civil court was barred in view of provisions of sections 161 and 172 of Land Revenue Act. The learned trial Court allowed the application and rejected the plaint by holding it being barred by Article 93 of Limitation Act.

4. The order of the trial Court was assailed in Civil Appeal No.112/2001 which was allowed vide impugned order and remanded the case to trial Court for proceedings in accordance with law, hence this Revision has been filed.

5. Learned counsel for the applicant contended that as per para-6 of plaint, plaintiff was allegedly tried to dispossess in the year 1997, thus in view of Provisions of Article 93 of the First Schedule of Limitation Act, the declaration of documents had to be sought within 3 years from the date of knowledge, therefore, the trial Court rightly held the plaint hit by Article 93 of the Limitation Act and the Appellate Court did not exercise the discretion in accordance with law. The learned counsel for the applicant further contended that the appellate Court has wrongly and incorrectly observed that the appellant/plaintiff had come to know regarding the Sale Deed in the year 1998, therefore, the order of the appellate Court is liable to be set-aside. In support of his contention, learned counsel has placed reliance on the case of Maulana Nur-ul-Haq v. Ibrahim Khalil (2000 SCMR 1305).

6. On the other hand learned counsel for the respondents argued that the respondents/plaintiffs not only sought declaration in respect of documents executed on 21.11.1979 and its cancellation but also declaration of his right as legal heirs of deceased Jamaluddin original owner of the land in question and they came to know about the fraud committed with them in 1997, as such suit filed on 09.2.2009 was well within time. He also urged that for cancellation of document and deciding title of the plaintiffs only civil Court has jurisdiction which was rightly invoked by the respondents/ plaintiffs.

7. Learned State Counsel supported the impugned Judgment.

8. I have given my patience hearing to the arguments advanced by the parties counsel and have gone through the case record. The findings of trial court and contention of learned counsel for the applicant regarding application of Article 93 of Limitation Act in the case in hand is devoid of force for the reasons that first of all it is mentioned in para-7 of the plaint came to know about denial of their right when defendants in September, 1997 tried to dispossess them from the suit land and thereafter on 12.9.1997 the notables of their community held faisla in this context.

9. Besides, seeking declaration and cancellation of registered sale deed dated 21.11.1979 and revenue entries recorded on the basis thereof, but has also sought declaration of their right of inheritance in property in dispute. It is settled law that limitation does not apply in cases of inheritance, in this regard reliance is placed on case of Nazeer Hussain and 4 others v. Muhammad Iqbal and others (2007 SCMR 729) Further reliance is also placed on case of Rehmatullah and others v. Saleh Khan and others (2008 MLD 278) wherein it is held that in case of inheritance of property left by a Muslim right holder, the time for filing a lis would not expire and it is a continuous right and every adverse entry in revenue record would give him fresh cause of action and his suit would be within limitation, thus the suit filed was well within time even if limitation is reckoned from the date of knowledge as 06 years' time period is provided under Article 120 of Limitation Act for seeking declaration of right.

10. So far jurisdiction of trial court is concerned in the case in hand there is no simple question as to correction of revenue entries but the registered sale deed followed by mutation entries in the record of rights. There is legal question of cancellation of registered sale deed and declaration of right of respondents/plaintiffs in the suit land which was beyond the competency of Revenue form there is one provision under section 53 of Land Revenue Act which is to be read in conjunction with section 42 of the Specific Relief Act whereby declaration of right or legal character is to be sought from the civil Court, as such the jurisdiction of civil Court was rightly invoked and the attending circumstances of the case did not warrant in favour of revenue form to invoke the jurisdiction in such matters. No illegality or irregularity is found with impugned order therefore, while discussing the Revision Application the order of learned appellate Court is maintained with modification to frame the issues.

11. The defendants who are applicants in this case are directed to appear before the trial Court and file Written Statement within 30 days in compliance of Order VIII, Rule 10, C.P.C. The parties through their advocate who are present in the Court are directed to appear before the trial Court on 13.4.2016 and no Court motion notice is required to be issued to them. The trial Court is also directed to proceed the matter expeditiously and conclude the trial preferably within 04 months. ZC/Q-3/Sindh Revision dismissed.