1989 PLP 165 (MLD)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S.115‑‑Revision‑‑ Courts below while recording concurrent findings of facts had neither misread nor misconstrued evidence nor kept any material piece of evidence out of consideration‑‑Judgment and decree also not suffering from any material irregularity or illegality‑‑Interference declined in revision. Malik Amir Hussain Joya for Petitioner. Ghulam Hussain Malik for Respondents. Date of hearing: 29th January, 1989. The petitioner's suit for declaration, challenging the legality of gift made by his father namely Fateh Muhammad in favour of respondents, his other sons to the exclusion of the petitioner has been dismissed by the learned trial Court by judgment dated 22‑3‑1988 which was assailed in appeal before the learned lower appellate Court which was also dismissed through judgment dated 4‑7‑1988.

2. Learned counsel for the petitioner argued that the finding of the Courts below that the suit was not maintainable in the present form holding that the petitioner was not in possession of the land, is based on misreading inashiuch as the possession of land way; with the petitioner at the time of filing the suit which was taken over by the respondents during the pendency of the suit which fact was apparent from statement of the petitioner.

3. I have examined the statement of petitioner made by him as P.W.1. The said statement was given on 2‑10‑1986. He stated that for the last one year the possession of land was with respondent No.

1. The suit was filed on 14‑12.1985. Even if the said statement of the petitioner is taken as correct, then the possession of respondent No. 1 over the land in dispute is established at least from October, 1985 and as such it was rightly held that the suit was not maintainable because petitioner was out of possession of the land when it was filed.

4. Learned lower appellate Court also held that the order for sanctioning the mutations on the basis of gift made by Fateh Muhammad in favour of respondents was passed on 30‑9‑1966 and. the suit under Article 120 of the limitation Act was hopelessly time‑barred, as the petitioner when appeared as P.W. 1 did not state anything as to when he learnt about the gift mutations in dispute. I have examined the evidence produced by the parties. In the plaint, the case made out by the petitioner was that he had been cultivating the land and after the death of their father the parties through family partition, partitioned the land and each of the parties occupied the portion of land falling to his share which was in his possession. He also averred that when he collected bricks at the spot to raise construction over his share of land, he was told by respondents that they were owners of the land through, gift and it was then that he inquired from Patwari and came to know about the sanction of mutations of gift based on fraud which were fraudulently got sanctioned by respondents. In the statement as P.W. 1 the petitioner did not state anything about these facts. He even did not given any date on which he came to know about the said fraud. It has been rightly argued by learned counsel for the respondents relying upon judgment reported as Said Rehman and others v. Mst. Balo and others 1973 SCMR 261 that in such a case if the plaintiff does not specify the date on which the fraud came to his knowledge the suit can be held to be barred by time.

5. Even otherwise, learned counsel for the petitioner could not give any plausible explanation as to why after death of Fateh Muhammad who according to him died five years after the mutations of gift sanctioned on 30-9‑1966 did not take any steps for getting mutation of inheritance entered and sanctioned if according to him there was no gift made by Fateh Muhammad, his father.

6. Learned counsel for the petitioner could not succeed in satisfying me that the two Courts below while recording concurrent findings of facts have either misread, misconstrued the evidence or that any material piece of evidence has been kept out of consideration. The impugned judgments and decrees do not suffer from any material irregularity and illegality, calling for interference under section 115, C.P.C. The revision petition fails which is hereby dismissed leaving the parties to bear their own costs. M.Y.H./S-363/L Petition dismissed.