1980CLC205 (PLP)

One Mst. Rajji inherited from her father namely Muhammadi, the suit land situate in Chak No. 271-R. B. Tehsil and District Faisalabad. She died on 14th March, 1955. Respondent No. 1 is the husband and respondents No. 2 to 3 are sons of the deceased. This appeal arises out of the suit filed by the respondents on 31st January, 1974, for possession of the suit-land and for declaration that Mutation No. 231, sanctioned on 31st August, 1957 regarding gifts by her in favour of the appellant, of her share in the suit-land inherited by -her from Muhammadi is illegal, void and ineffective on their rights in the suit-land as heirs of Mst. Rajji. They averred in the plaint that Mst. Rajji had died before the date of attestation of the mutation and the appellant got the mutation sanction ed by fraud. The cause of action was claimed to have accrued to the respondents about 8 months before the institution of the suit, when they became aware of the fraud.

2. The appellants resisted the suit and asserted that Mst. Rajji along with her two sisters Mst. Rori and Mst. Umari, got the mutation, in question, sanctioned, alienating the land in their favour. They further contended that the respondents filed an appeal against this mutation before the Collector which was dismissed on 29th August, 1967 and thereafter on 24th January, 1968. the respondents compromised with the appellants. The learned trial Court held that the mutation was got sanctioned by the appellants after the death of Mst. Rajji by wrongful means and was thus invalid. According to the learned Civil Judge, the respondents came. to know of the mutation on 3rd May, 1961, when they preferred the appeal before the Collector. The suit was governed by Article 120 of the Limitation Act and having been filed after more than 6 years of the date of knowledge was barred by time. The suit was thus, dismissed on 11th July, 1975 on the point of limitation

3. The respondents filed an appeal which was accepted by the learned Additional District Judge on 30th September, 1976 and the suit decreed in their favour. The learned first appellate Court was of the view that the mutation which was sanctioned about 21 years after the death of Mst. Rajji, showing the presence before the Revenue Officer, was clearly the result of fraud and thus was void ab initio to the extent it related to the share of the deceased. He further held that a void order has simply got to be ignored and no period of limitation would be deemed to have been prescribed for getting avoid order set aside. in 'his opinion the suit was governed by Article 144 and not by Article 120 of the Limitation Act. He maintained that the cause of action arose to the respondents on 3rd May, 1967 when the fraud came to their knowledge and the suit which was flied on 3rd January. 1974, within 12 years of this date was thus well within time. The judgment and decree of the learned Additional District Judge has been impugned through this appeal.

4. The only point which requires determination in this appeal is a to whether or not the respondents' suit was barred by time. In this respect the learned Counsel for the appellants argued that the mutation in question cast a cloud on the respondents' title, and they were therefore, bound to seek declaration to get the mutation declared void. It was further contended that the respondents are admittedly out of possession and the evidence on the record established that for the last 12/ 13 years the appellants never paid to the respondents their share of produce in the suit-land. 1n this view of the matter, according to the learned counsel, along with the declaration the respondents were also bound to sue for possession which they accordingly did. It was argued that two different reliefs are claimed carrying different periods of limitation and that each relief is to be governed by the period prescribed in the Limitation Act. For this proposition reliance was placed by him on Municipal Committee, Sialkot v. Sh. Ata Elahee (P L D 1956 Lah. 689). It was also contended that the cause of action arose to the respondents on 31st August, 1957 when the mutation in dispute was sanctioned, and in any case, the respondents became fully aware of this mutation on 3rd May, 1957, when appeal against this mutation was filed by them before the Collector. According to the learned Counsel cause of action arose to the respondents on 31st August, 1957 and in any case if not on this date then positively on 3rd May, '1967, when they became aware of the mutation. He vehemently argued that the suit for declaration having been filed after the expiry of more than six years was clearly barred by time, and as such, without getting the mutation declared as illegal through a declaration, relief by way of possession, could not be granted to them. 1n support of this contention, the learned Counsel referred to Haji Muhammad Hussain and others v. Malik Fateh Muhammad and other's (P L D 1953 B J 10) and Ahmad Din v. Muhammad Shafi and others (P L D 1971 S C 762).

5. It was also argued that full particulars of the property In dispute were not given in the plaint and the decree also lacked unnecessary particulars and was, therefore, incapable of execution.

6. The learned Counsel for the respondents on the other hand submitted, that the mutation was got sanctioned by the appellant by fraud ; the transaction was void and nullity in the eye of law and simply had got to be ignored. In any case, he further submitted that the limitation shall start from the date of discovery of the fraud and the suit was thus within time. In reply to the objection that the plaint did not embody necessary particulars of the suit land, he submitted that this point was not raised in the written statement and, therefore, could not be urged. 7. 1 have heard the learned counsel for the parties and examined the record. A concurrent finding has been recorded by both the learned Courts below, that the appellants fraudulently got the mutation attested 21 years after the death of Rajji, showing that sue herself appeared before the Revenue Officer and got it sanctioned. The facts proved on the record establish the commission of fraud by the appellants. In the circumstance of the case, this is a finding of fact. It is well established that the fraud vitiates even the most solemn transaction. The respondents were kept away from the knowledge of their right to file the suit because of the appellants' fraud. The time for the purposes of limitation, therefore, shall be computed from the date of discovery of the fraud by the respondents. In Ghulam Muhammad and others v. Hafiz Ahmad an others (P L D 1960 Lab. 1179), it was laid down that "1t cannot be expected that a reason should come to Court to get relief against an order of the existence. of which he had no knowledge." It is discernible from Muhammad Swaleh and others v. Messrs United Grain & Fodder Agencies ( P L D 1964 S C 97), that the order passed without notice to the party, against whom it was passed, was considered by the Supreme Court, as an order without the jurisdiction and it was observed that- " ... ..it should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it." However, in Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil and others (P L D 1975 S C 33) it .was held that an order obtained by fraud is not voidable but only void.

8. The learned Additional District Judge has held that the respon dents became aware of this fraud on 3rd May, 1967, when they filed an appeal before the Collector, against the mutation in question. I am in clined to agree with him that the starting point of limitation shall be 3rd May, 1967, and not the date of attestation .of the mutation, which was done behind the back of the respondents.

9. The case of the appellants is that the mutation cast a clog on the respondents' title and therefore, they were bound to sue for declaration and that in fact they filed a declaratory suit and sought possession by way of consequential relief. In Municipal Committee, Sialkot v. Sh.. Ata Elahee, it was held that where a plaintiff asks for two reliefs governed by two separate periods of limitation, then each relief is to be governed by its period prescribed in the Limitation Act. It was, therefore. argued that declaratory relief was governed by Article 120 whereas for the re covery of possession Article 144 will be attracted. The appellants' case is that mere suit for possession does not lie and the respondents must seek a declaration of their title and even if the limitation commenced from 3rd May, 1967, the suit filed on 3rd January, 1974, after the expiry of six years was barred by time. So far as the possession is concerned, it is to be noticed that the suit is well within 12 years. The appellants, therefore, can succeed on the score of limitation only if it is held that the seeking of declaration, is sine quo non, for the sustenance of the respon dent's suit. The following passage from s Story on Eq Jur., 3rd Edn., pp. 296-97, is highly instructive on this point :- "Where the illegality of the agreement, deed, or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the reason for the interference of Courts of Equity to direct it to be cancelled or delivered up would not seem to apply ; for in such a case, there can be no danger that the lapse of time may deprive the party of his full means of defence ; nor can it, in a just sense, be said that such a paper can throw a cloud over his right or title or diminish its security; nor is it capable of being used as means of vexatious litigation or serious injury. And accordingly, it is now fully established that in such cases, Courts of Equity will not interpose their authority to order a cancellation or delivery of such instruments."

10. Though the respondents in their suit prayed her declaration yet they were not bound . sue for it. A Full Bench of the Allahabad High Court in Shantha Nand Gir Chela and Mahant Gayenand Gir v. Basudeva nand (A I R 1930 All. 225), held that a plaintiff has only to state the facts correctly and it is for the Court to see what relief can be granted to him. In Muhammad llyas Hussain v. Cantonment Board, Rawalpindi (P L D 1976 S C 785) a plaintiff filed suit for declaration and permanent injunction but as the suit for declaration was hit by section 273 of Cantonment Act, he sought to drop the prayer for grant of declaration. In this respect the Supreme Court observed :-.- "It was, therefore, open to the plaintiff in the instant case to have dropped and given up the relief for declaration at any time during the course of proceedings in the suit and thus continue his suit for the relief for the injunction only." 11. 1 have examined the plaint. It is basically a suit for possession. The Court fee has also been paid, treating the suit as for possession. Though relief for declaration has also been prayed for but this prayer merely an act of superarogation and can be ignored by the Court. There is no dispute that the suit has been filed within 12 years of the date of filing of the appeal before the Collector, which was determined by the learned first Appellate Court as the date of disclosure of fraud to the respondent, under Article 144 of the Limitation Act, the suit is thus within time.

12. The case may also be examined from another angle. It is well established that unless a mutation entry has been incorporated in the Record of Rights, it has no presumption of correctness attached to it. Even the revenue Record of Rights does not create or extinguish a title. There is no evidence on the record that this mutation was incorporated in the Jamabandis. The disputed mutation, therefore, did not have the effect of extinguishing the respondents' title in the suit land. They are a co-sharer and under Article 144 of the Limitation Act were required to cue only when the possession of the defendants became adverse to them. The plea of adverse possession was, however, not raised by appellants, On the basis of this reasoning also, the suit is within time. - I have gone through the reports in Muhammad Hussain and Ahmad Din's cases refer. red to by the appellants' learned counsel. These precedents have no appli cability to this case.

13. The objection that particulars of property were not given in the plaint is also not tenable. These particulars are given in the mutation, which has been referred to in the plaint. The view taken by this Court in Fazal Hussain and another v. Abdul Hamid (P L D 1971 Lab. 89), was that a suit cannot be dismissed for insufficient description of the suit property.

14. For all these reasons the judgment and decree of the learned first appellate Court are upheld and the appeal is dismissed with costs. S. Q. Appeal dismissed.