2004 PLP 1133 (CLC)

17 Nikahnama Exh.P.21 "S/2" 18 Discharge Certificate Exh.P.22 "S/3" 19 Discharge Certificate Exh.P.23 "S/4" 20 Telegram Exh.P.24 "S/5"

7. Or, the other hand; defendant No.1 appeared as D.W.1 and brought on the record the following documentary evidence:, -- S.No. Documents Exhibit Annexure 1 Mutation No.584 Exh.D.1 "T" 2 Mutation No.585 Exh.D.2 "U" 3 Mutation No.294, dated 16-6-1902 Exh.D.3 "V" 4 Copy of Case No.470 Exh.D-4 "W" 5 Copy of Case No.72 Exh.D.5 "X" 6 Copy of gift deed Exh.D.6 "Y" 7 Copy of Case No.322 Exh.D.7 "Z" 8 Copy of Appeal No.96 Exh.D.8 "AA" 9 Copy of Settlement Record, 1905-06 Exh.D.9 "BB" 10 Copy of Mutation No.519 Exh.D.10 "CC" 11 Copy of Mutation No.614 Exh.D.11 "DD" 12 Copy of Mutation No.615 Exh.D.12 "EE" 13 Copy of Pedigree table of Sikandar Exh.D.13 "FF" 14 Copy of Mutation No. 181 Exh.D.14 "GG" 15 Copy of Mutation No.19 Exh.D.15 "HH" 16 Copy of statement of Muhammad Ashraf, dated 27-6-1994 Exh.F.16 "II" 17 Copy of Mutation No.269 Exh.D.17 "JJ" 18 Copy of Mutation No.280 Exh.D.18 "KK" 19 Copy of entry in the Cantonment Record of House No.51 to

55. Exh.D.19 "LL"

8. After completion of evidence and hearing the parties, the trial Court decided Issues Nos.1 to 8, 10 and 11 against the plaintiff/ petitioner and dismissed the suit. An appeal was preferred by the petitioner which was decided by the Additional District Judge, Rawalpindi vide his impugned judgment and decree, the appeal was also dismissed.

9. Through the present revision petition, the judgments and decrees of the two Courts below are assailed by the petitioner.

10. The petitioner's learned counsel argued that the decision of the two Courts below on Issue No. 1 was erroneous and based on misapplication of law. It was argued that the suit filed by the petitioner was relating to inheritance, as such, no limitation was provided, therefore, the suit was well within time: that both the Courts below were not legally justified to hold that the suit of the petitioner was barred by time. It was also argued that question of limitation was not validly determined and the mutations which were part of the Revenue Record, were not the primary documents, for a title, as according to the learned counsel, the Revenue Record was not a primary document showing the title but these are maintained under the Land Revenue Act for the purpose of determining the land revenue and at least these had evidentiary value. Next it was argued that the previous statement of P.W.1 was not proved in accordance with law and it could not be relied upon by the two Courts below as he was not confronted with the portion of the statement which was used by the two Courts below against the plaintiff/petitioner. In support of his contentions, the petitioner's learned counsel relied on the judgment in the case of Hayat Gul deceased through Motarim Gull v. Mst. Rahm Bibi PLD 1997 SC 879, Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1, Nazir Ahmad v. Abdullah 1997 SCMR 281, Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Mst. Noor Fatima v. Begum Bibi 1990 SCMR 629.

11. On the other hand, learned counsel for the respondent No.1 has argued that it was not proved that the petitioners were the collateral of Sikandar deceased. Secondly, Sikandar deceased was occupancy tenant and after his death in 1946, this right devolved upon his wife Mst. Naiko. After termination of occupancy tenancy through an amendment in the Punjab Tenancy Act, Mst. Naiko. paid the price and became absolute owner of the property. She gifted out her property and vide a registered gift-deed dated 8th February, 1966, this gift-deed was challenged by Jahandad through a civil suit. The petitioners claimed that Jahandad was the real brother of their father. In the said suit petitioner No. 1 Muhammad Ashraf has appeared as witness on behalf of Jahandad as P.W.2. After loosing that case another suit was filed by Suba and others again challenging the gift-deed dated 8th of February, 1966. This suit was also dismissed. An appeal was preferred by Messrs Suba and others against Mst. Naiko and defendant No.1. Appeal also failed. All these facts were in the knowledge of the petitioners. That they did not challenge the gift-deed and filed the suit on 19th of March, 1990. Relying on Articles 91 and 120 of the Limitation Act it was argued by the learned counsel for the respondent that a registered gift-deed dated 8th of February, 1966 could only be challenged within three years according to Article 91 of the Limitation Act, in any case, if it is taken to be a suit for declaration limitation would be 6 years which obviously expired in the year 1972 and filing the present suit after 24 years would make it manifestly barred by limitation.

12. I have considered the arguments of both the parties and examined the record. Before taking up the question of limitation, I would take up the question whether petitioners are the collaterals of Sikandar and if they are proved as such, whether any estate was available for inheritance to the petitioners. The case set up by the petitioner was that Sikandar son of Ali Bahadar was owner in possession of land measuring 52 Kanals, 15 Marlas and houses situated in Revenue Estate of Village Topi Tebsil and District Rawalpindi. The contesting defendant/ respondents denied and pleaded that Sikandar son of Ali Bahadar was merely an occupancy tenant of the land described in the suit. On his death the occupancy right devolved on Mst. Naiko as his widow. M t. Naiko deposited compensation in accordance with Punjab Tenancy Act and acquired proprietary rights in respect of said land and became the owner of said land. To prove their case one of the petitioners Muhammad Ashraf appeared as P.W.1. He has stated only that when Sikandar died his property devolved on his father and uncle Jahanead and the widow Mst. Naiko. The documentary evidence which was brought on record were Exh.P.I to Exh.P.l

7. The relevant documents for purpose of ascertaining the ownership of Sikandar were Mutation No.519 Exh.P.l0, Mutation No.520 Exh.P.11, copy of Misl-e-Haqiat Exh.P.12, Copy of Jamabandi for the year 1946-47, Exh.P.13,' again copy of Jamabandi for the year 1946-47 Exh.P. 14 and copy of Jamabandi for the year 1962-63 Exh.P.l

5. Admittedly Sikandar died in the year 1946 and vide Exh.P.10 Mutations Nos.519 and 520 were made in the name of Mst. Naiko, his wife, according to the Customary law. Exh.P.12 copy of Misl-e-Haqiat for year 1956 shows Mst. Naiko widow of Sikandar as full owner. Exh.P.13, copy of Jamabandi for the year 1946-4.7, shows that the land was in possession of Sikandar son of Ali Bahadar as Mauroosi occupant. Exh.D.9, copy of Misl-e-Haqiat of 1905 1906 shows that Ali Bahadar and Meer Zaman son of Fateh Noor were in possession of the property as Mauroosi. Sikandar was the son of Ali Bahadar. Therefore, from the evidence on the record it is proved that possession of Sikandar in respect of the suit-land. was as a occupancy tenant. The right which Mst. Naiko acquired after his death in 1946 was that of an occupancy tenant. Jamabandi for the year 1962-63 Exh.P.15 shows that Mst. Naiko widow of Sikandar was entered as a full owner and Jahandad son of Ali Harder who was stated to be the uncle of petitioners was in possession of property as "Ghair Mauroosi". A5 no other evidence was brought on record, therefore, version of the defendants that Sikandar was in occupancy tenant and when, the defendant No.1 appeared as D.W. 1 he categorically stated in examination-in-chief that Sikandar had possessed the land as occupancy tenant and died in the year 1946 and after his death the land was mutated in the name of Naiko who in the year 1956 paid the entire compensation to the Government and acquired the ownership. This part of the statement was not challenged in cross-examination. True that through oral testimony ownership is not proved but at the same time in the instant case, the burden was on the plaintiff to prove that Sikandar was absolute owner as pleaded by them, and that Mst. Naiko did not acquire proprietary rights subsequently by making compensation to the Government. No such evidence has been produced by the plaintiff/petitioners. On the contrary, the plea of the defendant/ respondent that Sikandar was only an occupancy tenant is proved from A the evidence mentioned hereinbefore. It is also admitted that Mst. Naiko died in the year 1970 and that if it is taken that she was a limited owner, the succession of last male owner i.e. Sikandar would deem to open in the year 1970 but at that time no property under the occupancy tenancy was available because prior to 1970 occupancy tenancy was converted into an absolute ownership of Mst. Naiko as back as in 1956. Thus, I find that no property for the purpose of inheritance was available to the persons claimed to be the legal heirs of Sikandar as collateral.

13. The next question is whether petitioners were collateral of Sikandar, deceased. To prove their contentions, the petitioners brought on record pedigree table Exh.P.4 of year 1860, pedigree table of 1905-1906 Exh.P.5, pedigree, table of year 1950-51 Exh.P.6, Naqsha Alaf Exh.P.7 and pedigree table 1990-91 Exh.P.17. the petitioners claim to be the sons and daughters of Muhammad Khan. All these pedigree tables do not help the petitioners because on reading of Exh.P.17, the name of Muhammad Khan is reflected. This pedigree table is of the year 1990-91. it shows that Muhammad Khan was son of Ali Haidar. In the main pedigree table which is for the year 1950-51 name of Muhammad Khan is not shown as a legal heir of Ali Haidar. Case of the petitioner is that this was an omission. But it is also brought on record that Muhammad Khan, the father of the petitioner filed a suit against Jahandad who inherited the entire property of his father Ali Haidar claiming to be the owner of Ali Haidar. This suit was dismissed. However, during pendency of appeal when Jahandad had died, a compromise was shown to be effected between widow of Jahandad and Muhammad Khan and the appeal was decided on the basis of a compromise brought on the record. In the said compromise Mst. Channan Bibi admitted the status of the father of the plaintiff as brother of her deceased husband. This proves that Muhammad Khan, the predecessor-in-interest of the petitioners was taken as a son of Ali Haidar. The fact that Muhammad Khan is proved to be the son of Ali Bahadar, may be there, but it is not enough to claim the status of a collateral. Exh.P.5 shows that Ali Bahadar was a son of Fateh Noor having three brothers namely Ali Gauhar, Meer Zaman and Muhammad Khan. In order to claim the right as a collateral by legal heirs of Ali Haider it was necessary for them to prove on record that Ali Gauhar, Meer Zaman and Muhammad Khan had no successors. In the absence of all this evidence it is not possible to hold that the petitioners are the collaterals of Sikandar deceased.

14. Next comes the question about the limitation. The suit filed by the petitioners was for the cancellation of the documents and also seeking inheritance. The documents cancellation whereof was sought,' were principally a registered gift-deed dated 8th of February, 1966 and the subsequent mutations, transfer instruments. Admittedly, a suit for cancellation of an instrument falls within the ambit of Article 91 of the C Limitation Act, 1908 and the period for such a suit provided is three years computable from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him. It is clear from Exh.D.5 that Jahandad the uncle of the petitioners filed a suit in 1966 seeking the cancellation of the gift-deed, dated 8th of February, 1966 made by Mst. Naiko against the defendant. In the said suit petitioner No.1 Muhammad Ashraf appeared as P.W.2 on 25th of January, 1967. He stated that Sikandar had died in year 1946 when he was of 7 years of age. He also stated that he had no relationship with Sikandar nor he had any kind of relationship with Mst. Naiko. Without going into the merits of the deposition of petitioner No.1 it would be sufficient to infer that petitioner No.1 had the knowledge about the gift deed, dated 8-2-1966 purported to have been executed by Mst. Naiko in favour of defendant No.

1. Thus, he, was required to file the suit within a period of three years but he chose not to do so till 1990 when he filed the present suit. Another conspicuous fact is that the father of the petitioners, Muhammad Khan and his father during their life time did not challenge the acquisition of tight by Mst., Naiko as the owner of the property nor her right to alienate the same through a gift-deed, dated 8-2-1966. The petitioners filed the said suit after 24 years of execution of gift and subsequent instrument of transfer. Therefore, the suit of the petitioners is manifestly barred by time. The arguments of the in learned counsel that in a suit for inheritance no limitation is applicable; is misconceived. As already held above, that no estate of Sikandar was available for inheritance, therefore, merely describing a suit for inheritance it would not bring the suit within the four corners of limitation if it is barred by time in its essence. As regards he arguments of learned counsel that Revenue Record was not a record of title. It would suffice to observe that this issue is not involved because the basic instrument which is assailed through the suit is not a part of the Revenue Record it is a registered gift-deed duly registered under the Registration Act.

15. The up shot of the above discussion is that both the Courts below have rightly decided the issues and the judgment of two Courts below does not call for any interference. The revision petition is without any merit.' Resultantly, the same is dismissed. M.H./M-98/L Revision dismissed