2020 PLP 2069 (YLR)

RAJA SAEED AKRAM KHAN, J.

The titled appeal, by leave of the Court, arises out of the judgment and decree passed by the High Court on 29.12.2018, whereby the appeal filed by the appellants, herein, has been dismissed.

2. The succinct facts forming the background of the case in hand are that the predecessor of respondents Nos.1 to 7, herein, filed a suit for possession along with cancellation of the sale-deed executed on 6.9.1953, in respect of the land bearing Khewat No.376/295, comprising of different survey numbers, total measuring 43 kanal, 3 marla, situate at village Pallandari, before the Court of Civil Judge Pallandari on 01.12.2005. It was contended that the plaintiff/ predecessor of respondents Nos.1 to 7, herein, was the owner of the land measuring 5 kanal, 8 marla land, out of the total land and defendants Nos.1 to 2 therein, have no concern with the disputed land, who have illegally occupied the same to the extent of the land measuring 2 kanal, 14 marla. The plaintiff further claimed that the land measuring 5 kanal 8 marla was illegally occupied by the father of defendants Nos.4 to 10, therein, who, in the age of minority of the plaintiff and his brother, defendant No.3, without obtaining the guardianship certificate, had executed the sale-deed to the extent of 2 kanal, 14 marla, which is liable to be cancelled. After necessary proceeding, the trial Court dismissed the suit to the extent of defendants Nos.1 and 2, therein, whereas the same was decreed to the extent of defendants Nos.3 to 10 and the sale-deed dated 5.9.1953 was cancelled, vide judgment and decree dated 31.05.2016. Against the judgment and decree of the trial Court, an appeal was filed before the District Judge Sudhenuti, which was dismissed on 12.1.2018. Second appeal filed in the High Court met the same fate, vide impugned judgment and decree dated 29.12.2018, hence this appeal by leave.

3. Syed Nazir Hussain Shah Kazmi, advocate, counsel for the appellants, submitted that the impugned judgment is based on misconception of law and the facts. He added that the Courts below have failed to take into account that the sale-deed executed in the year 1953 has been challenged after a period of more than 50 years on the simple ground that the plaintiff was minor at the time of registration of the sale-deed. He further added that if the argument is accepted as it is, even then the respondents failed to offer any plausible explanation while filing the suit beyond considerable delay but all the three Courts below have not attended to the question of limitation in a legal manner. The learned counsel further submitted that at the time of registration of the sale-deed, the Guardians and Wards Act, 1890, was not holding the field within territory and in this respect, the question of guardianship certificate does not arise, however, an application on behalf of the minor through his brother was moved for appointment as guardian at the time of registration of the sale-deed before the Sub-Registrar and the application was made part of the sale-deed and in this way, impliedly the requirement was fulfilled but all these legal questions escaped the notice of the Courts below. The learned counsel referred to and relied upon the cases reported as Nazeerullah Shah Gardezi v. Jammu and Kashmir Liberation Cell and 6 others [2015 SCR 458], Muhammad Jamroze v. Raja Muhammad Sabir and another [2016 SCR 1150] and Muhammad Anwar Khan and 56 others v. Muhammad Sarwar Khan and 8 others [2017 SCR 733].

4. On the other hand, Sardar Nisar Ahmed Khan, advocate, counsel for the respondents, while controverting the arguments of the counsel for the appellants, submitted that the judgment passed by the High Court is perfectly legal, which is not open for interference by this Court. The learned counsel added that all the Courts below evaluated the material in a legal manner and rightly came to the conclusion that the sale-deed executed on behalf of a minor is nullity in the eye of law. The learned counsel added that a specific ground was taken in the plaint that immediately after getting the knowledge about the transaction, the predecessor of the respondents approached the Court of competent jurisdiction for cancellation of the sale-deed. He further added that admittedly the appellants are co-sharers and in such situation the question of limitation becomes irrelevant. The parties were in possession of different portions of the suit land and when the respondents came to know that the appellants were in possession of the land in excess of their legal share, they moved an application. In this regard, the learned counsel referred to and relied upon the cases reported as Lal Begum and 26 others v. Qayyum Khan and 6 others [2016 SCR 107], Kh. Muhammad Shafique and another v. Mahmooda Bibi and 2 others (2016 SCR 493), Muhammad Sadiq v. Muhammad Rafique and 19 others (2016 MLD 2050) Muhammad Siddique Khan and another v. Zareen Khan (2016 SCR 1712) and an unreported judgment of this Court delivered in the case titled Muhammad Shafique Khan and others v. Muhammad Saghir and others (Civil Appeal No. 11/2016, decided on 26.9.2018).

5. We have heard the learned counsel for the parties and perused the record along with the impugned judgment.

6. The controversy involved in the matter is that a sale-deed was executed on 6.9.1953 on behalf of the predecessor of plaintiff-respondents, herein, who was minor at the time of execution of the sale-deed. Respondent challenged the said sale-deed by filing a suit on 1.12.2005. The sale-deed has admittedly been challenged after a considerable period of more than 50 years. The moot point involved in the case is the point of limitation, for resolution of which the averments made by the plaintiff in the suit are important, which are reproduced as under:-- As is evident from the above-reproduced averments, the plaintiff was well in the knowledge of the fact that the subject land was taken over by the defendant-appellants when he was minor, thus, under law, as soon as he became major, he had to file the suit computing the period the limitation from the date of attaining majoring under Article 142 of the Limitation Act, 1908, within a period of 12 years but he remained keeping mum and there is nothing on the record to show that he had ever tried for restoration of his possession over the suit land. Moreover, in para 5 of the plaint, the plaintiff alleged that he got knowledge of the sale-deed on 18.8.2005, when he obtained the copy of the sale-deed. It is amazing that the plaintiff alleges that he got the knowledge of the sale-deed obtaining the copy of the same but he has not disclosed as to how he got the knowledge of the disputed sale-deed, after which he obtained the copy of the sale-deed. Under the provisions of Order VII, Rule 6, C.P.C., it is necessary to mention in the plaint, the ground for exemption from delay in filing the suit. The statutory provision has been dealt with and interpreted by this Court in the case titled Raja Muhammad Aftab Ahmed and others v. Raja Muhammad Iftikhar Khan and another (Civil Appeal No.117/2019), decided on 28.1.2020), whereby it has been observed as under:- "...The careful examination of the plaint reveals that the plaintiff has neither mentioned any time or date regarding knowledge of the fraud alleged by him nor he has shown the ground upon which the exemption from limitation is claimed. According to the statutory mandatory provision of Order VII, Rule 6, C.P.C., in case the suit is instituted after expiry of the prescribed limitation then it is mandatory that the plaint shall contain sufficient grounds upon which exemption from such law is claimed. For convenience Order VII, Rule 6, C.P.C. is reproduced here under: - Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.'

6. Same like, according to section 18 of the Limitation Act, 1908, when a person by means of fraud has been kept out of the knowledge of any right or title due to concealment or fraudulently executed document, the limitation will be computed from the date when fraud has become known to the plaintiff. Thus, according to the statutory provisions, it was enjoined upon the plaintiff to clearly mention in the plaint that when and how he got the knowledge of the alleged fraud but amazingly the plaintiff-appellants have not adhered to the statutory provisions while drafting the plaint, thus, the plaint was suffering from material defect." As observed above, we have failed to find out any such element in the contents of above-reproduced two paragraphs of the plaint on which the plaintiff- respondents have heavily relied. On the strength of above, it can safely be held that the suit filed by the predecessor of the respondents was hopelessly time-barred and in deviation of the statutory provisions of law, without mentioning the material facts in his plaint, as he failed to offer any explanation of delay in filing the suit after more than 50 years of execution of the sale-deed, which is required to be dismissed. The case-law referred to by the counsel for the respondents is quite distinguishable and not helpful for the decision of the case in hand, therefore, we do not intend to discuss the same. The result of the above discussion is that the appeal is accepted and the impugned judgment and decree passed by the High Court as well as by the trial Court are set aside while holding that the suit before trial Court was filed beyond limitation, resultantly the same stands dismissed to the extent of the sale-deed dated 6.9.1953, whereas the findings recorded by the trial Court to the extent of dismissal of suit are upheld. No order as to costs. ZC/7/SC(AJ&K) Appeal allowed.