1989 PLP 1524 (SCMR)

SAAD SAOOD JAN, J.‑‑The dispute in this petition for special leave to appeal relates to the property left by Noor Muhammad son of Nathu who died issuless on 13‑11‑1956. On 29‑4‑1958 a mutation of inheritance was attested whereby 1/4th of the property left by him was given to his widow Mst. Nek Bibi and the remaining share was recorded in the name of his paternal aunt, Mst. Fatima. Mst. Fatima gifted her share to her son Noor Muhammad, respondent No.l on 10‑5‑1963. On 26‑4‑1966, respondent No.l sold his share to Imam Din, father . of respondent No.2. On 26‑7‑1972, Mst. Bibi brought a suit for a declaration that she was the real sister of Noor Muhammad son of Nathoo and as such on his death she had become the owner of 3/4th share in the land left by him. The suit was decreed by the trial Court after holding that Mst. Bibi being the sister of Noor Muhammad son of Nathoo excluded Mst. Fatima who was comparatively more distantly related. From the judgment of the trial Court, the respondents preferred an appeal but it was dismissed by the Additional District Judge They then filed a revision petition in the High Court. A learned Single judge accepted the revision petition, set aside the judgments of the subordinate Courts and dismissed the suit on the ground that it was barred by time. Mst. Bibi and Mst. Naik Bibi seek leave to appeal from the judgment of the High Court.

2. The suit filed by Mst. Bibi was one for seeking a declaration. The learned Single Judge took the view that as the suit had not been brought within 6 years of the attestation of the mutation on 29‑4‑1958, it was out of time. Learned counsel for the petitioners states that he should be permitted to amend the plaint so as to seek the relief of possession. He supports his request by reference to a judgment of this Court in Mst. Ghulam Bibi v. Sarsa Khan (P L D 1985 S C 345).

3. In support of this petition it is contended that mere attestation of A mutation on 29‑4‑1958 whereby Mst. Bibi was excluded could not be treated as the starting point for limitation against her and that the first hostile act against her interest took place on 10‑5‑1963 when Mst. Fatima made a gift of her share to her son. Since the suit was brought within 12 years of this date, it could not after the amendment of the plaint, be treated as out of time. In support of this contention reference has been made to the decision of this Court in Najabat v. Saban Bibi (P L D 1982 S C 187).

4. The contentions raised in support of this petition need examination. Leave to appeal is granted. Security for cost in the sum of Rs.5,

000. The interim order already made to continue. M.A.K./B‑101/S Leave granted.