1994 PLP 1217 (MLD)

This revision petition arises out of a suit for declaration and permanent injunction filed by the respondents on 31-10-1978 in the Court of the Civil Judge, Mianwali. They claimed to be owners in possession of land measuring 46 Kanals 2 Marlas situated in village Hernoli, Tehsil and District Mianwali. The suit was resisted by the petitioners who filed their written statement in the Court which gave rise to the following issues:

(1) Whether the description of the suit land is wrongly given in the plaint? If so, with what effect? OPD. (2) Have the plaintiffs paid insufficient court-fee? OPD (3) Whether the defendant Sardar Khan made gift of the suit property to Aman-Ullah and others vide mutation dated 20-2-1958? (4) If the above issue proves in positive, whether defendant Sardar Khan was no more competent to sell the suit land to the plaintiffs vide the registered sale-deed dated 7-11-1958? OPD (5) Whether the plaintiffs purchased the suit land from defendant No.1 as per registered sale-deed dated 7-11-1958? OPP (6) Whether the said registered sale deed was made nullity by the plaintiffs in the circumstances narrated in paragraph No.5 of the plaint and as such the plaintiffs are estopped to file the suit? OPD (7) Whether the suit land was mortgaged with the plaintiffs and the same has been redeemed? If so the effects on the present suit? OPD (8) Is the suit barred by limitation? OPD (9) Relief. After recording evidence of the parties the trial Court decided Issues Nos.1 and 2 in favour of the plaintiffs/respondents and Issues Nos.3 to 6 in favour of the defendants/petitioners. Issue No.7 was not pressed. Issue No.8 was also decided in favour of the defendant and the suit was held to be barred by time. On the above findings the trial Court dismissed the suit vide the judgment and decree dated 22-5-1980. The respondents filed an appeal which was accepted by the learned District Judge vide his judgment and decree dated 15-9-1981. The appellate Court held that the suit was within time and that the gift mutation dated 20-2-1958 was not valid. It was also held by the appellate Court that the land was subject to mortgage and after redemption in the year 1978 the plaintiffs/respondents got fresh cause of action. The petitioner's learned counsel submits that the trial Court had rightly recorded findings on issue No.8 in favour of the petitioners holding the suit to be barred by time. The appellate Court acted with material irregularity in reversing the said finding. He further submits that the trial Court had decided issue No.3 in favour of the petitioners after proper appraisal of the evidence and that the appellate Court grossly erred in law i in reversing the findings of the trial Court on the said issue.

2. On the, other hand, the respondent's learned counsel submits that there was no gift made in favour of the petitioners/defendants. He adds that the property was already mortgaged with the respondents/plaintiffs who were in physical possession of the same. They never delivered possession of the same to the donees, therefore, there was no valid gift under the law. He further submits that even otherwise the Tamleeq was undone by the subsequent return of the property to Sardar Khan as is evident from the mutation Exh. D.2. He submits that the trial Court did not give any specific finding regarding validity of the gift. However, the appellate Court has specifically held that there was no valid gift. He submits that the findings of the appellate Court are in accordance with the law and do not call for any interference by this Court. Lastly he submits that the suit was filed within a few months of the redemption of the property which had taken place in the year 1978. Prior to that, the respondents were in physical possession of the land and there was no threat to their title. The threat came for the first time through the order whereby the property was redeemed and the respondents were directed to deliver possession of the property without payment of mortgage money.

3. The respondents are proved to have purchased land measuring 80 Kanals including the disputed land from Sardar Khan through sale-deed Exh.Pl the validity whereof was never challenged by Sardar Khan or his children. So, they are in possession of the disputed land as owners. The threat to their title came when the mortgage in their favour was got redeemed and they were directed to deliver possession to the mortgagor without any payment of mortgage-money. They promptly filed the suit which was within time from the date of accrual of cause of action. The appellate Court has rightly held that the gift mutation dated 20-2-1958 in favour of the petitioners was void and that the respondents who were lawful owners of the disputed land on the basis of the sale-deed Exh. Pl had filed their suit within time. I do not find any valid reason to interfere in the judgment and decree of the appellate Court. Resultantly this revision petition fails and is dismissed, leaving the parties to bear their own costs. H.B.T./S-431/L Revision petition dismissed.