1987 PLP 66 (SCMR)

(5) Whether Mutation No. 16, dated 8‑10‑1953, was sanctioned with collusion, is fraudulent, incorrent, illegal; null and void.? (6) Whether the plaintiff is owner in possession? The learned Civil Judge found that the suit was within time as regards Issues Nos. 5 and 6 he found that the defendants had not proved their relationship with Qutubuddin deceased. He went on to hold that since the plaintiff was the widow of Qutubuddin, so she was entitled to the whole share of Qutubuddin deceased and the Mutation No. 16, dated 8‑10‑1973 was liable to be set aside. It was also found that the plaintiff is the owner in possession of the suit land. In view of these findings, the suit was decreed in her favour and against the defendants vide judgment, dated 25‑9‑1980.

4. On appeal, the learned Additional District Judge, Sargodha, allowed the appeal simply on the finding that the suit was time‑barred. In this connection, he observed:‑‑ "The mutation in question was sanctioned on 8‑10‑1953 while the suit was filed on 7‑9‑1977 after about 24 years of the opening of the succession. The suit is patently time‑barred and the learned Trial Judge has wrongly decided this issue that the limitation starts from the knowledge of the parties and the plaintiff /respondent had previously no knowledge of the mutation. In the opinion of the learned Civil Judge, the suit of the plaintiff /respondent was not time‑barred. Admittedly, mutation was sanctioned on 8‑10‑1953 and if the period of limitation is calculated, the suit should have been filed within six years from the date of mutation as laid down under Article 120 of the limitation Act. As such we feel that the learned trial Judge has committed an illegality in deciding the Issue No. 1 in favour of the respondent /plaintiff. The findings of the learned trial Judge is accordingly reversed on Issue No. 1 and it is held that the suit of the plaintiff /respondent was time‑barred." The judgment and decree of the lower Court was, accordingly, set aside and the appeal accepted. The petitioner challenged the said judgment by a revision petition, which failed; hence this petition for leave to appeal.

5. Mr. Muhammad Saeed Akhtar, counsel for the petitioner, in support of this petition for leave to appeal, has been heard and Khawaja Muhammad Farooq, who appeared in support of the caveat lodged by the respondents, has also been heard. 6.This Court has laid down in Mst. Izzat v. Allah Ditta P L D 1981 S C 165 that the date of accrual of cause of action, in such cases, is not necessarily relatable to date of deed which has allegedly been obtained by misrepresentation but from the date on which the possession of the plaintiff was threatened. The following passage of this judgment is relevant for the purpose:‑‑ "The essential relief claimed was with regard to the maintenance of possession and issuance of injunction in this behalf, against the defendant. It would be seen that the cause of action in this behalf, in the light of the facts and circumstances, already analysed, accrued, to the appellant, firstly, on account of the effort made by the defendant to disturb the then existing status quo through the sanction of the mutation. The mutation was sanctioned on 19‑5‑1969, therefore, this would be one relevant date for the accrual of the cause of action, but as is well‑known, the cause of action may not be constituted by a single act, but consists, in reality of bundle of facts of varied types. In the present case the averment made in the plaint that after the sanction of the mutation notwithstanding the appellant's disclaimer of the right of the respondent and warning him against any interference regarding suit land, he had insisted upon denying the appellant's right, and as stated by the appellant, this had necessitated the filing of the suit. It was in this context that the last sentence used in the prayer paragraph, namely IS PER KABZA KARNAY SAY TA DAWAM BAZ MAMNOO RAHE gets added significant. The plaintiff in this case as already held, was not bound to seek the cancellation of the deed through a suit filed for that purpose. She could wait till the threat to her possession had become not only visible, but more real, and that would be the point when the right to seek the reliefs claimed in the suit would accrue to her". In this case, we find that the learned Additional District Judge has not at all adverted to this aspect of the matter. He was influenced by the fact that the suit was filed after about 24 years of the opening of the succession, from which circumstance, he presumed that the plaintiff must have been aware of the mutation. Since the mutation was sanctioned on 8‑10‑1953, the same could be challenged within six years under Article 120 of the Limitation Act. However, he did not at all refer to the claim of the plaintiff that she has throughout been in possession of the land that it was only a month or so before the instituted the suit that the defendants attempted to dispossess her on the basis of the mutation, dated 8‑10‑1953, which was admittedly sanctioned in her absence. Unless this factual aspect of the case set up by the plaintiff was not examined and found to be untenable the learned Additional District Judge could not have set aside the finding of the learned trial Court on this issue.

7. We would, accordingly, convert this petition into an appeal and allow it in terms that the judgment of the learned Additional District Judge and that of the High Court shall be set aside and the case will be remanded back to the Additional District Judge, Sargodha to hear the appeal afresh and to decide the question of limitation in the light of the observations made above.

8. The appeal should be decided by the learned Additional District Judge, Sargodha, within three months. The parties, who are present, have been directed to appear before the learned Additional District Judge on the 18th February, 1984 and no further notice to them may be issued, as their learned counsel have accepted notice on their behalf 1

9. We understand that a receiver has been appointed in connection with the proceedings taken under section 145, Cr.P. C. and is in possession of the land in dispute. Status quo to continue till the disposal of the appeal. The parties are left to bear their own costs. M. I. Order accordingly.