2014 PLP 956 (YLR)

MALIK MANZOOR HUSSAIN, J.

The instant revision petition is directed against the judgment dated 30-5-2012 passed by the learned Appellate Court, whereby the appeal filed by the petitioners was dismissed and the decree dated 18-4-2011 passed by learned trial Court has been maintained.

2. Briefly, the facts giving rise to this petition are that petitioners filed a suit for declaration, challenging the validity of partition Mutation No. 1293 attested on 7-12-2001 and also questioned the inheri-tance Mutation No.2603 dated 17-8-2006 on the basis of sale Mutation No.1223 attested on 22-11-1935 attested in favour of predecessors of respondents. Relief of perpetual injunction as well as possession was also sought. The suit was contested by the respondents. After recording pro and contra evidence, the learned trial Court dismissed the suit through judgment dated 18-4-2011, against which appeal filed by the petitioners was dismissed through judgment dated 30-5-2012. Hence, this civil revision.

3. Learned counsel for petitioners contended that the suit property was purchased by the predecessors of petitioners from the predecessors of respondents through Mutation No.1223 dated 22-11-1935 and there left no share in suit-land, which was to be inherited by the respondents. Also the partition Mutation No.1293, attested on 7-12-2001 in favour of Shezad Mir, predecessor of respondents was wrongly attested. He was of the view that further transfer in the name of Sabit Khan through Mutation No.2604 was also of no legal effect, thus, the judgments of both the courts below are against record and the suit of petitioners was liable to be decreed as prayed for.

4. Conversely, the learned counsel for respondents argued that the Mutation No.1223 was not concerning the suit-land, he referred to the statement of ADK, PTV-2 in this respect. Further argued that possession of land remained with the predecessor of respondents as is evident from Revenue Record and now Sabit Khan is in possession of that. The predecessors of petitioners never challenged the possession or entries in favour of respondents predecessor in their life time and also contended that the suit was not only time-barred but even not maintainable.

5. Arguments heard and with the valuable assistance of learned counsel for the parties record perused. It is an admitted fact that the petitioners were never put in possession of property, which they have claimed to have purchased in the year 1935. Their predecessors never brought any suit in their life time. The partition proceedings of total khata measuring 478 Kanals were conducted in the year 2001 and on the basis of same Mutation No.1293 was attested in favour of Shezad Mir, the predecessor of respondents. The petitioners never challenged the partition proceedings in revenue hierarchy. The suit was brought in the year 2007 and that too when the property was transferred to one Sabit Khan, who purchased it through Mutation No.2604 entered in the year 2006. On the request of petitioners, the Patwari was directed for spot inspection, who confirmed the possession of property with Sabit Khan. The petitioners could not offer any plausible explanation for not filing the suit against Sabit Khan. The petitioners have also failed to justify that why they were out of possession from 1935 till filing of suit. They failed to prove at trial that what was the khata number or khasra number transferred through sale mutation of 1935. The ADK, who produced Mutation No.1223, categorically stated that the mutation did not contain the khata or khasra number of disputed shamilat land. He further stated that suit property bears Khata No.878, consisting of five khasra numbers and on comparison, Mutation No.223 did not pertain to this khata or khasra number. He particularly referred to Jamabandi Exh.P.W.2/3 for the year 1936-37.

6. Certain admitted and proved facts on record in the instant case are totally unavoidable. It is proved on record that physical possession of property remained with respondent's predecessor. The plaintiff's happened to admit the same in the evidence and that was why suit for possession was brought. Their predecessors and they themselves remained satisfied and silent for 72 years in spite of the fact that respondents predecessors and their vendor remained in physical possession of property. The petitioners/plaintiffs, therefore, cannot avoid the bar of limitation. In a similar case reported as "Muhammad Ali v. Hassan Muhammad" PLD 1994 SC 245, the august Supreme Court had taken notice of limitation and non-suited the plaintiffs on the ground that original owner had remained alive for 40 years. Reliance can also be placed on "Noor Bibi v. Fazal Hussain" 1998 SCMR 230 and "Nazar Gul v. Islam and others" 2008 SCMR 877 and "Jamila Khatoon v. Aish Muhammad" 2011 SCMR

222. The remedy in time-barred matters cannot be granted, as limitation bars remedy and may be, not the right.

7. In the given circumstances, the findings of learned trial Court and Appellate Court are based on correct appreciation of the material brought on record, which do not warrant interference by this Court. For the foregoing reasons, this petition is without any merit and is dismissed, with no order as to costs. AG/467/P Petition dismissed.