1988 PLP 807 (MLD)

AKHTAR HASSAN, J.‑‑This Letters Patent Appeal is directed against the judgment/decree dated the 14th of November, 1968 whereby R.S.A. No. 585 of 1964 was dismissed by the learned Single Judge affirming dismissal of the appellant's suit earlier ordered by the lower appellate Court after reversing the decree allowed to him by the trial Court.

2. It was a suit brought on 23‑5‑1963 for a simple declaration that inheritance of the appellant‑plaintiff's real paternal uncle Sardara dying issueless in 1951 was wrongly determined by the Assistant Collector in Mutation No.J0, dated 14‑12‑1952 by giving 1/4th to defendant Siddique and 1/4th to defendants Bashir and Nazir, who all being sons of two predeceased real brothers of the plaintiff were not entitled due to his own presence on the principle of nearer in degree excludes the more remote. He asserted that after allowing 1/4th to the deceased's widow Qadir Nishan, he alone was entitled to the remaining 3/4ths, but the mutation attested in his absence and without knowledge wrongly deprived him of 1/2 and instead gave it to defendants Nos. 1 to

3. He maintained that his appeal preferred against the mutation on 12‑5‑1962 was dismissed on 16‑6‑1962 being barred by limitation and hence the suit. He asserted that he was occupying the land whereas the defendants without being in possession were incorrectly claiming themselves to be the heirs of the deceased.

3. In the written statement the defendants‑respondents did not deny that they were the sons of pre‑deceased brothers of the plaintiff nor did they assert their own possession over the property. However, they pleaded estoppel against him on the ground that he had himself arranged the attestation of mutation in their favour consciously conceding them to be the deceased's heirs and, therefore, he was precluded to assail it after such a long time. They further contended that the present suit was as much barred by time as was his appeal preferred against the mutation after his 10 years' old a ‑quiescence. Lastly they urged that since the land in question was evacuee property, the civil Court had no jurisdiction to deal with it.

4. The following issues were framed:‑‑ (i) Whether the civil Court has the jurisdiction to try this case? (ii) Whether the plaintiff is estopped from the riling of this suit? O.P.D. (iii) Whether the suit is barred by time? O.P.D. (iv) Whether the suit is not maintainable in its present form? O.P.D. (v) Whether the defendants are entitled to a share in the inheritance of Sardar Muhammad deceased? O.P.D. (vi) Relief. The trial Court returned findings or. all these issues in favour of the plaintiff /appellant and decreed the suit declaring that he excluded the defendants being nearer in degree than them. In appeal, however, the learned Additional District Judge, Lyallpur upset the decree passed by the trial Court on the grounds that the plaintiff‑appellant was estopped from denying correctness of the mutation; the suit was barred by time; and that the defendants had been rightly given the share as heirs of the deceased. He proceeded to dismiss the suit. The R.SA. also met the same fate on the findings that the civil Court had no jurisdiction and further that the suit was barred by time. It was worth noticing that the concurred findings of the two Courts below, affirming jurisdiction m favour of the Civil Court, and that of reversal by the lower appellate Court on the point of estoppel, were ultimately upset by the learned Single Judge in the impugned judgment. He took the view that the land being still evacuee property was immune from jurisdiction of the civil Courts under the provisions of section 18 of the Pakistan Rehabilitation Act, 1956, section 25 of the Displaced Persons (Land Settlement) Act, 1958, and para. 46 of the Rehabilitation Settlement Scheme. As to point of limitation, disagreeing with the Courts below he held that attestation of mutation on 14‑12‑1952 was the terminus a quo for computing period of six years prescribed for such a suit under .Article 120 of the Limitation Act.

5. Syed Kalim Ahmad, counsel for the appellant, seriously assailed the correctness of the findings on both the points against him in the impugned judgment. He submitted that the whole gamut of law in the matter of applying Article 120 of the Limitation Act to declaratory suits seems to have undergone a substantial change and that lately date of mutation has not been invariably regarded as the point for starting limitation for such suits. He emphasized that in a case where it could be shown that the plaintiff was in possession either actually or even constructively in his capacity as a co‑sharer, the start of limitation under this Article was left to him on feeling aggrieved either of adverse entry or potential threat to his possession. Further he explained that cause of action being a bundle of acts, could not necessarily be pin‑pointed to the first of a series of acts constituting denial of his title, and that he may owing to his own complacency or convenience choose to treat any of them as substantial injury to his title for bringing a suit.

6. For invoking the above‑mentioned rule, it h5d to be shown if the appellant was in possession. Attention was drawn to para.7 of the plaint where such an assertion was made. In the written statement the respondents although in usual fashion denied para. 7 of the plaint, yet did not make a counter‑claim that conversely they were in possession. Rather one of them in his testimony clearly conceded that .possession of a part of the land was physically with the appellant while in regard to the remaining he was receiving rent from the tenants. This admission on their part clinched the question in favour of the appellant and according to counsel the limitation could not be made to run against him only from the date of mutation. The plea appears to be unassailable as it finds ample support in authority. In Mst. Izzat v. Allah Ditta P L D 1981 S C 165 where the plaintiff being in possession was threatened by such a mutation, it was ruled that she could wait till the threat to her possession had become not only visible but more real and that such stage would be the point when the right to seek the reliefs claimed in the suit would accrue to her. It was further remarked that the cause of action in fact was in a way recurring every day. Likewise in Mst. Zarifan v. Mst. Rehmati 1987 S C M R 66 where the mutation dated 8‑10‑1953 was challenged some 24 years after its attestation, it was enunciated that the plaintiff's possession over the land throughout would make her suit in time unless the factual aspect of her assertion was "found untenable". The case was remanded as the learned Additional District Judge had failed to examine long possession of the plaintiff, but the tenor of the observation clearly was that unless factually she was held to be out of possession, her suit could not be thrown away simply because she had sought to challenge the mutation 24 years after its attestation. In Muhammad Bakhsh and 3 others v. Umar and 3 others P L D 1952 Lah. 307 also the rule propounded was that plaintiff in possession was not obliged to sue for declaration of title on the first or each succeeding denial of his right by the defendant and that the choice to feel aggrieved was entirely his. It was a judgment by a Division Bench and we feel sure if cited before the learned Single Judge, it would have changed his mind. That date of mutation is not the terminus a quo was further supported by Fateh Sher etc. v. Sharif Khatoon etc. 1986 C L C 320 and Fatahuddin v. Zarshad and another 1973 S C M R 248 where instead the starting point of limitation was held to be the discovery of fraud. We eminently feel that reliance on these authorities was well placed for the view that because of possession of the appellant on the land, the limitation did not run from the date of the mutation.

7. Ch. Hamid‑ud‑Din for the respondents on the other hand canvassed that there was no affirmative evidence showing the appellant's possession especially when he failed to appear in the witness‑box or to examine his son for which earlier he had made a reservation. Be that as it may, the respondents' own admission settled the point unmistakably and it cannot be lost sight of. Indeed it changes the complexion of the case so as to attract the rule formulated in the‑, cases cited earlier especially Mst. Zarifan's case which is the latest on the point. We are constrained to disagree with the learned Single Judge and reverse his finding on the point of limitation. The suit was in time.

8. The conclusion that the mutation was attested by the Rehabilitation Authorities in their exclusive jurisdiction was equally criticised on behalf of the appellant, on the ground that it was instead attested by Assistant Collector (Grade‑II) and that too post facto, much after the allotment had been initially made in his favour during his lifetime. Counsel urged that the transferee's death being a subsequent event, normal law of inheritance had to be applied and that the mutation was just an incidence of that sort attested on Revenue side. He took exception to the contention that the mutation was provisional in character as was once expressed in Muhammad Shat and another v. Member, Board of Revenue, Punjab and 5 others P L D 1.979 Lah. 169 or in Ahmad Din v. Muhammad Shafi and others P L D 1971 S C 762, which cases quite explicitly excluded jurisdiction of Civil Courts to take seizing of it. The law according to him, as enunciated in a later authority reported in Mst. Ghulam Fatima v. Muhammad Hussain and 5 others P L D 1976 S C 729 (736) was "that the Civil and Revenue Courts are not divested of their jurisdiction to decide a claim merely because it relates to property which has not been permanently settled on an allottee under the said Act." He maintained that in this case an attempt to show succession of a deceased displaced transferee as something falling in the exclusive jurisdiction of Rehabilitation Authorities was rejected out of hand. He claimed that Umar Draz Ali v. Khurshid Ali and others P L, D 1960 (W.P.) Lah. 834 cited by the opposite party did not exclude jurisdiction of Civil Court as succession here had not opened "b6ore the enforcement of the Shariat Act" or "the termination of life estate". His point was that succession here opened in 1951, that is after application of the Shariat Act and on this precise ground the dictum laid down in the case was inapplicable to it.

9. On the other hand, supporting the view of the learned Single Judge in regard to the ouster of jurisdiction of the Civil Courts in the matter, counsel for respondents placed reliance on Babu Ali Muhammad v. Mahmood‑ul‑Hassan P L D 1968 Lah. 329, Mst. Habib Khatoon and 4 others v. Sardar Muhammad P L D 1970 S C 162 and lastly, Shabih‑ul‑Hassan v. Haji Abdul Jabbar and others ,, 1987 S C M R 1455.

10. We do not see any reason to avoid application of the rule laid down by the Supreme Court in Mst. Ghulam Fatima's case. It unambiguously pronounced that Civil Courts were not divested of authority in dealing with evacuee property after it was settled by Rehabilitation Authorities on a displaced person. Conversely the cases cited on behalf of the respondents could be distinguished. The decision in Babu Ali Muhammad's case was overruled in Sultan Muhammad v. Muhammad Siddiq P L D 1973 S C 347 whereby right of pre‑emption was held available in case of sale of agricultural land made by a right holder. On the same analogy there was no reason not to apply the normal law of succession to his demise and make the same amenable to the Civil Courts. Mst. Habib Khatoon's case was based upon its own facts where transfer made in favour of a right holder was "subject to revision" which was till then pending. Obviously its fate had to depend upon the order passed by the Revisional Authority and for that reason the transfer in favour of the right holder was neither final, nor confirmed. No such circumstance was shown to be existing in the present case where the deceased's allotment was permanent for all purposes. Similarly in Shabih‑ul‑Hassan's case the proceedings under consideration were about cancellation of the allotment. Manifestly Civil Court would not have jurisdiction to see the vires of these proceedings. The point of distinction in the case under consideration was that the allotment made in favour of the deceased was not sought to be cancelled. It appeared to be permanent in terms of section 16 of the Displaced Persons (Land Settlement) Act, 1958, inasmuch as nobody had expressed grievance in regard thereto. A scrutiny of the precedent cases cited for and against persuades us to hold that the dictum laid down in Mst. Ghulam Fatim's case is more appropriately attracted to the facts of the present case and the Civil Court was n not divested of power to deal with succession of the deceased‑transferee relating to land obtained by him under the Settlement Laws. We are unable to subscribe to the finding recorded by the learned Single Judge on this point as well and reverse the same.

11. As a result we accept the Letters Patent Appeal, set aside the impugned judgment and restore that of the trial Court. Parties to bear their own costs. AA./Q‑18/L Appeal accepted.