2023 PLP 588 (MLD)

ABDUL HAMEED BALOCH, J.

By means of this judgment I intend to dispose of above titled revision petition whereby the petitioners/plaintiffs challenged judgments and decrees dated 29th November, 2012 and 26th July, 2013 (impugned judgments and decrees) passed by Judicial Magistrate-VII/Civil Judge, Quetta and Addition District Judge-IV, Quetta (trial and appellate court), whereby the suit was dismissed and appeal filed against the same was also met with the same fate.

2. Precise facts of the case are that the petitioners/plaintiffs filed a suit for declaration, cancellation of mutation entries and permanent injunction against the respondents/defendants in respect of property measuring 83 rods 36 poles, khata Nos. 2/2, 3/3, 4/4, 11/11, 26/27 situated in Karez Almas, Mouza Killi, Gull Muhammad, Tappa Durrani, Tehsil and District Quetta, with three (03) Shabana Roz four (4) saya Aab water with the following prayer: a. To declare that the plaintiffs are lawful owners with possession of the suit land measuring 83 rods 36 poles, khata Nos. 2/2, 3/3, 4/4, 11/11, 26/27 situated in Karez Almas, Mouza Killi Gull Muhammad, Tappa Durrani, Tehsil and District Quetta, with three Shabana roz 4 saya Aab water; b. Declaration be made that the alleged agreement dated 24.11.1948 with regard to transfer of ownership rights is a forged and fabricated document, having no legal effect; c. Declaration be made that mutation entries Nos. 11, 12 and 22 are resulted of forgery and fraud on the basis of an illegal document/agreement dated 24.11.1948 and same are liable to be cancelled; d. By way of passing decree for injunction agreement dated 24.11.1948 with regard to transfer of ownership rights in favour of the predecessor in interest of the defendants as well as mutation entries Nos. 11, 12 and 20 be cancelled; e. By way of passing decree for injunction, the defendants be permanently restrained from interfering into the suit and or to raise any sort of construction in the suit land; f. Any other relief which this honorable court may deem fit and proper, may also be awarded with cost of the proceedings throughout, in the interest of justice, equity and fairplay.

3. The suit was contested by the respondents/defendants on legal as well as factual grounds by filing written statement. The trial court framed issues out of the pleadings of the parties. The parties produced pro and contra evidence and on culmination the learned trial court vide judgment and decree dated 29th November, 2012 dismissed the suit, against which the petitioners/plaintiffs preferred appeal but same was also dismissed by Additional District Judge-IV, Quetta vide judgment and decree dated 26th July, 2013, hence this petition.

4. The record transpires that the instant petition was admitted on 21st November, 2013. Notices for respondents were issued. On 21st April, 2014 Mr. Mohibullah Shah Advocate appeared and undertook to file power on behalf of respondents Nos. 1 to

12. This court vide order dated 14th May, 2015 dismissed the petition in default and for non prosecution. On 19th May, 2015 the petitioners filed C.M.A. No. 549 of 2015 for restoration of petition, which was restored. This court vide order dated 21st November, 2016 directed the parties to furnish detail before the court pertaining to pending litigation in respect of present parties as well as any other case pending before this court in respect of properties in dispute. On 20th November, 2019, intervener Najeebullah filed application under Order I, Rule 10, C.P.C. On 1st July, 2020 this court again dismissed the instant petition in default and for non prosecution. The petitioners filed C.M.A. No. 543 of 2020. Since the matter pertains to year 2013, as such in the interest of justice the instant petition is restored.

5. Heard and perused the record. The record reflects that PW-6 Haji Dad Khan produced record as Ex: P/3 to Ex: P/5. The witness in cross-examination stated as under:

6. PW-7 Abdul Ghaffar representative of Sub-Registrar produced record as Ex: P/9. DW-3 Muhammad Amin representative of Saddar Qanungo produced record as Ex: D/1 and Ex: D/2. It appears from the record that transfer mutation had been conducted in the year 1948 as produced by PW-6. There is no evidence on part of the petitioner that the transfer mutation was prepared behind their back. Mere bald assertion cannot be a ground to discard the document. Admittedly the transfer mutation conducted was in knowledge of the predecessor of the petitioners/plaintiffs. The petitioners remained silent for approximately sixty (60) years without any reason and justification. The burden of proof was on the petitioners/plaintiffs to prove that their case is within limitation. The question of limitation cannot be lightly ignored. Under Article 120 of the Limitation Act, 1908 (Act 1908) the period provided for filing declaratory suit is six years. In Muhammad Haroon's case, 2001 CLC 810 it was held: "Suit for declaration

Limitation

Suit filed after 10 years of attestation of disputed mutation

Validity

Period of limitation prescribed under Article 120 of Limitation Act, 1908, for filing declaratory suit was six years

Where no explanation worth the name for the delay had been given by the plaintiff, such suit was hopelessly time-barred." In another case Salamat Ali v. Khair-Ud-Din, 2007 YLR 2453, it was held: "

8. Learned counsel for the respondents plaintiffs next argued that the mutation in favour of Mst. Bashir Begum carried a pedigree table which showed the interest of the respondents plaintiffs in the suit property. On this basis it was contended that Muhammad Zaman respondent No.11 could not claim to be a bona fide purchaser of the suit property from Mst. Bashir Begum. This contention in the context of the present case is wholly misconceived. Even if it is, for a moment, accepted that Muhammad Zaman was not a bona fide purchaser from Mst. Bashir Begum, this has no bearing on the title of the petitioners. As noted above, the predecessor-in-interest of the petitioners had purchased the property from Muhammad Zaman who clearly was the owner on record and was also in possession of the suit property. It is also relevant that the petitioners and before them their predecessor-in-interest are in possession of the suit property since 1976. Before that Muhammad Zaman was in possession since 1974. The respondents-plaintiffs did not challenge the sales made in favour of Muhammad Zaman and the predecessor-in interest of the petitioners. They, through their own acts and omissions enabled Mst. Bashir Begum and Muhammad Zaman to deal with the, suit property as ostensible owners. The respondents, therefore, cannot be allowed to impugn the title which has been enjoyed by the petitioners for a continuous period of more than 31 years."

7. Under section 3 of the Limitation Act, 1908, once limitation starts running could not stopped by any subsequent act. It is settled law that where the suit is barred by law it should be barred from inception. The time barred suit cannot be allowed to proceed further. In Abdul Ghani's case, 1998 CLC 2070, it was held: "Duty of Court is to take cognizance of the question of limitation suo motu. Time barred suit

Not in interest of the parties to remand case to the Trial Court for putting the parties to further litigation when the same was badly time-barred. The court has to decide the point of limitation whenever raised by the parties or not. Reliance is also placed on case Dilmir v. Ghulam Muhammad PLD 2002 SC 403, wherein it was held: "

6. It is worth-mentioning that the question of limitation was neither dilated upon nor decided by the learned revisional Court. In our considered view the question of limitation should have not been left unattended to having a substantial bearing on the fate of the case. It is bounden duty of the Court to notice the question of limitation irrespective of they fact whether it was agitated or not. In this regard we are fortified by the dictum laid down in case titled Muhammad Buta v. Habib Ahmad PLD 1985 SC

153. There is no cavil with the proposition that any order or judgment passed by trial, 8 appellate or revisional Courts should indicative of the fact that the Courts concerned were not only aware but conscious regarding the question of limitation be dealt with the same with diligent application of mind prior to dilating upon and deciding the controversy on merit because disposal, on merit alone would not be sufficient to presume that the delay was condoned. In this regard reference can be made to case titled Ahsan Ali v. District Judge PLD 1969 SC 167, which still holds the field and relevant portion whereof is reproduced herein below for ready reference:-- "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits, vide Ata Ullah Malik v. The Custodian of Evacuee Property and others PLD 1964 SC 236; Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner and others PLD 1964 SC 260 and Muhammad Farooq Imam v. Claims Commissioner and others PLD 1964 SC 585."

8. So far as application filed by intervener Najeebullah under Order I, Rule 10, C.P.C. is concerned, he is not necessary party; therefore, the application is accordingly dismissed. In view of above the instant revision petition is dismissed. The judgments and decrees dated 29th November, 2012 and 26th July, 2013 passed by Judicial Magistrate-VII/Civil Judge, Quetta and Addition District Judge-IV, Quetta respectively are upheld. No orders as to costs. The Contempt Application No. 01 of 2015 is out come of instant civil revision petition. Since the main revision petition has been dismissed, as such the contempt application has become infructuous; thus dismissed accordingly. SA/29/Bal. Petition dismissed.