2017 PLP 1199 (YLR)

Ss. 42, 39 & 54

Limitation Act (IX of 1908), Art. 92

Sindh Land Revenue Act (XVII of 1967), S.53

Suit for declaration, cancellation and permanent injunction

Limitation

Question of maintainability of the suit on ground of limitation on the factual controversy between the parties once decided and not challenged in appeal not to be re-agitated before the Revisional Court, but the question of limitation was such that could not be buried as finally decided if it could be shown that the suit was barred by time and the conclusion drawn by the Trial Court was wrong and incorrect

Question of limitation whether agitated in appeal or revision or not could still be examined by the court seized of the cause

Plaintiff had deposed that they had come to know of the entry in the revenue record in favour of the father of the defendants in 1980; therefore, the point of limitation to challenge the entry from the date of the knowledge by invoking S. 42 of Specific Relief Act, 1877 was either 1980 or from the date when they had attained the age of majority

Plaintiffs had attained the age of majority in 1989, therefore, adding three years to their age of majority, they should have challenged the undated entry by 1992; whereas, the present suit had been filed in 1998

In terms of Art. 92 of Limitation Act, 1908, a suit under S. 42 of Specific Relief Act 1877 for seeking declaration was to be filed within three years from the date of knowledge of forgery of the instruments issued or registered

Present suit was, therefore, time barred. Muhammad Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 rel.

Ss. 42, 39 & 54

Sindh Land Revenue Act (XVII of 1967), Ss. 42 & 53

Limitation Act (IX of 1908), Art. 92

Qanun-e-Shahadat (10 of 1984), Art.144

Civil Procedure Code (V of 1908), O.XLI, R. 31

Suit for declaration, cancellation and permanent injunction

Maintainability

Making of that part of periodical records which related to land owners

Suit for declaratory decrees by persons aggrieved by and entry in revenue record

Plaintiffs filed the suit claiming that they were the owners-in-possession of the suit land through their deceased father, and the defendants, on basis of a bogus undated entry in the Revenue record, had attempted to dispossess the plaintiffs from the land

Both the Trial Court and appellate court dismissed the suit

Plaintiffs contended that the appellate court had not discussed the issue regarding possession of the suit land

One of the questions before the High Court was whether non-compliance of the requirement of S. 115, C.P.C. for filing of entire record was mandatory or directory and particularly non-filing of death certificate in the case had some wisdom behind it or it was without any reason

Contention that the Trial Court should have framed the issue about the death of the predecessor-in-interest of the plaintiffs was out of context in the given facts of the case, as the issue before the Trial Court was not the death of the predecessor since nobody had approached the Revenue Authorities in terms of S. 42 of Sindh Land Revenue Act, 1967 till date

Suit had been filed for declaration of ownership and cancellation of an undated entry in favour of the defendants in the revenue record, however, entry of a date might be incorrect, but the entry of the revenue record could not be undated

Plaintiffs had claimed to have been in possession of the suit land and aggrieved by the undated entry in the revenue Record, however, the plaintiffs had also sought declaration of ownership of the suit land

Jurisdiction of the civil court was totally barred except in terms of S. 53 of Sindh Land Revenue Act, 1967

Question of ownership of agricultural land was not covered by S. 53 of the Act, as the same spoke only about the grievance against entry in the Record-of-Rights or in a 'periodical record' as to any right of which he was in possession but not about ownership

Plaintiffs had claimed ownership by virtue of inheritance and claimed that their predecessor-in-interest had died; therefore, in terms of S. 42(1) of Sindh Land Revenue Act, 1967 the death should have been reported within three months from the date of his death and a copy of such report, free of cost, should have been obtained under S. 42 (1) (b) of the Act by the plaintiffs as the new landowners by inheritance, and if the plaintiffs were minors, then under S. 42(2) of the Act, entry should have been made by legal guardian

Grievance of the plaintiffs was not that the Patwari had failed to enter the report of death of their predecessor-in-interest in his record that was why under S. 42 (5) of Sindh Land Revenue Act, 1967, the plaintiffs had not reported such report to the Chairman Union Council concerned

Chairman of Union Council, however, had issued an undated death certificate instead of issuing certificate of certain entries in the revenue record on account of death of said predecessor-in-interest of the plaintiffs

Plaintiffs had annexed a copy of the certificate of death, which was undated and did not disclose the day and month of the death of their predecessor-in-interest

Plaintiffs had never filed the original death certificate with the plaint either before the appellate court or before the High Court

Appellate court was, therefore, not required to remand the case for non-framing of the issue as the death of the predecessor-in-interest of the plaintiffs, and the perusal of photocopy of the death certificate was enough to ignore the same

Appellate court had not examined the question as to possession of the suit land, as there was no controversy between the parties on the issue of possession of the suit land

Plaintiffs had not produced any documentary evidence to establish their physical and cultivation possession on the suit land

Plaintiffs had not produced Dal Receipts, Khasra gardawari or any document of possession

Defendants had not challenged the possession, since they themselves had claimed to have been in possession, and the plaintiffs had not sought order from the court for recovery of possession from the defendants

Plaintiffs' witnesses had not deposed about the alleged attempt by the defendant to dispossess the plaintiffs

Plaintiffs had claimed to have been in possession of the suit only to bring the suit within the ambit of S. 53 of Sindh Pakistan Land Revenue Act, 1967

Plaintiff had admitted the date of knowledge of the undated entry in his own examination-in-Chief

Plaintiffs had alleged to have filed an application to the Deputy Commissioner, but they had neither filed the said application nor disclosed the date of the same

Defendants, on the other hand, had filed the record with their written statement, showing entries in the name of their predecessor-in-interest on the basis of the order of the Assistant Commissioner, and that entry was not undated, and the plaintiffs had not challenged the same

Plaintiff, having alleged that the relevant Revenue Record had been destroyed, filed the certified copies of the record without any explanation

Plaintiffs had failed to give details about themselves, including actual date of birth and particulars of the persons who were their legal guardians and looking after the suit property after the death of their predecessor-in-interest when they were minors

Name of the plaintiff had never been mentioned in the Revenue record in terms of S. 42 of Sindh Land Revenue Act, 1967

High Court, maintained the findings of both courts below

Revision petition was dismissed in circumstances. Mst. Sughran Bibi and others v. Mst. Jameela Begum and others 2001 SCMR 772; Muhammad Bashir v. Muhammad Hussain 2009 SCMR 1256; Dr. Muhammad Hussain v. Principal, Ayub Medical College PLD 2003 SC 143; Chaudhry Muhammad Shafi and others v. Government of Sindh 2014 YLR 602; Jan Muhammad and 6 others v. Ghulam Farid and 3 others 2014 MLD 1141; Mst. Jannat Bibi v. Faqir Muhammad 1998 MLD 837; Abdullah and others v. Muhammad Haroon 2002 CLC 1419; Farman Ali v. Muhammad Ishaq and others PLD 2013 SC 392; Muhammad Yousuf v Sharifan Bibi 2006 YLR 1084 and Muhammad Buta v. Habib Ahmad PLD 1985 SC 153 ref. Muhammad Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 rel.

S. 53

Suit for declaratory decrees by persons aggrieved by and entry in record

Locus standi

Suit under S. 53 of Sindh Land Revenue Act, 1967 is filed by such landowners whose names have already been entered in the revenue record and they seek declaration of subsequent entry in the record as illegal, fraudulent entry, even on basis of any order of the Revenue Authorities.

Ss. 53 & 42

Periodical record relating to land owners

Suit for declaratory decrees by persons aggrieved by and entry in record

Section 53 of Sindh Land Revenue Act, 1967 has to be read with S. 42 of the Act, which deals with making of part of periodical record, which relates to the land owners and means that ownership is directly linked/dependent on the timely entry in the revenue record.

S. 3

Dismissal of suit on ground of limitation

Scope

Issue of limitation is not an issue between the parties alone

In terms of S. 3 of Limitation Act,1908, the limitation for filing a lis is an issue of the court, and that is why it is the duty of the court to dismiss the cause which is barred by time, though the limitation has not been set up as a defence. Muhammad Javaid Shafi v. Rashid Arshad PLD 2015 SC 212 rel. Shabbir A. Shaikh for Applicants.