1986 PLP 965 (MLD)

(3) A judgment and decree that all the title deeds in respect of Property No. B‑IV‑5/25 Nazimabad, Karachi, stood in the name of defendant No.2, her Legal Representatives attorneys, executors, administrators, and every body claiming or deriving any title through or under her, are null and void, illegal ab initio and not binding upon the plaintiffs. , (4) To direct the defendant No.2, to surrender all such title deeds pertaining to the property under suit, before this Hon'ble Court. (5) To order for cancellation of all such title deeds in respect of Property No.B‑IV/5/25 Nazimabad, Karachi which are in the name of defendant No.2, her Legal Representatives attorneys, executors, and every body else having the same through or under the said defendant. (6) To declare that all the orders passed by defendant No.4 in respect of Property No.B‑IV‑5/25, Nazimabad, Karachi, in favour of defendant No.2 are illegal, null and void, not binding upon the plaintiffs and same have no force in the eye of law. (7) To declare that the ejectment proceedings before the Rent Controller Court No.IX, Karachi, vide R.C. No.4970/82 filed by the defendant No.2 are void, mala fide, without any just cause and are not binding upon the plaintiffs. (8) Permanently restraining the defendants Nos.1, 2 and 3 and every body else from interfering with the peaceful possession of the plaintiff No.1 over the property under suit and Ration Shop No.769 and business of the plaintiff No.1. (9) Permanently restraining the defendants, their agents, attorneys Legal Representatives executors and every body claiming through or under them and or deriving any title on their behalf from claiming any right, title, interest into the property under suit and or denying the' title of the plaintiffs into the same i.e. property under suit. (10) Costs of the suit may kindly be awarded and any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case, may also be granted." Mr. Iqbal Kazi the learned counsel for the plaintiff has contended that on plaintiffs' own showing in para. 18 of the plaint which appears at page 13 of the plaint (the number of subsequent paragraphs has wrongly been mentioned) the plaintiff No.1 came to know about the fraudulent transfer of the disputed property in favour of the defendant No.2 on 20‑i1‑1.978. Therefore, according to the learned counsel under Article 91 of the Limitation Act the suit should have been filed within three years from the date when the facts entitling the plaintiffs to have the instrument cancelled or set aside became known to him. It is contended that as the suit was filed on 20‑8‑84 it is barred by time. Article 91 relates to suits for cancellation or setting aside the instrument not otherwise provided for by the Limitation Act. Mr.lqbal Kazi the learned counsel for the defendants Nos.l and 2 has relied on Hameeda Begum v. Mst. Murad Begum and others P L D 1975 S C

624. At page 638 it was observed that Article 91 does not apply where the plaintiff was not a party to the instrument sought to be declared void and would be obliged to have the instrument set aside if it constitutes an impediment it the way of relief sought by him, and as in the quoted case the appellant had no other right or locus standi as a successor‑in interest of her father, it was held that she must ask for avoidance of the two instruments in question before she can succeed in the property in dispute. It was further held that if an instrument is executed by a person competent to do so, and if it is alleged that it was obtained by misrepresentation and undue influence. it would be a void able instrument and would remain operative so long it is not set aside by the Court. It was observed "that the starting point of limitation under this Article (91) is the date when the plaintiff acquires knowledge of facts which give any cause of action and entitle him to have the instrument cancelled or set aside. Merely knowledge of fact bearing of true character of tire instrument is not enough" On the other hand Mr. Izhar Hy er Rizvi the learned counsel for the plaintiff has relied on Mst. Izzat v. Allah Ditta P L D 1981 S C 165 where Hameeda Begum's case was also referred and discussed, and it was observed as follows: ‑ "In the light of these basic rules, it was further held that Article 91 would not be attracted if the substantial relief claimed by the plaintiff is not the cancellation of the instrument and it is merely ancillary to some other substantial claim, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiff's rights, as "the principle is that if the plaintiff is not bound by the document, or if he is not claiming under the same, and the substantial relief prayed for by him is not the cancellation or setting aside of the instrument, then the suit is not governed by Article 91". If this rule is applied to the facts of the present case,, as already noted, the main relief claimed by the plaintiff was with regard to the protection of her possession, "for which a permanent injunction was sought against the respondent, and the declaration that the mutation dated 19‑5‑1969 and the registered deed, dated 11‑2‑1958 were void and ineffective was prayed for as an ancillary relief. That being so, the bar of Articles 91 would not be attracted". It was further held at page 171 as follows: "It has already been held that the relief claimed with respect to the registered deed that it may be declared as void was only ancillary, therefore, Articles 91 and 95 of the Limitation Act would not be attracted. Thus, the date of the accrual of the cause of action in the case would not be necessarily relatable to the date of accrual deed, or the knowledge of the plaintiff with regard to the fact that she had been defrauded. 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 of 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 the 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 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 relief claimed in the suit would accrue to her. The starting point of limitation in this case would remain 19‑5‑1969 and thereafter on every day when the respondent continued making the claim against the plaintiff's right to possess the suit land. Thus counted the suit was within limitation." The learned counsel for the plaintiff also referred to Qureshi Noor Hussain and 7 others v. Ghulam Jan and 5 others P L D 1984 Pesh. 86 where mutation of gift was challenged on the ground of fraud by the successor‑in‑interest of the donor and it was held that Article 120 will apply. In the present case as is obvious from the allegations in the plaint, the plaintiff No.1 is in possession of the property. In these proceedings no further inquiry about the facts can be made an the averment made in the plaint are to be taken to be correct. In the facts and in view of the principle laid in P L D 1981 S C 165 Mst. Izzat v. Allah Ditta the suit cannot be held to be barred by time. The plaintiff No.1 is in possession and the filing of the ejectment case o 5‑11‑1983 making the defendant No.3 as a party alleging to be a tenant was with a view to seek ejectment of the plaintiff No.1 and obtain possession. This by itself gave a cause of action to the plaintiff to fill the suit. The suit is therefore, not barred by time. The next contention of the learned counsel for the defendant i that the order passed by the Controller in Rent Case No.4970/82 cannot be challenged as it is final subject to appeal as provided by the Sind Rented Premises Ordinance. Suffice to Say, the very title to the property has been challenged and if it is held that the defendant No.2 is not the owner of the property the ejectment proceedings instituted by defendant No.2 and orders passed in it will be rendered a nullity. A party is entitled to take proceedings to seek relief for setting aside order which may have been obtained on the basis of fraud or illegal transaction and documents. The application is therefore, dismissed. M . Y . H . Petition dismissed.