2002 PLP 1353 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑This petition is directed against the judgment dated 2‑10‑2001 of the Lahore High Court, Lahore through which second appeal filed by the petitioners against concurrent findings of facts of the two Courts below, has been dismissed.

2. The sale of land in dispute was alleged to have been made through Mutation No.156 dated 16‑5‑1963. The land in dispute was already in possession of the petitioners. The respondent filed a suit from which this petition has arisen for declaration and recovery of possession of land, as a consequential relief that the said mutation of sale was the result of fraud, as he had not sold the property to the petitioners.

3. The petitioners contested the suit and also raised the question of limitation. The Trial Court through judgment dated 10‑12‑1986 decreed the suit by holding that the sale of the land in dispute by respondent in favour of the petitioners had not been proved. It was also held that the suit was not time‑barred as Article 144 of the Limitation Act was applicable. The appeal filed by the petitioners was dismissed by the First Appellate Court through judgment dated 19‑12‑1986. The findings of fact recorded by the Courts below on reappraisal of evidence were affirmed. The Second Appeal filed by the petitioners has also been dismissed through the impugned judgment dated 2‑10‑2001 against which leave is sought.

4. We have gone through the findings recorded by the Courts below and in particular, the Trial Court which have been affirmed. It has been found that according to the evidence of D.W.3, the disputed mutation was of Bahawalnagar whereas according to D.W.5, the same was sanctioned in Mauza Gulab Ali at the Dera of Muhammad Din. Muhammad Din allegedly identified the respondent at the time of sanction of mutation but the said Muhammad Din was not examined by the petitioners though he should have been examined if the petitioners wanted to prove that the transaction was incorporated in the mutation. According to Khan Muhammad D.W.7, it .was Qasim Ali who allegedly identified the respondent but said Qasim Ali was also not examined as a witness.

5. Learned counsel for the petitioners has failed to persuade us that the findings recorded by the Courts below on a pure question of fact suffer from any illegality such as misreading or non‑reading of any material piece of evidence.

6. Learned counsel then argued that the suit was governed by Article 120 of the Limitation Act whereas the Courts below have wrongly held that the same was governed by Article 144 (ibid). The respondent had claimed recovery of possession of land as a consequential relief, therefore, it was primarily a suit of recovery of possession of land as such it was rightly held that the same was not barred by limitation by applying Article 144 of the Limitation Act. Even otherwise if Article 120 of Limitation Act is held to be applicable without conceding, under which it could be filed within period of six years from the date when right to sue accrues, which in this case would accrue when factum of fraud had come to the knowledge of the plaintiffs; as such the suit would still be not barred by time.

6. For the foregoing reasons, this petition has no merits which is accordingly dismissed and leave refused. Q. M. H. /M. A. K./B‑60/S Petition dismissed.