P L D 1998 Quetta 12 (PLP)

The instant revision petition under section 115, C.P.C. has been preferred against the judgment and decree dated 29-2-1996 passed by the Civil Judge-I, Quetta and against the judgment and decree dated 29-10-1996 passed in appeal by the learned Additional District Judge-III, Quetta whereby the suit of the petitioners has been dismissed by the learned trial Court on the point of limitation and appeal against the decree of the trial Court also dismissed respectively. The relevant facts of the case in brief are that on 16-11-1992 the petitioners filed a civil suit for declaration and perpetual injunction against the respondents in the Court of District Judge, Quetta which was transferred to the file of learned Civil Judge-I, Quetta and registered as Civil Suit No.222 of 1992 wherein it has been averred that the petitioners have heard from their elders that their great predecessor-in-interest namely Mir Azad Khan held property in Mouza Muhammad Khan and during his lifetime he remained into the active physical possession of his lands and thereafter, his children as well-remained in possession of the land as owners, who later on did not attend to this land because they had lands in the other village and Mouza, resultantly; the suit property gradually converted into a barren land and ultimately it turned into a complete barren land, boundaries of the suit land with Khasra numbers have been mentioned in para. 1 of the plaint. According to the petitioners case set up in the plaint there had not been any occasion for them to see for the documents of settlement of the area as the land at the time of Revenue Settlement was a barren land and such was the first Revenue Settlement of Sub-Tehsil Panchpai and during the Revenue Settlement of the area only the cultivated and the lands under cultivation were brought under the settlement measurements. It has been contended in the plaint that the suit lands situated in Halqa Sharod Sub-Tehsil Panchpai, District Quetta was decided to be brought under cultivation on account of the increasing number of the successors-in-interest of Mir Azad Khan and some of the respondents having come to know about such intention of the petitioners informed them in the month of December, 1991 that the suit land during settlement in the year 1965-66 was entered in the name of the respondents Nos. l and 2, therefore, the petitioners should refrain from implementing to their intention; though the possession of the land belongs to the petitioners and thereupon, according to the petitioners they contacted the Parwari in December, 1991 and it revealed to them that in fact that suit property was entered in the name of the respondents Nos. l and 2 during Revenue Settlement of the area in the year 1965-66; although the land at the time of settlement was a barren land and remains so. Because of such Revenue entries the petitioners stated to have searched for the proof of their ownership and found the Sanad' about the purchase of the land confirming the fact that the suit land belonged to their predecessor-in-interest namely Mir Azad Khan who had purchased the same in consideration of the loan Rs.400 vide the 'Sanad', dated 10th of Rajab 1306 Hijra. Thereupon, the private respondents Nos. l and 2 were called upon to effect revenue entries of the suit land in their favour and on their demand consequently the elders of the said respondents offered to resolve the dispute privately and a date was fixed for the purpose and in the meanwhile the cultivation season commenced, therefore, the petitioners cultivated about 30/35 acres of land without objection by the private respondents. Ultimately as per case of the petitioners for family settlement of the dispute the elders of the parties assembled in the house of Abdul Latif Mashwani where finally the validity of the 'Sanad ' was accepted to be correct by the' respondents Nos. l and 2 with the reservation that they did not know Safar and Haider and agreed to convey to them their decision after consultation but contrary to their promise the respondents Nos. l and 2 filed a complaint under section 145, Cr.P.C. on 24-3-1992 which is pending adjudication with the S.D.M., Quetta. Mainly the suit of the petitioners is based on the ground that the suit property is in their possession since the time of their forefathers which has been got entered in the name of the respondents Nos. l and 2 during revenue settlement through misrepresentation made by them. Alongwith the suit application under Order 39, Rules 1 and 2, C.P.C. read with section 151 was also filed by the petitioners. The respondents Nos. 1 and 2 filed their joint written statement and rejoinder to the application on 27-12-1992 contesting the suit on merits as well as on legal grounds. The ownership of the suit land and the possession thereof claimed to be vesting in the petitioners has been disputed in the written statement and it is claimed that the respondents Nos. l and 2 are owners of the suit land with possession since 1965, out of pleadings of the parties the learned trial Court framed the following issues:-- (1) Whether the plaintiffs have no locus standi to file this suit? , (2) Whether the suit of plaintiff is time-barred? (3) Whether the suit of plaintiff is not maintainable under sections 8 and 42 of Specific Relief Act? (4) Whether the land in dispute had been purchased by the predecessor-in- interest of plaintiffs through a lease deed in the year 1306, A.D. from Saghar and Haider for consideration of Rs.400. (5)???????? Whether the disputed property has been in possession of plaintiff since their ancestors and have been cultivating the same? (6) Whether the disputed land has fraudulently and through mispresentation been entered in the names of defendants Nos. l and 2 through connivance of defendants Nos.3, 4 and 5? (7)??????? Whether the plaintiffs are entitled for the relief claimed for? (8)??????? Relief? The petitioners in support of their case produced four witnesses and their attorney made his statement on their behalf before the Court, whereas; the respondents examined three witnesses and on their behalf their attorney recorded his statement in the Court. The learned trial Court thereupon vide impugned judgment and decree dismissed the suit of the petitioners resolving the issue No.2 on the point of limitation in favour of the contesting respondents. The petitioners being dissatisfied with the decree passed by the learned trial Court filed appeal in the Court of District Judge, Quetta and the same was transferred to the file of the Additional District Judge-111, Quetta (Civil Appeal No.30/96). The learned appellate Court vide its judgment and decree dated 29-10-1996 dismissed the appeal of the petitioners, whereupon; through the instant petition both the decrees passed by the learned trial Court and the appellate Court have been assailed. I have heard the learned counsel for the parties at length in support of their respective view points, the learned counsel for the petitioners contended that both the Courts below have misread and disregarded the relevant pieces of evidence in the light of issue No.2 framed by the Court on the point of limitation, therefore, the impugned decrees are not sustainable. According to the learned counsel the possession of the suit land was proved through evidence to be vesting in the petitioners which has not been considered by the Courts below and in the instant matter the starting point of limitation would run from the date of the knowledge of the petitioners about the adverse entries having been made in the Revenue Record against them and not from the date of the actual attestation of the Revenue entries. The learned counsel vehemently contended that the law of limitation under Article 120 of the Limitation Act has been misapplied by the Courts below which has caused serious miscarriage of justice to the petitioners and thus the learned appellate Court acted with material illegality and irregularity in dismissing the suit and the appeal respectively. The learned counsel submitted that the suit of the petitioners was not barred by time and is liable to be decided on merits. To supplement his arguments the learned counsel placed reliance on the reported judgments i.e AIR 1936 Lahore 37 1970 SCMR 499 + 604 and PLD 1968 Pesh:

148. Controverting the arguments put forth on behalf of the petitioners, the learned counsel for the respondents submitted that the entire evidence on record produced by the parties. have been considered and appraised by both the Courts i.e. the learned trial Court and the appellate Court. According to him the impugned decrees have been passed on the proper application of the law and submitted that the petitioners are not in possession of the suit property nor they ever remained so and there are concurrent findings of facts against the petitioners recorded by both the Courts which are not open to any exception. The learned counsel vehemently argued that since the petitioners are not in the active and physical possession of the suit property, therefore, time will run against them from the date of the attestation of the adverse entries and he relied on the case law i.e. 1997 CLC 322 + 675 and 1997 SCMR

846. I have considered the respective contentions put forth on behalf of the parties in the light of the record of the case annexed with the petition and the law. (P. W .1) Muhammad Khan deposed that when the petitioners visited the suit land, they came to know about the land having been allotted in favour of the respondents Ismail, Ibrahim and others. (P.W.2) Muhammad Yar stated that the suit property belongs to the petitioners who are in possession of the same and denied the suggestion given to him in the cross-examination that the suit property continues to be in the possession of the respondents., (P.W.3) Muhammad Iqbal deposed that the suit property vest in the petitioners who presently are in possession thereof as owners of suit land and this witness admitted in the cross-examination that the suit property is in the possession of the respondents Muhammad Ismail and Wali Muhammad in whose favour it stands entered in the Settlement Record. (P.W.4) has spoken about the ownership of the petitioners but has not stated a word about the possession of suit land and in the cross-examination stated that he has no knowledge if the suit land is used to be cultivated by the respondents, whereas; the attorney for the petitioners deposed about the ownership of the petitioners in respect of the suit lands to be vesting in them on the basis of ' Sanad' and stated that they are in possession of such property since the time of their grandfather and in the cross-examination stated that he cannot give the Khasra Numbers of the land. (D.W.1) Gul Jan deposed that he had worked for twelve years on the suit land, possession whereof rests with the respondents. (D.W.2) Abdullah that the suit land belongs to the respondents who are in possession of the same and has also given the boundaries of the suit land. (D.W.3) Abdul Khaliq has deposed that the suit land is in the possession of the respondents since the time of Muhammad Noor who even at present they are in possession of -the land. According to the witness his father had obtained the suit land on 'Ijaara' from the father of the respondents in the year 1918, which land stood entered in the name of the respondent during settlement of the area in the year 1965-66. The attorney for the respondents stated that generation after generation the respondents through succession came into possession of the suit land which rests with them he also produced the reports of the Revenue staff Exh.D/1 to Exh.D/4 and stated in the cross-examination that he cannot tell the Khasra numbers of the land. The abovenoted is the extract of the evidence produced by the parties, relevant to issue No.2 which has been resolved by the trial Court in favour of the contesting respondents. . The operating and concluding para. of the judgment of the learned trial Court for convenience and reference is reproduced below:- The learned appellate Court though has considered the evidence but discarded the evidence of P.W.2 on the ground that he is an interested witness as he has given evidence in favour of his father and similarly the evidence of P.W.3 has also taken to be that of an interested witness although for certain other reasons as well his testimony is found not to be worth reliance and overall the learned appellate Court came to the conclusion that the respondents did not challenge the disputed Revenue entries despite the knowledge of such entries having been made in the record in the year 1965, within the prescribed period of limitation. In absence of evidence on record to the effect that the petitioners had the knowledge of the adverse entries of the Revenue Record, presumption bas been drawn by the Courts below that the petitioners had such knowledge since the year 1965 when .the Revenue Settlement of the area was carried out. The presumption of such knowledge has been inferred most probably from the fact that the petitioners at the time of the Revenue Settlement of the area happened to be present there, which fact in my opinion appears to be not sufficient to draw a definite conclusion with regard to the existence of a particulars fact in issue. In the suit the following main relief have been claimed. The petitioners in the suit have claimed that they are in possession of the disputed property in respect whereof adverse entries have been incorporated in the Revenue Record for the first time during Revenue Settlement of the area in the year 1965. Which fact came, to their knowledge in the year 1991 and reliefs have been sought for that they be declared owners of the land in question and the private respondents be restrained from interference into the property. To settle the issue of Limitation it was incumbent on the Courts to have decided the issue of limitation strictly within the scope of evidence. In a case where the possession of disputed property rested with plaintiff, the time to institute suit would run from the date of knowledge of plaintiff about the adverse entries incorporated in the record of rights and not from the date of actual attestation of the disputed entries. In the cited case law i.e. Ghulam Muhammad Khan and others v. Samundar Khan and others AIR 1936 Lah. 37 it has been held that cause of action arises when plaintiff feels aggrieved and not from the date of adverse entry made in the record of rights. It has been held in the second cited authority (Gul Khan v. Said Hasan Shah and others PLD 1968 Pesh. 148) that the commencing point of limitation under Article 120 of the Limitation Act would begin from open denial of plaintiff's right by defendants and not from date of first erroneous entries in Revenue Records, which was ruled by the Hon'ble Peshawar High Court in' a case where the plaintiffs claimed to be in joint possession of Banjar Qadeem land with defendants since time of their ancestors but adverse revenue entries were incorporated. PLD 1970 SC 499 + 604 cited by the petitioners, counsel are not relevant to the proposition involved in the instant case. In the reported judgment i.e Mst. Izzat v. Allah Ditta PLD 1981 SC 165 the Hon'ble Supreme Court held:-- "(c) Limitation Act (IX of 1908)--Art. 120--Declaration--Ancillary relief--Limitation--Essential relief claimed: maintenance of possession and issuance of injunction for such purpose--Date of accrual of cause of action--Not necessarily relatable to date of deed allegedly obtained by misrepresentation nor to knowledge of plaintiff with regard to fraud played upon her--Plaintiff in actual possession of land but defendant getting land mutated in revenue papers in his favour and notwithstanding appellant's disclaimer of respondent's right in land and warning him against any interference regarding suit land insisting upon denying appellant's right, plaintiff, in circumstances, held, not bound to seek cancellation of deed through suit and could wait till threat to her possession became not only visible but more real--Right to seek relief against defendant, held further, accrued to plaintiff at such stage and starting point of limitation remained date of sanction of mutation and thereafter, on everyday when respondent continued making claim against plaintiff's right to possess suit land. (Cause of action)" It would be appropriate to refer to the reported judgment of the Hon'ble Supreme Court i.e. Mst.Zarifan v. Mst.Rehmati 1987 SCMR 66 about the application of Article 120 of the Limitation Act in a case where plaintiff found to be in possession of property and adverse entries in the Revenue Record upon opening of succession were made and it was held by the Hon'ble Supreme Court:-- "Constitution of Pakistan (1973)--Art.185(3)--Limitation Act (IX of 1908), S.3 & Art. 120--Suit for declaration--Plaintiff in possession-?Mutation of inheritance challenged after 24 years--Suit for declaration filed after 24 years of opening of inheritance decreed by Trial Court but dismissed by Appellate Court on ground of limitation--Petitioner throughout in possession of entire property and being an illiterate widow, did not know about sanctioning of mutation which was done in her absence, till she was about to be forcibly dispossessed--Appellate Court not adverted to such aspect of the matter--Supreme Court converted petition into appeal and remanded case to District Court for decision afresh on question of limitation within three months. " The facts of the case reported in (1997 CLC 322 Lah.) referred to by the learned counsel for the contesting respondents are distinguishable and also in view of the rule laid down in the abovenoted judgments of the Hon'ble Supreme Court, the cited case law is of no assistance to the respondents. The application of Article 120 of the Limitation Act in the instant case depends upon the findings based upon the appraisal of evidence as to whether the petitioners are in the physical possession of the land and if so, the period of limitation would commence from the date of acquiring knowledge by the plaintiffs about the adverse entries effected in the Revenue Record and not from the date of the actual attestation of such entries but contrary to the proper application of Article 120 of the Limitation Act, mainly both the Courts below have treated the starting point of limitation to be date of the actual attestation of the disputed entries, inasmuch as; the evidence, on the point has not been considered in the light of the abovementioned rule. The appellate Court has even discarded the evidence of P.W.2 and P.W.3 form consideration on the ground of they being interested witnesses, which was not permissible under the law. Both the Courts below as such acted with material irregularity and illegality in dismissing the suit of the petitioners and the appeal respectively resultantly the impugned decrees are not sustainable. Exception to the cage law cited by the learned counsel for the contesting respondents that the concurrent findings of facts are not open to interference in the exercise of revisional jurisdiction by this Court, applies in the instant matter as above discussed. For the reasons abovementioned the impugned decrees dated 29-2-1996 and 29-10-1996 respectively passed by the Civil Judge-1 and Additional District Judge-III are set aside and the case is remanded to the learned trial Court to rewrite the judgment afresh after hearing the parties on all the issues in the light of the evidence already adduced by the parties, resultantly the revision petition is accepted leaving the parties to bear their own costs. A.A./648/Q?????????????????????????????????????????????????????????????????????? Case remanded