P (PLP)

FAIZ MUHAMMAD, C. J.‑This is a second appeal' filed by defendant‑appellants named above in a suit for possession of landed property described in the plaint against Muhammad Azeem, son of Noor Ahmad plaintiff‑respondent. It is directed against the judgment and decree of the District Judge, Bahawalpur who affirming the judgment and decree of the Court of first instance rejected their first appeal. The litigation which has given rise to this second appeal originated on the 17th of December 1945, when Muhammad Azeem plaintiff instituted a suit in forma pauperis for the possession of lands described in the plaint situated in village Himayati of Bahawalpur Tehsil on the basis of inheritance from his alleged father Imam Bakhsh. In the plaint he claimed that Imam Bakhsh father of the defendants and his son died in 1928 leaving the property in dispute, that he the plaintiff, was a minor at the time of his father's death being one year and some months old then the defendant No. 1 and father of defendant No. 2 gave themselves out as the only heirs of Imam Bakhsh deceased and got the mutation of the property in dispute sanctioned in their favour on 13th of May 1930. He further alleged that on 30th of November 1937, the Naib‑Tahsildar Bahawalpur sanctioned a corrected mutation (Sehat Intiqal) in favour of the plaintiff and defendant's sons, and Mst. Ghulam Janat and Mst. Muradan, widows of Imam Bakhsh deceased in accordance with shares prescribed under Muhammadan Law. This second mutation was however reversed by the order of Naib‑Musheer‑Mal and Muhsheer‑Mal on 10th of March 1938, and 9th of March 1939. respectively. The plaintiff also claimed that he became major less than three years before the institution of the suit and there fore was competent to file it for 1/3rd share of the property in dispute. The cause of action was stated to have arisen about 18 years earlier on the death of Imam Baksh. The defendants countered these allegations by saying that the plaintiff was not a pauper, that he was not the son of Imam Baksh, that in fact he was the sop of one Noor Ahmad, that his mother Mst. Ghulam Janat had been divorced by Imam Baksh before plaintiff's birth and that Imam Baksh did not die in 1928. On these pleadings the Court of first instance framed the following issues :‑ (1) Is the plaintiff's suit within time. O. P. on plaintiff. (2) If issue No. 1 is proved in favour of plaintiff is he a lawful son of Imam Baksh deceased. O. P. on plaintiff. (3) If issue No. 2 is proved in favour of the plaintiff is he entitled to 1/3rd share of the property left by Imam Baksh deceased. O. P. on plaintiff. (4) If the above issues are decided against the plaintiff to what relief is he entitled. O. P. on plaintiff After recording the evidence of the parties the Senior Sub-Judge decided the first three issues in favour of the plaintiff and passed a decree in iris favour to the extent of 1/3rd of 7/8th share of the property in dispute. The remaining 1/8th was reserved as the share of two widows of Imam Bakhsh. The defendant: filed an appeal in the District Judge's Court against the judgment and decree of the trial Court. The learned District Judge however rejected it. The defendants have now filed the present appeal in the High Court challenging the correctness of the concurrent judgments and decrees of the Courts below. Mr. Gul Jahanian Shah Advocate for the appellants and Mr. Ahmad Ali Advocate for the respondent have argued the appeal before us. Mr. Ahmad Ali raised preliminary objection to the hearing of the appeal on the ground that in the memorandum of appeal Muhammad Azeem had been described as the son of Noor Ahmad and not of Imam Bakhsh. On this objection he wanted us to hold that the appeal had not been properly presented and should therefore be dismissed. He conceded however that there was no doubt as to the identity of Muhammad Azeem. It may also be pointed out here that from the very beginning of the litigation parties have been at variance about the percentage of Muhammad Azeem who claimed to be the on of Imam Baksh while the defendants denied this claim and alleged that he was the son of, one Noor Ahmad. The Courts below upheld Muhammad Azeem's contention that he was the son of Imam Bakhsh. In these' circumstances he should have been described as the son of Imam Bakhsh in the memorandum of appeal. The mistake however is not fatal to the appeal because as remarked above there is no doubt about the identity of Muhammad Azeem himself. Arguing the appeal Mr. Gul Jahanian Shah urged five points for our consideration. His first point related to the illegality of proceedings about Muhammad Azeem being permitted to sue as a pauper. He argued that under Order 33, rule 2, C. P. C. an application for being declared a pauper must be presented to Court by the applicant personally and since this was not done it cannot be said that Muhammad Azeem had been properly declared a pauper. On the basis of this objection he wanted us to hold that the plaint had not been properly presented and therefore should not have been proceeded with. While arguing this point Mr. Gul Jahanian Shah invited our attention to what he described as the first three orders of the trial Court dated the 17th of December 1945. I think that the first two of these so called orders are not in fact orders but only reports of the Sarishta. The third order of the same date runs of follows :‑ "Darj register Muflasi ho kar notice banam mudda aleh ba akhaz talbana barai 21st January 1946, jari hove." It is true that the plaintiff's presence is not noted in this order but this may be a mere oversight on the part of the Court. Besides this is too late a stage for the objection particularly when it does not appear to have been raised or pressed in the Courts below. I am therefore not disposed to accept Mr. Gul Jahanian Shah's contention in this behalf. The second point urged by him before us relates to limitation. In para. 7 of the plaint no specific date is given as the starting point of limitation. All that is stated is that the cause of action arose about 18 years back on the death of Imam Bakhsh. It is further stated that since the plaintiff was about 20 to 21 years of age at the time of the institution of the suit therefore the suit was within time. This is an important issue and deserves our serious consideration. The burden of proving that his suit is within time rests heavily on the plaintiff which means that he must affirmatively prove that the cause of action arose within the prescribed period of limitation. In the case of a plaintiff' who claims that at the time when the cause of action arose he was a minor and therefore competent to sue within three years of his becoming major it is necessary to state in unequivocal terms as to when the cause of action actually arose, when he became a major and further how much time be took after becoming major to come to Court. All this requires that not only approximate but actual relevant dates should be given in the plaint and also proved by the evidence. This has not been done in the present case. Both the Courts below have contented themselves with approximate dates about the death of Imam Bakhsh and also about the birth of Muhammad Azeem. They have attached con siderable importance to medical opinion about Muhammad Azeem's age. Summarised briefly their position is that since Muhammad Azeem alleged in the plaint that he was born a year and some months before the death of his alleged father Imam Bakhsh and since the medical certificate about Muhammad Azeem's age places him between 20 to 21 years therefore it is proved that Imam Bakhsh died about 17 years before the institu tion of the suit in 1928. To say the least the argument is on the face of it fallacious. Assuming for the sake of arguments that on the date on which the doctor examined Muhammad Azeem for his age he was between 20 to 21 years old. I fail to see how it can have any bearing upon the date of Imam Bakhsh's death. In the first place we have no evidence worth the name on record to prove that Muhammad Azeem was one year and some months old at the time of his alleged father's death, and in the second there is nothing on record to indicate that Imam Bakhsh died in 1928 and not earlier or later. As regards medical evidence about the age of an individual I have no hesitation in saying that it gives only approximate age and that the individual concerned may be a year or two older or younger. Therefore unless and until medical evidence is supported by some other more definite evidence on the point it cannot be regarded as final. Mr. Ali Ahmad invited our attention to a case of the Court of Judicial Commissioner, Peshawar reported as P L D 1950 Peshawar

19. I am afraid this ruling is not of much help to him. On going through it I find that besides medical evidence were was in it other wore convincing evidence namely entry in the birth regis ter about the person whose age was in dispute in that case. It was on the basis of these two pieces of evidence that is to say the medical certificate find entry in the birth register that the age of the person concerned was held to have been proved. Although the parties in tie present case belong to Bahawalpur town where birth and death registers are maintained no entry relating to Muhammad Azeem's birth has been produced. For this reason. I am not prepared to hold that on the 30th of November 1945 when Dr. Masood Ali examined him Muhammad Azeem was necessarily between 20 to 21 years of age and not older or younger. However the cause of action in the case arose on the death of Imam Bakhsh and not on the date on which Muhammad Azeem became major. As already indicated I find no data on file on the basis of which I can hold that Imam Bakhsh died in 1928 and not earlier or later. Mr. Ali Ahmad has pressed for our con sideration the statements of tire plaintiff and the defendants in the plaint and the written statement respectively. In para. 2 of the plaint it is given Imam Bakhsh died in 1928 while in the correspon ding para. of the written statement it its stated that it is wrong that Imam Bakhsh died in 1928. Mr. Ali Ahmad argued that the denial of fact contained in para. 2 of the written statement is not sufficient within the meaning of Order 8, rule 3, C.P.C. and therefore attracts the application of provision contained in Order it, rule 5, C. P. C. which lays down `that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleadir3gs of the defendants shall be taken to be admitted." As the words within inverted commas indicate the provision relates to evasive denial therefore the question which requires consideration in the present case is whether denial of the defendants about the date of the death of Imam Bakhsh can be regarded as evasive and therefore treated as amounting to admis sion. The exact words occurring in para. 2 of the written state ment are: I can not think of a more specific and clear denial of the fact. Mr. Ali Ahmad's contention that the defendants should have, while making the denial, given an alternative date or year about the death of Imam Bakhsh is not sound. I know of no law which requires the defendants in a case to help the plaintiff in proving a fact which the latter must prove in order to have a decree passed in his favour. The oral evidence produced by the plaintiff is quite incon clusive and contradictory and as such cannot be relied upon to prove as to when Imam Bakhsh died and when Muhammad Azeem was born. Out of the 9 witnesses examined by him only the doctor is able to say that on the date on which be examined him Muhammad Azeem was between 20 to 21 years of age. Other 8 witnesses contradict one another and give only their impression about Muhammad Azeem's age. Similarly they are unable to state definitely as to when Imam Bakhsh died, although some of them do say that Muhammad Azeem is the son of Imam Bakhsh deceased from Mst. Janat. This kind of evidence cannot be considered sufficient in the eye of law to establish the date on which or even the year during which cause of action in the case arose. In view of the above discussion I have no alternative but to hold that it is not proved as to when Imam Bakhsh died and therefore it is not possible to find that the cause of action arose within the prescribed period of limitation. Nor can it be said to have been proved that Muhammad Azeem was born in a particular year and that because of his being a minor at the time of his alleged father's death he was entitled to the benefit of provision of law contained in section 6 read with section 8 of the Limitation Act. For this it was incumbent upon Muhammad Azeem to prove the exact date of his father's death, and also the exact date of his own birth. It might be said that in the case of illiterate litigants who cannot be expected to know or trace the relevant dates this rule will operate as a great hardship. This might be so. But law must be administered as it is and not as it ought to be. Therefore the plaintiff's suit should have been dismissed on the ground of limitation alone. In the course of his arguments Mr. Gul Jahanian Shah also invited our attention to the fact that certain documents produced by the plaintiff and commented upon by the Courts below had not been proved according to law. More important among these documents are copies of mutations relating to the property in dispute from time to time sanctioned after the death of Imam Bakhsh. I cannot see eye to eye with the counsel. Almost all these documents particularly copies of Mutations Nos. 90 and No. 149 which have been commented upon by the Courts below are referred to both by the plaintiff in the plaint and the defendant in their written statement. I think this dispensed with the necessity of formally proving them. But the documents in question as they stand do not help the plaintiff to any appreciable extent. All that they establish is that at different times after the death of Imam Bakhsh mutation of the property left by him was sanc tioned first in favour of defendants alone, later in their favour and that of the plaintiff and still later again in favour of the defendants. It is obvious that whatever value may be attached to these variations they have no bearing either on the date of death of Imam Bakhsh or that of the birth of Muhammad Azeem. Another point pressed by Mr. Gul Jahanian Shah for our consideration relates to the parentage of Muhammad Azeem plain tiff‑respondent who as stated above claims to be the son of Imam Bakhsh from his wife Mst. Janat. It is common ground between the parties that Mst. Janat was legally wedded wife of Imam Bakhsh deceased. The defendants however alleged that she had been divorced by Imam Bakhsh that she married one Noor Ahmad after the divorce and that Muhammad Azeem plaintiff was born when she was living with Noor Ahmad. No documentary evidence has been however produced to prove the alleged divorce. Oral evidence led by defendant‑appellants on the point is rather vague and contradictory and as such cannot be considered sufficient to establish the factum of divorce which after all is a serious matter. Therefore I hold that Muhammad Azeem is the son of Imam Bakhsh deceased. The last point urged by Mr. Gul Jahanian Shah is that both the Courts below erred in passing decree in favour of Mst. Janat and Mst. Muradan widows of Imam Bakhah who were not party to the litigation. On going through the file I notice that this is so and the Courts below could not pass a decree in favour of strangers to the litigation. The defect in the judgments of the Courts below also raises the further question as to whether these two women were necessary party to the suit and if so what is the effect of their not being pleaded. However as I am deciding the appeal on the limitation issue I do not think it is necessary to go into this question at this stage. In the light of the above discussion of the evidence led by the parties and the circumstances of the case I accept this appeal and reversing the judgments and decrees of the Courts below dismiss the plaintiff's suit as barred by time. In the peculiar circumstances of the case and also bearing in mind the fact that Muhammad Azeein plaintiff was permitted to sue forma pauperis I further direct that the parties bear their own costs throughout. A. H. Appeal accepted.