2021 PLP 427 (YLR)

ALI BAIG, J.

Through the instant civil revision petition filed under section 115, C.P.C., the petitioners/ defendants Nos.1 to 4 and 10 have assailed the impugned judgment/order dated 20-05-2019 passed by the learned District Judge Gilgit, whereby the learned 1st appellate Court has set aside the judgment/order dated 03-12-2018 passed by the learned Civil Judge 1st Class Danyore and case/suit of the plaintiff was remanded back to the learned trial court for decision on merits after recording evidence of the parties.

2. Brief facts leading to filing of the instant revision petition are that the present respondent/plaintiff instituted a suit for declaration, permanent injunction and for cancellation of iqrar nama/gift deed bearing registration No.124/2013 being fake, bogus and against the rights of plaintiff/respondent No. 1.

3. The present petitioners being defendants in the suit contested the suit by filing of their joint written statement in the trial court wherein they have raised legal objections inter alia that suit of plaintiff is hopelessly time barred and is rejectable under Order VII, Rule 11, C.P.C. The plaintiff has got no locus standi and cause of action to institute the suit against petitioners/defendants etc. and the petitioners/defendants have also denied the claim of the plaintiff/ respondent No.1.

4. During pendency of the suit, the present petitioners/defendants have filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint mainly on the ground that the suit of plaintiff/ present respondent No.1 is barred by time.

5. The learned trial court after hearing arguments on behalf of both the parties has rejected the suit of respondent No.1/plaintiff under Order VII, Rule 11, C.P.C. vide judgment/ order dated 03.12.2018 holding that the suit of the plaintiff is time barred. The present respondent No.1/plaintiff had challenged the aforesaid order/judgment of the learned trial court in the court of learned District Judge Gilgit through appeal (C.F.A. No.70/2018) which was allowed by the learned first appellate court vide the impugned judgment/order dated 20.05.2019 and suit of the plaintiff was remanded back to the trial court, hence this revision petition.

6. The learned counsel appearing on behalf of the petitioners has contended that the impugned judgment/ order dated 20-05-2019 passed by the learned 1st appellate court is contrary to law and facts on the record of the case as such the impugned order/judgment of 1st appellate court is not maintainable and liable to be set aside. The learned counsel for the petitioners has further argued that suit has been filed by the plaintiff for cancellation of gift deed dated 02-10-2013 and limitation for cancellation of instrument/ gift deed has been provided in Section 91 of Limitation Act which is three years, whereas, the plaintiff has filed suit for cancellation of gift deed on 04-08-2018, after five years of execution of gift deed, hence the suit of the plaintiff was hopelessly time barred and the learned trial court has rightly rejected the suit of the plaintiff/respondent No.1 under Order VII, Rule 11, C.P.C. The learned counsel for the petitioners further argued that the 1st appellate court has failed to appreciate the relevant provisions of law and has wrongly remanded the suit to the trial court by accepting appeal of the respondent No.1/plaintiff.

7. On the other hand the learned counsel for the respondent No.1/plaintiff has controverted the arguments advanced by the counsel for petitioners and has supported the impugned judgment/order passed by the learned 1st appellate court by contending that the respondent No.1/ plaintiff is real brother of petitioners Nos.1 to 4 and as such he is co-sharer in the legacy of his late father namely Hussain Ullah Baig, therefore, the respondent No.1/plaintiff may file a suit at any time and question of limitation does not arise. The learned counsel for the respondent/plaintiff has further argued that the respondent No.1 /plaintiff has sought possession of suit land in para (a) of prayer that the petitioner is entitled to get his shari share from the legacy of his father being legal heir of his father namely Hussain Ullah Baig, thus limitation for filing of declaratory suit with consequential relief of possession of suit land is 12 years under the provisions of section 142 of Limitation Act.

8. I have carefully considered the contentions raised by the counsel for the parties and perused the record with their able assistance.

9. From perusal of record, it transpires that the learned trial court had rejected the suit/plaint of the plaintiff under Order VII, Rule 11, C.P.C. on the sole ground of limitation holding that the suit of the plaintiff is hopelessly time barred. From Perusal of contents of plaint, it appears that although the plaintiff has not disclosed words suit for possession in the head note of plaint but the plaintiff/respondent No.1 in para (a) of the prayer has stated that the plaintiff may be declared to be entitled to get his shari share from the legacy of his late father namely Hussain Ullah Baig being his legal heir. Thus, suit is virtually for declaration and possession of suit land, hence Article 142 of Limitation Act is applicable to the suit of the plaintiff which has prescribed a period of 12 years for filing of suit and the learned trial court has failed to consider nature of suit and has wrongly rejected the suit under Order VII, Rule 11, C.P.C. holding it time barred. The learned 1st appellate court has rightly/legally appreciated the relevant provisions of law and has rightly remanded the case of the present respondent No.1/plaintiff by accepting the civil first appeal filed by him.

10. The impugned judgment/order passed by the learned 1st appellate court has not been shown to have suffered from illegality or mis-appreciation of law as regard to limitation for filing of suit, therefore, I do not find any merits in this revision petition which is hereby dismissed. Parties are left to bear their own costs. ZC/175/GB Revision dismissed.