1996 SCMR 145 (PLP)

ZIA MAHMOOD MIRZA, J.‑‑‑This appeal by leave of the Court is directed against the judgment of the learned Single Judge of the Lahore High Court dated 7‑6‑1992 whereby Revision Petition (C.R. No. 1149 of 1989) filed by respondents Nos.l to 9 herein was accepted and the case remanded to the trial Court for decision of the suit in accordance with law.

2. Facts forming the background of this appeal are that Inayatullah respondent No.l and his brother Ismail, the predecessor‑of‑respondents Nos.2 to 9 were claimant displaced persons. They filed their claim which was verified and their entitlement determined at 3700 P.I. Units. Muhammad Sharif Appellant No.l acting as General Attorney of the said claimants got their claim transferred from Sialkot to Gujranwala, obtained allotment of the land against their verified claim and made sales of the land in the year 1963 in favour of Mst. Munawar Khatoon (respondent No.25 who, it is stated could not be joined as petitioner as she was out of country), Ghulam Siddique appellant No.2 and Asghar Hussain appellant No.3.

3. In 1974, a `Mukhbari' application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, was moved by Mst. Salina Bibi and others alleging that the claimants had neither appointed any attorney nor any allotment was made in Gujranwala. It was also alleged‑that the claim in fact had been stolen. In the proceedings which ensued, the transferees of the land from Muhammad Sharif were also made parties. The Chief Settlement Commissioner vide order dated 29‑11‑1977 cancelled the allotment of the land made in the names of Inayatullah and Muhamamd Ismail and directed that the land so cancelled be allotted to the informers according to their entitlement. Mst. Munawar Khatoon and appellants Nos.2 and 3, the transferees of the land, challenged the order of the' Chief Settlement Commissioner dated 29‑11‑1977 in Writ Petition No. 1162‑R of 1978 in the Lahore High Court. Muhammad Sharif appellant No.l also filed Writ Petition No. 1219‑R of 1978. Both the writ petitions were allowed vide judgment dated 1‑3‑1986 and order of the Chief Settlement Commissioner impugned therein was set aside. This judgment for obvious reasons was not challenged by the respondents. Mst. Salama Bibi and others, however, filed C.P.S.L.A. in this Court which was later dismissed as withdrawn.

4. Inyatullah and the successors‑in‑interest of Muhammad Ismail, respondents Nos.l to 9 herein brought a suit in the Civil Court on 15‑8‑1988 for a declaration to the effect that they were the owners of the suit land; the power of attorney in favour of Muhammad Sharif defendant was a bogus document and that the transfer of the suit land in favour of other defendants was not binding upon them. They also prayed for a decree for possession. The case set up in the plaint was that Muhammed Sharif defendant was employed as a Stenographer in the Settlement Department. He stole the claims of the plaintiffs and got the suit land allotted against them. The said defendant also forged a power of attorney and in pursuance thereof transferred the land in dispute. The plaintiffs had been searching for their stolen claims but could not find them. They came to know of the fraud and forgery of Muhammad Sharif defendant for the first time when they were made parties to the proceedings into the `Mukhbari' application filed by Mst. Salina Bibi and others. The allotment was cancelled vide order dated 29‑11‑1977 against which two writ petitions were filed which were accepted by the High Court on 1‑3‑1986 and then there was an appeal before the Supreme Court which was dismissed on 19‑10‑1986. Thus, the cause of action, according to the plaintiffs, accrued to them for the first time in 1977 when they came to know of the forgery through `Mukhbari' proceedings and later when the defendants refused to acknowledge them as owners of the suit land after dismissal of their appeal by the Supreme Court on 19‑10‑1986.

5. The defendants/petitioners did not contest the suit by filing‑a written statement and instead moved an application under Order VII, rule 11, C.P.C. seeking rejection of the plaint on the grounds that the suit was hit by the bar of limitation and the judgment of the `Lahore High Court dated 1‑3‑1986 passed in two writ petitions operated as res judicata.

6. The learned trial Court upheld both the objections raised by the defendants and rejected the plaint holding, inter alia, that the respondents having denied the appointment of Muhammad Sharif as their attorney, they were estopped to claim any benefit of allotment obtained by the said attorney. It was observed by the learned trial Judge "if they take the allotment in their favour as valid they are bound to accept the power of attorney in favour of defendant No.l as valid.‑‑‑‑." It was also observed that the plaintiffs at no stage showed any interest or concern with the suit land and th6y rather got its allotment cancelled from the Chief Settlement Commissioner and "Now that the vendees/defendants have been able to get the order of the Chief Settlement Commissioner set aside from the High Court, they have come up as beneficiaries which is unconceivable". The learned trial Judge took the view that if the plea of fraud had not been raised in the High Court, it could not be agitated in the suit in view of the principle of constructive res judicata. On the question of limitation, the finding of the learned Civil Judge was that the plaintiffs admitted that "they came to know first time about the allotment in the year 1977 but filed the present suit in the year 1988 after the lapse of about 11 years", i.e., more than six years after the cause of action had accrued.

7. On appeal, the learned Additional District Judge did not accept the finding of the trial Court regarding the plea of res judicata as he was not convinced "that the focal point i.e. fraudulent transfer of land of plaintiffs by respondent No.l, was decided by the Hon'ble High Court in the writ petitions". He, however, affirmed the finding of the trial Court on the question of limitation holding that the plaintiffs could bring their suit within six years from the date of accrual of cause of action but they did not, file the suit even after six years of having come to know about the alleged fraud which on their own showing had come to their knowledge in the year 1977. The pendency of the writ petitions, it was observed, "did not enlarge the period of limitation. Even after disposal of the appeal by the Hdn'ble Supreme Court the appellants kept quiet for two years. The suit was, therefore, dearly barred by time and the learned trial Court rightly rejected the plaint to this score". The learned Additional District Judge also observed that on the one hand, the plaintiffs denied the appointment of Sharif defendant as their attorney and thus refused to accept the transaction of sale of land by him while on the other hand, they wanted to have the benefit of the allotment of land contained by him as their attorney. They could not be allowed to approbate and reprobate, it was held by the learned Additional District Judge.

8. The learned Judge in the High Court on a revision petition filed by the plaintiffs‑respondents upheld the view of the lower Appellate Court that the High Court's judgment dated 1‑3‑1986 did not operate as res judicata. It was observed by the learned Judge that the only question before the High Court in the writ petitions of Mst. Munawar Khatoon etc. was with regard to the cancellation of the allotment of Inayat Ullah and Muhammad Ismail who though were the parties in the writ petitions, "No question as to the fraud allegedly perpetrated by Muhammad Sharif, defendant, was or could be raised by the petitioners in the writ petitions". With respect to the observations of the Courts below that the plaintiffs wanted to have the benefit of the allotment procured by Muhammad Sharif defendant as their attorney but refused to accept the transfers of the land made by him, the learned Judge observed that the allotment of the land having been admittedly made against their verified claim, it was their land irrespective of the fact who had got that land allotted and in what manner. On the question of limitation the learned Judge in the High Court took note of the contentions raised on behalf of the revision petitioners with reference to Articles 91, 120 and 144 of the Limitation Act and the law declared by this Court in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) but refrained from expressing any firm opinion as in `his view "this question could not be decided without evidence". According to the learned Judge, the question of limitation "will have to be considered in the light of the evidence on the averments made in the plaint, namely, that Inayatullah and Muhammad Ismail had not constituted Muhammad Sharif, defendant, as their attorney; that their claims had been stolen; that they had been looking for them and that they did not know what had happened to their claims till they were made parties to the Mukhbari proceedings. In that behalf, the parties' respective positions in the Mukhbari proceedings and in the writ petitions, their statements, if any, and their effect will all have to be taken into consideration". Learned Judge accordingly vide the impugned judgment sent the case back to the trial Court for decision of the suit in accordance with law.

9. Learned counsel appearing for the appellants assailed the findings recorded by the learned Single Judge on the questions of res judicata and limitation and he also took serious exception to the conduct of the plaintiffs/respondents in keeping quiet for about two decades. It. was vehemently contended by the learned counsel that during all these years, the plaintiffs took no steps either to locate their stolen claim or to procure the allotments against their verified claim. According to the learned counsel, plaintiffs on their own showing as averred in the plaint had come to know of the theft of their claim in 1964 when F.I.R. No. 32/64 was registered on 8‑5‑1964 and they became aware of the fraud of defendant No. l in‑1977 during the Mukhbari proceedings but they filed the suit in 1988. In the submission of the learned counsel, plaintiffs' suit was governed by Article 95 of the Limitation Act whereunder period of limitation is three years from, the date when the party wronged comes to know of the fraud. Learned counsel contended that the plaintiffs having come to know of the fraud firstly in 1964 and then in 1977, their suit brought in 1988 was hopelessly time‑b4.rred. Learned counsel referred to section 3 of the Limitation Act to contend that the Court is under a statutory mandate to dismiss a suit brought after the prescribed period of limitation even though limitation has not been set up as a defence. Reference was also made to section 18 of the Limitation Act to contend that this provision applies only to those cases where a person having a right to institute a suit has, by means of fraud, been kept for the knowledge of such right or of the title on which it is founded. Learned counsel pointed out that the pendency of this writ petitions was no ground to extend the limitation. It was further contended by the learned counsel that since the question of limitation stood concluded on the averments in the plaint, there was no need to record any evidence and consequently no justification for remanding the case to the trial Court. Learned counsel also sought to contend that the plaintiffs were estopped by their own conduct from claiming any benefit of the allotments procured by Muhammad Sharif as their attorney as the plaintiffs had alleged that he had acted on the basis of a forged power of attorney and which allotment they themselves got cancelled from the Chief Settlement Commissioner.

10. We have considered the submissions made by the learned counsel and have not. felt persuaded to agree with him. Learned Judge in the High Court has taken correct view of the matter. in holding that the judgment of the High Court dated 1‑3‑1986 passed in two writ petitions filed by Mst. Munawar Khatoon etc. did not operate as res judicata. The learned Judge observed and rightly so that the only issue before the High Court in the writ petitions related to the cancellation of the allotment of Inayat Ullah and Ismail who naturally were interested in restoration of their allotment and so were the writ petitioners and, therefore, no question as to the alleged fraud was or could be raised in those petitions. Needless to observe that the question of forgery/fraud as set up by the plaintiffs in their plaintwas not examined/dealt with in the judgment of the High Court dated 1‑3‑1986. As regards the plea of estoppel based on the statement said to have been made by Muhammad Ismail for himself and on behalf of his brother Inayat Ullah before the Settlement Commissioner "that they had not procured the allotment", the learned Judge observed that no such statement was placed before him and in any case, if such a statement was made, it may provide the appellants herein with a plea of estoppel which would be a matter of evidence. No exception can be taken to this observation/finding. The learned Judge was also right in repelling the objection that the plaintiffs though relied upon the allotment of the land procured by Muhammad Sharif defendant as their attorney but did not own the transfers made by him and correctly observed that ,8 as the suit land was admittedly allotted against the varified claim of the plaintiffs, they could legitimately lay claim thereto regardless of who had got it allotted and in what manner. It may pertinently be observed that the appellants have not denied that the allotment of the suit land was made against the varified claim of the plaintiffs.

11. Adverting now to the question of limitation and the contention of the learned counsel for the appellants that the plaintiffs' suit was governed by Article 95 of the Limitation Act and was barred by time as it was not brought within three years from the date they came to know of the fraud in the year 1964 and then in 1977. Before proceeding to examine this contention, we would like to make it clear that the plaintiffs nowhere stated in their plaint that they became aware of the fraud in 1964. This is an assumption, erroneous though, of the learned counsel for the appellants. With reference to the year 1964, what the plaintiffs actually stated in para. 10 of the plaint was that a Criminal Case under sections 419/420/379/468/120, P.P.C. for theft of claims from Sialkot District had been registered against defendant No.l and other members of his gang on 8‑5‑1964 and on coming to know of that case, they have also now got a case registered against the defendants under section 467/468/471/420, P.P.C. which is still under investigation. It is, however, correct that the plaintiffs averred in para. 11 of the plaint that they came to know of the forgery and fraud for the first time in 1977 when `Mukhbari' proceedings were initiated against their allotments. This averment is then followed by an explanation as to why the plaintiffs were unable to file the suit immediately. The assertion was that the plaintiffs' title was disputed and the matter remained sub judice until the writ petitions were accepted by the High Court on 1‑3‑1986 restoring the allotment of the suit land and the appeal filed by the informers was dismissed by this Court on 19‑10‑1986. Plaintiffs thereafter approached the defendants and the revenue authorities and then filed the suit.

12. Article 95 of the Limitation Act provides a limitation period of three years for a suit "To set aside a decree obtained by fraud, pr for other relief on the ground of fraud" and the terminus a quo 4 the date "When the fraud becomes known to the party wronged". Now the suit of the plaintiffs in the present case is a suit for declaration and recovery of possession of the land in dispute and not for setting aside any decree or document based on fraud. It is manifest from the body of the plaint and the prayer made therein that the plaintiffs sought it to be declared that the power of attorney purporting to have been executed by them on the basis whereof, defendant No.l having obtained the allotment of the suit land further sold it to other defendants was a forged and fictitious document. Case of the plaintiffs is that they never executed any power of attorney in favour of defendant No.l and consequently they sought a further declaration that the sales made by defendant No.l in pursuance of the impugned power of attorney were not binding on them and were inoperative . qua their rights. Prayer was also made for a decree for possession with a direction to be issued to the Registrar for canceling all the registered‑deeds in favour of the defendants. It is an established proposition of law that when the plaintiff is not a party to a decree or fraudulent transaction, Article 95 will have no application. Refer Mst. Sheedi v. Muhammad Siddique and 2 others (PLD 1980 Lahore 477) wherein it was observed that for so long as a person is not actually a party to a document or to a decree, he will not be bound by it and for this reason, it would not be necessary for him to get it cancelled. His purpose will be served by merely getting it declared as void. Reliance in the aforenoted case was also placed on a judgment of this Court reported as Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) wherein while interpreting Article 91 of the Limitation Act which. too, provides a period of three years for a suit to cancel or set aside an instrument not otherwise r provided for, it was held that this Article will not apply when the cancellation of the instrument is not an essential part of the plaintiffs relief. That is to say where the deed or instrument is ab initio null and void in which case it can be treated as a nullity without having lobe cancelled or act aside. For instance, if a person who executes a document had no authority in law to do so or he is suffering under a legal disability, at the time of its execution, say by reason of minority, unsoundess of mind etc., the document will be null and void. It was further observed in the said judgment that "Article 91 does not apply to a suit where the cancellation of the instrument is merely incidental or ancillary to the substantial relief claimed by the plaintiff, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiff's rights". In an earlier case Shamshad Ali Shah v. Hassan Shah (PLD 1964 SC 143) also, this Court examined the question as to whether it is always necessary to seek the setting aside and/or cancellation of instruments obtained by fraud and it was observed that "A person who claims that a decd which purports to be executed by him is a forgery is n~)t asking that the deed be set aside and is not bound to sue within three years". In the present case, as seen above, the plaintiffs have not sought the setting aside/cancellation of the impugned power of attorney. They only sought it to be declared as void and the sales made in pursuance thereof as not binding on them., In fact, on the allegations made in D the plaint, which were not controverted by the defendants by filing any written statement as on their request, the plaint itself was rejected, it was not necessary for the plaintiff's to seek setting aside/cancellation of the power of attorney. Their prayer for a direction to the Registrar for cancelling the registered deeds, too,, was only incidental to the main relief for declaration and p possession. In the circumstances, we hold that on the averments made in the plaint, Article 95 of the Limitation Act would not be attracted. It may also be noted that limitation under Article 91 of the Limitation Act as held by this Court in the afore‑referred case of Mst. Hamida Begum commences not when the plaintiff acquires knowledge of facts which render the instrument voidable but "When the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him" which phrase, it was observed, must be construed to mean "when having knowledge of such facts, a cause of action has accrued to him and he is in a position to maintain a suit". Again Article 120 which is a residuary Article provides that a suit can be brought within six years for the time "when the right to sue accrues". Article 144 provides a limitation of twelve years form a suit for possession and the starting point of limitation is the time "when the possession of the defendant becomes adverse to the plaintiff. In the present case, the moot point is as to when precisely the cause of action accrued to the plaintiffs so as to enable them to file the suit. This question as rightly held by the learned Judge in the High Court could not be decided without recording the evidence on the averments made in the plaint highlighted in the impugned judgment. The case has, ` therefore, been rightly remitted to the trial Court for decision of the suit in accordance with law.

13. Upshot of the above discussion is that we find no merit in this appeal which is accordingly dismissed. Costs shall abide the event. AA./M‑3165/S Appeal dismissed.