Maintainability and limitation

2017 MLD 1878 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 42 & 52Limitation Act (IX of 1908), Art. 14Civil Procedure Code (V of 1908), O. XLI, R. 30 & S. 96Suit for declaration and permanent injunctionMaintainability and limitationDeterminationAppeal from original decreeJudgment in appeal

Plaintiffs filed present suit claiming that suit land originally belonged to their grandfather and they, being one of the legal heirs, were entitled to be declared as owners of suit land to the extent of their shares and to get their name entered in revenue record accordingly

Trial Court dismissed the suit on grounds of limitation and same being hit by proviso to S. 42 of Specific Relief Act, 1877; whereas, appellate court decreed the same as prayed for

Validity

Order of appellate court was devoid of any reasoning and support of evidence led by parties

Appellate court had not even framed points for determination for deciding appeal and failed to examine order of Deputy Commissioner and appellate authority under Land Revenue Code, 1894 and report of the Commissioner

Appellate court, while setting aside findings of Trial Court, did not give any reasoning on the point of limitation

While reversing the findings of court below, appellate court had to give reasons for disagreeing with findings of lower court and also to advance reasons for its opinion in support of reversing the findings

Plaintiffs had not prayed for possession from defendant and only sought declaration of ownership as legal heirs and declaration as to cancellation of mutation

Appellate court failed to appreciate that predecessor of plaintiff had appeared before Revenue Authorities for effecting mutation in respect of suit property in favour of defendant

Trial court, on basis of evidence on issue regarding possession of suit property and following mandatory proviso to S.42 of Specific Relief Act, 1877, had rightly held the suit not maintainable

Appellate court's judgment was silent on issue of maintainability of suit with reference to S. 42 of Specific Relief Act, 1877

High Court, setting aside judgment and decree of appellate court, restored that of trial court

Revision petition was allowed in circumstances.