A suit for declaration, with consequential relief of possession and injunction that he was co-sharer with Respondent No, 1 and the entries in the QPR-V and RL-II and mutations in favour of Respondents Nos, 2 and 3 were illegal, void and ineffective qua his rights, was instituted by the petitioner/plaintiff on 24.1.1994, which was contested by the respondents. Controversy spelt out of the pleadings of the parties gave rise to the issues framed by the trial Court, who after receiving the evidence that was produced by the parties dismissed the suit vide judgment dated 16.1.1995 and the appeal preferred there against was dismissed by the learned Additional District Judge, Sialkot on 28.7.1999, which are sought to be assailed through this revision petition.
2. In assailing the findings of the Courts below on Issue No, 1 (limitation) it is contended that in view of the findings of the Courts below on Issues Nos, 4 and 5 (that the petitioner was victim' of fraud), there was no question of limitation and the petitioner could, not be non-suited on that ground. It is contended by the learned counsel that as soon as the petitioner learnt about the fraud, the suit was filed by him, which was within limitation and could not be held to be time-barred.
3. The case of the petitioner was that he and. Respondent No, 1 Ahmed Din, Jammu & Kashmir refugees were cousins and had submitted a joint claim, which was verified on 30.10.1958, but Ahmed Din got the QPR-V dated 22.10.1959 issued in his name alone and obtained allotment of 41- Kanal 2-Marlas to himself, which land was later on alienated by him to Respondents Nos, 2 and 3, his daughter and wife. Besides other issues, Issue No, 1 was as to "Whether the suit is within time".
Though in the plaint it was averred that off and on the plaintiff/petitioner had been receiving share of the produce from Respondent No, 1 as co-sharer yet no evidence was produced to this effect.
Thus the averments made in the plaint as to accrual of cause of action for bringing the suit within limitation even remained unsubstantiated as no evidence was led in support thereof by the petitioner. The legal position settled needs no reiteration that any assertion made in the pleadings if controverted by the other side cannot be taken as a fact established unless so proved. In the instant case on appreciation of the evidence the learned trial Court came to the conclusion in particular with reference to the testimony of the petitioner himself that 20 years ago he had asked the defendant to give him his land but the later refused to do so telling him that he had no such claim. In such state of the admitted position as to the denial of his title long before the Court came to the conclusion that the suit filed in the year 1994 long after the date of knowledge of the commission of fraud with him was barred by time. The finding and the view taken by the trial Court has been affirmed by the learned appellate Court. The main stress of the learned counsel is upon the findings recorded by the Courts' below on Issues Nos, 4 and 5 who contends that once it was found that fraud had been committed the limitation should altogether be ignored. The contention, however, is not tenable inasmuch as when according to his own assertion the right and title of the petitioner in the land had been denied 20 years ago that would have been the time for agitating the matter, when even the settlement laws were in existence and operative, before the competent settlement authority. Suit filed in the year 1994 in view of the admission as to denial of his title was per-se time barred. Suffice it to observe that limitation for a declaratory suit under Article 120 of the Limitation Act, 1908 begins to run from the date the right to sue accrues. In the instant case right to sue accrued in favour of the petitioner 20 years ago when he was face with the denial of his claim by Respondent No,
1. The limitation started running against him then which expired long before the institution of the suit. ,In Province of the Punjab through Member Board of Revenue (Residual Properties), Lahore and others v. Muhammad Hussain through legal heirs and others (PLD 1993 S.C.
147) it was held "There is no principle known to law whereunder on expiry of full available period of limitation revival of cause of action afresh and running of the limitation period over again could take place either from the date of knowledge or the attornment of the tenants or on obtaining of possession." Such view was taken by the Supreme Court in a suit which was filed in the year 1978 on the basis of a registered sale-deed of the year 1946. In Muhammad Raz Khan v. Government of N.W.F.P. and another (PLD 1997 S.C. 397) it was observed that an "order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignores it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order; which too must be independently established on sound basis. In this behalf we derive strength from the observations contained in PLD 1975 Baghdad-ul-Jadid 29 (Sayed Sajid Ali v.
Sayed Wajid Ali) and 1978 SCM R 367 (S. Sharif Ahmad Hashmi v. Chairman, Screening Committee)."
Since in this case the petitioner himself deposed that. his right and claim had been denied by Respondent No, 1, 20 years ago, the passage of long period till 1994 rendered the suit as barred by time. In such view of the matter the view taken by the Courts below on Issue No, 1 is absolutely justified from the evidence on the record and is consistent with law.
In view of the above, the revision petition is dismissed. No order as to costs.