SH. ABDUR RASHID, J.---This revision petition is directed against the order, dated 23-6-2004 passed by the learned Civil Judge, Lahore whereby he has rejected the application filed under Order VII, rule 11 read with sections 94 and 151, C.P.C. By the petitioners-defendants seeking rejection of the plaint in the suit filed by the respondents-plaintiffs.
2. The facts leading to the filing of this petition are that Rizwan Ahmad and 7 others, respondents, herein, filed a suit on 19-3-2004 praying that decree for declaration be granted that Mutation No.54 of inheritance of Karim Bukhsh sanctioned on 20-5-1941 was the outcome of fraud, misrepresentation and being unlawful was liable to be set aside and by correcting the said mutation the plaintiffs be given 2/3 share of the land equivalent to 158 Kanals, 18 Marlas as well as share out of Shamlaat Deh located within the Revenue Estate of Mauza Malikpur, Tehsil and District Lahore; that the entire subsequent periodical Revenue Record from 1941 till date be ordered to be corrected; that all the intervening sale-deeds and other alienations which had taken place during the interregnum period be ordered to be also nullified and that as a consequential relief possession of the suit land be directed to be handed over to the plaintiffs-respondents. The background of the subject suit as mentioned is that one Karim Bukhsh was owner of the land who died on 3-2-1936 leaving behind Mst. Wazir Begum widow and three sons, namely, Fayyaz Ahmad; Jalil-ul-Qadir Ahmad and Aftab Ahmad. Mutation of his Inheritance bearing No.54 was sanctioned on 30-5-1941 whereby his half share in the joint Khata with one Muhammad Shafi was mutated in the name of his son Jalil-ul-Qadir Ahmad to the exclusion of his widow and two other sons, named above. Jalil-ul-Qadir Ahmed sold the entire land inherited by him from his father in favour of Muhammad Shafi son of Rahim Bakhsh through a registered sale-deed dated 26-1-1960. The transaction of sale was incorporated in the Revenue Record through Mutation No.318 attested on 6- 3-1961. The said Muhammad Shafi having died, mutation of his. Inheritance No.508 was sanctioned on 28-11-1974 in favour of his widow Mst. Kubra Begum, four sons, namely, Muhammad Asghar, Muhammad Aslam, Muhammad Akber Yasin and Muhammad Saeed and a daughter named Mst.
Zakira out of which Muhammad Asghar and Muhammad Aslam surrendered their shares in favour of their mother and sister by means of a registered Relinquishment Deed which transaction was given effect to in the Revenue Record by sanctioning Mutation No.652 on 15-9-1985. Muhammad Akbar Yasin had died on 13-2-1981 and Mutation No.53 of his inheritance was attested on 15-9-1985.
Muhammad Saeed also died and Mutation No.1088 of his inheritance was sanctioned on 22-11- 2002. It was claimed in the suit that all these mutations and the consequent periodical records maintained by the Revenue Department being illegal, should be set at naught. It was further pleaded that Mutation No.1137 sanctioned on the basis of a Courts' decree in favour of Imran Saeed and Aamer Saeed, defendants-petitioners Nos.4 and 5 and likewise Mutation No.1138 attested pursuant to a. Courts' decree in favour of defendants-petitioners Nos.1 and 2 being equally unlawful are liable to be nullified. As per plaint Mst. Wazir Begum widow of Karim Bakhsh died in the year 1983 and Aftab Ahmed son of Karim Bakhsh died on 21-2-1999. Fayyaz Ahmed died in the year 1981.
3. The application filed by the petitioners under Order VII, rule 11 read with sections 94 and 151, C.P.C.
For rejection of the plaint was mainly founded on the grounds that in view of the provisions contained in section 172 of the Punjab Land Revenue Act, 1967, correction of Revenue Record fell exclusively within the domain of the Revenue Authorities and the suit was not competent that besides seeking rectification of Mutation No.54 sanctioned as far back as on 30-5-1941 registered sale-deed dated 26-1-1960 was sought to be cancelled but the predecessors of the plaintiffs- respondents who lived long after the said mutations and the sale-deed, there was not even a whisper heard of them in connection therewith and that even as per averments contained in the plaint the suit was hopelessly barred by limitation. The learned trial Judge has rejected the application by observing that the issue of limitation being a mixed question of fact and law could be determined only after recording evidence.
4. I have heard the learned counsel for the parties and have gone through the record made available by them.
5. So far as the first ground founded on section 172 of the Punjab Land Revenue Act of 1967 Act is concerned, I do not agree with the learned counsel for the petitioners-defendants that the Civil Court had no jurisdiction to entertain the suit. It is settled law that in case involving complicated questions of facts and law and the transactions being complex general jurisdiction of the Civil Court would be more appropriately attracted to resolve the same.
6. Now coming to the second ground the plaintiffs-respondents seek declaration of their alleged rights of ownership by annulment of Mutation No.54 attested as far back as on 30-5-1941 through the instant suit filed on 19-3-2004 nearly about 63.Years after the cause of action first arose. The plaintiffs have felt contented by explaining such a long repose by merely stating that Fayyaz Ahmad father of plaintiffs Nos.1 to 4 was minor at the time of death of Karim Bakhsh, original owner and remained unaware throughout his life about the fraud allegedly committed by Jalil-ul-Qadir Ahmad whereas Aftab Ahmad father of plaintiffs 5 and 6 and grandfather of plaintiffs 7 and 8 remained most of the time at Karachi in connection with his business and therefore, he too did not know about the alleged fraud. Neither the date of birth of Fayyaz Ahmad nor the date when he attained majority has been given. In any case Karim Bukhsh having admittedly died way back on 3-2-1936 as mentioned in paragraph 2 of the plaint Fayyaz Ahmad must have born before that date, in particular when it is pleaded that at the time of death of his father he was minor. Statedly, he died somewhere in the year 1981. Thus, he lived for a number of decades after attaining majority.
So far as Aftab Ahmad is concerned, it is simply stated that most of the time he remained engaged in his business at Karachi. It is not the case of the plaintiffs that he too was a minor at the time of death of his father. Even the bare minimum particulars as to when he left for Karachi and for how long he remained there have not been pleaded. It is also not mentioned that he had no occasion to visit Lahore from 1936 till his death which statedly took place in 1999. It is a long period of 63 years. Moreover, as per plaintiffs themselves, Mst. Wazir Begum widow of Karim Bakhsh and mother of Fayyaz Ahmad and Aftab Ahmad had also lived long till 1983. Assuming for the sake of argument that neither the widow nor her two sons who had allegedly been illegally deprived from inheritance had knowledge of Mutation No.54 sanctioned on 30-5-1941 or that Jalil-ul-Qadir Ahmad had succeeded in keeping the same secret from them, but there could be no reason why they did not come to know when admittedly Jalil-ul-Qadir Ahmad transferred the land through sale-deed dated 26-1-1960 and also parted physical possession thereof whereas Mutation No.318 giving effect to the sale transaction in the Revenue Record had also been sanctioned on 6-3-1961 in favour of his vendee Muhammad Shafi. Astonishingly, the land had changed hands a number of persons due to transactions and inheritance mutations some of which are mentioned in the plaint as referred to in paragraph 3 ante whereas others have not even been disclosed and still the predecessors of, the plaintiffs as well as the plaintiffs themselves had remained ignorant of their alleged valuable rights altogether for more than half a century. Doubtless issue of limitation is a mixed question of fact and law. But when the delay is so unconscionable as in the present case and the plaint is conspicuous by absence of reference to the facts constituting grounds for avoidance of delay of over six decades, the Court cannot sit as a silent spectator simply to see and watch a useless legal battle going on initiated by one party ostensibly for blackmailing the other party. The trial Judge is expected to use his faculties to search for truth in the plaint draped by mere jugglery of words and try to minimize as far as possible the miseries of the innocent criticizers without, of course, causing injustice to a really genuine suiter. It if the plaint of the instant suit is examined minutely, the fact that the same is hopelessly barred by limitation is borne out from its own contents. The long delay of decades together is not only inexplicable but unconscionable also. Therefore, the learned trial Judge was not right in shirking responsibility to examine the whole matter in its true perspective.
7. Karim Bukhsh original owner is stated to have died on 3-2-1936. Mutation No.54 was sanctioned on 30-5-1941. The order of the Revenue Officer whereby the mutations had been sanctioned has not been produced by the plaintiffs. 'It has also not been disclosed as to why it took particularly in those days more than five years for the Revenue Authorities to sanction a mere inheritance mutation. The plaintiffs do not appear to have placed all the cards before the Court. The failure on the part of Mst. Wazir Begum, Altaf Ahmad and Fayyaz Ahmad to fight for or initiate appropriate proceedings for long years during which they remained alive and their complete silence when the transactions of various types about the land were taking place and different persons were enjoying fruits of the land at different times within their view could not obviously be without reasons which the plaintiffs have opted not to disclose. Be that as it may, Mutation No.54 sanctioned on 30-5-1941 and the sale-deed dated 26-1-1960 and the consequent Mutation No.318 dated 6-3-1961 had not been challenged by Mst. Wazir Begum, Fayyaz Ahmad and Aftab Ahmad during their lifetime within the period of limitation which indisputably expired when all three of them were still alive. Learned counsel for the plaintiffs-respondents has however, contended that when property is inherited by more than one co-heirs of a deceased person, then possession of one co-heir is in law possession of all the co-heirs; that mere non-participation in profits or property by certain co-heirs and exclusive possession by one or more would not be sufficient to constitute ouster of others; that mutation proceedings stricto senso are not judicial in nature, that the question of limitation does not arise in the case of joint possession as co-sharers; that wrong mutation confers no right in property and that the suit filed upon denial of rights of the co-sharers for declaration would be within time and the Revenue Authorities on success of such suit would be under legal obligation to correct the wrong mutation. In support of his submissions, he has relied on Moolchand v.
Muhammad Yousaf (Udhamdas) PLD 1994 SC 462; Ali Bahadur v. Nazir Begum PLD 2005 Lail. 218; Muhammad Rafiq v. Muhammad Ali 2004 SCMR 704; Mst. Reshman Bibi v. Amir 2004 SCMR 392; Mst. Saabran Bibi v. Muhammad Ibrahim 2005 CLC 1160; Munir Ahmad v. Muhammad Siddique 2005 MLD 364; Rehman's v. Yara 2004 SCMR 1502; Mst. Sharam v. Taj Muhammad 2002 CLC 2001 and Nawab Din v. Muhammad Ishaque PLD 2004 (AJ&K)
49. There can be no cavil with the general propositions advanced by the learned counsel for the respondents, but the fate of each case depends on its own peculiar facts. I have gone through the entire case-law referred to by the learned counsel. If the matter in hand had been a case of inheritance simplicitor, neither the long and continuous entries in the Revenue Record nor the exclusive possession and enjoyment of usufruct of the land by one or more of the co-owners could have operated as insurmountable impediments for non-suiting the plaintiffs-respondents. But, here there have been a number of intervening factors which cannot conveniently be ignored. It is plaintiffs-respondents own case that by means of a sale-deed, dated 26-1-1960 Jalil-ul-Qadir Ahmad had sold the entire land to one Muhammad Shafi son of Rahim Bukhsh which transaction was implemented in the Revenue Record through Mutation No.318 sanctioned on 6-3-1961. Undeniably, the said Muhammad Shafi had purchased the land for valuable consideration on the basis of public record continuously showing Jalil-ul-Qadir Ahmad as owner from 1941 onwards i.e. For about 20 long years. It is essentially a suit for cancellation of the registered sale-deed dated 26-1-1960. Article 91 of the Limitation Act, 1908 provides a maximum period of three years for seeking cancellation of an instrument. It is not denied that the said sale-deed was given immediate operation and was acted upon from the date of its execution. Indisputably the plaintiffs-respondents cannot recover the property until the sale-deed is set aside for which as observed above, maximum period of limitation is three years. The suit filed after 44 years of the execution and registration of the sale- deed was patently barred by time as per averments of the plaintiffs themselves. The facts of the case reported as Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245 relied upon by the learned counsel for the defendants --petitioners are on all fours. In the cited case, it was authoritatively laid down as follows:-- "The first circumstance to be noted in this regard is the entry dated 5-4-1938 which stood in the Revenue Record unchallenged for over 45 years, although Farid Bakhsh who was affected by this order, remained alive for a period of about 40 years after passing of the said order. The second important circumstance i.e the case to be noted is that after the passing of the order, dated 5-4- 1938 Muhammad Ibrahim, one of the allottees of the land, died in 1956 and his 1/2 share in the suit- land was mutated in favour of his legal heirs. Thereafter there have been successive transfers of the said 1/2 share of Ibrahim through mutation on account of death of his legal heirs in favour of the surviving heirs but no objection was taken by Farid Bakhsh to these transfers. The other co- allottee of the land, Shadi, who claimed the other 1/2 share of the land died in the year 1971 and his share was also mutated in favour of his legal heirs. There have been, thus, several transfers of the suit-land through mutation in favour of legal heirs of Ibrahim and Shadi to the exclusion of Farid Bakhsh between the years 1956 and 1971 but at no time Farid Bukhsh who was very much alive, raised any objection to these transfers on the ground that he too was one of the sharers in the suit- land. In addition to the above-referred mutations, the property was also transferred through registered sale-deed by the Government in the year 1966 in favour of Shadi and the legal heirs of Ibrahim in equal shares but Farid Bakhsh who as not only alive at the time of this transfer but also lived for about 12 years thereafter, did not object to the above transfer of land to his exclusion in favour of Shadi and legal heirs of Ibrahim. In these circumstances, the conclusion by the first Appellate Court which were confirmed by the learned Judge in Chambers in revision that the order, dated 5-4-1938 was a void order are not sustainable in law. In this connection it may also be mentioned that the assertion that the order, dated 5-4-1938 was passed without hearing Farid Bakhsh was raised after about 45 years by the legal heirs of Farid Bakhsh and Farid Bakhsh who was alive for about 40 years after passing of the said order never raised this objection. The objection raised by the legal heirs of Farid Bakhsh, therefore, in the circumstances of the case has little evidentiary value. The first Appellate Court and the learned Judge in Chambers while disagreeing with the conclusions of the trial Court totally failed to take into account the above noted circumstances and the reasonings of the trial Court which were fully supported by the preponderance of the evidence in the case.
Similarly, the conclusion of the trial Court that the suit instituted by the legal heirs of Farid Bakhsh was time-barred was based on correct appraisal of the circumstances and the evidence in the case. It is true that in case of successive denial of title the person whose title is denied is not bound to sue for a declaration on each and every such denial howsoever, trivial it may be. It is for the plaintiff to elect to file a suit as and when he feels aggrieved by such denial of his title. However, where denial of title is of a substantial nature and has the effect of depriving the person of his right in the property, such denial can only be ignored by the plaintiff at his own peril. In the present case, the order, dated 5-4-1938 had the effect of depriving Farid Bakhsh of his right in the suit-land, therefore, the right to sue accrued to Farid Bakhsh on 5-4-1938 and the suit for declaration of title should have been brought within the period prescribed under Article 120 of the Limitation Act.
However, the contention of the legal heirs of Farid Bakhsh before the Courts below was that Farid Bakhsh was not aware of this order. Even if it is assumed that Farid Bakhsh did not know about the order, dated 5-4-1938, for the reasons that he reposed full confidence and faith in his elder brother Ibrahim who used to cultivate and manage the suit-land and that he never informed Farid Bakhsh about the order dated 5-4-1938, there was no justification to hold that when the land was transferred/mutated in favour of the legal heirs of Ibrahim, on his demise, to the exclusion of Farid Bakhsh, he remained unaware of the said mutation. The explicit denial by the legal heirs of Ibrahim and Shadi that they accepted Farid Bakhsh as the co-owner of this suit-land or that they ever paid any share of the produce of the land to Farid Bakhsh or the respondents found full support from the evidence and attending circumstances of the case. Similarly, failure on the part of Farid Bakhsh to challenge the transfer of suit-land by the Government in favour of Shadi and legal heirs of Ibrahim in 1966 through a registered deed had the effect of negating the title of Farid Bukhsh in the suit- land. Therefore, in these circumstance Farid Bukhsh could not be deemed to be unaware about the assertion of the title by the legal heirs of Ibrahim and Shadi to the suit land. The learned counsel for the respondents has relied on the cases of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, Haji v. Khuda Yar PLD 1987 SC 453 and Najabat v. Saban Bibi PLD 1982 SC 187 in support of his contention that the appellants shall be deemed to be in possession of the suit-land as joint owners along with the respondents as the suit-land was originally allotted to Ibrahim, Shadi and Farid Bukhsh jointly and as such there was no question of limitation in the present case. The cases relied by the learned counsel for the respondent are of no help and assistance to the respondents in the circumstances and facts of the present case."
8. The matter can be looked at from another angle. It is not the case of the plaintiffs that either their predecessors or they themselves have ever been in possession of the suit-land or any part thereof, at least after the death of Karim Bakhsh in 1936. They, in fact, could not plead so, because they are seeking possession of the suit property. It is also not their case in the plaint that they have been paid Batai at any time ever since death of Karim Bukhsh. The plaintiffs have not even averred that they are in possession of any part of the joint Khatas. They are seeking a declaration of ownership and claiming possession as a consequential relief. They are also seeking rectification of Record of Rights. It is settled law that such a suit is covered by Article 120 of the Limitation Act for which period of limitation is six years. Moreover, in such a suit for possession, the plaintiffs have to show that they have been dispossessed within a period of six years prior to the institution of the suit. Even under the residuary Article 144 of the Limitation Act, the maximum period prescribed is twelve years. In any case, the suit of the plaintiffs, on the face of the plaint itself, was hopelessly barred by limitation and the learned trial Judge has committed a patent illegality in not rejecting the plaint outrightly.
10. (sic)The submission of the learned. Counsel for the plaintiffs-respondents that as held in Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 the original mutation being void ab initio, the same as well as the entire superstructure of rights and obligations. Built thereon would be of no consequence, cannot be accepted in view of the peculiar facts and circumstances of the present case, as well as because of the subsequent elucidation of law by the Honourable Supreme Court in Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore 1978 SCMR 376 wherein at page 373 of the report, after extracting the relevant portion of the judgment in Yousaf Ali's case, it was inter alia held as follows:-- "This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or in equitable to strike down the void order.
This qualification is very important and that is why for example a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation Similarly in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others PLD 1964 SC 829 a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches."
"It is true that a writ was issued in Yousaf Ali's case and the void order was set aside `together with the superstructure of rights and obligations' built upon it. But there were no equities in that case against the appellant, because the void order related to a dispute about property and was one of a series of orders in the continuous litigation between the parties, therefore, no equities had accrued either in favour of the respondent or in favour of third parties. But in the instant case, even on the footing that the impugned order is void the petitioner failed to challenge for more than a decade, therefore, it must have led to consequences, such as the promotion of other people to the appointment held by the petitioner."
Here also the plaintiffs own case is that the suit-land had changed many hands during the last more than 60 years. Rights stood created in favour of all those who succeeded, in one way of the other, Jalil-ul-Qadir Ahmad in whose favour Mutation No.54 was sanctioned way back on 30-5- 1941 which had neither been challenged by any of the alleged legal representatives of Karim Bakhsh, original owner nor by their successors for more than six decades. It would thus, be wholly unjust to uproot at such a bleated stage, the successors of a bona fide purchase for valuable consideration on the basis of public record.
11. Besides, in paragraph 7 of the plaint, it was inter alia pleaded as follows:-- "And that Mutation No.1137 being based on a decree in favour of Imran Saeed and Aamer Saeed, defendants Nos.4 and 5, is also illegal and void, and Mutation No.1138 in favour of defendants Nos.1 and 2 and decrees the basis of these mutations are also based on fraud as Jalil-ul-Qadir was not entitled to sell the whole share of inheritance of Karim Bukhah to Muhammad Shafi, predecessor of the defendants."
Although the dates of the decrees and the consequent mutations have not been given yet the fact remains that in view of these intervening decrees it cannot be said that the instant suit is one of inheritance simplicitor. Moreover, since fraud has been pleaded, the decrees could be challenged by having recourse to section 12(2), C.P.C. And not through a separate suit in view of the mandate of law contained in the said section. Besides, the present suit is a hotch-potch of a number of causes of action.
12. The plaintiffs themselves have stated in paragraph 8 of the plaint that "from the whole joint Khatas of Muhammad Shafi, the defendants and their predecessors have sold some land to other persons without partition." However, neither the requisite facts about those transactions have been pleaded nor the beneficiaries of such transactions have been impleaded as parties. The plaintiffs have thus, suppressed even the most important and material facts. Undeniably, all those person in whom any right, title or interest stood vested before the institution of the suit were necessary parties, in whose absence no effectual decree can be passed. A plaintiff cannot be allowed to leave everything for the Court, in particular to find out facts for his assistance by make a roving enquiry. The plaint as presently constituted is thus, not entertainable for this reason as well.
12-A. Learned counsel for the plaintiff lastly contended that Muhammad Shafi predecessor in interest of the petitioners-defendants was the real paternal-uncle of Jalil-ul-Qadir Ahmad and the latter being issueless, the former had fraudulently usurped the entire land of his brother Karim Bakhsh. The argument proceeds on factual misconception. In paragraph 1 of the plaint, the name of father of Karim Bukhsh is shown as "Allah Bukhsh" whereas in paragraph 5 of the plaint the name of father of Muhammad Shafi is mentioned as "Rahim Bukhsh". Thus, neither Karim Bukhsh and Muhammad Shafi were real brothers nor Muhammad Shafi was the real paternal-uncle of Jalil-ul- Qadir Ahmad. The contention, in the circumstances, is fallacious and cannot be entertained.
13. For the foregoing reasons, this petition succeeds, the impugned order, dated 23-6-2004 passed by the learned trial Judge is set aside and the plaint of the suit titled Rizwan Ahmad and seven others v. Anjum Mahmood and five others is hereby ordered to be rejected. The parties are, however, left to bear their own costs.