' SARMAD JALAL OSMANY, J.---The respondents had filed Civil Suit No.7 of 1994 against the applicants before the learned 1st Senior Civil Judge, Khairpur, for declaration, possession, mesne profit and permanent injunction in respect of the suit-land which was decreed vide judgment dated 8-4-2003 as prayed except that mesne profit were not granted. Said judgment and decree were assailed by the applicants before the learned District Judge, Khairpur in Civil Appeal No.45 of 2003 which was dismissed vide judgment dated 18-5-2004 and hence this civil revision.
2. Briefly stated the facts of the case per the respondents are that their predecessors in interest viz. Sajan, Arbab and Ali Hassan had purchased the suit-land being 4-33 Acres out of Survey No.337/1, Deh Mohil, Taluka and District Khairpur from Muhammad Arif and Hafiz Abdul Hameed Qureshi vide registered Sale-deed dated 21-10-1953. Deceased Muhammad Moosa, Muhammad Saleh and Khuda Bux also had an interest in the suit-land. The said purchasers took over the possession of the land and enjoyed the same. After the death of Muhammad Moosa, Muhammad Saleh and Khuda Bux, their shares devolved upon their legal heirs viz. The respondents. On 15-1-1968 Chutto son of Allah Wasayo executed a sale-deed in favour of the applicant No.3 deceased Dhani Bux, whereby the suit-land was, along with some other land, sold to the latter without the knowledge of the respondents according to whom this was totally fraudulent as said Chutto had no right title or interest in the suit-land. However, the land was again fraudulently mutated in the Revenue Record in the name of applicant Dhani Bux and Rasool Bux with the connivance of the revenue authorities.
As soon as such mutation came to the knowledge of the respondents, they approached the then Assistant Commissioner, Khairpur who after conducting an enquiry corrected the record of rights in favour of the respondents vide order dated 7-10-1982, whereupon such fraudulent entry was reversed. The applicants then filed an appeal before the then Deputy Commissioner Khairpur, who dismissed the same vide order dated 20-4-1983. In the month of July 1983 the applicants trespassed in the suit-land being duly armed with weapons and forcibly dispossessed the respondents for which a F.I.R. Was also lodged at Police Station Ahmed Pur. Thereafter the applicants approached the then Additional Commissioner, Sukkur who vide order dated 7-11-1984 directed the parties to seek their remedy before the Civil Court. Then the parties started negotiations for amicable settlement of the matter which having failed the respondent filed an earlier Suit viz. No.316 of 1985 against the applicants which was dismissed in default and the same fate was meted out to the appeal filed against such dismissed viz. No.21 of 1990. Yet again the applicants approached the respondents for amicable settlement and agreed to restore the possession of the suit-land but upon failure to do so, the respondents had no alternative but to file the aforementioned Suit viz. Bearing No.7 of 1994 before the learned 1st Senior Civil Judge, Khairpur.
In the written statement filed by the applicants a number of legal pleas were taken regarding the non-maintainability of the suit, the fact that if was time-barred and hit by the principle of res judicata etc. On the merits of the case, it was denied by the applicants that Dhani Bux was not the lawful owner of the suit property or that the respondents ever occupied the same, similarly, it was also denied that Chutto had no right title or interest in the suit property. It was averred that Chutto alongwith Rasool Bux were the lawful owners of the suit property and Chutto sold his shares to respondent Ejaz which was inherited by Rasool Bux. The orders passed by the fi then Assistant Commissioner and Deputy Commissioner Khairpur have not been supported whereas that of the then Additional Commissioner are stated to be correct.
3. The Learned Civil Court framed as many as 10 issues i.e.:-
(1) Whether the suit is not maintainable?
(2) Whether the suit is hit by the provisions of res judicata?
(3) Whether the plaintiffs are owners of the suit-land?
(4) Whether the defendant No.3 has forcibly dispossessed the plaintiffs from the suit-land in the month of July, 1983?
(5) Whether the order dated 7-11-1984 passed by the defendant No.2 is Illegal mala fide, without jurisdiction and of no legal effect?
(6) Whether the plaintiffs have no cause of action to file the suit?
(7) Whether suit is time-barred?
(8) Whether the suit is under-valued?
(9) Whether the plaintiffs are entitled to reliefs as claimed?
(10)What should the decree be?
' As observed above, the learned Senior Civil Judge decreed the suit which was upheld in appeal by the learned District Judge, Khairpur.
4. In support of the Civil Revision, Mr. Shahani has firstly submitted that the suit is barred by limitation since the main relief is for declaration and injunction regarding the ownership of the suit property in favour of the respondent for which a period of six years is provided under Article 120 of the First Schedule to the Limitation Act for the purpose of filing of such suit counted from, the date when the right to sue accrued. Per the respondents such right accrued about 15 days prior to filing of the suit in the year 1994 when the second round of negotiations broke down between the parties.
However, per learned counsel, the right to sue occurred in 1982 when the Additional Commissioner allowed the appeal filed by the applicants and at the most in the year 1983 when the respondents were dispossessed, which fact has been admitted by P.W. Sanaullah who produced the F.I.R. Of such dispossession. Hence the second suit filed in 1994 is time-barred. Insofar as the relief of possession is concerned, learned Counsel has submitted that this is controller by Article 142 of the Limitation Act according to which the time for filing of such a suit is 12 years from the date of dispossession. However, per learned counsel, since the main relief is for declaration and injunction, possession being consequential, hence per settled law, the suit would fall under Article 120 and not Article 142 of the Limitation Act. For this proposition, he has relied upon Kazim Imam Jan v.
Muhammad Jawaid (2003 CLC 200) and Noor Bibi v. Fazal Hussain (1998 SCM R 230). Secondly, per learned counsel, once limitation has started it runs continuously and hence the explanation put forward by P.W. Sanaullah that after the previous suit and appeal filed by the respondents had been dismissed for non-prosecution in 1990 etc. Negotiations started between the parties which only broke down 15 days prior to filing of the present suit cannot be accepted. In support of this submission, he has relied upon Mrs. Shamim Akhtar v. Mrs. Sultana Mazhar Baqai (2003 CLC 1521).
5. Insofar as maintainability is concerned, learned counsel has submitted that the earlier suit having been filed on the same cause of action and dismissed in 1990 for which no remedy was sought by the respondents, consequently the present suit filed in the year 1994 is barred under Order IX rule 9 as well as section 11, C.P.C. Being res judicata. For this proposition he has relied upon Muhammad Hanif v. Abdul Hamid (2002 CLC 718), Muhammad Chuttal v. Atta Muhammad (2001 SCM R 1685) and Basit Sibtain v. Muhammad Sharif (2004 SCM R 578). In this regard, learned counsel has further submitted that no prayer has been made in the present suit for cancellation of the sale-deed in question viz. Between Chutto and the applicants and hence is hit by section 39 of the Transfer of Property Act and section, 42 of the .Specific Relief Act, for which he has relied Naila Gauhar Shahzad Kharal v. Rai Gohar Shahzad Kharal (1989 MLD 461).
6. On the merits of the case, learned counsel has firstly submitted that the main issue is whether the respondents are the lawful owners of the suit-land and to prove the same, they examined P.W.
Sanaullah who fully reiterated the contents of the plaint. However, he has admitted under cross- examination that the applicants were acquitted from the criminal case filed by the respondents i.e. For forcible dispossession etc. And also that the suit-land was for the first time mutated in their favour after orders had been passed by the then Deputy Commissioner, Khairpur in 1983. This witness also produced the sale-deed dated 21-10-1953, Exh.65 and according to him the witnesses, the scribe and the parties to the deed had all died. However, per learned counsel, from the years 1938 to 1971 the suit-land was in the name of Chutto and Rasool Bux and thereafter in the year 1971 it was mutated in the name of applicant Dhani Bux which fact has not been rebutted by the respondents and not at all appreciated by the learned Civil Court and the appellate Court who only relied upon the sale-deed in favour of the respondents for the purpose of decreeing the suit.
Per learned counsel, the other piece of evidence in this regard viz. The sale-deed produced by the applicants dated 15-1-1968 Exh.W in favour of the applicants was also totally ignored. Per learned counsel, the burden of proving this issue fell upon the respondents which has not been discharged at all.
7. For all the foregoing reasons, learned counsel has prayed that this revision application he allowed and the decree be set aside while dismissing the impugned judgments passed by the Courts below.
8. On the other hand, Mr. Soomro has submitted that insofar as limitation is concerned, it is the respondents' case that their predecessors in interest had purchased the suit property from Muhammad Arif and Abdul Hameed vide Exh.65 in 1953 but the property was only mutated in 1982.
However, they remained in possession till 1983 when they were dispossessed by the applicants.
Thereafter, the respondents filed Suit No.316 of 1984 which was dismissed for non-prosecution and again the appeal filed against such order viz. Being 21 of 1990 was also dismissed. Then, negotiations started between the parties, in which applicants even agreed to hand over the suit property to the respondents. However, as they finally refused to do so after 15 days before filing of the suit therefore the same filed in 1994 was not time-barred since it is covered under Article 142 of the Limitation Act, which prescribes a period of 12 years for filing of a suit for possession counted from the date of dispossession. As regards such date, learned counsel has submitted that P.W.
Sanaullab has reiterated the same being in 1983 which is supported by P.W. Abdul Rahman and the same has not been countered during their cross-examinations.
9. Regarding the merits of the case, learned counsel has submitted that the only issue is the lawful ownership of the respondents of the suit property and to prove the same P.W. Sanaullah, P.W. Hafiz and Qabool were examined who also support each other. P.W. Sanaullah produced not only the registered sale-deed between Sajan and Arif/Abdul Hameed dated 21-10-1953 but also the earlier deed dated 1-2-1943 whereby Rasool Bux sold the property to Arif and Abdul Hameed. Both the sale deeds were not challenged by the applicants and as the same were registered. Article 79 of the Qanun-eShahadat Order would not apply viz. Production of marginal witness etc. On the other hand, the applicants examined two witnesses who only say that they hadremained in possession of the suit property and also produced the sale-deed between Chutto and Dhani Bux executed in 1968. Per learned counsel, there is no misreading or non-reading of the evidence by both the Courts below. So also the concurrent findings cannot be set aside on the ground only that a revisional Court may take a different view of the same. In support of this submission he has relied upon Muhammad Munir v. Hafiz Muhammad Rafiq (2004 SCM R 1551), Nazir Ahmed v. Umra (2002 SCM R 1114), Mst. Zaitoon Bibi v. Dilawar Muhammad (2004 SCM R 877) and Aqeel Hussain v. Mst. Alia Bibi (2006 CLC 297). Learned counsel has therefore prayed that this revision application be dismissed.
10. I have heard both the learned counsel and my conclusion are as follows.
11. Insofar as the legal pleas are concerned, firstly it would be seen that limitation is a mixed question of law and fact. It is the case of the respondents that after their predecessors-in-interest had purchased the suit property in 1953, they had enjoyed the same without any interference from any one. However, they were evicted therefrom in 1983 by the applicants on the basis of the fraudulent sale-deed in their favour executed by Chutto in 1968. Consequently, the respondents approached the revenue authorities for mutation of their name in the record of rights vis-a-vis the suit property which was allowed upto the level of the Deputy Commissioner, Khairpur and finally they were directed by the Additional Commissioner, Khairpur, to approach the Civil Court.
Thereafter, the respondents filed Civil Suit No.316 of 1984, which was dismissed for non-prosecution and similarly Civil Appeal No.21 of 1990 was also dismissed. Then negotiations started between the parties as a result of which the applicants agreed to vacate the suit property, however, they failed to do so finally till about fifteen days prior to the filing of the suit. This assertion. In the plaint of the suit is supported by P.W. Sanaullah who has deposed as much and staunchly resisted all suggestions to the Contrary under cross-examination.
' Similarly, P.W. Hafiz Abdul Rehman has supported the deposition of P.W. Sanaullah and so also P,W.
Qabool who all say that the respondents were evicted from the land in question in the year 1983.
On the other hand, D.W. Ghulam Rasool has stated before the learned Civil Court that the applicants had occupied the suit property after it was conveyed to Dhani Bux, his father, by Chutto in 1968 and he is still in possession of the same along with other applicants. Under cross- examination he has denied suggestions to the effect that the respondents ever came into possession of the property. However, he has admitted that the F.I.R. Was filed in 1983 by the respondents against the applicants regarding forcible dispossession. The deposition of Ghulam Rasool has been supported by D.W. Baggan. In view of the deposition on the record particularly the factum of the F.I.R. Having been filed vis-a-vis the dispossession of the respondents by the applicants from the suit property in 1983, I would hold that such factum has been proved. As regards acquittal of the applicants, in the Session Case arising out of such F.I.R., it would be seen that per the judgment delivered in such case, (No.3 of 1984) the accused have been acquitted from the charge of attempt to murder but nothing has been said regarding dispossession of the complainant party. In fact the learned Sessions Court has given benefit of doubt to the accused due to the pending dispute between the parties over landed property. However, this does not .
Mean that the incident itself of dispossession has been negated. This aspect of the matter has been thoroughly discussed by both the learned Courts below and I am not persuaded to take a contrary view. Under Article 142 of the Limitation Act, a period of 12 years has been prescribed for possession of immovable property, the time being counted from the date of dispossession.
Consequently, as the suit was filed in the year 1994, it is well within time limit and hence not barred vis-a-vis the relief for possession. Mr. Shahani's next submission is that the main relief in the suit is for declaration and injunction, possession being consequential and as such prayer is barred by time therefore the entire suit would also be hit by limitation since once limitation starts it is continuous. In this connection, learned counsel's view is that Article 120 of the First Schedule to the Limitation Act would apply according to which limitation starts when the right to sue accrues. In the present case this happened in the year 1982 when the Additional Commissioner Khairpur allowed the appeal filed by the applicants and hence the suit filed in the year 1994 is time-barred. In this regard, it would be seen that under Article 120 of the Limitation Act the starting point of limitation is when the right to sue accrues B i.e. The cause of action arises and this depends in the facts and circumstances of each case. It is settled law that where the suit is for declaration of title to disputed land, it cannot be barred by limitation so long as the plaintiff's right is a subsisting right and has not been extinguished as this gives a right to a continuing cause of action since every invasion thereof is afresh cause of action. In this regard reference can be made to the case of Amir Jan v. Gul Nawaz (1992 M LD 2531), Province of Punjab v. Rulia (2000 CLC 150) and Wali v. Akbar (1995 SCM R 284). Admittedly, the suit property is still in the name of the respondent's predecessors-in-interest per mutation order dated 10-10-1982, Exh.68 produced by P.W. Sanaullah which has not been controverted under cross-examination. Similarly, nothing has been produced by the applicants through their witnesses to counter this factual aspect of the matter except that earlier the suit-land had been mutated in their favour. So also as observed earlier, the respondents were evicted from the suit property in 1983. Consequently, in my opinion, they have a subsisting right in the suit property which is a continuing one. As held by the Honourable Supreme Court in Wali v. Akbar (supra) the right to sue accrues when the right in respect of which the declaration is sought is denied or c challenged by the defendants and time would only start running when such rights are actually interfered with. In such cases a fresh cause of action would arise from the date of last attack of the plaintiffs right or denial thereof. It has also been established that the matter was under negotiation between the parties till a few days before the filing of the suit. Hence, I would hold that the suit is within time as to the reliefs of injunction and declaration.
12. The next objection raised by Mr. Shahani is that the present suit viz. No.7 of 1994 is barred under Order IX, rule 9, C.P.C. Since the previous Suit No.316 of 1985 filed on the same cause of action was dismissed for non-prosecution and similarly the appeal filed against such dismissal also met the same fate. In this regard, it would be seen that under Order IX, rule 8 where the plaintiff remains absent and the defendant only appears when the suit is called on for hearing the same is to be dismissed unless the defendant admits the claim or part thereof in which event a decree shall be passed on such admission. Under Order IX, rule 9, C.P.C. Where a suit is wholly or partly dismissed under rule 8 the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set aside the dismissal in which case the Court may do so upon being presented with sufficient cause for the plaintiff's absence when the suit was called on for hearing. It is an admitted position that the previous suit was filed on the same cause of action as the present suit but the fact remains that both suits are based on a containing cause of action as I have already held above. Consequently, in my opinion, the present suit is not barred under Order IX, rule 9, C.P.C. For this proposition reference can be made to Muhammad Habibullah Siddiqui v. Haji Habib Jaferali (1993 M LD 1050).
13.
13. On the merits of the case, it would be seen that the respondents have produced the registered sale-deed dated 1-2-1943 between Rasool Bux and Muhammad Arif regarding the suit-land viz. Four Acres out of Survey No.330/1, Deh Mohil, Taluqa Khairpur. So also they have produced the registered sale-deed between Muhammad Arif and respondents Sajjan, Arbab and Daim dated 21- 10-1953 vis--vis the same land. Both these documents have not been challenged by the applicants. Consequently, in my opinion, the respondents have proved these sale deeds which were registered and hence there was no need to produce either the attesting witnesses or the scribe as required under Article 79 of the Qanun-e- Shahadat Qrder, 1984, per the proviso thereof.
On the other land, the applicants have produced registered sale-deed dated 15-1-1968 in respect of the said land between Chuttal and applicant Dhani Bux. In these circumstances, it is quite strange as to how the suit-land came to be vested with Chuttal when it had previously been sold to the respondents by the original purchaser. Similarly, it would also be seen that as per the statement of Dhani Bux Exh. 67, Chuttal had only sold 2-3 Acres of the suit-land to him and the land purchased by Sajjan from the Quresh is not in his possession. This would, therefore, lead to only one conclusion that the sale-deed produced by the applicants is not to be relied upon vis-a- vis the suit-land though it may be that they had occupied it on strength of the same and were cultivating it. In these circumstances, I do not see any misreading or non-reading of the evidence by the learned forums below. Consequently, there is no merit in this revision application and hence the same is dismissed.