'MUZAFFAR ALI J.--- The instant second appeal assails the concurrent findings/decrees dated 18- 4-1998 and 15-6-1993, passed by the learned District Judge Gilgit and the learned Civil Judge Gilgit respectively. Since the value of the subject-matter of the suit fixed in the plaint is less than that of the value required under law to entertain 2nd A appeal, as such this 2nd appeal is not competent, but to ascertain some important legal issues involved in the case, I deem it proper to take cognizance of the same, hence I converted the instant appeal into revision and disposed of in exercise of my revisional jurisdiction.
2. The facts gave rise to the litigation between the parties are as such that, the plaintiff (present petitioner) claimed declaration-cum possession of the disputed land from the defendants (present respondents) through Suit No,25 of 1979, with the contention that, the disputed land was gifted to him by the owner Ramzan a collateral in consanguinity of the plaintiff. The defendants forcibly dispossessed the plaintiff from the suit-land, since in those days Mir of Nagar was having judicial powers too to settle the disputes between his subjects within the State, so the plaintiff took the dispute before the Court of Mir of Nagar, but when the dispute was sub judice before Mir of Nagar, the Government of Pakistan dissolved the Rajagi system in the Nagar State and constituted Ulema Board vested with the powers of Civil Courts to decide the civil disputes, hence the plaintiff filed the suit before the Court of Ulema Board, but the Ulema Board was also dissolved while the suit was sub judice before it and the government established regular Courts in the area and the suit was sent to the Court of Sub-Divisional Magistrate, but same was not entrusted to the Civil Court and remained without any proceedings and the plaintiff filed an application before the Deputy Commissioner for proceedings of the suit, but lastly the S.D.M. Informed the D.C. That the suit has been misplaced, as such the D.C. Allowed the plaintiff to file fresh suit before the Civil Judge, therefore, the plaintiff filed the Suit No,25 of 1979, before the Civil Court, Gilgit.
3. That defendants contested the suit with the contention that they had been in possession of the suit-land as donees by Ramzan owner and later on the defendants Nos.6 and 7 got the possession of the disputed land in exchange with the defendants Nos.1 to 5. The defendants denied any gift in favour of the plaintiff by the owner and also claimed the suit to be barred under law for the reason that the matter has been decided by Mir of Nagar as competent Court. The learned Civil Judge framed as many as 15 issues and finally de-suited the plaintiff on merits. The plaintiff went to first appeal before the Court of District Judge, but failed, hence this revision before this Court.
4. I heard both the learned counsel for the parties. The learned counsel for the petitioner urged the points as under:---
(a) That the suit-land has been gifted to him by the owner of the land and in proof, he quoted an unattested copy of the gift deed, which was placed in the file of the case and the learned Civil Judge had marked the same as Exh.P.A., but after being questioned its legal sanctity, the plaintiff produced original gift-deed (written in pertain) before this Court after completion of arguments, however, the same is placed on the file as its part.
(b) That the respondents Nos.1 to 5 have dispossessed the plaintiff from the suit-land forcibly, while he was enjoying the possession of the same being owner as donee and the suit has been filed well within time, but both the lower Courts have wrongly calculated the limitation period, as such they have committed material irregularity.
(c) That, the gift deed produced by the defendants Nos.1 to 5 in their favour is concocted and having no legal sanction in existence of the previous gift deed in favour of the plaintiff.
(d) That, the cause of action against the defendants has arisen from the date, when the Deputy Commissioner allowed the plaintiff to file fresh suit against the defendants, as the previous suit of the plaintiff was misplaced in the office of S.D.M. For no fault of the plaintiff, as such too, the suit is within time.
5. The learned Counsel for the respondents vehemently responded the above points with the contention that:---
(a) The story of gift in favour of plaintiff is concocted for the reason that, the suit-land was transferred to the respondents Nos.1 to 5 through gift deed by Ramzan, the owner of the disputed land in the year, 1950, much before the above story of concocted gift.
(b) That, the plaintiff has never enjoyed possession of the disputed land, the land was in possession of Ramzan, as owner and he has transferred its possession to the respondents through gift and since then the respondents Nos.1 to 5, remained in possession, latter on they transferred the same to the respondents Nos.6 and 7 in exchange and the version of the petitioner, if for argument's sake considered, then too the suit is time-barred.
(c) The gift deed produced by the respondents Nos.1 to 5 has been executed well before; the concocted story framed by the plaintiff, as such under law the second gift in favour of plaintiff has no legal sanction.
(d) That, the plaintiff has failed to disclose real cause of action in the plaint and has fabricated the cause of action since the year 1979, just to bring the suit within time.
6. I have gone through the record of the case and also have scrutinized the legal sanction of the above points raised by both the learned counsel for the parties. Both the parties claim their ownership over the suit-land through gift by the real owner of the subject-matter, Ramzan. Both have produced gift deeds written, in plain papers and this Court deems it proper first to probe into the gift deeds produced by the parties to ascertain, which of the gift deed, is valid, real and has been executed first. The gift deed Exh.P.A. Produced by the plaintiff has no date or year of execution on it, but the plaintiff has stated in para.2 of his plaint that the disputed land was gifted to him 16 years back of institution of the suit and the suit has been instituted in the year 1979, so it can be said that the gift deed has been executed round about, in the year 1963, while the gift deed produced by the defendants Nos.1 to 5 possesses the date and year of its execution, although in Islamic era, but the same has been counted and converted into Christian era by the learned counsel for the petitioner Mr. Muhammad Isa, Advocate, which becomes year 1950. So it is apparent that, the gift deed in favour of the respondents was executed first, hence the version of the petitioner that, the gift deed in his favour was executed first, is discarded and under law the second gift in presence of the first gift is invalid. Secondly, the plaintiff and his witness, who claim to be present at the time of the execution of the gift deed in favour of the plaintiff, are at variance about the writer of the gift deed, as such the gift deed becomes doubtful.
7. The second important legal issue in the case is whether the suit is within time? The plaintiff claims possession of the suit-land from the respondent with the contention that he was dispossessed by the respondents Nos. 1 to 5, forcibly while he was enjoying the same as done, so Article 142 Limitation Act applies to the suite which is reproduced as under:- For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession.Twelve years The date of the dispossession or discontinuance.
8. The plain reading of the above article reveals that the plaintiff was born to bring the suite within 12 days from the date of his dispossession from the disputed land while the plaintiff as well as hid witness have failed to prove that, the plaintiff was dispossessed forcibly and the suit has been brought within 12 years from the date of dispossession, but the plaintiff has tried to cover this legal infirmity with the plea that, he had filed a suit before the Court of Mir of Nagar, which was entrusted to the Ulema Board. As the same was pending before Mir of Nagar, when the Rajagi system was dissolved. The Ulema Board also failed to decide the matter and the suit was entrusted to the regular Courts, but the same was misplaced from the office of the S.D.M. And the plaintiff was allowed to file fresh suit before the Civil Court by the Deputy Commissioner Gilgit, as such the plaintiff took cause of action since the year 1979 fixing the same from order, dated 5-3-1979, issued by the Deputy Commissioner, Gilgit, and in proof of the plea, the plaintiff has filed latter Exh.P.C., Exh.P.D. And Exh.P.E.
9. I looked into the above plea from two angles, first whether the plaintiff has proved this plea, secondly whether the plea, if proved, can bring the suit within time under law. The first angle of the plea may be answered that, the plaintiff has failed to prove the same in the eyes of law for the reason that, the plaintiff although has produced letters Exh.P.C., Exh.P.D. And Exh.P.E., but these letters are not sufficient proof of the plea, as the plaintiff has not adduced, the S.D.M. As his witness, no record of Ulema Board has been produced before the Court and no copy of summons or any register has been attached with the plaint and no member of the board has been adduced as witness, contrary to that. The Mir of Nagar has made his statement to be recorded in favour of the respondents.
10. The second angle of the plea also goes against the plaintiff as the plea is not tenable under law of limitation as the plea does not come within the ambit of any provision which is available in the Limitation Act for purpose of condonation or which provides any exception to stop running of time when it begins to run and in the instant case the time has started to run as per version of the plaintiff, when he was dispossessed from the disputed land. Indeed the Deputy Commissioner has directed, the petitioner to file the fresh suit before the Civil Court, but no authority, even any Court or the parties to the suit may curtail or enhance period of limitation, once it starts to run unless law provides any exception or condonation. In this regard section 9 of the Limitation Act may be quoted. In my opinion, the Deputy Commissioner or the S.D.M. Concerned might allow the plaintiff to reconstruct the file of the suit, if they were satisfied from perusal of record that the suit was misplaced, but they could not curtail the time to file fresh suit, hence the plaintiff has erred in law by taking the starting point of cause of action from the date of issuance of the direction of the Deputy Commissioner. In support I refer case-law:---
(1) 1972 PLD (SC) 123, (2) 1980 CLC (Karachi) 921, (3) 1996 CLC (Karachi) 348 (4) 1983 CLC (Karachi)
888.
11. Consequent upon the above discussion, the revision petition is dismissed, by maintaining the concurrent findings of both the lower Courts. No order as to costs. File.
' Revision Petition is dismissed accordingly.