' M. JAVED BUTTAR, J.---This revision petition under section 115, C.P.C. Is directed against the judgment and decree, dated 12-11-1995 passed by District Judge, Hafizabad, whereby the petitioner's appeal against the judgment and decree, dated 11-7-1993 passed by Civil Judge, Hafizabad, dismissing the petitioner's suit for declaration and permanent injunction, was dismissed only on the issue of limitation and it was held that the petitioner's suit was time-barred.
2. The relevant facts are that the petitioner, Sarfraz, instituted a suit for declaration that defendant/respondent No,1, Khizer. Hayat, who was related to him and also-co-owner in the estate, had fraudulently prepared sale-deed, dated 17-4-1984 which was a forgery, it was never executed by him and no such transaction ever took place and that he/plaintiff was in possession of the land in dispute (detailed in the plaint) and he came to know of the said fraud and forgery of the sale- deed only a few days prior to the institution of the suit when the defendant/ respondent No, 1 tried to interfere in his possession. Respondent No,1/defendant contested the suit, denied the allegations and alleged that the suit was barred by time and further stated that the plaintiff was a literate person and he, of his own free will, got completed the sale-deed for a consideration of Rs,40,000 and that he/ defendant, was in possession of the land in dispute, which was being cultivated by his tenant.
3. Respondent No,1 also instituted a suit for permanent injunction in regard to the same property (land in dispute) against the petitioners and respondent No,2 (tenant) alleging that he was in possession of the land in dispute, Khasra Nos.1218, 1332, 1507, 1510, 1511 and 1357 were under his self- cultivation, whereas the other Khasra numbers were being cultivated by the present respondent No,2 as his tenant and that the petitioner was trying to dispossess him. The petitioner contested the suit of respondent No,1 stating that he was owner in possession of the land in dispute and the suit of respondent No,1 was liable to be dismissed.
4. The learned trial Court consolidated both the suits and the proceedings were conducted in the petitioner's suit for declaration and permanent injunction.
5. On the pleadings of the parties, following consolidated issues were framed.
Issues.
(1) Whether sale-deed, dated 17-4-1984 executed in favour of Khizar Hayat is illegal, based on fraud and misrepresentation and as such is void and ineffective, inoperative as against rights of the plaintiff? OPP.
(2) Whether Khizar Hayat is in possession of the suit land? OPD.
(3) Whether plaintiff, Sarfraz, is estopped to file the suit by his own act and conduct? OPD
(4) Whether suit filed by Sarfraz had not been correctly valued for the purposes of court-fee and jurisdiction? OPD.
(5) Whether suit filed by Sarfraz is barred by limitation? OPD.
(6) Whether defendant Khizar Hayat is entitled to special costs under section 35-A, C.P.C.? OPD.
(7) Relief.
6. The petitioner/plaintiff himself appeared as P.W.1 and produced Rub Nawaz and P.W.2 and Muhammad Irshad as P.W.3. P.W.2, Rub Nawaz, is brother of the petitioner and brother-in-law (husband of the sister) of respondent No,
1. P.W.2 and P.W.3 are the marginal witnesses of the alleged sale-deed. P.W.2, Rub Nawaz, stated that the land in dispute is in possession of the petitioner as owner and denied his attestation on the sale-deed and further stated that the petitioner never appeared in his presence before any one for the registration of the sale-deed and his name has incorrectly been mentioned in the sale-deed as a witness. Similarly, P.W.3, Muhammad Irshad, stated that the petitioner was in possession of the land in dispute as owner and he did not know about any sale-deed of the land in dispute. The petitioner also produced documentary evidence, which consists of copy of sale-deed in dispute (Exh.P.1), copy of register Haqdaran Zameen (record of rights) for the year 1985-86 (Exh.P.2) and copy of Khasragirdawari for Kharif 1991 to Rabi 1992 as Exh.P.3. Respondent No,1 Khizar Hayat did not produce any oral evidence and did not appear himself either to rebut the petitioner's suit or to support his own suit and produced documentary evidence, which consists of sale-deed in dispute (Exh.D.1), copy of Khasragirdawari for the period from 1986 to 1989 (Exh.D.2), copy of Khasragirdawari (Exh.D.3), copy of Khasragirdawari (Exh.D.4), copy of order of the Collector (Exh.D.5) and copy of Khasragirdawari (Exh.D.6).
7. The learned trial Court, after recording evidence produced by the parties and after hearing the learned counsel for the parties, dismissed the petitioner's suit for declaration and permanent injunction and decreed the suit for permanent injunction of respondent No,1. In regard to issue No,1 of the genuineness of sale-deed, it was held that P.W.2, Rub Nawaz, who was marginal witness of the sale-deed in question, was the real brother of the petitioner and he was an 'interested witness and although the petitioner had denied his thumb impression on Exh.D.1 but he did not make any efforts for the comparison of his thumb impressions with the thumb impression on the document in question and similarly the signatures of P.W.2 were not got compared with the signatures available on the sale-deed and, therefore, the petitioner/plaintiff had failed to prove that the, sale-deed in question was fictitious and fraudulent. Issues No,1 was accordingly decided against the petitioner.
In regard to issue No,2, it was held that the documents Exh.D.5 and Exh.D.6 prove the possession of respondent No,1/defendant. Issues No,2 was decided in favour of respondent No,1/defendant. In the light of decision of issues Nos.1 and 2, issue No,3 was also decided in favour of respondent No,1.
Issue No,4 of the valuation of the suit for the purposes of court-fee and jurisdiction, was decided against respondent No,
1. In regard to issue No,5, it was held that according to the law of limitation, a suit to set aside a sale could be filed within a period of three years and the present suit having been instituted on 19-5-1990 against the sale deed, dated 17-4-1984 was barred by time: Issue was accordingly decided in favour of respondent No,
1. Issue No,6 of the award of special costs was decided against respondent No,
1. Being aggrieved thereby, the petitioner instituted two appeals.
The learned District Judge, Hafizabad, vide his consolidated judgment and decrees, dated 12-11- 1995 decided both the appeals. The petitioner's appeal against the decree for permanent injunction passed in favour of respondent No,1 in the suit of respondent No,1, was allowed and the judgment and decree for permanent injunction passed by the trial Court in favour of respondent No,1 was set aside and his suit was dismissed on the ground that both the marginal witnesses of the sale-deed in dispute (Exh.P.1/D.1) had categorically stated that they had never appeared before the Sub-Registrar and they were not the witnesses of the sale-deed and that the petitioner was in possession of the land in dispute as owner. It was, therefore, held that the findings of the learned trial Court on issues Nos.1 and 2 were not based on facts and had been wrongly decided. The said findings were set aside and both these issues were decided in favour of petitioner. The judgment and decree passed by the learned Appellate Court to this extent has attained finality as respondent No,1 has never assailed it any further and his suit for permanent injunction, basing his claim on the sale-deed remains dismissed. The learned Appellate Court, however, dismissed the petitioner's appeal in his own suit for declaration and permanent injunction, on the issue of limitation. It was held that the petitioner instituted the suit on 29-5-1990 and petitioner's own witness Rub Nawaz (P.W.2) admitted in the cross-examination that "they" came to know of the transfer of property by way of said registered deed after expiry of period of 2/3 months of the date of the registered deed i.e, 17-4-1984 and,. Therefore, the petitioner's suit was barred by time.
8. I have heard the learned counsel for the parties and have also seen the record with their help.
9. It is submitted by the learned counsel for the petitioner that the learned Appellate Court after deciding issues Nos.1 and 2 on merit, has dismissed the petitioner's appeal only on the issue No,5 of limitation by holding that the petitioner's suit was barred by time. It is submitted that the judgment of the learned Appellate Court is based on misreading of the statement of P.W.2 Rub Nawaz. He never stated that "they" came to know of the transfer of the property 2/3 months after the registration of the sale-deed. He has referred merely to his own knowledge and information and the learned Appellate Court has wrongly employed word "they". It is further submitted that after the decision of issues Nos.1 and 2 on merit, the dismissal of the petitioner's suit as being barred by time is unwarranted in law because the decision of issues Nos.1 and 2 in favour of the petitioner and against respondent No,1 results in declaring the sale-deed, dated 17-4-1984 as illegal, based on fraud and misrepresentation, void, in-effective and inoperative against the rights of the petitioner.
This declaration would make the sale-deed as non-existent and, therefore, the petitioner could come before the Court at any time for seeking declaration that he was owner of the land in dispute.
Similarly the decision of issues No,2 by the learned Appellate Court in favour of the petitioner results in declaring the petitioner to be in possession of the land in dispute. Both these issues are crucial and after the decision of these issues in favour of the petitioner, the Appellate Court wrongly and illegally dismissed the petitioner's appeal by holding that the petitioner's suit was barred by time. It has further been submitted that respondent No,1 never entered in the witness-box to rebut the evidence produced by the petitioner. He merely produced documentary evidence, The learned trial Court, therefore, illegally held that the petitioner had failed to 'prove that the sale-deed in question was based on fraud, misrepresentation and as such, was void and ineffective. It is submitted that both the marginal witnesses of the sale-deed in question (P.W.2 and P.W.3) had denied having witnessed the sale-deed and the petitioner himself appeared as P.W.1 and denied his thumb impression on sale-deed (Exh.D.1) and in these circumstances, the onus shifted on respondent No,1 and it was for him and not for the petitioner to get the signatures and thumb impressions of the petitioner and above witnesses, compared with the thumb impression and signatures available on the sale-deed (Exh.D.1) and the learned trial Court acted illegally in holding otherwise. In the end, it is submitted that the petitioner in para No,3 of his plaint had categorically stated that defendant/respondent No,1 had kept the sale-deed secret and he came to know of its existence only a few days before the institution of the suit and similarly, in his statement as P.W.1, the petitioner stated that he came to know of the existence of the sale-deed in 1990 and the present suit was instituted on 29-5-1990 hence both the Courts have acted illegally in deciding issue No,5 of limitation in favour of respondent No,1 especially when nobody appeared from the side of respondent No,1 to rebut the assertion of the petitioner, in this regard. It has also been argued that respondent No,1-Khizar Hayat in his suit for permanent injunction claimed that respondent No,2 was tenant in land in dispute and he was in collusion with the petitioner but this collusion was never proved by respondent No,1 through any evidence.
10. Learned counsel for respondent No,1, while vehemently opposing the petition, has submitted that issue No,5 of limitation has correctly been decided by both 'the Courts below and the petitioner's suit for declaration has been correctly dismissed as being barred by time. He has, however, nothing to say in regard to the findings of the learned Appellate Court on issues Nos.1 and 2 where under the other appeal of the petitioner was accepted and the suit of respondent No,1 for permanent injunction was dismissed because, the respondent No,1 has not assailed the said findings before any higher forum and the same have attained finality.
11. The learned Appellate Court, while accepting the petitioner's connected appeal and after setting aside the findings of the learned trial Court on issues Nos.l and 2 on merits and after deciding said issues in favour of the petitioner and while dismissing the suit of respondent No,1 for permanent injunction, dismissed the petitioner's appeal in his own suit for declaration, only on issue No,5 of limitation by holding that the petitioner's suit was barred by time. Respondent No,1 never entered in the witness-box to rebut the evidence produced by the petitioner. Both the marginal witnesses (P.W.2 and P.W.3) of the sale-deed in question (Exh.P.1/D.1) had denied having witnessed the sale- deed and the petitioner himself appeared as P.W.1 and denied his thumb impression on the sale- deed and in these circumstances, the onus shifted on respondent No,1 and it was for him and not for the petitioner to get signatures and thumb impression of the petitioner and other witnesses compared with the thumb impression and signatures available on the sale-deed and the learned trial Court, therefore, illegally decided issues Nos.1 and 2 in favour of respondent No,1 and the learned Appellate Court correctly upset the findings of the learned trial Court on these issues and decided them in favour of the petitioner. The decision of the learned Appellate Court on issues Nos.1 and 2 has attained finality as respondent No,1 never assailed it any further, although on the basis of the decision on these issues, the suit instituted by respondent No,1 for permanent injunction was dismissed. The final decision of issues Nos.1 and 2 in favour of the petitioner has resulted in declaring the sale-deed, dated 17-4-1984 as illegal; based on fraud and misrepresentation, void, in-effective and inoperative against the rights of the petitioner and that the petitioner is in possession of the land in dispute as owner. This declaration has made the sale-deed as nonexistent and, therefore, the petitioner can come before the Court at any time for declaration and injunction that he is owner in possession of the land in dispute. The Appellate Court, therefore, acted illegally in dismissing the petitioner's appeal arising out of his own suit, on the issue No,5 of limitation. Even otherwise, the judgment of the Appellate Court, in this regard, is based on misreading of the statement of P.W.2, Rub Nawaz. He never stated that "they" came to know di the transfer of property 2/3 months after the registration of the sale-deed. He has referred merely to his own knowledge and information and the learned Appellate Court has wrongly employed the word "they". Further, the petitioner, in para No,3 of his plaint, had categorically stated that the defendant/respondent No,1, had kept the sale-deed secret and he came to know of its existence only a few days before the institution of the suit. Similarly, in his statement as P.W.1, the petitioner stated that he came to know of the existence of the sale-deed in 1990 and the present suit was instituted on 29-5-1990 and respondent No,1 did not produce any evidence to rebut this oral evidence. Hence, both the Courts have acted illegally in deciding issue No,5 of limitation in favour of respondent No,
1. It is, therefore, held that the petitioner's suit for declaration and permanent injunction was within time.
12. In view of the above discussion, this revision petition is accepted, the judgment and decree passed by the learned Appellate Court, to the extent whereby the petitioner's appeal, arising out of his own suit for declaration and permanent injunction, was dismissed, is set aside and after setting aside the judgment and decree passed by the learned trial Court, the petitioner's suit for declaration and permanent injunction is decreed as prayed for, leaving the parties to bear their own costs.