1. 'MRS. QAISER IQBAL, J.--- The plaintiff has filed suit for declaration to the effect that the defendant is Benamidar of Property bearing No,A-1/B, measuring 249.50 square yards situated at Block No,4, Gulshan-e-Iqbal, Karachi and has sought further declaration that he is ostensible owner of the subject property, therefore, transfer of the property in the name of the defendant is illegal, void ab initio and physical possession of the property be ordered to be delivered by the defendant to the plaintiff. The office has raised objection that in view of the prayer clause (b) of the plaint suit is barred under Article 91 of the Limitation Act as admittedly sale-deed was executed on 18-11-2002 and instant suit has been filed after the lapse of three years, objection has been resisted by the learned counsel for the plaintiff on the ground that documents pertaining to the subject property are sought to be declared as Benamidar, therefore, Article 120 of the Limitation Act would be applicable. The document was executed on 18-11-2002, whereas the suit has been presented on 3- 2-2007, which manifestly suggest that the suit has been filed after 4 years 3 months within the period of provided under Article 120 of Limitation Act. In support of the above contention reliance is placed on the case of Nazir Ahmed Serang v. Benoya Bhusan Saha PLD 1957 Dacca 575 at page No,585, it has been observed that Article 91 does not apply where the document is sought to be declared to be Benami as was observed by their Lordships of the Privy Council in the case of T.P.
2. Petherpermal Chetty v. R. Muniandi Servai and others "As to the point raised on the India Limitation Act, 1877, their Lordship are of opinion in that the conveyance of June 11, 1895, being an inoperative instrument, as in effect it has been found does not bar the plaintiffs' right to recover possession of his land, and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims. The 144th, and not 91st Article in the second Schedule to the Act is, therefore, that which applies to the case, and the suit has consequently been instituted in time".
3. ' While dilating of the point of the limitation for filing of such suit for declaration within six years in terms of Article 120, Limitation Act, 1908, the reliance has been placed on the case of Abdul Rashid Velmi v. Habib-ur-Rehman and 2 others reported in 1995 MLD page 397, in any view of the matter, limitation is a mix question of law and fact which requires evidence, however, at this juncture. The office objection is overruled subject to all just exceptions and the case is directed to be admitted for hearing. Objection is accordingly decided.