' MIA N FASIH-UL-MULK, J.---This is a revision petition under section 115. C.P.C. Against the judgment and decree dated 7-11-2002 of learned Additional District Judge-I, Mansehra, whereby judgment and decree of learned Civil Judge, Balakot dated 26-1-1993 was maintained and appeal dismissed.
2. Petitioners filed a suit for declaration, possession and permanent injunction against Jumma predecessor-in-interest of respondents regarding property fully described in the heading of plaint.
Defendant contested the suit and learned Civil Judge, Balakot after recording evidence and hearing parties dismissed the suit. Feeling aggrieved defendant preferred appeal which was accepted and the suit of plaintiff decreed. The respondents preferred Civil Revision before High Court. Abbottabad Bench. Which was accepted and cage was remanded to learned Additional District Judge for decision afresh on the ground that first appellate court did not consider the evidence nor recorded its findings or reasons on all issues for reversing the decree of trial Court which is against the mandatory requirement of Order XLI, Rule 31, C.P.C. The learned Additional District Judge-1, Mansehra after remand dismissed the appeal vide impugned judgment dated 7- 11-2001, hence the instant revision petition.
3. Learned counsel for petitioners contended that impugned judgments and decrees are the result of gross misreading and non-reading of material evidence available on record, misinterpretation of law on the subject and are liable to be set aside. It was argued that issue of limitation has wrongly been decided against the petitioners on the basis of Revenue Record and the collusive mutation. Entries of mutation and Revenue Record are made for fiscal purposes only and entries of mutation neither create nor extinguish rights of parties. Learned counsel submitted that petitioners be granted decree as prayed for.
4. On the other hand learned counsel for respondents at the very outset raised three preliminary objections: firstly that revision petition is incompetent as filed against a dead person. Secondly, petitioners did not comply with the repeated directions of this court to bring on record legal heirs of deceased respondent and thirdly that the L.Rs, of deceased respondent themselves appeared in court on 20-7-2009 and applied through their counsel for impleadment. The revision petition is, therefore, hopelessly barred by time.
5. On merits, it was argued that Jumma predecessor-in-interest of respondents purchased the suit land- through Mutation No,1098 attested on 20-5-1962 and since then till his death he remained in possession of suit property. Petitioners failed to produce any evidence to show that mutation in dispute is wrong against law and fact or is fraudulent. Petitioners have not challenged Mutation No,1098 attested on 20-5-1962 within prescribed period of limitation and hence his suit and appeal were rightly dismissed. Reliance was placed on 2003 M LD 1865, PLD 1971 SC 82, PLD 1988 Lahore 148.
2001 M LD 1964, 1998 SCM R 1223, PLD 2009 SC 95, 2007 CLD 1301 and 1987 SCMR 1145.
6. I have heard learned counsel for parties and gone through the record with their valuable assistance.
7. Admittedly, Jumma defendant died during pendency of appeal and vide order dated 19-5-2001 of learned Additional District Judge-I. Mansehra his L.Rs, were brought on record but strange enough that the instant revision petition was filed against a dead person on 23-1-2003. Petitioners being close relatives of deceased Jumma intentionally avoided mentioning of L.Rs, of deceased in the memo. Of revision petition and thereafter failed to comply with the court orders dated 19-4- 2006, 19-5-2006 and 31-10-2006 respectively. Ultimately L.Rs, of deceased applied through their counsel on 20-6-2009 and were brought on record.
8. Learned counsel for petitioners could not controvert the preliminary objections but vehemently argued that applicability of Order I Rule 10, C.P.C. Is confined only to suits and appeals and the time limitation would not be attracted in case of revision petition where the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and if such subordinate court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. This argument has no substance and, therefore repelled in view provisos 2 and 3 of subsection (1) of section 115, C.P.C. Wherein limitation period of 90 days has been specifically mentioned.
The argument of learned counsel for petitioner that the impugned judgments suffer from misreading or non-reading of evidence and the disputed mutation and Revenue Record creating or extinguishing no rights can be challenged any time and there shall be no limitation as the same are meant for fiscal purposes has also no force for the simple fact that deceased respondent purchased the suit land through mutation as back as on 20-5-1962 and was handed over the possession of suit property after its purchase. Petitioners brought suit for declaration. Possession and perpetual injunction on 9-1-1990. Suit has not been filed within the prescribed limitation period.
Presumption of correctness is attached to long-standing entries in the Revenue Record in favour of deceased respondent, which are consistent continuous, and the petitioners could not rebut the same through any evidence. Under Article 142 ofLimitation Act the burden of proving dispossession within 12 years of filing suit lies on plaintiff. His failure to give date of dispossession would make his suit time-barred when defendants have produced sufficient evidence in the shape of Revenue Record showing that they and not the plaintiff remained in possession of suit property within 12 years of filing of suit. This view is supported by a judgment reported in the case of Wazir Khan and others v. Qutab Din and others PLD 2009 SC 95.
9. Arguments were addressed on 10-1-2011 and the judgment was reserved for orders on 14-1-2011 when learned counsel for petitioner submitted an application under sections 151/153, C.P.C. It was averred in the application that once the legal heirs of original respondent Jumma were brought on record it was sufficient for all subsequent proceedings for all legal intents and purposes. This proposition of law has been settled by honourable Supreme Court in case titled " Mir Ghulam Abbas and others v. Hashim and others" reported in 1969 SCM R 257. This principle has been consistently followed since then. It was further contended that Order XXII, Rules 3 and 4, C.P.C. Were amended vide Law Reforms Ordinance XII of 1972 and principle of abatement of proceedings due to non-filing of list of legal heirs was done away with. After this amendment honourable Supreme Court has consistently held that cases should be decided on merits instead of knocking out the litigants on the grounds of technicality. Any decision pronounced by the court notwithstanding death of such respondent would have the same force and effect as it had been pronounced before death of respondent had taken place. It was concluded that non-mentioning of names of L.Rs, of deceased respondent is just a clerical error while they are already impleaded in memo of appeal and that the High Court has got ample powers to correct any formal defect or error and make such orders as may be necessary for the ends of justice.
10. In order to appreciate the argumehts of learned counsel in true perspective, it would be appropriate to consider the brief facts of the case referred above. In the cited case a declaratory suit was filed. In the suit permanent injunction was also prayed. Along with the suit an application was filed for temporary injunction but upon this application being dismissed an appeal was filed therefrom under Order XLIII, Rule 1 of the Code of Civil Procedure in the High Court of West Pakistan Karachi. This appeal was subsequently, transferred to the District Court of Hyderabad.
' During 'pendency of appeal one of the original plaintiffs Mooso died on 8-12-1961. Defendant Mir Hussain Bakhsh Talpur died some time in the first week of December, 1961 and finally the plaintiff Ibrahim died on 10th of May, 1962. An application was made before the appellate Court for bringing on record the heirs of the deceased parties and the legal representatives of deceased were duly brought on record of the appellate court but no similar application was then made in the original suit.
' After the disposal of appeal when the trial re-commenced in the original Court objections were raised on behalf of the defendants on the ground that the suit had abated. At this stage the plaintiffs filed an application under sections 151 and 153 of the Code of Civil Procedure for permission to amend the cause title of the plaint by substituting therein the names of the legal representatives of the deceased parties. No application was, however, made either for setting aside the abatement or for the condonation of delay.
' The learned Civil Judge on the 14th of October, 1964, rejected the application on the ground that it was time-barred, and declared the whole suit as having abated, as the cause of action of all the plaintiffs was joint and the interests of the deceased parties were indivisible from those of the surviving parties. The revision in the High Court was filed against this order.
' A learned Single Judge in the High Court took the view that the failure on the part of the plaintiffs to make a corresponding application for substitution in the trial Court was no doubt an omission which can be called to be technically serious but went on to hold that in a matter in which technical, omission has been made for bringing the legal representatives on record within time the correct point of view is that latitude should be allowed to the parties".
' The revision was, accordingly allowed the order of the Civil Judge was set aside and the legal representatives were directed to be brought on the record subject to the applicants (now appellants) being made liable to pay costs amounting to Rs,1.000 as a punishment for their negligence in not making the application for substitution in the trial Court also within time ' Leave was granted in this case to consider whether the substitution made in the Court of appeal during the pendency of the appeal- from an interlocutory order, would not ensure also for the purposes of the suit and be sufficient to cure all defects in that behalf.
' After hearing the appeal, it was observed that "in the view we have taken no question of abatement at, all arises. Therefore, the question as to whether the suit abated as a whole or only partially need not be considered. This appeal is, accordingly dismissed, but as no one has appeared for the respondents there will be no order as to costs".
' As such the judgment, and order of learned Single Judge of the High Court of West Pakistan Karachi Bench was upheld. The facts of the referred case as narrated are quite distinguishable and cannot be applied to the case in hand. As earlier mentioned revision petition was filed against a dead person and non-mentioning of L.Rs, of deceased respondent can hardly be termed as a clerical error but gross negligence and lack of diligence in pursuing the revision petition, which cannot be overlooked as valuable right had accrued to the other side
11. It would be advantageous to refer to the case of Sher Muhammad and 27 others v. Muhammad Mumtazul Islam through legal heirs and 6 others (2001 M LD 1964) wherein it was held that when the legal heirs of deceased respondent were not impleaded in the revision petition and application for their impleadment was made after the period of limitation for filing of petition, such act of petitioner shows gross negligence and lack of diligence in pursuing and prosecuting the lis. High Court declined to condone such lapse as valuable right had accrued to the other side with the passage of time.
' In the instant case neither any application for condonation of delay has been filed nor any justification was offered for the omission or inaction of not impleading the L.Rs, of deceased respondent even after consecutive directions of the High Court. Question of limitation can hardly be termed as a mere technicality, if any judicial precedent is required one can refer to the case of Atta Muhammad v. Maula Bakhsh and others. (2007 SCM R 1446) wherein it was observed by their Lordships in the following words:- "We may add that public interest requires that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affair. Statutes of limitation and prescription are thus statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights, if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts requires that persons must come to Court and take recourse to legal remedies with due diligence."
12. Consequently, this revision petition being benefit of any merit is hereby dismissed with no order as to costs.