Through the present civil revision -the judgment and decree dated 31.7.1988 passed by the learned Civil Judge, Rahim Yar Khan whereby the suit of the plaintiffs had been dismissed and judgment and decree dated 14.12.1995 passed by the learned ADJ, Rahim Yar Khan whereby the appeal was dismissed have been challenged.
2. The relevant facts for the disposal of this civil revision are that Mst. Inaitan Bibi predecessor of the present petitioners filed a suit for declaration challenging the mutation of Inheritance No. 265 attested on 20.12.1940 (Ex.P-4) relating to village Kot Kammu Shah and mutation of inheritance of Wai Shah Muhammad Bearing No. 176 dated 24.11.1940(Ex.P-7), mutation of inheritance Bearing No. 130 attested on 20.12.1940 (Ex.P.1) and also the subsequent mutations of gifts Bearing No. 131 dated 20.12.1942 (Ex.P.2), Mutation No. 311 dated 2.2.1966 (Ex.P.3), Mutation No. 266 dated 20.12.1940 (Ex.P.5), Mutation No. 710 dated 2.2.1966 (Ex.P.6), Mutation No. 177 dated 24.11.1940 (Ex.P.8), and Mutation No. 409 attested on 2.2.1966 (Ex.P.9).
3. Originally the land in dispute was owned by Chatta who died in the year 1940. He had in his legal heirs Mst. Jano widow, three daughters Mst. Ashraf, Mst. Inaitan predecessor of present plaintiffs and Mst. Allah Wassai. He had land in three villages. With regard to Kot Kammu Shah his mutation of inheritance Bearing No. 265 was attested on 20.12.1940 only in the name of his widow Mst. Jano.
Similarly in the village Wai Shah Muhammad his mutation of inheritance Bearing No. 176 was attested on 24.11.1940 in the name of Mst. Jano his widow and in both the said mutations his daughters were deprived. Third mutation of inheritance in Ali Pur Machi village Bearing No. 130 was attested on 20.12.194Q in favour of all three daughters and widow. Through Mutation No. 131 attested on 20.12.1942 M.st. Jano gifted away the property to her ex-husband Jumma and said Jumma through Mutation No. 311 transferred this property through gift in favour of his son Imam Bakhsh, who was also son of Mst. Jano. With regard to remaining villages Mst. Jano also transferred the land to Jumma through gift bearing Mutation No. 266 and Jumma further transferred the land to his son Rahim Bakhsh through Mutation No. 710 who was also son of Mst. Jano. With regard to third mutation which was attested in favour of three daughters and widow the said property was also transferred through gift deed in favour of Jumma who subsequently gifted it away in the name of his son who was also the son of Mst. Jano namely Qaim Din through Mutation No. 409. In the present suit Mutation Nos. 265 and 176 were challenged on the ground that daughters were deprived from inheritance while with regard to remaining village Ali Fur Machi the gift deed in favour of Jumma was challenged that they had not gifted away to Jumma and subsequent mutations were also challenged on the same ground. The plaintiffs' claim was that the defendants used to pay the share of produce to her and when they refused it was revealed that said mutations had been sanctioned through fraud.
4. The suit was resisted by the defendants who filed written statement and out of the pleadings of the parties, the learned trial Court framed the following issues:-- {{URDU TEXT}}
5. The parties produced their evidence and after hearing the parties, the learned Trial Court decided Issue No. 1 in favour of defendants and held the suit to be barred by time. Issue No. 2 was decided against the defendants. Issue No. 3 was also decided against he defendants. Issue No. 4 was decided in favour of the defendants. Issue No. 5 was also decided in favour of the defendants.
Issues No. 6, 7, 9, 10 and 10-A were decided against the plaintiffs and resultantly dismissed the suit.
It may be mentioned here that while deciding these issues the learned trial Court had mainly based its findings on the basis that the suit was barred by time. Plaintiffs preferred the appeal which also met the same fate and it was observed that the suit was barred by time. It may be mentioned here that all the mutations were attested in the year 1940 but the suit was filed on 2.6.1980. The defendants in their written statement raised the objections that infact all the said mutations were challenged in the revenue Court and revision petitions were dismissed in the year 1959 as being barred by time and the petitioners were directed to approach the Civil Court but they kept silent for 20 years and after 20 years had filed the present suit.
6. Learned counsel for the petitioners contended that it is not denied that the plaintiffs were legal heirs of Chatta but they were deprived of their legal share and legal heirs become the co-sharer the moment the.person dies and in such eventuality the limitation is no bar to file the suit. He further contended that as far as the revision petitions filed before the Collector are concerned, admittedly these were filed through Kora who was allegedly the attorney of the plaintiffs but there is no proof that infact said Kora was attorney of the plaintiffs and that daughters were illiterate ladies, so they were deprived of inheritance and placed reliance upon PLJ 2002 SC 406, 2007 SCMR 729, 1993 MLD 1207, PLD 1997 SC-397, 1999 MLD 595, PLD 1976 SC-258, 2005 YLR 233, PLD 1956 (W.P)
Lahore-795, PLD 2005 Lahore-218, PLD 2005 Lahore 578, 2008 CLC 224, PLJ 2010 Lahore 346 (DB), 1990 SCMR 1667, 1991 SCMR 515, 2002 CLC 1539, PLD 1990 SC-1, 1987 CLC-1403, 2000 YLR 1971, 2005 CLC 1383, PLD 1974 Lahore 434,1985 CLC 821, 1997 SCMR 281, 1987 SCMR 54, 2003 YLR 67, PLD 1989 Lahore 372, PLD 2004 Lahore 1, 1989 CLC 803, 2001 MLD 1524, 2004 YLR 1953, 1989 CLC-803, 2004 CLC 814, PLJ 2004 Lahore 193, 2003 YLR 1257, 2010 MLD 843, PLJ 2000 Lahore 1079, PLJ 2004 Lahore 771,1988 CLC 1246, 1983 SCMR 626, 1984 SCMR 906, PLD 1994 SC-462, PLD 1985 Quetta-105, 2005 SCMR 1217, 2005 MLD-1, 2006 MLD 47, PLJ 1985 Lahore-1, 2002 CLC 733, 2003 SCMR 362, 2002 CLC 689, PLJ 2003 Lahore-40.
7. On the other hand learned counsel for the respondents supported the impugned judgments and decrees of the Courts below and placed reliance upon 1985 SCMR 1218, 1984 SCMR 63, 2007 YLR 2453, PLD 2008 SC-155, 2005 SCMR 135, PLD 1994 SC-291.
8. Arguments heard. Record perused.
9. The documents Ex.P-29 to Ex.P.34 shows that the revision petitions were filed against the impugned mutations by Mst. Inaitan, Mst. Ashraf, and Mst. Hayatan through their attorney namely Kora. All the said revisions petitions were dismissed by the Collector, Rahim Yar Khan vide order dated 19.2.1959 as being barred by time. However, the petitioners were directed to approach the Civil Court for the purpose. However, after 19.2.1959 the present suit was filed after 21 years. The contention of learned counsel for the petitioners is that the petitioners had no knowledge of the said revision nor Kora was their attorney. However, perusal of plaint shows that no such plea was taken in the plaint that Kora was not their attorney nor the revisions petitions were filed before the Collector Revenue. For argument sake, it can be assumed that at the time of filing the suit they were unaware of any such revisions petitions. However, in the written statement the specific plea was taken by the defendants with regard to dismissal of said revision petitions. The evidence of plaintiffs was recorded after the filing of written statement but even in the evidence the plaintiffs had not uttered even a single word that Kora was not attorney of the plaintiffs or that the revisions petitions before the Collector were not filed. It is also in evidence that Kora was son-in-law of Mst.
Inaitan. Statements of PW.1 and PW.2 clearly shows the same. In this way when it was not the case of the plaintiffs that they had not filed the revision petitions before the Collector which were dismissed in the year 1959 nor it was the case that Kora was not their attorney then how it can be agitated at this stage that Kora was not their attorney nor they had filed revisions petitions. The case law cited by the learned counsel or the petitioners have distinguishable facts. It is also established that when the mutation of inheritance is sanctioned the legal heirs has the right to challenge it and in some cases it has been observed by the superior Courts that limitation is immaterial. However, where the limitation starts running then the limitation does not stop. In the present case even the revision petitions were filed after 19 years of the attestation of mutation and the suit was filed after 21 years of the dismissal of the revisions petitions. In a case "Ghulam Haider Vs. Hafiz Allah Bakhsh" (1985 SCMR 1218), it was held as under: "Plea that limitation started after petitioner had acquired knowledge of mutation, repelled-- predecessor-in-interest having knowledge of transfer and even having objected to sanction of said mutation, limitation started ruining from the date, on which it was sanctioned. Suit rightly held time barred".
Similarly, in a case "Luqman and others Vs. Gul Muhammad and others" (1984 SCMR 63), it was observed as under: "Mutation of inheritance recorded in 1923 and 1936 challenged by suit in 1970--limitation--held too late in the day to challenge these old entries on blind assertion of lack of knowledge but petitioners have to explain why they did not agitate the matter after dismissal of second revision by the Board of Revenue in 1969 when one of the petitioners challenged sale of land and fresh entry of mutation."
Similarly, in a case "Salamat Ali and others Vs. Khair-ud-Din and others", it was observed as under: "Suit for declaration and permanent injunction. Mutation of inheritance challenged after 31 years.
Rejection of plaint for suit being time barred--Validity--Plaintiff 30 years ago had challenged the said, mutation before the revenue forums but without success, thus, had knowledge thereof.
Plaintiff had not challenged subsequent sales made by defendant and reflected in the revenue record."
10. The concurrent findings of both the Courts below are based on analysis of evidence and that too on documentary evidence, no interference is required at this stage. This being so, this civil revision has no force and same stands dismissed.