'MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioner filed a suit for declaration and possession against respondents in forma pauperis after report of collector, the civil court treated it a civil suit.
The petitioner claimed that her grandfather Lashker Din was the owner of an agricultural land measuring 1387 kanals, 10 marlas, detailed in head note of plaint. Deceased Lashker Din was survived by two sons namely Noor Din and Muhammad Din alias Muhammad Tayyab. After the death of Lashker Din both the sons were entitled equally to the estate of deceased, but Noor Din with the collusion of Revenue officials succeeded to get the entire land mutated in his name vide Mutation No,33 attested on 28-9-1940. Both brothers were living. Together under one roof, both were cultivating the land jointly. Noor Din managed to conceal the real facts from Muhammad Din and continued to assure him that both brothers are equal share holder in the suit-land. Noor Din also managed to transfer the entire land in favour of his sons by means of mutation of Tamleek No,7 attested on 12-3-1969. The petitioner asserted that she is the owner of 7/96 share in the suit- land being the daughter of Muhammad Din. The respondents No,1 to 4 continued to linger on the transfer to her 7/96 share in her favour on one pretext or the other and finally 1-1/4 years ago they totally refused to transfer her share in her favour.
2. The respondents controverted the petitioner's assertions.
3. Learned trial court, out of divergent pleadings of parties, framed the following issues:--- "ISSUES:
(1) Whether the suit is Within time?
(2) Whether the suit is bad due to non-description of the mutation in dispute?
(3) Whether the suit is bad due to non description of the total area of the suit-land if so its effect?
(4) Whether the plaintiff has got no locus standi and cause of action against the defendant?
(5) Whether the Mutation No,33 dated 28-9-1940 is illegal, void, fictitious and ineffective qua the rights of the plaintiffs?
(6) Whether the subsequent Mutation No,7 dated 12-3-1969 is illegal, void and ineffective qua the rights of the plaintiff? OPP (7). Relief."
4. Both the parties adduced their respective evidence, both oral and documentary. Learned trial court vide judgment and decree dated 14-2-1988 dismissed the suit, the appeal thereagainst also failed on 14-1-1990, hence the present petition.
5. The petitioner in addition to the beneficiary of property i,e, respondents Nos.1 to 4, also arrayed all other legal heirs of Muhammad Din and Noon Din as respondents Nos.5 to 16, the learned trial court vide order dated 24-5-1982 deleted them being unnecessary party, they have not filed any appeal against their deletion, but the petitioner is continuously impleading them as party to litigation.
6. Learned counsel for petitioner submits that judgments of two court below suffer from non- reading and misreading of record. The fraud of deceased Noor Din is a proven fact on record. The two courts below have wrongly held that suit is barred by time. Learned counsel further submits that it was the duty of respondents to prove that entire land of Lashker Din was rightly mutated in the name of Noor Din and he rightly transferred the same in their favour vide mutation of Tamleek.
He adds that petitioner being illiterate "Parda Nasheen" lady enjoying the protection of law. He has relied on Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 Supreme Court 849), Mst. Najma Begun v. Rehmat Ali and 19 others (2004 MILD 620), Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385) and Manzoor Ahmad v. Haji Hashmat Ali through Legal Heirs (2000 CLC 419).
7. Learned counsel for respondents No,1 to 4 supports the judgments of two courts below and submits that this court in its revisional jurisdiction even if comes to different conclusion, could not set aside the concurrent findings of facts of two courts below. He submits that revision is' barred by time and as such is liable to be dismissed summarily. The suit is hopelessly barred by time, the mutation was attested before the enactment of West Pakistan Muslim Personal Law (Shariat)
Application Act. 1948 and 1962 and after Punjab Amendment Ordinance XIII of 1983, the respondents become the full owner of property in dispute. He adds that respondents Nos.5 to 19 could not be heard and treated party to proceedings as they have failed to assail order dated 24- 5-1982. He has relied on Kala Khan and others v. Rab Nawaz and others (2004 SCMR 517), Muhammad Siddiq and others v. Muhammad Sharif and others 1992 SCMR 2260, Rag/tab Hussain and 5 others v. Muzaffar Hussain and 6 others (2005 YLR 2605), Ijaz Ahmad and others v. Akbar Ali and 6 others (2002 YLR 2086), Muhammad Hussain and others v. Muhammad Shafi and others (2008 SCMR 230), Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others (1995 SCMR 868), Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678), Fazal Din v. Rehabilitation Commissioner (Land) and others (1988 MLD 2401), Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 Supreme Court 407), Bashir Ahmed v. Abdul Aziz and, others (2009 SCMR 1014), Government of N.-W.F.P through Chief Secretary and 3 others v. Abdul Malik (1994 SCMR 833), Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336) and Assistant Administrator, Evacuee Trust Property v. Muhammad Ayyub and others (2003 SCMR 841).
8. Heard. Record perused.
9. It is an admitted fact between the parties that property subject-matter of suit was owned by Lashker Din. Noor Din and Muhammad Din were his sons. The Mutation No,33 was attested on 28-9- 1940 in favour of Noor Din pertains to the estate of deceased Lashker Din. The Mutation No,7 is the mutation of Tamleek from Noor Din, of suit property. It is a proven fact on record that Muhammad Din alias Tayyab died on 3-4-1969. The petitioner's claim is that she is the daughter of Muhammad Din, Muhammad Din was entitled to 1/2 shares of land of Lashker Din with Noor Din. Muhammad Din and Noor Din, two brothers, were living under one roof, they were cultivating land jointly. Noor Din continued to assure Muhammad Din in his life time that he is joint owner of suit-land with him but in 1940 after the death of Lashker Din, Noor Din fraudulently got transferred the entire land in his favour, through disputed mutation. Her father and Noor Din after the death of Lashker Din under Shariat Law as well as Custom was entitled to 1/4 share in the land. The petitioner in para Nos.3 and 4 of the plaint specifically asserted as under:--- {{URDU TEXT}}
10. The respondents in para Nos.3 and 4 of the plaint , replied as under.----{{URDU TEXT}}
11. The defence of respondents Nos.1 to 4 through their written statement is that death of Lashker Din is admitted, other contents are denied, mutation of inheritance was attested according to law, Noor Din purchased sufficient property himself, the petitioner is the daughter of Sardaran, Sardaran in the first instance was the wife of Muhammad Tayyab, after that she married with Malik Matella, after that she married with Nazar Muhammad. Muhammad Din and Muhammad Tayyab are two persons. Before marriage with Muhammad Tayyab, Sardaran remain the wife of Muhammad Din but petitioner born after one year of the dissolution of her mother with Muhammad Din. The defence set-up by respondents Nos.1 to 4 shows that they claimed Muhammad Tayyab and Muhammad Din were two persons, as according to respondents Nos.1 to 4, before marriage with Muhammad Tayyab, Sardaran remains with Muhammad Din and petitioner borne after one year of her mother's separation with Muhammad Din. The disputed mutation is according to law but it was not made clear whether it was under Islamic Law of Inheritance or Customary Law, out of the inherited land, most of the land was purchased by Noor Din. If the defence of respondents is accepted, the facts will be that Lashker Din was the Benamidar qua the major portion of land in his name, the mutation of inheritance is attested according to Islamic Law. Petitioner is not the legitimate daughter of Muhammad Din as she born after one year of her mother's separation with Muhammad Din and Muhammad Tayyab and Muhammad Din are two different persons.
12. As the respondent's defence was entirely on different facts and as such, burden of proof immediately shifted upon them to prove their version, as Muhammad Din is admittedly the son of Lashker Din. The petitioner's assertions of para No,3 of plaint were admitted by the respondents in toto.
13. From the above said facts only dispute remain between the parties is how much land was owned by deceased Lashker and whether the disputed mutation was attested in favour of Noor Din under customary law or under Islamic Law of Inheritance, and petitioner is the legitimate daughter of Muhammad Din. The disputed mutation is Exh.P.2. The said document shows that Lashker Din died on 25-4-1940 and on 3-7-1940, Halcia Patwari made the following endorsement in record: --- {{URDU TEXT}}
14. Patwari after that also recorded the following statement.-
15. On 26-9-1940 the mutation was when presented before Tehsildar, he passed the following order:-{{URDU TEXT}}
16. The disputed mutation shows that except Tehsildar no one has signed or thumb marked the document. The date 28.9.1940 clearly shows that digit "6" has been changed with digit "8". This fact is further find support from the other writing available in the column of report and order as under:- {{URDU TEXT}}
17. The above said noting of Patwari or other relevant officer on 26-8-1940 shows the legal heirs of Lashker Din were summoned for 31-8-1940, but it seems that on 26-8-1940 the mutation was attested in the absence of at least Muhammad Din, but when the attesting officer came to know that officer has already passed an order for summoning the parties, to 31-8-1940 he scored the digit "6" with digit "8" and tried to give the impression that on 28-8-1940 all were present. This aspect of case was not examined by the two courts below and.Decided the case on the ground that mutation has been challenged after long time. The written statement of respondents Nos.1 to 4 shows that they tried to change the venue of the dispute, first of all they tried to show that petitioner is not the daughter of Muhammad Din as she born after one year of their parent's separation, they tried to give the impression that Muhammad Din and Muhammad Tayyab are two different persons, they also took the stance that most of the land subject-matter of the disputed mutation was purchased by their father Noor Din, but the respondents have, failed to substantiate their defence, no witness was produced for proving their defence nor any document is available on record in support of their defence. No doubt the suit was filed after long time but the petitioner has specifically claimed that her father and the father of respondents were jointly cultivating the land in dispute, they both were living jointly under one roof, these facts were not denied by the respondents. Learned courts below have relied on the statement of D.W.2, the tenant of suit-land who deposed that his father was cultivating the land and after his death he is the tenant of land, he never paid any share of produce to petitioner or his father. How a tenant can be aware of the personal relations of two brothers who cultivating land jointly, hence the statement of tenant D.W.2 could not be relied as gospel truth.
18. The argument of learned counsel for respondents that two courts below have given their findings that fraud has not been proved as such A this court cannot interfere, no doubt this argument has a force but the facts of the case shows that learned courts below have failed to read the main document Exh.P-2, the mutation, the authenticity of which is doubtful which can be seen from naked eye. Further the beneficiary of the mutation is respondents and they have failed to establish their own defence that most of the disputed property was their father purchase. Not a single witness or even a single word was uttered by D.W.1 about this alleged fact. They have not denied the joint cultivation of land by the two brothers. In arguments, learned counsel tried to build their case on the ground that land was mutated under customary law. The mutation itself shows that the same was not attested under customary law, the reason shown for transfer of entire land in favour of respondent's father are that Noor Din claimed that Muhammad Din has acquired land being the adopted son of his maternal Grandfather and as such the share of Muhammad Din be given to him, it is a proven fact on record that date for attestation of mutation was fixed as 31-8- 1940 but the mutation was attested on 26-8-1940 and date of 26-8-1940 was changed with 28-8- 1940. Learned counsel then tried to argue that it is a case of surrender of rights as Muhammad Din acquired land of his maternal grandfather and as such in lieu of that Muhammad Din surrendered his rights. If this argument of learned counsel is admitted for the sake of arguments even then the consent of Muhammad Din is required and the respondents have to establish that Muhammad Din made the statement to this effect before Revenue Officer, but the facts are otherwise, the presence of Muhammad Din on 28-8-1940 or 26-8-1940 is not proved. Further it was not the case of respondents in their written statement. The petitioner has proved her case that she is the daughter of Muhammad Din. Muhammad Din is Muhammad Tayyab, Muhammad Din was the son of Lashker Din. Learned courts below have fallen in error when they opined that it was the duty of petitioner to prove the fraud, the respondents are the beneficiaries of disputed mutation and as such they were duty bound to prove the 'genuineness of the transaction, they have not produced any witness from revenue department for proving the genuineness of the contents of disputed mutation, they have not produced any document or even oral evidence about their allegations that petitioner is not the legitimate daughter of Muhammad Din and as such the arguments of learned counsel are of no avail.
19. Learned counsel for respondents Nos. I to 4 has argued with vehemence that present petition is barred by time. He submits that judgment was passed on 24-1-1990, the petitioner for issuance of copy applied on 25-1-1990, the copy was delivered on 22-2-1990 but the petition was filed on 14-5- 1991 and as such the petition is hopelessly barred by time.
20. Learned counsel for petitioner submits that the amendment in section 115, C.P.C. Was made applicable by Act VI of 1992 and the petition was admittedly filed on '14-5-1991 and as such the clog of 90 days is not applicable in the petitioner's case and that is the reason the office at the time of entertaining the petition has not raised any objection about the limitation.
21. Learned counsel for respondents has placed reliance basically on 1994 SCMR 833 Supra. Hon'ble Supreme Court of Pakistan after examining all relevant judgments in this regard has finally opined as under: "We in respectful agreement with the above two judgments of this Court. We are also inclined to hold that though there is no period prescribed in the First Schedule to the Limitation'Act for filing a civil revision but it is to be filed diligently within a period of 90 days, but the same can also be filed after the expiry of 90 days provided the petitioner makes out a good case for condoning the delay. If we were to take a contrary view, it will prolong the agony of the adversary who succeeded in the Court b-elow as the losing party will be able to file a revision application at any time at his sweet will. This will run counter to the basic concept of justice, i,e, litigation should be finalized as early as possible without any delay. We are further inclined to take the view that a High Court can exercise revisional jurisdiction suo motu at any time without being bound by any period of limitation provided it fosters the cause of justice and the dictates of justice so demand and not in every case."
22. The opinion of Hon'ble Supreme Court of Pakistan is very clear that revisional court has the ample powers to condone the delay and can also exercise suo motu jurisdiction under section 115(1), Code of Civil. Procedure. It depends on the facts of every case whether the delay can be condoned or not? Or suo motu jurisdiction can be exercised. In the present case the office has admittedly not raised any objection while entertaining the petition, probably under the impression that no limitation is provided in law for filing the petition, the petitioner remain pending without any objection on the part of respondents and ultimately it was allowed on 30-7-2001, the respondents- Nos.1, 2 and 4 then filed an D application C.M. No,883 of 2001 for setting aside judgment dated 30-7- 2001 and took the objection that they had no notice of the fixation of case for 30-7-2001, the judgment was set aside but Malik Muhammad Ashaab Advocate, the counsel for petitioner, made the statement that he had the instructions to withdraw the revision petition and the petition was thus dismissed as withdrawn. The petitioner filed C.M.No,999-C of 2002 claiming that she has not given any instructions to her counsel for withdrawal of petition and prayed for setting aside order dated 1-7-2002. The petitioner levelled serious allegations against her learned counsel. This court called the learned counsel, he made the statement before this Court that dispute between the parties was settled, respondents paid Rs,1.4 Million to him for making the payment to petitioner and he withdrew the petition on the instructions of petitioner. He however, admitted that amount is lying with him and petitioner has not approached him for receiving the amount. This Court vide order dated 15-4-2003 dismissed the petition for recalling the order for withdrawal of petition.
23. The petitioner assailed the said order before Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court of Pakistan accepted the C.P.No,1038-L of 2003 and made the following observations:- "We have considered the contentions raised by the learned counsel for the parties and have gone through the documents appended with this petition with their assistance. The. Application of the petitioner, Mst. Ashraf Bibi, for adjudication of her revision petition on merits was dismissed simply on the ground that an affidavit of her counsel Malik Muhammad Ashhab before the Lahore High Court on 21-1-2003 was furnished wherein he made a statement that she had agreed to compromise with the other side who had put Rs, 1400,000/- (Rupees fourteen lacs). However, the impugned judgment and the documents appended therewith demonstrate that the said amount of Rs,1400,000/- remained with the counsel and was never paid to the petitioners. We are completely at a loss, how this compromise was effected when the petitioners were not paid even a single penny. The money is still lying with the learned counsel.' In view of the nature of the order, which we are going to pass, we do not want to dilate much upon this issue.
' Keeping all the aforesaid features of the case into consideration, we convert this petition into appeal and set aside the impugned order dated 15-4-2003. The revision petition filed by the petitioner Mst. Ashraf Bibi would be deemed be pending which shall be decided on its merits by hearing the parties. However, if the parties so agree and voluntarily reach at a genuine compromise, it can also be struck down between them.
24. After remand, case remained pending up to 19-1-2006 when the respondents raised the objection of limitation. It is pertinent to mention that respondents have not raised the objection before this Court as well before the Hon'ble Supreme Court of Pakistan, hence now it has to be seen whether the respondents could be allowed to raise this objection or |F not.
25. Admittedly when the petition was filed, the amendment in section 115, C.P.C. Was not available in the statute book. No doubt the judgment of Hon'ble Supreme Court of Pakistan were in field being the law enunciated by apex court, but the law enunciated by the apex court provides the room for condonation of delay and the suo motu jurisdiction of this court remains intact. The facts of this case shows that respondents were never be serious about the objection of limitation. They have failed to raise the same when they firstly appeared, it was their duty to raise the objection of limitation at the time of entertaining the petition. The respondents then succeeded to. Get the petition withdrawn, when the petitioner filed application for setting aside withdrawal order, the respondents have not raised the objection of limitation, when the petitioner approached the Hon'ble Supreme Court of Pakistan, the respondents again failed to raise the objection before the Hon'ble Supreme Court of Pakistan. In these circumstances, it is clear that respondents were never serious allout the objection of limitation.
26. This Court under section 115(1) of Code of Civil Procedure is enjoying suo motu powers to exercise the jurisdiction for correction of acts of courts below. The suo motu powers of this Court under section 115 ibid are intact even after the amendment of 1992. Hence the respondent's objection qua the limitation is over ruled and this court is inclined to condone the delay in exercise of powers under section 115(1), ibid.
27. The upshot of the above discussion is that this petition is allowed, the impugned judgment of two courts below is set aside and the petitioner's suit is decreed as prayed for with costs throughout. The petitioner, however will be entitled to, execute the decree subject to payment of court-fee.