' KH. IMTIAZ AHMAD, J ---Through the present civil revision the impugned judgment and decree of learned Trial Court dated 27-3-2001 passed by the learned Civil Judge, Khanewal whereby he dismissed the suit and the judgment and decree dated 25-1-2002 passed by the learned District Judge, Khanewal whereby the appeal was also dismissed have been challenged.
2. The relevant facts for the disposal of this civil revision are that the plaintiffs namely legal heirs of Basharat and Sharafat Ali filed a suit against Province of Punjab, Karam Ali brother of Basharat and Sharafat and Ghulam Rasool for declaration to the affect that they along with Karam Ali were legal heirs of Muhammad Ibrahim and land allotted to Muhammad Ibrahim deceased under the Co- operative scheme bearing square No,114 measuring 100 kanals situated in Chak No,72-73/15-L Tehsil Mianchannu were in joint ownership of plaintiffs and defendant No,2 and allotment order passed by the Collector dated 31-10-1977 in favour of defendant No,2 and registered bainamashahi dated 24-12-1979 bearing khasra No,2239 and Mutation No,64 dated 7-11-1978 in favour of defendants No,2 were illegal and sale-deed bearing No,164 dated 16-1-1979 and subsequent Mutation No,71. Dated 30-10-1979 in favour of defendant No,3 was also illegal and was in effective upon the rights of the plaintiffs and with the further prayer of possession of their share.
3. The nutshell of claim of plaintiffs was that infact Muhammad Ibrahim father of plaintiffs and defendant No,2 was member of cooperative society to whom land was allotted in the year 1948 but he died in the year, 1961 and defendant No,2 Karam Ali was only his nominee and he was not entitled for allotment. Of entire land and infact all the legal heirs were to be allotted the land since nominee had no independent claim but defendant No,2 got the land transferred in his own name and so the suit was filed for declaration. The province of Punjab filed the separate written statement in which they maintained that land had been transferred to defendant No,2 and suit was liable to be dismissed. Defendant No,2 namely Karam Ali brother of plaintiffs filed a consenting written statement and admitted that he was nominee of allottee Muhammad Ibrahim. He levelled the allegation against defendant No,3 that it was he who instead of execution of Bainamashahi in favour of plaintiffs and defendant No,2 got executed in favour of defendant No,2 and thereafter got forged sale deed executed in his favour and so prayed that he has no objection if the suit of the plaintiffs is decreed. Defendant No,3 Ghulam Rasool who infact had purchased the property from said Karam Ali in his written statement claimed himself to be the bona fide purchaser of the property in dispute. Out of the pleadings of the parties, the learned Trial Court framed the following issues:--
(1) Whether the, plaintiffs and defendant No,2 are share holders of the property in dispute? OPP
(2) Whether the order as passed by the Collector Khanewal and further legal proceedings as described in the head note of the plaint are illegal, void and 'in-effective as against the interest of plaintiffs? OPP
(3) Whether the plaintiffs have no cause of action as against the defendants? OPD 2-3.
(4) Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD-2 & 3
(5) Whether the suit is not maintainable in its present form? OPD-2 & 3.
(6) If the suit is beyond limitation? OPD- 3
(7) Whether defendant No,3 is bona fide purchase of the land in suit? OPD-3.
(8) Whether the defendant No, 3 has improved the condition of the land in the suit, if so at what cost and with what effect? OPD-3
(9) Relief.
4. The parties produced their evidence consisting of oral as well as documentary evidence.
5. The learned Trial Court while deciding issue No,1 came to the conclusion that nominee is only a trustee of such benefits which are to be distributed amongst persons entitled to same in accordance with law and plaintiffs being son of Muhammad Ibrahim are the share holders- defendant No,2 with their sisters namely Bano and Majeedan in the property of Muhammad Raheem and decided issue No,1 accordingly. In this way issue No,1 was decided in favour of the plaintiffs.
6. Issue No,2 was decided against the plaintiffs on the ground that the order of allotment which had been challenged by the plaintiffs was not produced in evidence. The remaining issues Nos.3, 4, 5, and 6 were decided against the defendants. While issue No,7 was decided in favour of defendant and issue N6.8 was decided against the defendant, resultantly on the basis of its findings on issues Nos.2, 6 and 7 dismissed the suit vide impugned judgment and decree dated 27-3-2001. The plaintiffs being dis-satisfied with the findings of learned Trial Court on the said issues preferred an appeal before the District Court. The memo of said appeal is available on record. In the said memo of appeal only findings of learned Trial Court on issues Nos.2, 6 and 7 had been challenged while with regard to other issues the appellants specifically mentioned in the memo of appeal that the said findings were correct. To the extent of findings on issues No,6 which relates to limitation the findings of learned Trial Court were upheld as is mentioned in .Para-24 of the impugned judgment of the appellate court. To the extent of issues No,2, the learned appellate court observed that the tenancy rights were not inheritable and in this behalf placed reliance upon the case reported in (PLD 1990 SC Shariat Appellate Bench 90) captioned "Qazalbash Waqf and others v. Chief Land Commissioner, Punjab" and so observed that the plaintiffs were not entitled to challenge the allotment. The findings of learned Trial Court on issue No,7 were also upheld and resultantly dismissed the appeal. Hence this civil revision.
7. Learned counsel for the petitioners contended that under the cooperative scheme since Muhammad Ibrahim was allottee of the land and respondent No,2 Karam Ali was only the nominee so the allotment of entire land in favour of Karam Ali was illegal, so findings of both the courts below on issue No,2 are erroneous. This point was taken into consideration in a case captioned "Fazal Shah v. Muhammad Din and others" (1990 SCM R 868). The August Supreme'Court observed as under:-- "Nomination by a member of co-operative society does not operate either as a gift or as a will and thus can not deprive the other heirs who may be entitled thereto under the law of succession applicable to the deceased as per dictum laid down by the Supreme Court in Mst.Amtul Habib"s case reported as (PLD 1974 SC 185). "
8. In view of clear dictum laid down by the august Supreme Court of Pakistan it stands established that nominee of the allottee himself had no right for allotment of entire land and all the legal heirs were entitled to the same. In this way the plaintiffs were justified to challenge the B allotment order made in favour of Karam Ali defendant No,2. The learned Trial Court decided said issue only on the ground that the order of allotment had not been produced. However, the learned Trial Court had ignored this fact that firstly there was no controversy between the parties on this aspect that infact Muhammad Ibrahim was the allottee. Secondly the documentary evidence consisting of the order dated 7-11-1970 which is Exh.P-5 is available on record. Similarly the registered deed dated 24-12- 1977 in favour of Karam Ali and Bainama Shahi are also available on record as Ex.P-6 and this was the controversy between the parties and merely .For this technical ground that allotment order was not produced was no ground to dislodge the claim of the C plaintiffs, thus, it stands established that the plaintiffs had proved issue No,2. The most material issues now in the field are issues Nos.6 and 7. Issue No,6 relates to the limitation. Learned counsel for the petitioner has vehemently argued that no limitation runs against the co-sharer and secondly that since the allotment order was void order, so no limitation runs against the void order. In this behalf he has placed reliance upon "Muhammad Shafi v. Mushtaque Ahmed through legal heirs and others" (1996 SCM R 856), "Yummy Milk Products (Pvt.) Ltd. Through Managing Director v. Government of Punjab and 4 others" (1999 CLC 1443), "Mooso through Legal Heirs and 2 others v. Allah Ditto through Legal Heirs and 7 others"
(1999 CLC 798) and "National Bank of Pakistan v. Khairpur Textile Mills Ltd. And others" (2001 CLC 1187). The said matter has been attended carefully and with caution. Admittedly, rightly or wrongly the land was allotted to Karam Ali in the year 1977. The present suit was filed on 7-1-1993, so the suit was filed after 16 yeah of the allotment. Defendant No,2 transferred the land to Ghulam Rasool through registered sale deed in the year 1979 and documentary evidence proves his possession and even it is not disputed by the plaintiffs that they were real brothers residing in the same chak.
The plaintiffs have every knowledge of possession of Ghulam Rasool from the year 1979. The question arises that why the plaintiffs kept silent for whole 16 years and as to when they came to know about the alleged fraud committed by their alleged brother Karam Ali. In the plaint not even a single word has been. Mentioned that as to when they came to know about the fraud. Basharat Ali plaintiff appeared as P.W.4 and only deposed that he came to know about the mutations in the year 1979-1980. Now even if this statement be accepted that he came to know about the mutations in the year 1979, even then the suit was filed after 14 years of his knowledge. There is no denial of the fact that no limitations runs against the legal heirs or against the void order. However, when the plaintiffs had came to knowledge of the fraud then the limitation starts running. In a case reported "Ghulam Haider v. Hafiz Allah Bakhsh" (1985 SCM R 1218)ID 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 running from the date of which it was sanctioned. Suit rightly held time barred."
9. Similarly, in a case "Legman and others v.- Gul Muhammad and others" (1984 SCM R 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."
10. In the present case also according to the plaintiff Sharafat Ali who appeared as P.W.4, he came to know about the mutations in the year 1979 and thus when he obtained the knowledge of fraud the limitation started running, so the suit filed in the year 1993 was hopelessly barred by time and hi this way the findings of both the courts below are upheld.
11. As far as issue No,7 is concerned, which is with regard to bona fide of the Ghulam Rasool defendant No,3 as purchaser, is concerned, suffice it would be to say that the land was allotted in favour of Karam Ali and entries were made in the revenue record which is so available on the record in the shape of documentary evidence produced by both the parties consisting of Jamabandi and khasragirdawri. He checked the documents and purchased the land in the year 1979 through registered sale deed which is Exh.D-8 and also obtained the possession of the land.
So much so one Abdul Majeed who is nephew of the plaintiffs filed a suit for pre-emption against the said sale the copy of which is available on record as Exh.D-12, which was ultimately dismissed.
This suit was filed in the year 1980 and was decided in the year 1987, so remained pending for 7 years even then the plaintiffs did not file a suit and after the lapse of six years had filed the present suit and in all the probabilities the defendant No,3 appears to be bona fide purchaser of the property. So, findings of both the courts below on issue No,7 are also upheld.
12. In view of my findings on issues Nos. 6 and 7, there is no force G in this civil revision and the same stands dismissed.