AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioners have impugned the judgment and decree passed by the Additional District Judge, Haroonabad (Camp at Fort Abbas) dated 6.12.2001, whereby he accepted the appeal filed by the respondents-plaintiffs and set aside the judgment and decree passed by the Trial Court dated 14.6.2001, whereby the suit filed by the respondents-plaintiffs was dismissed.
2. Briefly, the facts are that the respondents- plaintiffs on 12.3.1996 filed a suit for declaration challenging therein the registered deed of gift dated 3.6.1989 and the mutation No. 144 sanctioned on 5.7.1989 on the basis of said gift deed of suit property by Muhammad Din, their father, in favour of defendants who are sons of Muhammad Din.
Plaintiff No. 1 is son of said Muhammad Din, whereas plaintiffs Nos. 2 to 6 are sons and daughters of deceased son of Muhammad Din, namely, Muhammad Siddique. The defendants appeared and contested the suit by filing written statement. The Trial Court after framing of issues, invited the parties to produce their evidence. Both the parties adduced their respective evidence oral as well as documentary. The Trial Court vide judgment and decree dated 14.6.2001 dismissed the suit. An appeal was preferred by the respondents-plaintiffs, which was accepted by the Additional District Judge, Haroonabad (Camp at Fort Abbas) vide judgment and decree dated 6.12.2001. Hence, this civil revision.
3. It is contended by the learned counsel for the petitioners that the relationship between the parties is not in dispute; that there is registered gift deed in favour of petitioners-defendants, therefore, suit should have been filed for cancellation of the document u/S. 39 of the Specific Relief Act, 1877 and the suit for declaration was not competent. Further states that one of the plaintiffs, Yaseen, appeared as his own witness who has not even specifically denied the impugned transfer in his statement as P.W-1; that father of petitioners-defendants has compensated to all his legal heirs, as P.W.-1 has admitted that he had a lot of 100 kanals of Grow More Food Scheme in his favour and his deceased brother Muhammad Siddique was also having a lot in his name; that even the P.W-2 and P.W-3 have also promoted the case -of petitioners-defendants; that he produced seven witnesses who have fully corroborated the case of the defendants and Ex.D-3 (Khasra Girdwari) shows the possession of defendants. It has been further argued that the suit was rightly dismissed by the Trial Court. Admittedly, the predecessor of parties remained alive for a period of 6-1/2 years after the impugned gift in favour of defendants. He never denied the gift rather he admitted it during his life-time.
4. On the other hand, learned counsel for the respondents-plaintiffs argued that possession was not delivered to the defendants, so the gift was not completed and that the findings recorded by the first Appellate Court are quite in accordance with law.
5. I have heard the learned counsel for the parties and also gone through the record with their able assistance.
6. The suit does not relate to an inheritance, rather the respondents-plaintiffs have challenged the transaction of gift in favour of the petitioners-defendants. The plaintiff No. 1 appeared as P.W.-1, who has not specifically denied the transfer of impugned land through the gift in favour of petitioners-defendants. He has admitted in the cross-examination that he is having a lot of 100 kanals pertaining to the Grow More Food Scheme in his name. He also admitted that his deceased brother, father of plaintiffs Nos. 2 to 6, was also having lot of 100 kanals of land in his name. The statement of D.W.3 (Nazir Ahmad) one of the defendants, that Muhammad Din his grand-father has given-half square land to each of his sons, namely, Yaseen and Siddique (predecessor of plaintiffs Nos. 2 to 6), was not even denied by the plaintiffs. It is not the case of plaintiffs that the petitioners-defendants were also having any other land except the land gifted by their father in their favour. In this view of the matter, the plaintiffs were bound under the law to prove their father to be the owner of suit property at the time of his death making their case to be a case of inheritance. As noted above, the predecessor of parties, namely, Muhammad Din, remained alive for a period of 6-% years after the impugned gift in favour of petitioners-defendants. The respondents-plaintiffs were bound under the law to file a suit for cancellation of the documents u/S. 39 of the Specific Relief Act, 1877. Furthermore, the possession over the suit land of the donees i.e. Petitioners-defendants is proved on record by Ex.D-3 and the other documentary evidence, against which no documentary evidence has been produced, even the plaintiffs are not the resident of the area where the land in dispute situates. In these circumstances, the simple suit for declaration without a prayer of possession as a consequential relief u/S. 42 of the Specific Relief Act, 1877 was not competent. Further, the voluminous evidence in shape of oral evidence of D.W.-1 to D.W.-7 to prove the impugned gift, the plaintiffs failed to fetch any benefit by cross-examining these witnesses.
7. The limitation provided in Article 91 of the Limitation Act, 1908 is three years for a suit for cancellation of document, whereas the limitation is six years, for a suit for declaration. This suit has been filed after the above-said prescribed period. Therefore, suit was not within the limitation and the Court was bound to decide issue No. 3 in the light of above legal position which the first Appellate Court failed to decide this issue in accordance with law.
8. The effort of the plaintiffs to show that their predecessor was ill, infirm and mentally incapacitated in his last days of life, has also not even been proved rather their witnesses have deposed against their version.
9. In the light of above discussion, this civil revision is allowed and the judgment and decree passed by the first Appellate Court dated 6.12.2001 is set aside. The result would be that the judgment and decree dismissing the suit filed by the respondents-plaintiffs passed by the Trial Court dated 14.6.2001 shall stand restored.
Civil .