MUNIR AHMED CHAUDHARY, J.---The supra titled appeals have been filed regarding the same disputed land and the controversy lies between the same parties. So, both the appeals are disposed of through a single judgment.
2. Brief facts giving rise to the above-mentioned appeals are that respondent Baroo son of Muhammad Wasil filed a suit for declaration against the appellant Muhammad Khursheed and others in the Court of Senior Civil Judge Kotli regarding the land measuring 1 Kanal bearing survey No, 642 situated at village Jamalpoor Aghar Tehsil and District Kotli. It was stated in the suit that a gift-deed was executed by the respondent/Baroo on 7-12-1993 but the respondents managed the entry of the present appellant Muhammad Khursheed as donee to the extent of the land measuring 1 Kanal fraudulently against the facts and law and malafidely. Thereafter, a subsequent gift-deed was executed by proforma respondent Sabar Hussain as an attorney in the name of proforma respondent Zaheer-ud-Din Sabar on 11-3-2003. The. Mutation No, 582 was also entered and attested against the facts and law. It was prayed by the respondent/plaintiff Baroo to cancel the said gift-deeds and Mutation No, 582 declaring those null and void against the rights of the plaintiff. Written statement was submitted by the appellant/defendant and others stating therein that the said Baroo executed a gift-deed himself in the names of his sons (respondents Nos.2 to 5) and the present appellant Muhammad Khursheed. The said Baroo and his son Muhammad Bashir were present at the time of execution of the said gift-deed. It was also stated that the suit was filed beyond the prescribed period of limitation. It was prayed to dismiss the said suit. After hearing the parties, the said suit was dismissed and it was observed that the suit was filed beyond the prescribed period of limitation and the plaintiff had no cause of action. The respondent/plaintiff Baroo preferred an appeal before the learned District Judge Kotli, which was accepted and the suit was remanded to dispose of it under law after submission of written statement, framing of issues and placing of evidence by both the parties. Feeling aggrieved, the present appellant Muhammad Khursheed has filed Civil Appeal No,61 of 2007 before this court.
3. Another suit regarding the disputed land was filed by the said Baroo and his sons titled Muhammad Bashir and others v. Muhammad Khursheed and others against the appellant Muhammad Khursheed and others in the Court of Senior Civil Judge Kotli. The same version was taken in the second suit by the said Muhammad Bashir and otheRs, Written statement was also submitted, issues were framed and the learned Senior Civil Judge Kotli dismissed the suit after hearing the arguments on legal issues declaring that the suit was filed beyond prescribed period of limitation and it was not maintainable under Order II, Rule 2 of C.P.C. Feeling aggrieved, the plaintiffs Muhammad Bashir and others preferred an appeal before District Judge Kotli. The learned District Judge dismissed the said appeal and maintained the judgment and decree of learned Senior Civil Judge Kotli to the extent of dismissal of the appeal under Order II, Rule 2 of C.P.C. The appellants Muhammad Bashir and others have filed Civil Appeal No,67 of 2007 before this Court.
4. Arguments were advanced by the learned counsel for the parties. Mr. Rafiullah Sultani Advocate, the learned counsel for the appellant Muhammad Khursheed and others argued that the said Baroo executed a gift-deed on 7-12-1993 regarding the land bearing survey No,642 in the names of his four sons and the appellant Muhammad Khursheed. The disputed land measuring 1 Kanal was transferred to the appellant Muhammad Khursheed through the said gift-deed. The said Baroo and one of his sons Muhammad Bashir were present before the Sub Registrar Kotli at the time of execution of the said gift-deed. Muhammad Bashir son of the said Baroo was also present when Mutation No,582 regarding the disputed land was attested. So, the said Baroo and his sons were fully aware of the said gift-deed and transfer of the disputed land to the appellant Muhammad Khursheed. The gift-deed was executed on 7-12-1993, but the suit was filed on 28-3-2003 after nine
(9) years approximately. So, the said suit was hopelessly time barred and the learned Senior Civil Judge Kotli recorded his findings under the provisions of law. It was further argued by the learned counsel that the second suit was rightly rejected under Order VII, Rule 11 of C.P.C. The learned counsel requested to accept the appeal filed by the appellant Muhammad Khursheed and to dismiss the appeal filed by Muhammad Bashir and others and referred the following precedents in support of his arguments.
5. While controverting the learned counsel for the appellant Muhammad Khursheed, Mr. Mehmood Akhtar Qureshi Advocate, the learned counsel for Muhammad Bashir and others contended that the said gift-deed was meant to be executed in the names of sons of the executant.
Baroo only, but the appellant Muhammad Khursheed and others managed fraudulently to enter the name of Muhammad Khursheed as donee to the extent of the land measuring 1 Kanal in the gift-deed. The said gift-deed was null and void against the rights of Muhammad Bashir and others to the extent of the disputed land measuring 1 Kanal. The learned counsel argued further that version of fraud has been taken by Muhammad Bashir and others, so the period of limitation will not be applicable in the prevailing situation. The learned District Judge Kotli has rightly remanded the suit because the facts needed to be proved through evidence. Order II, Rule 2 of C.P.C. Was not applicable also in the present matter. The learned counsel requested to accept the appeal filed by Muhammad Bashir and others and to dismiss the appeal filed by the appellant Muhammad Khursheed and referred the precedent 1998 SCR 204 in support of his version.
6. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record minutely. The record clearly reveals that the executant of the gift-deed Baroo appeared before the Sub-Registrar Kotli on 7-12-1993 himself and admitted the contents of the gift-deed Baroo v. Muhammad Aziz and otheRs, His son Muhammad Bashir was also present at the time of execution of the said gift-deed. Through the said gift-deed 5 Kanals and 18 Marlas land was transferred to the sons of Baroo and 1 Kanal land was transferred to the appellant Muhammad Khursheed. Out of the land measuring 6 Kanals and 18 Marlas bearing survey No, 642 situated at village Jamalpoor Aghar Tehsil and District Kotli. The mutation of the gifted land was endorsed and attested on 29-12-1993 in presence of Muhammad Bashir son of the said donor Baroo. It shows that the said Baroo and his sons were fully aware of the fact that the disputed land measuring 1 Kanal has been transferred to the appellant Muhammad Khursheed through a gift-deed on 7-12-1993.
The said Baroo filed his suit on 28-3-2003, after 9 years approximately. The said suit was, of course filed beyond the prescribed period of limitation. It was necessary to file the suit within 3 years of execution of the gift-deed. It has been held in the precedent 1995 CLC 130 that limitation starts running from registration of a gift-deed and question of limitation would become question of law where facts necessary for resolution of such question were available on record. L was also held in the precedent 2012 M LD 86 that doors of justice were closed after lapse of prescribed period of limitation unless the delay so caused was duly justified and each day's delay must be accounted for by the valid reasons.
' The same principle has also been laid down in the precedent 1992 CLC 1854 that a deed being registered and its copy being available in the office of Sub-Registrar, it cannot be said that defendants by way of fraud, concealed its knowledge from the plaintiffs and they cannot avail the benefit of section 18 of Limitation Act. The suit was hopelessly time barred. Section 3 of Limitation Act provides that every suit, appeal and application made after the period of limitation prescribed shall be dismissed.
7. The other point to be resolved was whether filing of a subsequent suit by the respondents/appellants Muhammad Bashir and others having the same cause of action and the same relief was barred under Order II, Rule 2 of C.P.C. Or not? It has been provided by the said provision of law that filing of a second suit on the same cause of action against the same parties during pendency of suit already filed was not maintainable. Plaintiffs could not file a suit on the same cause of action while the previous suit on the same cause of action was pending for disposal. The plaintiffs had to sue for all the available reliefs in one suit and splitting up a cause of action was not permissible. This principle has been laid down in the precedents 1999 M LD 236 and 2002 M LD 507.
8.As far the version of fraud taken by the respondents/appellants Muhammad Bashir and others was concerned, they hopelessly failed to prove the same. It has been observed earlier that the executant of the gift-deed Baroo and One of his sons Muhammad Bashir were fully aware of the fact that the disputed land measuring 1 Kanal has been transferred to the appellant Muhammad Khursheed through a gift-deed on 7-12-1993 in their presence. Both the suits filed by the said Baroo and his sons were filed after prescribed period of limitation. The suits were hopelessly time barred.
The above-mentioned principles have been reiterated in the other precedents referred by the learned counsel for the appellant Muhammad Khursheed. The precedent referred by the learned counsel for the appellants Muhammad. Bashir and others has got no conformity with the facts of the present matter.
' Having in view the above-mentioned circumstances, Appeal No,61 of 07 filed by the appellant Muhammad Khursheed is accepted. The judgment and decree passed by the learned District Judge Kotli dated 30-7-2007 in the Suit No, 49 of 2003 titled as Baroo v. Muhammad Khursheed and others is hereby set aside and the judgment and decree passed by the learned Senior Civil Judge Kotli dated 17-8-2006 in the said suit is upheld, while the Appeal No 67 of 2007 filed by the appellants Muhammad Bashir and others stands dismissed. No order as to costs.