JUDGMENT AMIN-UD-DIN KHAN, J. - Through this civil revision, the petitioner has challenged the judgment and decree dated 5.11.1998, passed by the learned Additional District Judge, Bahawalnagar whereby the appeal filed by the respondent/defendant was accepted and the judgment and decree dated 27.2.1997, passed by the Civil Judge, Bahawalnagar, decreeing the suit, was set aside.
2. Brief facts of the case are that the plaintiff/petitioner on 29.9.1994, filed a suit for declaration that he be declared owner of land measuring 15S kanals, 1 maria, described in head-note of the plaint.
In the suit he also, challenged the General Power of Attorney executed by him on 1.9.1980 in favour of his real brother Haroon Muhammad/defendant No. 15: The plaintiff also prayed for cancellation of various sale-deeds in favour of defendants Nos. 1 to 14. The written statement was filed by defendants Nos. 1 and 2 to 15. They contested the suit and pleaded that defendant No. 15 was duly appointed attorney and they have purchased the suit property for valuable consideration and are in possession of the same. They also raised many preliminary objections, including the limitation.
The learned Trial Court on 21.2.1995 framed the issues. The parties were invited to produce their respective evidence. Both the parties adduced their evidence. The learned Trial Court, vide judgment and decree dated 27.2.1997 deceed the suit. The appeal was preferred, which was accepted, vide judgment and decree dated 5.11.1998. Hence, this civil revision by the plaintiff.
3. The learned counsel for the petitioner states that the learned Trial Court has rightly interpreted the evidence produced by the parties and rightly decreed the suit in favour of the plaintiff/petitioner but the learned first Appellate Court did not correctly appreciate the evidence and, therefore, reversed the findings recorded by the Trial Court, and as such the findings of the first Appellate Court are not sustainable under the law. He further states that when fraud was committed there was no has of limitation in filing the suit. Wife regard to previously filed suits, which were withdrawn, the learned counsel states feat as the suits were withdrawn after filing of i.e fresh suits, therefore, Section 11 of the C.P.C. Was not a bar in the matter. Further with regard to the objection that the suit is not for possession, learned counsel submits that as the property in dispute is agricultural land, therefore, there was no need to i.e a suit for possession. Learned counsel further submits feat even i.e repeat of i.e expert, though he was not produced as a witness, was tobe considered by i.e first Appellate Court. Learned counsel payed that this revision petition be accepted and i.e judgment and decree rendered by the teamed Trial Court be restored.
4. On the other hand, the learned counsel for the respondents states that they are bona i.e purchasers for value consideration and they purchased the suit property from i.e real brother of i.e owner as the owner was not residing in that area and he was having a valid general power-of- attorney, which has not been cancelled will to-date except filing of this suit. He further stated that i.e respondents have purchased i.e land in the year 1980 and the suit was filed in the year 1994, which was clearly barred by limitation. He contends that i.e learned first Appellate Court has rightly dismissed the suit filed by the plaintiff/petitioner as being barred by time and most of the sale- deeds are of the year 1980, He further contends feat i.e teamed first Appellate Court has reversed the findings recorded by the Trial Court with reasons. He submits that D.W.4/Muhammad Haroon, the general power-of-attorney holder of the plaintiff has stated in his statement that he has received the money and has paid the same to. The owner. The learned counsel while referring the statement of P. W.l/plaintiff and the narration of paras Nos. 2 and 3 of the plaint stated that the story outforth by the plaintiff is not believable. He states that even he admitted in his statement that has years prior to the filing of the suit he came to know about the sale of the land in favour of the respondents/defendants. Further States that the plaintiff has admitted that the suit was filed and withdrawn and then second suit was filed, which was also withdrawn. Learned counsel submits that if Section 11 of the C.P.C. Is not applied even then it is clear that limitation for filing of the suit cannot be enhanced and when plaintiff himself has admitted that the transaction of 1980 came to his knowledge has years prior to the filing of the present suit and he had filed two suits prior to the present suits and the same were withdrawn, makes it clear that this suit was not competent.
Further submits that even P.W.2/the witness of the plaintiff has admitted that the previous suits were filed two years ago. States that it makes clear that the plaintiff has dishonestly filed the suit.
Further states that the defendants/respondents are proved to be bona i.e purchasers and long silence of the plaintiff really makes acquiescence in favour of the respondents. In reply to the argument of the learned counsel for the petitioner that the respondents being beneficiary of the sale transactions were bound to prove all the documents, including the power-of-attorney, learned counsel submitted that initially burden to prove this issue was upon the plaintiff and he failed to discharge the same, therefore, respondents were not bound to prove as they were having registered document, which was admitted by defendant No. 13, the attorney of the plaintiff.
5. I have heard the learned counsel for the parties at full length and have also gone through the record with their able assistance.
6. The statement of the plaintiff/petitioner clearly shows that he had given charge of all the affairs, including maintenance of the property to his real brother Haroon Muhammad defendant No. IS, who was also his attorney. Even according to the plaintiff, he had given the land on 'Mustajri' and had been appointing tenants and receiving the produce and plaintiff was living away from the suit land and never visited the same. When the prayer for cancellation of the document is made in this suit it is clear that this suit is under Section 39 of the Specific Relief Act, 1877. When a person prays for cancellation, of any document, it means that he is asking to cancel the document on the basis that though he is a party to a document but showing him on other transaction this document has been got registered from him. In this case, the plaintiff/petitioner has prayed for the cancellation of the document, therefore, it will be presumed that he is not disputing the creation of the document by him but on another ground he can ask for the cancellation of the document permissible under the law. Even otherwise, I have noticed that the defendants pave proved fully the valid execution of the document in question. Further the question raised by the learned counsel that no limitation is provided to challenge the fraud is misconceived. It is the law that when fraud comes in the knowledge of a person against whom a fraud has been committed though the law is relaxed with regard to count the limitation against fraudulent transaction and certainly from the date of knowledge the limitation starts. In this case limitation for filing the suit for declaration under the Limitation Act is six years and admittedly the transaction is of the year 1980 and came into the knowledge of the plaintiff as according to him 2 Vi /3 years prior to the filing of the suit and even the plaintiff filed two previous suits then the plaintiff/petitioner cannot claim that there is no bar of limitation against fraudulent transaction. First of all, the.Plaintiff failed to show any fraud committed with him. Furthermore even if it was a fraudulent transaction and it came into his knowledge 3 years ago and filing of this suit after 3 years of knowledge is also a bar against him and this suit was rightly declared to be time-barred. Further only pleading a fraud without any specific date of knowledge the relaxation provided under the law of limitation cannot be granted to that party for taking the benefit of limitation. In case of fraud the plaintiff is bound to state the date of knowledge that fraud. In case in hand no date of fraud has been pleaded, therefore, the benefit of limitation could not be given to the plaintiff/petitioner. The petitioner has not claimed the possession of the suit land. Under Section 42 of the Specific Relief Act, 1877 the plaintiff can claim further relief and he relinquishes the claim the same his suit cannot be decreed as the grant of declaratory decree under Section 42 of the Specific Relief Act, 1877 is discretion of the Court. The plaintiff had not prayed for the possession of the suit land, therefore, this suit was not maintainable. All the documents under challenge in the suit were registered documents. When a document is registered under the Registration Act some presumptions attached to that documents which are certainly rebuttable. When the plaintiff rebuts those presumptions then onus shifts upon the other party to prove the execution and registration of those documents and on the basis of simple denial by a person, the registered document cannot be thrown out. In case of failure of the plaintiff to rebut the presumptions, the presumptions attached to the documents are acceptable under the law. In this case the execution of all the sale-deeds have been admitted by the executant of those sale-deeds i.e. The attorney of the plaintiff, namely, Haroon Muhammad. The only document which was required under the law to be proved was the power-of-attorney and that has also been proved by the cogent evidence produced by the defendants. If the owner of the property proves that the attorney has not delivered him the sale proceeds then he can sue against his attorney for the sale proceeds and on that basis the transaction of sale cannot be challenged or set aside by the Court.
The registered document has sanctity attached to it and stronger evidence is required to cast aspersions on its genuineness. In this case no such stronger evidence was available and further a person challenging a registered document through a declaratory suit is required under the law to come to the Court with clean hands as he is asking the Court for a discretionary relief. The proceedings of the case clearly shows that the hands of the plaintiff are not clean. When a material fact is specifically stated by a witness in its statement and if on that point the said witness is not cross-examined that fact is presumed to have been admitted by the other party. Most of the part of the important statements of the witnesses of the defendants have not been cross- examined by the learned counsel, for the plaintiff/petitioner. The case Muhammad Aslam and others v. Absar Fatima and others (2011 CLC 1521) can be relied.
7. In the light of what has been discussed above, I see no force in this civil revision and no illegality or infirmity in the findings recorded by the first Appellate Court, therefore, this civil revision is dismissed.