' M. TABASSUM AFTAB ALVI, J.--- The supra titled appeal has been directed against the impugned judgment and decree dated 6-5-2010 passed by the learned Additional District Judge, Dadyal, Camp Mirpur, whereby suit filed by appellants-plaintiffs was dismissed on sole ground of limitation while exercising powers as visualized under Order VII, Rule 11 of Civil Procedure Code.
2. Precise facts giving rise to the instant appeal are that predecessor-in-interest of appellants late Hamida Begum, filed a suit for declaration, recovery of possession and rendition of accounts against respondents-defendants before the learned District Judge, Mirpur, which was made over for hearing and disposal to the learned Additional District Judge Dadyal, Camp Mirpur, vide order dated 4-12-2007. It was claimed by predecessor-in-interest of appellants that plaintiffs and defendants Nos.1 to 11 were legal heirs of late Mir Abdul Rehman, hence, were entitled to obtain their legal shares according to law of Shariah from movable and immovable property of the said Mir Abdul Rehman, who died in the year 1981. It was alleged that at the time of death late Mir Abdul Rehman was owner of Plot No, 125, situated in Sub-Sector B/1, Plot No, 1, situated in Sub-Sector B/2, Plot No, 78, situated in Sub-Sector B/4 along with constructed shop, Plot No, 34, situated in Sub- Sector 13/1, along with 2 constructed Cinemas both known as Paramount Cinemas with Machinery, Furniture, shops and Plots Nos. 74 and 75, situated in Sector D/1 Mirpur. It was alleged that above legacy of deceased was transferred in the names of plaintiff and other legal heirs according to application of defendant No,1 Mir Fazal-ur-Rehman. However, defendant No,1 and his brothers Ejaz Ahmed Mir and Iftikhar Ahmed. Mir due to mens rea and malice provoked defendant No,1 for execution of a forged power of attorney to deprive of the plaintiff and her sisters which was accordingly prepared and attested on 19-8-1986. It was further alleged that at the relevant time plaintiff was settled in United Kingdom. However, on the basis of above forged and fabricated power of attorney whole landed property pertaining to plaintiff and her sisters was transferred in the names of defendant No,1 and other defendants which was challenged by her sister Shabana Mumtaz in the concerned Civil Court. It was also averred that a criminal case was registered against the concerned defendants on the basis of execution of forged document, i,e,, power of attorney supra. Defendant No,l, after registration of criminal case, while concealing all the facts, stated that he wanted to transfer share of plaintiff pertaining to her legacy, hence, asked for power of attorney which was sent by her from United Kingdom on 24-3-1988. However, as the above defendant snatched the property of plaintiff on the basis of earlier forged power of attorney dated 19-8-1986, hence, later power of attorney could not be used. Defendants Nos.1 and 2 when were dragged in a criminal case registered by her sister Shabana Mumtaz, they sworn on oath to give share to plaintiff in Plot No,74 Sector D/1 Mirpur as well as share from the other disputed property. It was further alleged that defendant No,11 by practising fraud executed a fake agreement on 16-11- 1996, which was registered on 17-11-1996. It was averred that defendant No,1 failed to transfer Plot No,74 Sector D/1 Mirpur in the name of plaintiff, as agreed. The plaintiff solicited abrogation of agreement dated 16-11-1996 on the grounds that the same was executed by committing fraud, cheating, ineffective, unlawful and is against her vested rights. The plaintiff on the basis of above forged power of attorney and agreement also solicited cancellation of transfer of plots in the names of other defendants vide Nos.MMC/939-40/87, dated 14-9-87, 251-52/87, dated 29-3-1987, 1998/93, dated 13-11-1993, 623-24/96, dated 21-8-1996, 2404-05/93, dated 27-12-93, 157-58/89, dated 23-7-1989, 269/87, dated 5-4-1987, 3969-72/97, dated 12-5-1997, 1430/96, dated 8-12-1996, 884/2001, dated 19-12-2001 and 880-81/87, dated 1-9-1987. It was also stated that plaintiff was settled in United Kingdom, who came back a few months ago and on enquiry she came to know about the above mentioned unlawful transfers and solicited her share on the basis of law of Shariah. It was also urged that power of attorney dated 19-8-1986 had already been declared forged and fabricated document by the concerned Civil Court through judgment and decree dated 29-9-.2005. It was also stated that an appeal filed by his brother Iftikhar Ahmed, against the above judgment decree was also dismissed by the appellate Court on 20-4-2007 against which no further appeal was filed. The plaintiff solicited declaration of forged execution of disputed agreement dated 17-11-1996 recovery of possession on the basis of her share and rendition of accounts through the above suit.
3. The suit, filed by predecessor-in-interest of appellants, was resisted by respondents-defendants Nos.1 to 11 through written statement dated 4-4-2008, wherein it was stated that plaintiff had got no cause of action and suit was hit by the principle of estoppel. It was further alleged that suit was hopelessly barred by time. The contents of plaint were controverted as a whole by the respondents-defendants.
4. It appears from record that during pendency of the above suit plaintiff had died on 24-6-2008, hence, the appellants and others were impleaded as legal heirs of deceased Mumtaz Begum vide order dated 4-3-2009.
5. The learned trial Court on the basis of pleadings of the parties framed as many as 12 issues on 4- 5-2009. However, Issue No,12, which is bone of contention between the parties in the present appeal, was that whether suit filed by the plaintiff was barred by time?
6. After filing written statement respondents-defendants moved an application for rejection of plaint on 1-7-2009. It was stated in application that as the suit was time-barred, therefore, the same was liable to be thrown out as such. It was further averred that disputed agreement was registered on 17-11-1996 against which suit was filed on 3-12-2007, hence, the same was hit by law of limitation and prayed for its rejection.
7. The appellants-plaintiffs filed objections against' the above mentioned application on 8-8-2009 wherein it was alleged that the application was moved with mala fide intention only to prolong the case. It was further stated that delay was explained in para 9 of the suit duly supported by an affidavit of plaintiff and prayed for rejection of the application.
8. The learned trial Court, after hearing arguments on the application of respondents-defendants dated 4-7-2009, rejected the suit, under Order VII, rule 11 of Civil Procedure Code cm the ground that it was barred by law, vide impugned judgment and decree dated 6-5-2010. Feeling aggrieved from the above judgment and decree the instant appeal was filed before this Court on 7-7-2010.
9. The learned counsel for appellants, Mr. Muhammad Akram Mughal, Advocate, vehemently argued that delay was properly explained in paragraph 9 of plaint which was not taken into consideration by the Court below. The learned counsel submitted that as the plaintiff was settled in United Kingdom who came back to homeland in September, 2007, and filed the suit on 4-12-2007 which was within prescribed period of limitation. The learned counsel pressed into service that as plaintiff solicited her Share from legacy of her father prescribed under law of Shariah as co-sharer and it is settled principle of law that no limitation runs against co-sharers. The learned counsel in support of his contentions referred to and relied upon following case-law:---
(I) Dr. Hasan Ara and 6 others v. Mian Tajammal Husain and 12 of others (1982 CLC 653);
(ii) Mst. Janntan and others v. Taggi through L.Rs, and others (PLD 1998 SC 1512);
(iii) Mst. Janntan. And others v. Taggi through L.Rs, others (PLD 2006 SC 322);
(iv) Muhammad Zubair and others v. Muhammad Sharif (2005 SCM R 1217);
(v) Mst. Sharifian Bibi v. Abdur Rauf Khan, and others (1992 CLC 1480);
(vi) Riffatullah Khan Lodhi v. Mukhtar Ali Khan Lodhi and 12 others (1992 CLC 1117);
(vii) Zakria and others v. Amanullah and others (2008 CLC 1291).
' In case titled Dr. Hasan Ara and 6 others v. Mian Tajammal Husain and 12 others (1982 CLC 653), it was held that limitation ordinarily not applicable amongst co-sharers though one of them be even out of possession.
' In case titled Shako and others v. Mst. Fatima and others (PLD 1998 SC 1512), it was held that possession of one co-sharer was for benefit of all other co-shares and mere fact that mutation had been attested in favour of some of co-sharers would not extinguish title of other co-sharers.
Entries in record-of-rights, however, would not create or extinguish title but were mere evidence thereof. Plaintiffs being female heirs of deceased landowner could not be deprived of their right in property left by deceased as a result of illegal mutation sanctioned at the behest of male heirs. No case was made out by defendants claiming ownership of property to the exclusion of plaintiffs who were daughters and widow of deceased landowner. It was further held that plaintiffs inherited land from deceased in accordance with Shariah, hence, they became co-sharers in property, therefore, no limitation would run against co-sharers.
' In case titled Mst. Janntan and others v. Taggi through L.Rs, and others (PLD 2006 SC 322) plaintiff and predecessor-in-interest of defendants, in the case, were brother and sister. After death of their father a mutation was attested in the year 1909 in favour of predecessor-in-interest of defendants only, excluding the sister, however, the plaintiff filed a suit after 70 years, which was dismissed by the trial Court on sole ground of limitation, hence, appellate Court accepted appeal and decreed the suit on the ground that as matter was governed by Shariah law of inheritance, which decree was maintained by the High Court as well. It was held by the apex Court of Pakistan that as plaintiff was proved to be the daughter of predecessor-in-interest of parties and the dispute was governed by law of Shariah and under inheritance, the land automatically devolved on the plaintiff and her brother, the moment their father died. It was further held that as plaintiff was co-sharer in land in dispute to the extent of her shares since very beginning thus the suit was not barred by time.
' In case of Muhammad Zubair and others v. Muhammad Sharif (2005 SCM R 1217), it was held that right of succession would not be defeated by law of limitation.
' In case titled Mst. Sharifian Bibi v. Abdur Rauf Khan and others (1992 CLC 1480), it was held that as plaintiff pleaded that disputed documents came to her knowledge a month before filing suit, however, plaint was rejected by the trial Court on the ground of limitation which judgment was upheld by First Appellate Court, however, Lahore High Court, declared that on the basis of knowledge pleaded in the plaint the same could not be rejected under Order VII, rule 11 of Civil Procedure Code without recording evidence.
' In case of Riffatullah Khan Lodhi v. Mukhtar Ali Khan Lodhi and 12 others (1992 CLC 1117), it was held by Karachi High Court that plaintiff having sought reliefs in the suit for declaration of partition. As the suit involved enforcement of right to share in joint family property, hence, Article 127 of Limitation Act, 1908 providing 12 years period for filing'suit was applicable.
' In case of Zakria and others v. Amanullah and others (2008 CLC 1291), it was held that suit for declaration, perpetual-injunction and for inheritance, as being daughter of deceased landowner, could be filed within 12 years, under Article 127 of the Limitation Act, and not within 6 years under Article 120 of the Limitation Act, 1908.
10. The learned counsel for respondents, Mr. Sahadat Ali Kiani, Advocate, while controverting arguments of the learned counsel for appellants, submitted that disputed agreement was executed on 17-11-1996 while suit was filed on 4-12-2007, which was time-barred. The learned counsel pressed into service that under Article 120 of the Limitation Act, 1908, the suit could be filed within 6 years, therefore, the same was rightly rejected by the Court below and prayed for dismissal of appeal.
11. After hearing the learned counsel. For, parties at great length, I have perused the contents of appeal and examined the record made available with utmost care.
12. Admittedly predecessor-in-interest of appellants late Mumtaz Begum filed a suit seeking declaration, recovery of possession of the disputed land and rendition of accounts on the basis of heir from the legacy of her deceased father through the instant suit filed in the trial Court on 4-12- 2007. A contemplate perusal, of paragraph 9 of the suit reveals that it was categorically mentioned b' the plaintiff that she was settled in abroad and was defrauded time and again by the defendants-brothers. It was also stated that She returned back from abroad to homeland in the month of September, 2007, When she came to know about the facts enlisted in the case, she without any delay was constrained to file the suit. The respondents-defendants in written statement filed on 4-4-2008 while answering Para 9 ibid stated that "the contents of paragraph 9 are wrong. The suit is time-barred". The abovementioned para 9 of suit was not specifically denied by the defendants and denial looks to be evasive in nature. Even in paragraph 11 of the suit it was again stated that plaintiff came to know about fraud and disputed transfers a few days ago. The defendants even, while replying the abovementioned paragraph 11, answered in an evasive manner that "the contents of paragraph 11 are not correct". As paragraphs 9 and 11 of suit were not specifically denied by the defendants, therefore, it was a fit case for recording evidence on the above disputed issue of limitation, which important aspect lost consideration of the learned Court below.
13. The contention of the learned counsel for respondents-defendants that suit was hit by Article 120 of Limitation Act, 1908 is misconceived. At this juncture, it will be appropriate to reproduce Article 120 supra as under:--- Description of suit Period of limitation Time from which period begins to run
120. Suit for which no period of limitation is provided elsewhere in this schedule[six years] When the right to sue accrues.
A bare reading of Article 120 of Limitation Act, 1908 reveals that it relates to suit for which no limitation is provided in the schedule, however, as the dispute pertains to enforce a right of share from legacy of father of contesting parties, therefore, according to my considered view Article 127 of Limitation Act, 1908 is applicable in the given case which is reproduced as below:--- Description of suit Period of limitation Time from which period begins to run
127. by a person excluded from joint family property to enforce a right to share therein.[Twelve years] When the exclusion becomes known to the plaintiff.
' The above Article of Limitation Act, provides for a period of twelve years from the date when the exclusion becomes known to the plaintiff. The disputed agreement dated 17-11-1996 excluding the plaintiff from her share, from legacy of her father against which, the suit was filed on 4-12-2007 falls within the period of twelve years and the relief of possession sought in the suit also. No doubt plaintiff also challenged various transfers precedes to 17-11-1996. Therefore, the point in question could not be decided conclusively unless evidence is brought on record.
14. A glance perusal of record also reveals that disputed property owned by late Mir Abdul Rehman who was survived by a widow, 4 sons and 3 daughters, therefore, the plaintiff being one of daughters was entitled to obtain her share in the disputed property. The basic power of attorney dated 19-8-1986, which was purportedly, inter alia, executed by plaintiff Mst. Hamida Begum, was declared as ineffective in a suit filed by Shabana Mumtaz through judgment dated 29-9-2005 and was upheld with some modification by this Court vide judgment dated 20-4-2007. The above mentioned judgments declared the power of attorney as not executed by the concerned executant, which judgments also persuaded me that matter must be adjudicated upon by recording evidence of both the parties.
15. The crux of above discussion is that the suit, appears from contents of plaint, is within time.
However, this is without prejudice of the final decision on the issue of limitation which may be decided after taking into consideration the evidence that parties may lead. For the F above reasons the impugned judgment and decree dated 6-5-2010 are hereby set at naught and by accepting appeal case is remanded to the learned Additional District Judge, Mirpur, for disposal in accordance with law.