' RAJA SAEED AKRAM KHAN, J.---This appeal, with the leave of the Court, has been filed to assail the correctness of the judgment and decree passed by the High Court on 15-3-2011, whereby the appeal filed by the appellants, herein, was dismissed.
2. The facts culminating into this appeal are that the plaintiffs-appellants, filed a declaratory suit on 6-7-1985 before the Court of Senior Civil Judge, Mipur, stating therein that they are owners of 1/2 of the share in the unpartitioned land measuring 56 kanals, 10 marlas, comprising Survey Nos. 1989, 2015, 2018, 2028, 2034, 2038, 2178, 2196, 2205, 2276, 2271, 2272, 2277, 2284, 2285, 2293, 2295, 2296, 2336, 2036, 2036 min, 2013, 2155, 2164, 2160, 2177, 2209, 2310, 2327 and 2166, Khata Nos.242 to 246, Khewat No,88, situate in village Bandral, Tehsil and District Mirpur. It was claimed that the judgment and decree passed by the Sub-Judge, Mirpur on 22-4-1970 in the case titled Imam Din v. Fazal Dad and others (Civil Suit No,80) was procured on a forged cognovit which was null, void and inoperative on the rights of the plaintiffs-appellants and pro forma respondents. It was further alleged that the gift-deed executed on 2-7-1972 Imam Din in favour of defendants Nos.1 to 4 was inoperative on the rights of the plaintiffs-appellants and pro forma respondents for being executed beyond the shares. It was claimed that exchange deed dated 12-12-1973, executed by defendant No,3 in favour of defendant No,9 pertaining to land measuring 1 kanal, 6 marlas comprising Survey No,2038 and sale-deed dated 3-4-1984 were also null and void and against the rights of the plaintiffs- appellants. The suit was contested by the defendants-respondents by filing written statement on 7-11-1985. The learned trial Court framed as many as eight issues. During the pendency of the suit, an application under Order VII, Rule 11, C.P.C. For the rejection of the plaint was filed on behalf of the defendants-respondents on 14-7-2006. The learned trial Court, after hearing arguments on the application for rejection of the plaint, dismissed the suit filed by the plaintiffs-appellants vide judgment and decree dated 1-8-2006. The judgment and decree of the trial Court was assailed before the District Judge, Mirpur, by filing an appeal which met the same fate and was dismissed vide judgment and decree dated 17-12-2007. The judgment and decree of the District Judge, Mirpur, was assailed by preferring second appeal before the High Court but the same was also dismissed vide judgment and decree dated 15-3-2011 which is the subject-matter of the instant appeal.
3. Syed Faizan Haider, Advocate, the learned counsel for the appellants, has argued that the judgment and decree, passed by the High Court are against the law and facts of the case and the same are nullity in the eye of law as the learned Judge failed to appreciate the record in its true perspective. He further argued that the High Court erred in law while not appreciating the facts of the case as the plaintiffs-appellants have clearly taken the stance in paragraphs 6 and 7 of the plaint about the knowledge of forged decree, gift-deed, exchange deed and sale-deed, therefore, this issue could be resolved only after recording the evidence. He urged that the High Court failed to consider the important question of law that in the circumstances when specific plea of fraud has been taken by the plaintiffs-appellants, the same cannot be decided without recording the evidence. The High Court committed gross illegality while handing down the judgment on the point of limitation without considering the fact that the plaintiff's-appellants were co-sharers/ co- owners in the property, the possession of the same was also joint along with the defendants- respondents and the property has not been partitioned as, yet. The learned counsel further contended that the High Court has also ignored the fact that the time consumed in the proceedings before the trial Court is more than the time elapsed in filing the suit. Moreover, the defendants-respondents availed the remedy of filing an application under Order VII, Rule 11, C.P.C.
After 21 years of filing their written statement.
4. On the other hand, Ch. Muhammad Afzal, Advocate, the learned counsel for the defendants- respondents, has strongly supported the judgment of the High Court while arguing that the same is perfect and legal, therefore, no interference is warranted under law. He urged that there are concurrent findings have been recorded by all the three Courts below recorded against the appellants which cannot be disturbed until and unless there appears some misreading or non- reading of evidence. He further contended that the High Court has taken into consideration all the points raised by the appellants in the appeal and resolved the same while assigning the cogent reasons. He submitted that the High Court has rightly observed that .The suit was hopelessly time- barred as the same was filed after more than 15 years, therefore, the plaint was rightly rejected. He further submitted that the suit-land is in possession of the defendants-respondents and they have constructed houses on the same, therefore, the argument of the learned counsel for the plaintiffs- appellants that they were not aware of the decree, gift-deed, exchange deed and the sale-deed which were challenged by filing the suit. He further argued that one Allah Ditta, plaintiff, has withdrawn his suit and some of the plaintiffs have died during the pendency of the suit but their legal representatives have not been brought on the record and the suit has abated to their extent, therefore, the suit/plaint was rightly rejected/dismissed.
5. The arguments of both the learned counsel for the parties were considered minutely along with the record and the impugned judgments of the Courts below. Leave was granted on 26-6-2011. The relevant portion of leave granting order is reproduced as under:- "5. I have attended the respective arguments of the learned counsel for the parties and also gone through the record made available. The perusal of plaint reveals that the plaintiffs have in para 6 of the plaint, averred as following:- {{URDU TEXT}} ' It is also depicted from the reading of the plaint that the parties and co-sharer in the suit property.
In presence of. a specific averment of conspiracy, concealment of facts and fraud;
(i) whether the question of limitation can be resolved without recording evidence and (ii) whether being co-sharer the prayer of possession as consequential relief is necessary? In addition to these points whether after framing of issues the dismissal of the suit under the provisions of Order VII Rule 11, C.P.C. Is justified or not, in my opinion, are legal questions of public importance, which have not been properly attended by the learned High Court in the impugned judgment. Thus, I am convinced that legal questions of public importance have been raised in this petition for leave to appeal, therefore, leave is granted..."
6. After going through the above said leave granting order, it reflects that the leave was granted to resolve the question of law 'whether the question of limitation can be resolved without recording evidence'. To meet such like eventuality, section 18 of the Limitation Act, 1908 comes to rescue which is reproduce as under:- "18. Effect of fraud.---Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or the title on which it is founded, . ' or whether any document necessary to establish such right has been fraudulently concealed from him, ' the time limited for instituting a suit or making an application,-
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, ' shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production."
A person of the above said provision reveals that if a specific plea of has been taken that the documents have been procured by way of fraud and concealment, the time limit for institution of the suit or making an application shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production. Now the question arises as to when the fraud came in the knowledge of the plaintiffs who filed the suit. This could only be resolved after recording the evidence. After going through the judgments of all the three Courts below, we are of the view that no Court has attended this important question of law and the provisions of section 18 of the Limitation Act, especially when a specific assertion has been made by the plaintiffs-appellants at the time of filing the suit that they have acquired the knowledge about the documents which were procured by fraud and concealment of facts four months prior to filing of suit. The assertion made by the plaintiffs-appellants in paragraph 7 of the plaint has been attended by the High Court in the following manner:-- "A perusal of the record reveals that appellants/plaintiffs inserted in para 7 that they came to know about decree dated 22-4-1970, gift-deed 2-7-1972, exchange-deed dated 12-12-1973 an sale-deed dated 3-4-1984 about 4 months before filing the suit. The assertion looks to have been made in order to bring the suit within prescribed period of limitation. I might have accepted the appeal on the basis of the above assertion of para 7 of the suit because the same is question of fact needs to be proved through evidence. However, as the respondents/defendants have filed detailed written, statement and took a specific plea that father of respondents/defendants filed a suit before Sub- Judge Mirpur bearing No,80 on 1-12-1970 against the appellants/plaintiffs who admitted the claim and consequently on their admission decree in question which is bone of litigation was passed by Sub-Judge Mirpur on 22-4-1970, which decree was also appended by the appellants/plaintiffs with their application for partition filed before the Revenue Officer is case bearing No,8/72, dated 7-6- 1972 decided on 2-8-1972. The respondents / defendants also claimed in the written statement that in above-mentioned partition proceedings the appellants/ plaintiffs appeared before the Court and admitted the shares on the basis of possession and consequently decree dated 22-4-1970 was passed. On the basis of the above-mentioned decree, the gift-deed, exchange-deeds and sale-deed were rightly executed. The record appended with the suit including written statement satisfied my conscious that the suit was hopelessly barred by time and such a suit or proceedings are to be buried from their very inception. The case-law cited by the counsel for the appellants/plaintiffs is helpful to the extent that under Order VII Rule 11 of C.P.C. a suit cannot be dismissed by the Court, however, only a plaint can be rejected. As through the proposed judgments and decrees the suit could not be dismissed and only plaint could be rejected, therefore, it shall be deemed to have been rejected. With above modification the impugned judgment and decree dated 17-12-2007 passed by the learned District Judge Mirpur are approved."
7. After going through the above said paragraph, we find that the provisions of section 18 of the Limitation Act have not been considered by the High Court while delivering the impugned judgment. As we have observed above that the controversy regarding the limitation in the case when the specific plea of concealment of facts or fraud about the procurement of documents has been alleged, the same cannot be determined without recording the evidence and this important question of law has been overlooked by all the three Courts below, therefore, the judgments and decrees passed by the Courts below are not sustainable in the eye of law. We, therefore, without attending the other arguments raised by the learned counsel for the appellants, are inclined to confine ourselves to the extent of section 18 of the Limitation act.
' In the light of what has been discussed above, we are fully convinced that section 18 of Limitation Act has not been taken into consideration by the Courts below while passing the judgments and decrees. Resultantly, this appeal is accepted, the case is remanded to the trial Court with the direction to decide the case afresh while adhering to, section 18 of the Limitation Act after providing opportunity of recording the evidence of both the parties on the point.