' SYED MUHAMMAD FAROOQ SHAH, J.--- By impugned order dated 8-8-2009 and decree dated 10- 8-2009, the plaint of F.C. Suit No,16 of 2009 was rejected under Order VII Rule 11, C.P.C. And Civil Appeal No,138 of 2009, filed by the applicant was also dismissed by judgment dated 24-12-2009, hence the instant revision application has been preferred against the concurrent findings of both learned lower Courts, on the facts and grounds set forth in the memo of Revision Application.
2. Relevant succinct facts gathered from the pleadings of the parties are that suit property was owned by Mst. Fatima daughter of Muhammad Qazi, who died issueless, as she was unmarried.
She was sister of two brothers, who also died during her life time, leaving behind two sons each, including the present applicant, who claims his share in the suit property left behind Mst. Fatima as per Mohammadan Law. It is contended that suit property was mutated fraudulently in the names of respondents Nos.7 and 8 and that instead of providing a fair chance to the plaintiff to adduce his evidence, the plaint was rejected by the trial Court, which order has been maintained by learned 1st Appellate Court. Plaint was rejected on the ground that it did not disclose cause of action and the suit was barred under sections 39 and 42 of the Specific Relief Act, as the plaintiff was having no locus standi to file the suit. It appears that applicant/plaintiff sought declaration that he be declared as legal heir of deceased Mst. Fatima.
3. The learned trial Court in its order dated 8-8-2009, observed as under:--- "A bare reading of the prayer clause reveals that the plaintiff has sought declaration that he be declared as legal heir of deceased Mst. Fatima and entitled to inherit the suit-land and also sought cancellation of sale-deeds in dispute and cancellation of entries maintained in Revenue Record in the name of defendant No,7. According to plaintiff himself, the suit-land has been sold out to defendant No,7 through registered sale-deed during life time of Mst. Fatima, thus, it appears that at the time of her death, Mst. Fatima has not left suit-land for inheritance. Since Mst. Fatima has not left the suit-land at the time of her death, hence, in my humble view neither the plaintiff has cause of action nor any locus standi or right to file this suit. As regards the prayer for cancellation of sale-deeds and entries maintained in Revenue Record in the name of the defendant No, 7, in this regard section 39 of Specific Relief Act is clear, which says that any person whose legal right or title is affected by any instrument may seek its cancellation. In the instant case I have already observed that the plaintiff is not legal representative of Mst. Fatima, hence in my humble view the relief for cancellation of sale-deeds and entries sought by plaintiff through this suit is not maintainable. It further appears that the 'plaintiff has also not asked for relief of possession."
4. I have heard the learned counsel for the parties and carefully perused the record.
5. Mr. Rafique Ahmed, the learned counsel for the applicant repeated almost the similar grounds which he has agitated before the learned lower Courts and stated that it is settled principle of law to decide the suit on merits rather than rejecting the plaint in hasty manner on technical grounds and that both the legal and factual controversies can be resolved only by recording evidence. It is next contended that for deciding the application under Order VII, Rule 11, C.P.C., the Court has only to see averments of the plaint. It is further contended that applicant has got fraudulent sale-deed dated 18-10-2008 in respect of the disputed suit-land therefore, cause of action for filing the suit has accrued to the applicant on 17-2-2009 when the applicant learnt about the fraud committed by respondents Nos.5 to 7 and under the Limitation Act, the period for filing of suit for declaration is six years from the date of knowledge and for cancellation of documents under section 39 of the Specific Relief Act limitation is three years from the date of knowledge, hence the suit filed by applicant/plaintiff was within time. Learned counsel reiterated that the learned appellate Court has erred in holding that applicant/plaintiff had no cause of action for filing the suit as property in suit was sold by the deceased during her life time and nothing was left for inheritance after her death.
It is submitted that applicant was entitled to inherit the property of deceased, could not get the property in inheritance on account of fraud committed by Respondents Nos.5 to 7 and hence on learning regarding the fraud, cause of action continued for challenging the fraud committed by defendants. To support his contentions, learned counsel placed reliance on Dr. Syed Hassan All through Attorney v. Mst. Tazeen Zahra and another (2008 CLC 1366), Sharjeel Younus v. Salahuddin Mirza (2008 YLR 1523), Major S.M. Hafiz v. Shafqat Alli Qureshi (2008 YLR 1287), Juma Khan and others v. Mst Bibi Zenaba and others (PLD 2002 Supreme Court 823) and Hamid Ghani v.
Muhammad Basit Siddiqui and another (PLD 2010 Lahore 487).
6. Conversely, Messrs Pirbhulal U. Goklani and Muhammad Sulleman Unar, learned Advocates for respondents assisted by learned A.A.-G. Contended that late Mst. Fatima was admittedly owner of the suit-land and she during her life time sold her agricultural land and in this respect registered sale-deeds were executed in years 1998 and 2008 but the applicant after passing nine years of her death, filed the suit, claiming that respondent No,7 fraudulently made the sale transaction. It is next contended that at the time of death Mst. Fatima was not the owner of the land, therefore, the suit property could not be inherited to the applicant. Learned counsel contended that applicant was not authorized to represent the estate of late Mst. Fatima as she sold out the suit-land during her life time hence the applicant cannot challenge the same. Learned counsel relied upon the concurrent findings of both the learned lower Courts and stated that there is no illegality, gross irregularity or infirmity in The impugned orders. In this regard, learned counsel relied upon the cases of Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115), Sajawal v. Mst. Saubia. Hamid and another (1996 SCMR 1223), Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar (1999 SCMR 16), Jaffar Shah and another v. Mian Yahya Shah and another (1999 SCMR 20) and Divisional Forest Officer, Larkana and 3 others v. Ghulam Haider and 8 others (PLD 2007 Karachi 392).
7. There is no cavil to the proposition that while deciding an application Under Order VII, Rule 11, C.P.C the averments made in the plaint are to be looked into. Undoubtedly and admittedly the disputed land was owned by late Mst. Fatima who was unmarried. It is the case of applicant that respondent No,7 managed two sale-deeds dated 18-10-2008 and 20-11-1998 on the basis of which necessary entries in land Revenue Record were made which fact alone is sufficient to ascertain the factual position that as to whether Mst. Fatima had transferred the land and the suit filed after her death wherein the applicant has claimed the share from estate of Mst. Fatima. The sale-deed annexed with the memo of revision application reveals that on 18-10-2008 Mst. Fatima had appeared before the Registrar and, the sale-deed was executed in favour of respondent No,7 Bashir Ahmed Qazi, Mst. Fatima expired on 11-2-2009 and after her death, the applicant came to know about the sale-deed on 17-2-2009 and thereafter the suit has been instituted. Averments of the plaint, beside the material available on record transpires that there is factual controversy regarding execution of sale-deed and such factual controversy could only be resolved by allowing the parties to produce evidence in support of their respective claims, therefore, it could not be said that plaint did not disclose the cause of action. It is settled that plaint can be rejected only if it falls within ingredients of Order VII, Rule 11, C.P.C. In the instant case, the plaint was rejected on the ground that it does not disclose cause of action and the suit is barred by law of limitation. The learned appellate Court though observed that for rejecting the plaint on the first ground, the contents of entire plaint are to be considered and the same may be treated as true and correct on its face but the learned trial Court has overlooked the contention regarding fraudulent transaction agitated by the applicant and that he came to know about the sale-deed after death of Mst.
Fatima i,e, owner of the disputed land. The title of the property was conferred upon Respondent No,7 by way of sale-deed which has been challenged by the applicant by filing a suit for declaration. The suit for declaration and cancellation of alleged fraudulent sale-deed involved factual controversy that as to whether late Mst. Fatima was an old lady did not execute the sale- deed, could be resolved by allowing the parties to adduce evidence in support of their respective claims. The dispute relates to a factual controversy which cannot be decided without evidence.
8. Suffice to say that since the applicant/plaintiff was claiming right of inheritance in the property, the plaint of said suit could not be rejected without determining that as to whether the plaintiff/applicant was claiming his right in the property, which controversy can be resolved by providing fair opportunity to the parties to lead evidence in support of their respective claims, particularly, it is an admitted position that property of late Mst. Fatima had been inherited to four sons of her two brothers. So far as the question of fraudulent sale-deed is concerned, it can also be resolved by adducing the evidence. In this view of the matter, the Court has also kept in mind that every averment made in the plaint has to be accepted as correct and defence cannot be looked into while considering the application for rejection of plaint. Every allegation made in the plaint has to be accepted as correct while rejecting the plaint Under Order VII Rule 11, C.P.C. The fact that plaintiff may not ultimately succeed in establishing the allegations made in the plaint, cannot a good ground for rejection of the plaint. The plea raised by applicant before the appellate Court has also not been considered. In such circumstances, the impugned orders of the trial Court as well as appellate Court suffers from material irregularity. In view of the fact that no cause of action was in existence at the time, the suit was filed, the said point needs to be determined by considering the effect of the sale-deed and the circumstances in which these sale-deeds were executed. The law cited by learned counsel for the respondents is therefore not attracting in the circumstances of the present case. Where the Court comes to the conclusion that suit was competent or that plaintiff has to show any infringement of his right, the plaint can be rejected. No doubt, powers Under Order VII, Rule 11, C.P.C. Can be exercised only on such conclusion being reached by the Court after applying its mind to the consents of the plaint and coming to the conclusion that even if averments made in the plaint are presumed to be correct, the plaintiff has no cause of action.
Applicant has specifically asserted that sale-deed suffers from forgery and is not a genuine document, therefore, need arises to examine the attesting witnesses and concerned Registrar by the trial Court. Of course limitation is a mixed question of facts and law. The question whether the plaintiff was rightly or wrongly claiming the right in the property, said suit could not be summarily dismissed and cannot be adjudicated without providing opportunities to the parties to lead evidence in support of their respective claims.
9. Whatever mentioned above, I reached at the conclusion that findings of both the learned lower Courts are not tenable in law, hereby set aside. Revision Application is allowed as prayed for. The case is remanded to the learned trial Court to decide the matter on its merits after affording fair opportunity of adducing evidence to both the parties on material issues. The learned trial Court is however directed to conclude the trial and decide the suit within a period of three months after receipt of the order.
10. R.A is accordingly allowed. However, there shall be no order as to costs.