' MUHAMMAD NOOR MESKANZAI, J.--- Instant appeal is directed against the judgment and decree dated 14th April, 2006 passed by the learned Civil Judge, Chaman whereby the suit filed by the appellants for Declaration, Injunction, Possession and Correction of Entries was dismissed.
2. Facts relevant for the disposal of the instant appeal are that the appellants instituted a suit in representative capacity for declaration, Injunction, Possession and Correction of Entries in the Court of Civil Judge, Chaman. It was averred in the plaint that the plaintiffs are elders of Malezai Nida Kahool, whereas the respondents are elders of Gadezai, Killi Khuda-e-Rahim, Shai. There are lands of Gadezai tribes and Nida Kahol and a way/point known as 'Mazdoor Nawar' in Mouza Khushkaba Daman, Chaman. There are only lands of Nida Kahool and Ahmed Kahool. The lands of parties were duly partitioned before the independence and each party is in possession of their respective shares. It was further averred in the plaint that there is a portion of land between the lands of the appellants' tribe and Ahmed Kahool, which is bone of contention between the parties. In the year 1944, the respondents' tribe started raising construction over the land in dispute which was resisted by elders of the appellants by way of filing suit for possession which suit was decreed vide judgment/decree dated 18th April, 1945 by the Additional District Magistrate, Chaman. In execution proceedings the respondents vacated the land in dispute. Thereafter, the respondents' tribe started encroaching upon the land in dispute by raising construction, in absence of the appellants who due to tense situation at border had migrated to Chaman. On coming to know, the appellants' tribe constituted a Jirgas' to settle the matter with the respondents. Initially the respondents assured the appellants that they will vacate the land in dispute but later on they flatly refused to do so, hence the suit.
3. The suit was contested by the defendants by way of filing written statement wherein besides raising certain preliminary legal objections the claim of the plaintiffs was repudiated on merits as well.
4. The learned trial Court, out of the pleadings of parties framed following issues for determination:-
(i) Whether the suit is not maintainable in view of legal objections "A" to "E" of the written statement?
(ii) Whether the plaintiff's tribes are the legal owners of the suit-land, situated in between the lands of Nida Kahool (plaintiffs) and Ahmed Kahool in Khushkaba, Daman Chaman?
(iii) Whether the plaintiffs are entitled to the relief claimed for?
(iv) Relief.
5. Thereafter, the parties were directed to adduce evidence in support of their respective claims; whereupon the plaintiffs examined nine P.Ws., besides, got recorded their statements through Attorney Juma Khan; whereas in rebuttal, the defendants/respondents produced three D. Ws. And their Attorney Fida Muhammad also entered the witness-box. The trial Court after hearing the parties and evaluating the evidence vide judgment/decree dated 14th April, 2006 dismissed the suit, hence instant appeal.
6. The learned counsel for the appellant submitted that the trial Court dismissed the suit filed by the appellant on the ground that Article 120 of the Limitation Act, applies in the instant case, but it failed to take into consideration that major portion of the property is in the names and possession of appellants and a small portion of the disputed property has been encroached upon by the respondents. Learned counsel further argued that the trial court while delivering the judgment impugned failed to take into consideration the bulk of documentary evidence, and proved legal status and entitlement of the appellants. So much so, the trial Court failed to take into notice the previous litigation between the same parties wherein judgment was passed in favour of predecessor of appellants. Learned counsel emphatically argued that the judgment/decree impugned herein is result of non-reading, misreading and misappreciation of evidence available on record. The plaintiffs/ petitioners proved their claim by producing trustworthy, straight-forward and tangible evidence but the learned trial Court illegally, unlawfully and without any rhyme or reason dismissed the suit. Learned counsel canvassed that the appellants proved all the issues but even then the trial Court dismissed the suit filed by the appellants. On the other hand, learned counsel for the respondents strenuously opposed the appeal and argued that neither there is misreading or non-reading nor misappreciation of evidence. The learned counsel for the appellants could not point out any illegality or irregularity rendering the judgment impugned herein liable to be interfered with by way of setting aside the same. Learned counsel maintained that the plaintiffs/appellants badly failed to prove their case and there was no other option for the trial Court but to dismiss the suit. The trial Court after proper appraisal of evidence and taking into consideration the entire material available on record rightly dismissed the suit.
' We have considered the arguments advanced by both the parties' learned counsel and perused record of the case. It may be observed that while dealing with issue No, 1, the trial Court dismissed the suit by holding it barred by Article 120 of the Limitation Act, which provides for filing of a suit within 6 years, whereas the instant suit has been filed after 8 to 10 years. Looking the instant case within the perspective of Article 120, in our opinion, a slight ambiguity is there which requires clarification. The plaintiffs/appellants besides seeking declaration have also prayed for possession and correction of entries, so the suit for possession is required to be filed within 12 years as contemplated by Article 142 of the Limitation Act. In a case like the one in hand where A besides declaration, possession has also been sought the suit should be filed within 12 years from the date of dispossession. The plaintiffs in their plaint have stated that 8 to 10 years back the respondents encroached upon the property and occupied the same. The P.Ws. Following the same line made vague statements, whereas the plaintiffs were bound to have proved their earlier possession and subsequent dispossession within 12 years but the plaintiffs/appellants have utterly failed to achieve this goal. For the sake of convenience some portion of the statements of P.Ws. Are hereby reproduced. P. W.1 states as under:--
8. It may be noted that the suit was filed in the year 1998, the plaintiffs have stated that 10 years ago the land was encroached upon whereas the statement of P. W.1 which was recorded in the year 2001 he stated that 7/8 years ago the land was encroached upon. P.W.5 stated as under:- ' The said P.W. In reply to question No, 16 states as under:- {{URDU TEXT}}
9. The ocular account furnished by P.Ws. Does not make out a case that the plaintiffs were dispossessed within twelve years from the date of filing of the suit. In the plaint it has been specifically stated that pursuant to execution of order passed by the E.A.C. The possession was delivered to plaintiffs. No documentary evidence was produced to substantiate this version.
Besides, the plaintiffs neither claimed that they or their ancestors have ever constructed house on the land in question, irrigated or cultivated the same, therefore, the earlier possession of the plaintiffs pursuant to decree could not be established.
9-A. It may further be observed that the claim of the appellants is based mainly on a decision rendered as for back in the year 1945. This documentary evidence was disbelieved by the trial Court for valid reasons. We have also given our anxious thought but have not been able to find force in the document qua the creation of title in favour of the appellants/plaintiffs for a couple of reasons. Firstly because the judgment does not find mention the boundaries of disputed property.
Secondly, there is no revenue entries showing or confirming the fact that the property in question was the same which is now subject-matter between the parties and thirdly it has not been established on record that following the said judgment whether possession was delivered to plaintiffs or otherwise? Fourthly, admittedly, the respondents are in possession. Under such circumstances, the plaintiffs were bound to have specified the date of their dispossession by showing their earlier occupation which the plaintiffs have badly failed. Astonishingly plaintiffs through attorney recorded an additional statement on 15th March, 2005 stating therein that they have re-occupied the property in question meaning thereby the plaintiffs pulled-out their case from the ambit of Article 142 of the Limitation Act. Again, the evidence available on record is contrary and conflicting with the statement recorded by the plaintiffs. So applying Article 142 of the Limitation Act, the suit is hopelessly barred by time. The law on the subject stands clear that a suit/appeal/application or any proceeding brought beyond the limitation shall have to be dismissed irrespective of the fact that the limitation has not been pleaded as defence; whereas in this case specific objection has been raised and the material available on record justify the fact that the suit is hopelessly barred by time even if Article 142 is held to be applied in the case of the appellants. Reliance is placed on the judgment (titled as Hakim Muhammad Buta and another v.
Habib Ahmed and others), reported in PLD 1985 SC 153. Relevant observations therefrom is reproduced herein below:--- "The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami ILR 38 Mad.
374, where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it The same Court in a subsequent case, Remamurthy v. Gopayya ILR 40 Mad. 701, reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram AIR 1940 Lah. 75, and held that "there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves."
Besides, the law also requires that an incompetent suit must be buried at its very inception. By holding the view we are fortified by the judgment titled as (S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at page 342), reported in 2002 SCMR Page-338 wherein it has been held as under:--- "Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Special Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself.
The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected."
10. Similarly, the findings with regard to rest of the legal objections i,e, "C & D" being legal, valid and justified are also maintained.
11. Prior to embarking upon Issue No, 2, it is pertinent to note that the plaint does not correspond to the mandatory prerequisite of Order VII, Rule 3, C.P.C. Admittedly, the plaint does not contain boundaries of the disputed property nor any survey number has been mentioned. Though the learned trial Court has observed that the P.Ws. Have mentioned the boundaries so he ignored the rion -compliance of Order VII, Rule 3, C.P.C., yet, there are substantial contradictions and discrepancies available in the statements of P.Ws. Which cannot be ignored. With this inherent defect, let analyze findings on issues No, 2.
12. As far as issue No,2 is concerned, the plaintiffs were have proved this issue by producing straight forward, coherent and confidence-inspiring evidence. The perusal of record reflects that the plaintiffs have failed to successfully discharge the burden of this issue and the evidence available on record produced by the plaintiffs is quite poor, scanty, contradictory and conflicting. Neither the ocular nor documentary evidence is sufficient to prove the issue. As observed earlier, the plaintiffs have not mentioned the boundaries of the disputed property in the plaint, nor the property in question stand specified through revenue entries and measurement. Though the P. Ws. Have mentioned boundaries of the disputed property and despite similarity of the boundaries the statements are irreconcilable on two counts i,e, (i) the date of occupation by respondents (ii) measurement of the property. The former has been discussed in Para Nos.7 and 8 whereas the latter is considered herein below:--- ' P.W.1 admits that mosque and school do exist on the disputed property. P.W.2 states that the property in question is in possession of plaintiff and the defendants are occupying the same.
Regarding the measurement P.W.2 states as under:- {{URDU TEXT}} ' P.W.2 negates the statement of P.W.1 to the extent of existence of school on the disputed property.
In the same breath he states that the defendants have occupied the property after migration of plaintiffs.
' P.W.3 qua the measurement states as under:- ' Similarly P.W.3 states that the disputed property is situated at a distance of five miles away from the houses of plaintiffs. P.W.5 says that the defendants have occupied 3 acres of land. The relevant portion is reproduced:--- ' Attorney for the plaintiffs qua the measurement of the disputed property stated as under:- {{URDU TEXT}} ' Similarly regarding the distance of disputed property from the residents of the plaintiffs he states:- -- {{URDU TEXT}}
13. A meaningful appreciation and deep analysis of the entire evidence available on record leave no room for doubt that the statements of all the witnesses produced by the plaintiffs are divergent, conflicting and contradictory with each other qua the measurement, period of occupation of land by the defendants and the existence of school and mosque and the distance between the residents of plaintiffs and the disputed property. Same is the position of the statement of attorney for plaintiffs which too is at variance with the statement of P.Ws. The correctness of boundaries given by the P.Ws. And that of mentioned by the plaintiffs in his court statement become doubtful and the specification thereof stands ambiguous, vague and unspecified in view of contradictory statements qua the measurement, location of the property as well as the installations thereon.
Under such circumstances we are of the considered opinion that the trial Court was left with no other option but to dismiss the suit which option was rightly exercised. As far as correction of revenue entries are concerned, since the disputed property is not settled nor at any point of time the same has ever been recorded in the name of any of the parties, therefore, no question of mutation of property in the name of either of the parties does arise. Since the material issues were rightly resolved against the plaintiffs, therefore, rest of the issues i,e, Issues Nos.3 and 4 have become redundant.
14. In the given circumstances of the case, we are of the considered opinion, that there is no misreading, non-reading or misappreciation of evidence by the trial Court. No illegality or irregularity could be pointed out by the counsel for the appellants in the judgments impugned.
Appeal has no force which is dismissed. Decree sheet be drawn.