' YAHYA AFRIDI, J.--This revision petition is directed against the judgment and decree dated 20.3.2010, passed by learned District Judge, Charsadda, whereby the appeal of the petitioners was dismissed and the judgment and decree dated 20.6.2009 of the learned Civil Judge, Charsadda, vide which the suit of the respondent was maintained.
2. Brief and essential facts of the case are that Ibrahim, plaintiff-respondent instituted a suit against Siyar Khan etc:, inter alia, to the effect that he is owner in possession of land measuring 6 kanals, 7 marlas and 3 Sarsaees, comprising in Khasra Nos. 1813/1490, 1250, 1251 to 1253, situated in `Moza' Turanzai ("disputed property") and that mutation No, 5839, dated 5.11.1984, is based on mala fides and is the result of fraud and collusion of the defendants-petitioners with the revenue officials; that the thumb impression of the respondent on the disputed mutation is forged, illegal and if proved would be deemed to have been obtained during minority of the respondent, therefore, the said mutation is liable to cancellation and the entries in the revenue papers are liable to be corrected; that the plaintiff-respondent also prayed for possession besides prayer for perpetual mandatory injunction.
3. The defendant-petitioners opposed the suit by filing written statement. The contesting pleadings of the parties were reduced into the following issues:--
(1) Whether plaintiff has got a cause of action?
(2) Whether suit of the plaintiff is barred by limitation?
(3) Whether this Court has got jurisdiction ?
(4) Whether plaintiffs are estopped to sue?
(5) Whether suit of the plaintiff is bad for non/misjoinder of necessary parties?
(6) Whether suit of the plaintiff is defective in its present form?
(7) Whether in case of decree defendants would be entitled for expenditure incurred on disputed property?
(8) Whether in case of dismissal defendant would be entitled for special cost?
(9) Whether defendant No, 1 has rightly become owner in possession of 'land in dispute through sale mutation No, 5839 attested on 5.11.1984?
(10) Whether plaintiffs are entitled for decree as prayed for?
(11) Relief.
4. At the close of evidence of the parties and after hearing arguments of the learned counsel for the parties and perusal of the record, the learned Civil Judge-V, Charsadda, vide judgment and decree dated 20.06.2009, decreed the suit in favour of the plaintiff-respondent, in the following words:- "The nut shell of my above discussion leads me to the conclusion that plaintiff has succeeded to prove that he is the owner of the suit property and denial of the defendants from the title of the plaintiff is illegal, therefore, plaintiff is entitled to the decree as prayed for. Mutation No, 5839 being based on fraud is, therefore, declared null and void &id annulled, hence the suit stands decreed in favour of the plaintiff against the defendants. Revenue Authorities are directed to bring the revenue record to the pre-mutation No, 5839 attested on 5.11:1984 position. So far as the application of the defendant u/A. 84, QSO is concerned, the thumb impression and signatures of the plaintiff were obtained in the Court and were placed on file but in my opinion there is no need to send the same for comparison as this would be needed, if a valid sale transaction have been proved by the defendants and there was a simple denial from the thumb impression/signature. Since the sale mutation in favour of defendant No, 1 is not proved and the suit of the plaintiff is decreed against the defendants therefore the application of the defendants becomes' infructuous the same is thus dismissed. Parties are left to bear their own costs."
5. Feeling aggrieved from the afore-mentioned judgment and decree of the learned Civil Judge-V, Charsadda, the petitioners went in appeal before the learned District Judge, Charsadda, who vide judgment and decree dated 20.3.2010, dismissed the appeal by observing:-- "Needless to add that despite defendant in the Trial Court the appellant being beneficiary was duty bound to prove the genuineness of the transaction, which he miserably failed to establish. In this view of the matter learned Trial Court has rightly decreed the suit of respondent through well- reasoned and proper judgment and decree which hardly warrant any interference of this Court.
This appeal being devoid of merit is hereby dismissed with no order as to costs."
' Hence, the present revision petition.
6. Valuable arguments of the learned counsel for the parties heard and the record of the case perused with their able assistance.
7. Perusal of the record would reveal that even if we take the stance of Ibrahim, the present respondent, as correct and declare him to be a 'minor' of about 14 years at the time of attestation of disputed mutation No, 5839, dated 14.11.1984, as lie claims his date of birth to be 5.1.1971, his claim is barred by time. The present respondent Ibrahim became 'Major' on 5.1.1989 and thus under Article 44 of the Limitation Act, 1908. ("Act"), Ibrahim should have filed his claim within three years of attaining the age of majority i,e, 18 years. In this view of the matter, the suit of the respondent should have been filed on or before 4.1.1992, but instead, it has been filed on 13.9.2004, with a long delay, of 13 years, 8 months and .9 days. Both the learned Courts below did not consider this aspect of the case and did not record correct findings on the framed issue of limitation. In fact, the issue of limitation regarding a 'minor' agitating his right after attaining majority, has been consistently recorded by the superior Courts of our jurisdiction in the terms stated hereinabove.
' Reference in this regard is made to Pir Wali Khan's case (2013 MLD Peshawar 1106), Muhammad Hanif s case (2003 MLD Lahore 568), Buland Khan's case (PLD 1979 Lahore 237) and Abdul Waheed's case (2013 CLC Lahore 1737).
8. As far as the contention of the learned counsel for the respondent that an incorrect entry in each successive Vamabande would provide a fresh 'cause of action' to a person to agitate the same, this Court is not in consonance with the said proposition. In fact, the condition precedent for the said principle to apply and for the person to have a fresh `cause of action' is that the said person ought to be in possession of the property, he is claiming as an owner. This matter has by now been settled by the apex Court in Wall's case (1995 SCMR 284) in terms 'that: "The right to sue accrues when the right in respect of which the declaration is sought is denied or challenged by the defendants. The time starts running only when the rights are actually interfered with. In such cases, a fresh cause of action would arise from the date of the last attack on the plaintiffs' right or denial thereof. Where the plaintiff is in possession, more particularly as a co- sharer in the joint Khata, he is not bound to sue on every denial of his right. He can file a declaratory suit at his option, because every denial or invasion of his right will furnish him a fresh cause of action. In the instant case, the two Courts below have concurrently found that despite entries to the contrary in the Record-of-Rights, the plaintiffs/respondents remained in physical possession of the suit land and that the parties were the co-shares. We do not see any reason to disagree with the conclusions arrived at by the Courts below."
9. In the present case, it is an admitted position that the petitioner Siyar has been in continuous possession of the disputed property and hence, the present petitioners cannot seek refuge of the afore-mentioned principle to bring his case within the purview of Article 120 of the Schedule to the Act.
10. Section 3 of the Act commands the Trial Court to first decide the issue of limitation and, thereafter, if the suit is within time to proceed in adjudicating the merits of the case. In the present case, the suit of the respondent being barred by time, ought to have been dismissed by the Trial Court on the said issue, alone.
11. Even if the merits of the claim of the respondent/plaintiff Ibrahim, is taken into account, it is noted that his challenge made to mutation No, 5839 attested on 5.11.1984, whereby Ibrahim, the present respondent, has been stated to have sold the property so Siyar, the present petitioner, is that he was a 'minor' at the time of the said sale. Surprisingly, in contrast, mutation No, 7089, entered on 26.11.1984, reflecting sale of ten kanals and thirteen marlas in `Moza Chak Turngazi', whereby Ibrahim has become an owner of the said property, when he was a minor. The learned counsel for the respondent, when confronted with the said mutation, which was alleged by the petitioner to be an exchanged mutation, stated that the said property was purchased by the father of Ibrahim for consideration. The entries in the revenue record reflect a different story. The father ,of Ibrahim is not reflected in any capacity in the mutation No, 7089. In fact, the witnesses thereto are Aziz Khan and Riaz Muhammad.
12. In view of the above, it appears that the claim of respondent-plaintiff Ibrahim is not even supported by the evidence on the record.
13. For what has been discussed above, the judgments and decrees of the learned two Courts below, due to non adherence to the law applicable to the points of limitation, are illegal which are not sustainable in the eyes of law. Though, normally the High Court does not interfere in the concurrent findings of facts reached at by the Courts below, but when there is gross and patent violation of law, relating to limitation, the High Court in its revisional jurisdiction is under legal obligation to rectify the error by interference in such illegal findings.
14. Resultantly, by following the command of law declared by the Hon'ble Supreme Court and statutory provisions of Section 115 of the Code of Civil Procedure, 1908, the present revision petition is accepted, the impugned judgments and decrees of both the Courts below are set aside and in consequence thereof suit of the plaintiff-respondent is dismissed. No order as to costs.
' As the revision petition has been accepted, therefore, C.M. No, 1090/2010 & C.M. No, 1771/2010 have, become infructuous and are disposed of accordingly. Concurrent Judgments Set Aside/Revision Petition Accepted/