1. ' SARDAR ABDUL HAMEED KHAN, J. --- This is a second appeal against the decree and judgment of Additional District Judge, Dudyal, Camp Mirpur, dated 10.02.2009 and decree and judgment of Senior Civil Judge, Mirpur dated 21407.2007.
2. ' The precise facts giving rise to the instant appeal are that the present appellant filed a suit for declaration in the .Court of Senior Civil Judge, Mirpur. It was averred by the plaintiff that she and proforma respondents No, 69 to 73 are the legal heirs of Mst. Hussain Bibi widow di sefoo, who was the legal owner of 1/2 "share in the land comprising Khewet. No, 24, old No, 19, measuring 50 Kanals, 7 Marlas situated in Mauza Sangot Tehsil and District Mirpur to the ,extent of 25 Kanals, 31/2 Marlas.
3. It was further averred that the husband of the plaintiffs mother died in dogra regime and after the death of her husband, she could not look after the land in dispute due to mental upset. It was also averred that Mst. Fazal Begum mother of plaintiff and proforma respondents No, 69 to 73 got married at a very low age and went to her home, in this way she had no knowledge about the share of her mother Mst. Hussain Bibi. -the plaintiff stated that due to effectee of Mangla Dam Raising Project, a compensation of Rs, 200000/- was made out in the name of the husband of the plaintiff and at the timb of receiving the compensation, the husband of the plaintiff came to know that the land of the plaintiff is 'being acquired for upraising of Mangla Dam Raising Project, so the plaintiff inquired the matter throdgh his son and the Revenue Department certified regarding the land of the plaintiff in Mauza Sangot. The 'plaintiff submitted that she approached the revenue department and came to know that the defendants No, 1 to 68 with collusion of defendants No, 64 to 68 illegally and without any justification got transferred the land of the mother of plaintiff and proforma respondents No, 69 to 73 on their names, which is without lawful authority and against the rights of plaintiff and proforma respondents No, 69 to 73 and is liable to be set aside.
4. ' Miring the trial, ,the defendants moved an application under Order VII, Rule 11, C.P.C. After hearing the parties, the learned Senior Civil Judge, Mirpur allowed the application and resultant the suit was dismissed. Feeling aggrieved by the said order, the appellant filed on appeal before the District Judge, Mirpur Camp Dudyal, who after hearing the parties dismissed the appeal and modified the judgment and decree of Senior Civil Judge, Mirpur to the extent of "rejection", hence this second appeal.
5. ' Arguments have been heard..
6. ' Mian Sultan Mehmood, Advocate the learned counsel for appellant argued that as far as the impleading of legal heirs of some of the respondents is concerned. After the adaptation of Law Reforms Ordinance, 1972 and other amendments made in the C.P.C., it is duty of the respondents/defendants to furnish information regarding the death of respondents and also to file the list of legal representatives and for this reason no suit or appeal can abate as it is provided under Order XXII, Rule 4, read with Order VIII, Rule 13, C.P.C. While arguing the case on merit, the learned counsel argued that Hussain Bi was owner of the property which was inherited by her 3 daughters, appellant and 2 others named Willayat Bibi and Fazal Begum, one of those Willayat Bibi is proforma respondent No, 3 and respondents No, 74 and 77 are the legal heirs of Fazal Begum, the daughter of Mst. Hussain Bi.
7. ' The learned counsel contended that in his plaint, he has claimed exemption under Order VII, Rule 6 for limitation from knowledge as the fraud is alleged against the defendants. The learned counsel vehemently contended that the Trial Court dismissed the plaint of the plaintiff/appellant under Order VII, Rule 11, C.P.C., which order was patently illegal as no suit can be dismissed under Order VII, Rule 11, C.P.C. It was further contended that the first Appellate Court without applying its judicial mind concurred with the Trial Court and modified the order of the Trial Court instead of dismissal of the plaint, rejection of the plaint was ordered in the impugned order of first Appellate Court. The learned counsel further contended that the suit was filed on 04.02.2007 and award of the suit land was issued on 17.05.2007, hence, the issuance of award and filing of reference under Land Acquisition Act creates no obstacle in proceedings of the suit in question. The learned counsel further contended that the question of limitation is always a mixed question of facts and law and rejection of the plaint under Order VII, Rule 11 was not warrante, .,1 the instant case. The learned counsel referred 1997 SCR 172 on the point of limitation handed down by Honourable Judges of the apex Court of AJ&K, wherein it has been laid down:--- "Irrespective of the fact as to what provision of law could govern the limitation, the facts remain that the point cannot be decided without framing the issues and giving the parties an opportunity of leading evidence."
8. ' On the other hand, M/s. Muhammad Rafique Dar and Ch. Muhammad Suleman, Advocates the learned counsels for respondents controverted the arguments advanced on behalf of appellant and contended that the plaint of the appellant is hit by provision of Section 172 of Land Revenue Act which pertains to correction of long standing entries of revenue record. It was further contended that this is an appeal against the dead persons i,e, respondents No, 1, 4, 22, 26, 27, 28 and 63, so it is liable to dismissal on this sole ground. The learned counsel further contended that all the appellants have stepped in 'the shoes of Hussain Bi, who was share-holder of 1/2 of the property and Hussain Bi in her life did not challenge any entry or document of alienation of the suit property.
9. The learned counsel further contended that the appellant disobeyed the Court order for bringing on record the names of the legal heirs of respondents and also failed to file any application to do the same. It was further contended that the appellant/plaintiff challenged a deed/record which is 30 years old and the sale-deed recorded in the revenue record was executed on 13 Haar, 1982 Bikirmi, about 83 years ago, which enjoys the presumption of truth. It is also contended that the contents of the plaint do not disclose any cause of action because in the revenue record, the entry of seller/vendor is existed, but the plaintiff neither placed on record nor challenged any instrument of sale whatsoever, so there was no cause of action available to the appellant.
10. ' I have heard the learned counsel for the parties and gone through the record and perused the contents of the pleadings of the parties and the impugned orders of both the Courts below.
11. ' In the light of arguments of the counsel for the parties, I proposed to decide the matter on merits instead of technical ground of non-impleadment. As the law has since been amended and while looking at Order XXII, Rule 4 read with Order VIII, Rule 13, C.P.C., no resolution is required on impleadment of parties in the circumstances of the case.
12. ' On merits, I have taken into consideration the contents of the plaint and arguments of the learned counsel for appellant. It has been argued on behalf of appellant that though the fact came to the knowledge of the appellant/plaintiff at the time of acquisition of suit land and disbursement of the compensation of the land, but the suit was filed before issuance of award and filing of reference before the Reference Judge, regarding the apportionment of the share of the compensation money, hence the suit should not have been rejected by the Trial Court. In this connection, the provision of Section 18 and Section 30 of Land Acquisition Act, if read together leave no room to conclude that the dispute regarding the apportionment of the share can be decided by the Reference Judge/Collector and Collector has the power to refer such dispute for decision to the Court. Hence the findings of both the Courts below that the property has been acquired by the Government for upraising Project of Mangla Dam and the matter is sub; judice before the Reference Judge, the continuation of the suit will serve no purpose rather rejection of the plaint may avoid multiplicity of the litigation does not warrant any interference.
13. ' As far as the correction of the long standing entries of . The revenue record without prayer for cancellation of the deed/instruments of sale is concerned, the matter comes within the competence of revenue authorities as laid down in Section 172 of the Land Revenue Act,, because without challenging instrument for alienation of the property and without prayer of its cancellation, the plant of the plaintiff is not covered under the provision of Section 53 of the Land Revenue. Act, because the entries in the rhutation and subsequent revenue record itself do not create any rights because these entries are the picture of some instrument and when the instrument of alienation is not challenged specifically than both the Courts below were justified to judge that the plaintiff has no cause of action.
14. ' So far .The point of limitation from the date of knowledge on the plea of fraud is concerned. This is also not helpful to the plaintiff under Article 100 of Qanun-e-Shahadat Order, 1984, which is regarding presumption of truth as to 30 years old document and in view of, this legal provision, The provision of Order VII, Rule 11, C.P.C.Attracted to the proposition in hand.
15. ' The crux of the above discussion is, that both. The Courts below have reached the correct conclusion while rejecting the plaint of the plaintiff under Order VII, Rule 11, C.P.C., being time-barred and for want of cause of action and barred by law and it I settled law that if the suit is time-barred, it is covered under clause (d) of the rule, the proposition "barred by any law according to this sub- section includes the limitation". This view of the Court is supported by 2000 .SCMR 1305. Moreover, the above view finds support from 2004 SCR 129, wherein it has been held that if at any stage, it appears to the Court that the suit is incompetent, the parties'to the suit are at liberty to draw the Court's attention to the same by way of application and the Court can decide the matter. The policy of law is that incompetent suit should be laid to rest at the earliest moment, so that no further time is wasted over what is to collapse under law and bogus litigation can be struck down at the early stage and the law must triggered against incompetent litigation.
16. ' In the light of what has been stated above, finding no force in this appeal, the same stands dismissed. No order as to costs.