' NAZAR AKBAR, J.--- The applicant is aggrieved by the concurrent findings of Senior Civil Judge and District and Sessions Judge Hyderabad whereby both the courts have rejected the plaint of his F.C.
Suit No.225 of 2010 under Order VII, Rule 11, C.P.C.
2. Briefly stated, the applicant filed a Suit for Declaration, Cancellation and Permanent Injunction against respondents claiming that agricultural land bearing Survey Nos.273/1,2, 274/A,B 3/B, 4/b measuring 84-38 acres situated in Deh Gujjo Tapo Hyderabad, was originally owned by late. Agha Fateh Ali Shah and after his death, 58 paisa share out of the said land was devolved upon his father Agha Zulfiqar Ali Shah, 30 paisa share upon Bibi Ima.m Zadi, his maternal aunt and 12 paisa share upon Bibi Shakar Bano, his grandmother/widow of Agha Syed Fateh Ali Shah and their names were mutated in the record of rights but no partition took place till the filing of the suit.
3. It is further claimed in the plaint that his father by virtue of gift deed dated 10-4-1971 gifted his entire agricultural land to the extent of 49-27 acres to him in presence of witnesses which was accepted by him and he was put in possession. It is further claimed that on 11-8-1983 his father gifted out a house bearing C.S. No.1230 Ward "G" Tando Agha Hyder to Mst. Bibi Gul Jan (respondent No.1) and both the gift deeds were handed over by her father to Syed Agha Abud Ali Shah who mutated the above house in the name of Mst. Bibi Gul in the record of rights. The plaintiff further claimed that Mst. Shakar Bano also gifted her entire share to the extent of 12 paisa to him. The said land from the date of gift was in his cultivating possession. It is further claimed that whenever he asked Syed Agha Abud Ali Shah for mutation, he kept him on hopes. After the death of his father, said Syed Agha Abud Ali informed him that the gift deed is misplaced and as soon as the same is found the mutation will be got effected. In the month of March, 1990 the said Agha Abud Ali informed the plaintiff that some notorious persons are trying to get mutation changed in their favour on the basis of forged and fabricated documents, therefore, in order to safeguard the suit land, till the misplaced gift deed is found, he is going to get "foti khata badal" in the name of all the legal heirs including respondent Nos.1 and 2 and on 11-4-1990, the suit land was mutated in the name of all the legal heirs of late Syed Agha Zulfiqar Ali Shah which included applicant himself as son, respondents Nos.1 and 2 as daughters and their mother, Bibi Allah Bachal as widow of the deceased. On 2-9-2009 Respondent No.3 informed the applicant that since he has been able to find out the misplaced gift deed therefore, he may approach respondents Nos.1 and 2 for getting their consent for mutation of entire land in his favour. Accordingly he approached respondents Nos.1 and 2, but they flatly refused. After their refusal the applicant on 14-9-2009 approached the District Officer (Revenue) Hyderabad who called report from Mukthiarkar and after recording the statements of witnesses forwarded the same to the Executive District Officer (Revenue) Hyderabad who issued notices to respondents Nos.1 and 2. They challenged the legality of the said notices through C.P. No.D-728 of 2010 before this Court. Their petition was allowed and notices were declared null and void and the applicant was directed to seek remedy from the competent Court of law, therefore, the petitioner on 24-8-2010 filed a suit.
4. On notice, respondents Nos.1 and 2 filed an application under Order VII, Rule 11, C.P.C. For rejection of plaint on the ground that the suit was hopelessly barred by time. The applicant filed counter affidavit to the said application. The trial Court 'allowed the application and rejected the plaint. The appellate Court maintained the order of trial Court and now the applicant has approached this Court to challenge the concurrent findings of lower Courts through this revision application.
5. I have heard learned counsel and perused the record.
6. Learned counsel for the applicant has contended that Article 120 of the Limitation Act, 1908 has been misinterpreted by the Courts below by dismissing the suit as barred by limitation and failed to appreciate the contents of the plaint while examining point of limitation. Learned counsel for the applicant has further contended that the question of limitation is a mixed question of law and fact; therefore, merely on the ground of limitation the plaint should have not been rejected. He has relied on the following case-law.
(i) PLD 2011 Peshawar 172 (176-A) Shaad Muhammad Khan v. Government of N.-W.F.P.
1995 SCMR 284 (286 and 287-B) Wali and others v. Akbar and others
(iii) 1996 SCMR 145 (153-E) Muhammad Sharif v. Inayatullah
(iv) 2004 SCMR 1502 (1507-B and C) Rahman v. Yara
(v) 1999 SCMR 2396 (2397-A Para-3) Tariq Mehmood v. Najamuddin
(vi) 1987 SCMR 66 (68-A) Mst. Zareefan v. Mst. Rehmati
7. The Learned counsel for respondents Nos.1 and 2, Mr. Irfan Ahmed Qureshi, has contended that the plaintiff has not shown any cause of action against respondents Nos.1 and 2 to seek cancellation of lawful entry of mutation on the basis of inheritance in respect of the agricultural land in the revenue record. These entries were made by the revenue authorities on the basis of the statement of applicant/plaintiff himself after the death of the original owner namely father of the plaintiff and respondents Nos.1 and 2. There is no allegation of fraud or misrepresentation against respondents Nos.1 and 2 in getting their names included in the impugned mutation record nor it is incorrect entry therefore there was no ground for cancellation of such entry or deletion of the name of respondents Nos.1 and 2 from said mutation entry to transfer the entire land in the name of the applicant. Learned counsel for respondents Nos.1 and 2 has further contended that the limitation is to be counted with reference to the relief claimed in the plaint and the dates given in the documents to assert such right through the Court. The limitation for the reliefs of declaration of ownership of agricultural land on the basis of gift deed is to be counted from the date of execution of gift deed and in the case in hand cause of action was accrued on 10-4-1971 when alleged deed was executed, if at all, and not on 3-9-2009 when the defendant No.3 discovered it after 38/39.
There was no question of consent of mutation of the property in thz name of the plaintiff as the applicant has never approached respondents Nos.1 and 2 for such consent. No date and time of making such request for consent is mentioned in the plaint. Even otherwise refusal to consent in 2009 does not mean that the cause of action has accrued to the plaintiffs to claim exclusive ownership of ancestral land on the basis of gift deed dated 10-4-1971 nor such refusal to consent can entitle the applicant to seek cancellation of undisputed mutation entry by way of inheritance in the revenue record dated 11-4-1990 after 18 years through the Court. He has relied on the following case law:---
(i) 1995 MLD 397 (Abdul Rashid Velmi v. Habib-ur-Rehman and 4 others)
(ii) 1979 SCMR 625 (Hakim Khan v. Aurangzeb and another)
(iii) 1987 SCMR 66 (Mst. Zareefan v. Mst. Rehmati)
8. Now I take up the case law relied upon by the counsel for the applicant to appreciate its relevance to the facts of the case in hand. In PLD 2011 Peshawar 172, the Hon'ble Peshawar High Court examined the question of limitation in the case of "rectification of the adverse entries of the revenue record" and held that owner in possession may approach the Court at any time since each and every jamabandi confers a fresh cause of action, this proposition is not relevant to' compute the limitation in the case in hand. There is no fresh jamabandi ever since the entry dated 11-4-1990 and this entry of mutation was in the knowledge of applicant right from 11-4-1990. This entry of mutation is by way of inheritance therefore, in terms of subsection (7) of section 42 of the Land Revenue Act, 1967 the Revenue Officer was not required to make any periodical inquiry in respect of such entry nor was there any subsequent entry/jamabandi after the entry dated 11-4- 1990. Thus the case reported in PLD 2011 Pesh. 172 is not applicable to the facts of this case.
9. 1995 SCMR 284, 1996 SCMR 145 and 2004 SCMR 1502. The law laid down by the Hon'ble Supreme Court in these cases. Is in respect of Article 120 of the Limitation Act, 1908 to the effect that the suit is to be filed within six years when the right to sue accrues. And the question when a right to sue will accrues in a suit for declaration will depend upon the facts and circumstances of each case. The time starts from the point when the threat to ownership and possession of the land is received by the plaintiff. In the case in hand the plaintiff has prayed for cancellation of mutation entry dated 11- 4-1990 by inheritance in the revenue record after 20 years on or about 23-8-2010 without showing that how this entry in the revenue record has threatened his title / ownership in respect of the suit property. This is not the case of the plaintiff/applicant that these entries are illegal or even made fraudulently and the fraud has come to his knowledge recently. To the contrary the plaintiff was fully aware of the entry in question right from the moment it was made. He has himself appeared before the relevant Revenue Officer after the death of his father and provided details of legal heirs for acquisition of ownership by way of inheritance to mutate the suit land in the names of the applicant and respondents Nos.1 and 2. It is not alleged by the plaintiff that respondents Nos.1 and 2 have threatened the title of the applicant. The plaintiff is in peaceful possession of the property as co-owner with the two ladies namely respondents Nos.1 and 2 whose possession over suit land is constructive possession in capacity of co-owner with their real brother. Therefore, the prayer for change in the revenue record dated 11-4-1990 should have been made, if at all, within six years from 11-4-1990. None of these case-laws are of any help for the applicant to claim that in the given facts his case was within time.
10. 1999 SCMR 2396. The proposition discussed in this case is that the trial Courts has framed issue to the effect that whether the suit was within time and the trial Court has dismissed the application under Order VII, Rule 11, C.P.C. The High Court had dismissed revision against dismissal of application for rejection of plaint holding that trial Court has already framed an issue on the point of limitation. This case-law is also not relevant to the facts of the case in hand since the question of limitation is not a mixed question of law and fact in the case in hand for which evidence is required.
The trial Court and appellate Court have already rejected the plaint under Order VII, Rule 11, C.P.C.
On plain reading of plaint. The plaint itself has given clear dates which cannot be disputed for computation of limitation to seek declaration of ownership on the basis of gift deed. The gift deed is dated 10-4-1971 and the entry of mutation is dated 11-4-1990 and the Plaintiff in prayer clause A and B has prayed for declaration of ownership of the suit land on the basis of gift deed for the first time after 38/39 years of the gift deed and similarly he wants cancellation of mutation entry dated 11-4-1990 after 20 years again on the basis of the same gift which is 19 years prior to the said mutation entry by inheritance.
11. 1987 SCMR 66. The facts of this case are quite-distinguishable from the case in hand. In the citation the mutation entry dated 8-10-1953 was challenged on 7-9-1977 by an ignorant illiterate lady who claimed that she was never aware of such mutation entry and she has been threatened for forcible dispossession on the basis of such entry which was not in her notice. In the case in hand the applicant was fully aware of the mutation entry dated 11-4-1990 and he himself has participated in the proceeding before the Revenue Authorities for creation of the said mutation entry, therefore, the limitation against the applicant in the case in hand has started in 1990 and the judgment reported in 1987 SCMR 66 is not relevant.
12. To appreciate the contentions of either side it is necessary to examine the contents of entire plaint and particularly para-20 of the plaint showing "cause of action" and main prayer (A) and (B) of the suit and for convenience the same are reproduced below.
(20) That, the cause of action first accrued on 3-9-2009:--- when plaintiff was informed by the defendant No.3, about the traceable gift executed by late Agha Syed Zulfiqar Ali Shah in favour of the plaintiff and was handed over the same to him and on 7-9-2009 when the plaintiff approached the defendant Nos.1 and 2, to get their entire land left by deceased Agha Syed Zulfiqar Ali Shah i.e. The gifted land and again on 14-9-2009, when application was moved' by the plaintiff before D.O.
Revenue Hyderabad, which was converted into revision under section 164/(3) of Sindh Land Revenue Act and finally on 7-7-2010, when the petition filed by the defendants Nos.1 and 2 against the notices issued by defendant No.4, was declared as nullity and without jurisdiction and the plaintiff was advised to seek his remedy before the competent court of law and the same is recurring day to day within the jurisdiction of this Hon'ble Court.
PRAYERS
(A) Grant a decree declaring that the suit land bearing 280/A, 280/B, 281, 282, 283, 288, 273, 274/A, 274/B, 275 and 292 total area 49-27 acres of land of Agha Syed Zulfiqar Ali Shah situated in Deh Gujjo Tapo Hyderabad City Taluka and District Hyderabad, was gifted by late Syed Agha Zulfiqar Ali Shah s/o Agha Syed Fateh Ali Shah and Mst. Shakar Bibi widow of Agha Syed Zulfiqar Ali Shah to the Plaintiff and the plaintiff since the dates of gift is in cultivating, peaceful possession of the same till today and he may be declared as owner of the suit land on the basis of gift deeds.
(B) Grant a decree for cancellation directing the Mukhtiarkar Taluka City Hyderabad to cancel the entries dated 11-4-1990, made by him in the record of rights in favour of the Defendant Nos. 1 and 2 in respect of the suit land mentioned above in prayer clause (a).
' The plaintiff in para 15 of the plaint claims that the defendant No.3 kept him on hallow hopes and avoided mutation and in para-16 he claims that immediately after chehulm of the Donor, the defendant declared that gift deed is misplaced. The period from 1971 to 2009 when the suit was filed is almost 38/39 years and in between the suit property was mutated in the name of legal heirs of donor in 1990 without any condition attached to such mutation OR objection by the applicant himself who was present at the time of such entry before Revenue Authority or respondent No.3 and yet the suit for declaration of ownership on the basis of gift deed dated 10-4-1971 after only 38 years has been filed by the Plaintiff without any explanation that who has prevented the donor himself along with the applicant (donee) to approach the Revenue Authorities within three months of gift from April, 1971 in terms of section 42 of the Land Revenue Act, 1967 to get the ownership changed in the name of the applicant. The relevant provision from section 42 of the Land Revenue Act, 1967 are reproduced below:--- 42.Making of that part of periodical records which relates to landwoners.--- (1) Any person acquiring by inheritance, purchase, mortgage, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the patwari of the estate, who shall---
(a) Record such report in the Roznamcha to be maintained in the prescribed manner.
(b) Furnish a copy of the report so recorded, free of cost, to the person making the report; and
(c) Send a copy of the report within a week of its receipt by him, to the Union Committee, town Committee or Union Council within which the estate is situated.
(2) .....................................................................................
(3) The patwari shall enter in his register of mutations every report made to him under subsection
(1) or subsection (2) , and shall also make an entry in the Roznamcha and in the register of mutations respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which report should have been made to him under 'either of those subsections and has not been so made.
(4) ---------------------------..........................
(5)
(6) A Revenue Office shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing subsections, report should have been made to the patwari and entries made in that register, and shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall made the order under subsection
(6) in the presence of the person whose right has been acquired after such person has been identified by two respectable persons, preferably from Lambardar or members of "Zila Council, Tehsil Council or Town Council" or Union Council concerned, whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the register of mutations.
(8)
(9)
(10) ............................................................................................................................................................................
(11) The Revenue Officer shall, in the prescribed manner, send or cause to be sent, the gist of an order made by him under subsection (6), to the person whose right is acquired, and also to the "Officer of the Union Administration" in which the estate is situated.
It is hard to believe that the Donor (father of applicant) himself an agriculturist was unaware of the above provision of Land Revenue Act, 1967, which require the donor whose right were acquired by his son through gift was supposed to appear before Revenue Officer and be identified by two persons and affixed his signature on mutation register to enable the Revenue Officer to pass an order in terms of subsection (6) of section 42 of the Land Revenue Act, 1967. The plaintiff has not given any explanation that why from 1971 to 1989 the donor who was his father failed to appear before Revenue Authority to get the gifted property transferred in the name of his beloved son despite the gift.
13. The other aspect of the case from the plaint that creates doubt in the very existence of the gift is that the donor has not even handed over original gift to the donee and in para-7 of the plaint the plaintiff himself has stated that the gift deed was handed over to Syed Agha Abud Ali Shah for getting the mutation effected. He, too, was supposed to know the legal implications of execution of gift of agricultural land the requirement of law referred above. The said Syed Agha Abud Ali Shah has been impleaded as defendant No.3 and in his written statement he has not been able to give any explanation that why he failed to get the mutation effected in terms of above provision of law in favour of the applicant without three months or as soon as possible except that he had misplaced it. Neither any probable date and time of having lost the gift nor the circumstances in which he suddenly discovered the same has been mentioned in his written statement. The law of limitation does not envisage that the period of limitation shall stop if the document giving a right to sue is misplaced till it is re-discovered by the party concerned. To the contrary, section 9 of the Limitation Act, 1908 provides that the time once begun to run, no subsequent disability or inability to sue stops it. The section 9 of the Limitation Act, 1908 reads as under:---
9. Continuous running of time.--- Where once time has begun to run, no subsequent disability or inability to sue stops it: ' Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues.
14. The applicant claims the gift deed dated 10-4-1971 was misplaced and it was found on 3-9- 2009. May be it is so. Even if we may not disbelieve him, it was his personal "inability" to get his title perfected on the basis of gift deed within time. His inaction for 38/39 years without showing that such long period of time was to be exempted under any of the exemption contained in sections 4 and 25 of the Limitation Act, 1908, cannot bring his suit filed on 23-8-2010 on the basis of gift deed dated 10-4-1971 within time nor Court can ignore the duty imposed on it by section 3 of the Limitation Act, 1908. In the context of duty of Courts in terms of section 3 of the Limitation Act, 1908 one may refer to following dictum laid down by Hon'ble Supreme Court in the case of Hakim Muhammad Buta and another v. Habib Ahmed and others reported in (PLD 198 SC 153)
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 the 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. And on section 9 of Limitation Act, 1908. I am fortified in my view on the dictum laid down in the case of Siraj Din and others v. Mst. Khurshid Begum and others reported in 2007 SCMR 1792. The relevant observation from the said judgment is as follows:--- "Section 9 of the Limitation Act, 1908 is founded on the general principle that when once limitation has commenced to run it will continue to do so unless it is stopped by virtue of any express statutory provisions" Saba v. Patricia 1996 CLC 348, Ramakrishna v. Srinivasalu AIR 1950 Mad. 552 and Ajab Lal v. Jai. Prakash AIR 1953 Pat.
35.
It hardly needs any explanation that unless a case falls within anyone of the exception contained in sections 4 to 25 of the Limitation Act, 1908 no exemption can be sought from the bar of limitation arising under the Limitation Act, 1908."
' The counsel for the applicant has not referred to any of the provision of sections 4 to 25 of the Limitation Act, 1908 to claim that the time to file a declaratory suit for ownership of the suit land on the basis of gift deed dated 11-4-1971 had stopped or it did not start until 2009 to show start point for limitation averred in para 20 of the plaint.
15. Similarly the applicant has not alleged any action/conduct on the part of respondents Nos.1 and 2 in the entire plaint to constitute a grievance against them to claim a "cause of action" for filing the suit for redressal of the said grievance. In para-20 of the plaint starting point of limitation for the "cause of action" has been shown as on 3-9-2009 against Respondent No.3 who traced the gift deed dated 10-4-1971 after 38 years in favour of the applicant and handed over to him and 7-9- 2009 has been shown starting point of limitation against respondents Nos.1 and 2 when the applicant on the basis of such gift deed approached them to consent for mutation of entire land in favour of applicant (para-18 of plaint) to change the mutation entry dated 11-4-1990 and refusal of respondents Nos.1 and 2 has resulted in accrual of "cause of action" to take them to the Court of law to obtain their consent. Respondents Nos.1 and 2 were not under any legal obligation to give their consent and therefore, no legal right was denied by them. The applicant had not asserted any denial of legal right on refusal to consent on the demand by applicant, therefore no cause of action has accrued to the applicant against respondents Nos.1 and 2. The right accrued to the applicant, if any, on the basis of gift deed was not subjected to consent to change the mutation entry dated 11-4-2010 which was 19 years subsequent to the gift.
16. The upshot of the above discussion is that the findings of the two Court below whereby plaint of F.C. Suit No.225 of 2010 was rejected was perfectly in accordance law as the plaintiff had from the own D pleadings failed to make a case of cause of action against respondents Nos.1 and 2 and the suit was also hopelessly time barred. Consequently the revision is dismissed with no order as to costs.