AMIN-UD-DIN KHAN, J. Through this appeal the appellants have challenged the judgment & decree dated 30.09.2005 passed by the learned Additional District Judge, Mianchannu District Khanewal, whereby the appeal filed by the respondents/plaintiffs was accepted, by way of which, the judgment & decree dated 29.11.1990 passed by the learned Civil Judge 1st Class, Khanewal dismissing the suit for declaration and possession filed by the respondents/plaintiffs, were set aside.
2. Briefly, the facts of this case are that on 04.03.1986 the respondents/plaintiffs Mst. Khurshid Bibi etc field a suit for declaration that the plaintiffs are owner in possession of suit property mentioned in the head note of the plaint being legal heirs of deceased Mahi alias Jahangir s/o Farid. They challenged mutation No.Nil dated 09.07.1951, mutations No.52 dated 09.07.1951 and 54 dated 14.05.1969 and all other mutations in favour of defendants No.1 to 10. The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment & decree dated 29.11.1990 the suit was dismissed by the learned trial Court. An appeal was preferred before the learned first appellate Court, which was accepted vide judgment & decree dated 30.09.2005 and the suit filed by the respondents/plaintiffs was decreed. Hence, this second appeal.
3. Learned counsel for the appellants/defendants argues that mutation No.52 was attested on 09.07.1951 of sale of suit land by Mahi in favour of defendants or their predecessor; that the suit was clearly barred by time, when it is on the record that after purchase the defendants/appellants are in possession since its transfer in their favour; that the property was initially mortgaged with Yaqoob from 1947 to 1967 for 20 years through mutation No.52 attested on 09.07.1951 and said Yaqoob through subsequent mutation No.54 attested on 14.05.1969 transferred the mortgagee rights in favour of Barkat Ali shah; that Mahi died in the year 1981; that as the fraud has been alleged in the plaint but no particulars of fraud required under the law have been mentioned in the plaint; that the pleading is contradictory one, in Para 7 of the plaint it is mentioned that the defendants have refused to give share of produce and in ground "C" of the plaint it is mentioned that no possession was given to the defendants and they have not proved the consideration and further that the mutation does not create or confer a right; that in Para 10 the cause of action has been mentioned from the date of refusal of payment of share of produce by defendants No.1 to 10, therefore, there are contradictory pleadings; that when the plaintiffs produced evidence, admitted the possession of appellants/defendants. Further by referring a portion of cross-examination of PW-3 Noor Ahmad argues that it is his statement that Mahi in his life time filed various applications even before the President of Pakistan challenging the said transfer of suit land in favour of defendants/appellants but has not filed any suit before any Court of competent jurisdiction, therefore, in accordance with Article 120 of the Limitation Act, 1908 the suit was clearly time barred.
Learned counsel for the appellants/defendants while relying upon "PLD 2015 Supreme Court 212 (Dr. Muhammad Javaid Shafi Vs. Syed Rashid Arshad and others)" argues that one of the plaintiffs when appeared as PW-5 has admitted the possession of appellants/defendants; that none of the witnesses of the plaintiffs have stated in their statements that the defendants ever paid the share of produce to the plaintiffs, therefore, states that the findings recorded by the learned trial Court were in accordance with law, whereas the findings of learned first appellate Court are absolutely not sustainable under the law.
4. On the other hand, learned counsel for the respondents/plaintiffs argues that there are cuttings on Ex.P-2 (mutation No.52), therefore, said mutation cannot be relied by the defendants for transfer of rights in their favour in the suit land, therefore, states that the findings recorded by the learned first appellate Court are absolutely correct and in accordance with law. Prays for dismissal of the appeal.
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
6. First I take the point of limitation. The suit was filed on 04.03.1986 to challenge the attestation of mutation No.52 attested on 09.07.1951, in this way, the suit has been filed after 35 years of the attestation of mutation. The limitation for filing a suit for declaration provided under Article 120 of the Limitation Act, 1908 is six years from the date when the right to sue accrues. If the version of the plaintiffs is admitted, right to sue accrue to them on 09.07.1951 and as per the statements of plaintiffs and their witnesses specially PW-3, the transfer was in the knowledge of Mahi, the predecessor of plaintiffs and it is his version that Mahi filed various applications before the various forums including the President of Pakistan but he never filed the suit before any Court of competent jurisdiction. In this way, in the light of latest judgment of august Supreme Court of Pakistan reported as "PLD 2015 Supreme Court 212 (Dr. Muhammad Javaid Shafi Vs. Syed Rashid Arshad and others)" the suit is certainly barred by time, when the possession of appellants/defendants has been admitted over the suit property.
7. So far as the argument of learned counsel for the respondents that there are cuttings on Ex.P-2. I have minutely scanned the impugned mutation No.52, which has been produced as Ex.P-2 by the plaintiffs themselves. No doubt on page No.1 there are cuttings of name of the seller i.e. Mahi s/o Farid and the vendees but if this mutation is minutely scrutinized, it is clear that on the basis of Rappat No.396 dated 17.08.1950 the same has been incorporated, on the extreme left side of this mutation in column No.15, which is for report and order, there is a noting of Girdawar dated 19.11.1950, which is reproduced for ready reference: This mutation consists upon two pages. On page No.2 the correct entries of name of seller as well as the correct share and the correct names of vendees have been mentioned. The statement of seller was recorded on 03.06.1951, which is available on page No.2 at column No.15 and it was ordered that the mutation be placed before the revenue officer in the presence of vendees and therefore on 09.07.1951 when vendees appeared, the same was attested, in this way the cutting at Page No.1 of mutation No.52 has no adverse effect upon the rights of vendees. In this view of the matter, there is no doubt in attestation of mutation, which has been challenged after 35 years of its attestation and further that same was incorporated in the Register Haqdaran Zamin and admittedly the appellants are in possession of the suit property after its transfer in their favour, therefore, the argument that the mutation does not create or confer any right in the property, is not applicable in this case, when the possession was transferred under the law through impugned mutation and further that the same was incorporated in due course in the revenue record.
8. The fraud has been alleged in the plaint but no particulars of fraud required to be mentioned in the plaint in accordance with Order VI Rule 4 of the CPC has been mentioned and further the full detail of property is also not mentioned in the plaint, which were required under Order VII Rule 3 of the CPC. As I have noted supra in the argument of learned counsel for the appellants that even the pleadings of plaintiffs/respondents are self contradictory, as at one place they say that no possession was delivered and on the other place they say that defendants No.1 to 10 have refused to give them share of produce, therefore, they are filing the suit and cause of action has been mentioned allegedly from the refusal of payment of share of produce to the plaintiffs, which clearly shows that the pleadings are self contradictory. In this view of the matter, the findings recorded by the learned first appellate Court are absolutely against the provisions of law as well as settled law on the point, therefore, not sustainable, the same are reversed and that of the learned trial Court are maintained, whereby the suit has been declared as barred by time and the plaintiffs failed to prove their case for grant of declaration and possession in their favour when their pleadings are self contradictory.
9. In the light of what has been discussed above, this appeal is accepted and the impugned judgment & decree dated 30.09.2005 passed by the learned first appellate Court are set aside. The result would be the judgment & decree passed by the learned trial Court dated 29.11.1990 dismissing the suit for declaration and possession filed by the respondents/plaintiffs are upheld.