CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal by leave of the Court has been filed from the judgment and decree of the High Court dated 13.2.2013, whereby the appeal filed by the appellant herein has been dismissed.
2. Precise facts relevant for disposal of this appeal are that the plaintiff-appellant filed a suit for declaration-cum-perpetual interjunction against the defendant respondents in the Court of Civil Judge Samahni on 6.4.2000. Later on, the plaint was amended. The amended plaint was filed on 30.5.2005. It was claimed that the suit land measuring 47 kanals, 8 marlas situate at village Tonain Rajani is in the ownership and possession of the plaintiff-appellant. This land has been purchased by him on the basis of the decree dated 26.7.1995. The plaintiff-appellant also challenged the validity of the gift-deed dated 22.7.1984 and mutation No 231 on the ground that the same have been executed and attested without possession. The gift-deed is illegal having been executed in respect of specific khasra number. It is alleged that the defendant-respondents filed a suit against the plaintiff-appellant on 19.5.1996 in which the compromise decree was challenged but later on they withdrew their suit on 23.12.1998 and got their statements recorded to the effect and resultantly the suit was dismissed on 23.12.1998.
3. The suit was resisted by the other side. The Trial Court, after necessary proceedings decreed the suit of the plaintiff-appellant vide judgment dated 5.10.2006. The defendant-respondents herein challenged the judgment and decree of the Trial Court through an appeal in the Court of District Judge. The learned District Judge after hearing the parties vide judgment and decree dated 13.9.2007 accepted the appeal set aside the findings recorded by the Trial Court and dismissed the suit of the plaintiff-appellant on the ground of limitation. Feeling aggrieved from the judgment and decree of the District Judge, the plaintiff-appellant preferred second appeal before the High Court which also met the same fate through the impugned judgment and decree hence, this appeal by leave of the Court.
4. Raja Saadat All Kiani, Advocate the learned counsel for the appellant argued the case at some length. After narration of necessary facts, he submitted that the impugned judgments and decrees of the Appellate Courts below are against the settled principle of law and administration of justice.
The Trial Court's judgment has wrongly been set aside by the Appellate Courts merely on the ground of limitation. He submitted that both the first and second Appellate Courts have fell in error of law due to improper appreciation of the material legal and factual proposition raised in this case. The Courts have misconstrued the facts. In the suit the cause of action had not arisen or claimed from the date of the disputed gift-deed dated 22.7.1984 rather it was against the illegal entries of the revenue record incorporated through mutation No. 231, dated 11.8.1995. He mainly focused his arguments on the point that regarding the disputed land and the gift deed, a decree was passed in favour of the appellant on 26.7.1995. The respondents on gaining knowledge of this decree filed a suit, the copy of the plaint was tendered in evidence as Exh.'PE' but subsequently, this suit was withdrawn by them on 23.12.1998, consequently, the decree remained intact. The defendants-respondents withdrew the suit on the ground that the parties had compromised, therefore, they are estopped' by their conduct to dispute the legality of that decree. Subsequently, regarding the property i.e. Subject-matte of the final decree, they manoeuvred to get incorporated the contrary entries in the revenue record which gave new cause of action. The plaintiff-appellant was forced to approach the Court. In the plaint several remedies were prayed including one the decree of perpetual injunction on the basis of decree dated 26.7.1995. Thus, even if for the sake of arguments, the declaratory decree to the extent of cancellation of gift-deed was not admissible then the decree for perpetual injunction cannot be refused on the ground of limitation. He further submitted that the plaintiff-appellant in para-5 of the plaint has categorically alleged the fraud and collusion, thus, in the light of the facts of this case, provisions of Section 18 of the Limitation Act, 1908 are fully attracted. He lastly argued that the defendant-respondent's whole claim is based upon the gift-deed dated 22.7.1984, but as the land admittedly is in possession of the plaintiff- appellant, thus, it is obviously clear that the gift-deed was executed without following the possession, hence, the same is incomplete and unenforceable. No legal right has been created in favour of the defendant-respondents. Another point has also been raised that the nature of the land is Shamlat deh hence, on this score the gift-deed was also not having any legal foundation.
5. Conversely, Raja Khalid Mehmood, Advocate, the learned counsel for the respondents forcefully rebutted the arguments of learned counsel for the appellant and submitted that according to the averments of the plaint, the suit is hopelessly time-barred. The Trial Court's judgment and decree was illegal. The concurrent findings of the first and second Appellate Courts on the point of limitation are quite legal. So far as the question of withdrawal of suit by the defendant-respondents is concerned, neither it makes the gift-deed as inoperative nor it creates any rights in favour of the plaintiff-appellant. According to the statutory provision i.e. Law of limitation, the suit has rightly been dismissed being time-barred. No question of law is involved, therefore, this appeal has no merits and the same is liable to be dismissed with costs.
6. We have heard the learned counsel for the parties and carefully examined the record. According to the facts the suit property to the extent of 4 kanals was in the ownership of the donor, whereas, rest of the property was Shamlat Deh, which was gifted to the defendant-respondents vide gift- deed registered on 22.7.1984. Initially on the basis of this gift-deed, mutation No. 1908 was sanctioned on 23.11.1984 only to the extent of 4 kanals land which was in the ownership of the donor.
Subsequently, the plaintiff-appellant regarding the land measuring 47 kanals, 8 marlas, comprising old survey No. 1883, new survey Nos. 654, 658, 659, 670, 671, 676 and 675, out of this gifted property, obtained a decree, Exh.'PD' from the Civil Court on 26.7.1995 and on the basis of the decree, mutation No. 115 was sanctioned. On gaining knowledge of the decree dated 26.7.1995, the defendants-respondents filed a suit for cancellation of the same in the Court of Civil Judge Samahni on 19.5.1996 which was contested by the plaintiff-appellant, however, the defendants- respondents withdrew the suit on 23.12.1998 on the ground that they have compromised with the defendant therein according to Exh.'PB'. The suit was dismissed vide order dated 23.12.1998, Exh. 'PA'.
Thus, the decree passed on 26.7.1995 attained finality. Thereafter, both the parties filed civil suits.
The plaintiff-appellant filed suit No. 27 on 6.4.2000 for cancellation of mutation No. 231, Exh.' PG' attested on 30th March, 2000. According to this mutation, the whole property i.e. Subject-matter of the gift-deed dated 22.7.1984 was mutated in the name of defendants-respondents.
7. The defendant-respondent No. 1 also filed a declaratory suit No. 28 wherein he prayed that he is owner of the land on the basis of the gift-deed dated 22.7.1984 and mutation No. 231 and cancellation of the decree dated 26.7.1995 being illegal is liable to be cancelled. Both the suits were consolidated and after framing issues, arguments on the issues of law, i.e. Issues No. 7, 15 to 19 were heard by the Trial Court. Consequently, the Suit No. 28 filed by the defendant-respondent was dismissed vide judgment and decree dated 14.4.2001, certified copies of the same have been tendered in evidence as Exh.PH and Pl. Whereas the Trial Court continued the proceedings in Suit No. 27. After completion of required proceedings and recording of evidence, the suit was decreed by the Trial Court on 5.10.2006. On appeal filed by defendant-respondent the learned District Judge, first Appellate Court while accepting the the suit mainly on the ground that the same was time- barred as the gift-deed was registered on 22.7.1984, whereas the suit has been filed on 6.4.2000 and limitation for filing suit for cancellation of such gift-deed is 6 years. The other ground advanced by the learned District Judge was regarding validity of the decree dated 26.7.1995. The learned Judge High Court through very precise impugned judgment has concurred with the findings recorded by the first Appellate Court. Regrettably, both the Courts below have not properly analyzed the facts of the case.
8. No doubt the gift-deed was registered on 22.7.1984 but initially mutation No. 1908 was attested only to the extent of 4 kanals excluding therein the property which is the subject-matter of present suit. Whereas the plaintiff-appellant obtained a decree from the Civil Court regarding the suit land which was twice challenged by the defendant-respondent, firstly, through the suit which was withdrawn on 23.12.1998 and secondly against this decree the suit was dismissed vide judgment dated 14.4.2001. After the orders of withdrawal and dismissal of the suit the decree dated 26.7.1995 has attained finality against the defendant-respondent as he has not further challenged the same-before any forum within the prescribed period of limitation.
9. According to the final judgment and decree of the Civil Court dated 26.7.1995 the plaintiff- appellant has been declared owner in possession of the decreed property comprising previous survey No. 1883, new 654, 658, 659, 670, 671, 875 and 676, measuring 44 kanals, 8 marlas. Not only the findings of the Court relating to the decree dated 267.1995 attained finality but the suit filed by the defendant-respondent on 19.5.1996 was also withdrawn by him on 23.12.1998. It is clearly stated in the application filed by the defendants and the application filed by him for withdrawal of suit that he has compromised with the (plaintiff-appellant herein). Thus, against the respondent herein the principle of estoppel as well as waiver according to his conduct is fully attracted. Thus, under law he cannot now turn around and question the validity of the decree dated 26.7.1995. This legal aspect of the matter has been ignored by both the Appellate Courts below thus, the findings are erroneous on this point, hence, not sustainable.
10. So far as the question of limitation is concerned, in the light of the peculiar facts of this case, it also appears that the Appellate Courts below have misconceived the facts. As it has already been hereinabove discussed that the gift-deed was only mutated to the extent of 4 kanals regarding which the plaintiff-appellant has no dispute. Subsequently, obtained the decree of Civil Court and the defendant-respondent herein compromised with him and withdrew his suit. Thus, the decree dated 26.7.1995 in favour of the appellant attained finality according to which he was declared owner of the land comprising previous survey No. 1883, new 654, 658, 659, 670, 671, 675 and 676, measuring 44 kanals, 8 marlas. Thus, there was no dispute among the parties as the rights of the plaintiff were admitted by the defendant-respondent, hence, there was no need to file the suit.
11. The new cause of action has arisen when mutation No. 231 has been attested on 30th March, 2000. The term cause of action has been dealt with by this Court in the case reported as Khurshid Ahmed v. Sultan Habib and 50 others [2Q05 CLC 492], relevant portion of the judgment reads as under:--- "7. The next question arises as to what cause of action means? The term cause of action refers to every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right. It means the whole of material facts, which it is necessary for the plaintiff to allege and prove, in order to succeed. Precisely, the term cause of action refers to the ground on the basis of which the plaintiff asks for a favourable judgment. A cause of action is the sum total of all those allegations upon which the right to the relief claimed is founded. It includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action. In determining as to what is a cause of action, one is not concerned as to what is the nature of the defence that may be set up, but he has only to see what is alleged in the plaint. The facts that are alleged in the plaint and which require to be proved without proof of which the plaintiff would not be entitled to a judgment constitute the cause of action. Every such fact which is necessary to prove, therefore, would form a part of the cause of action. It is, therefore, to be ascertained from the allegations in the plaint as to what is the cause of action in each case.
The proposition came under consideration before this Court in a case titled Abdul Ghafoor & Brothers v. Natural Food and Beverage (Pvt.) Ltd. And 2 others 2001 YLR 3243 where the same was resolved in the following terms:- " ... The terms 'cause of action' refers to every fact, which if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment and which, if not proved, gives the defendant a right to judgment and for this purpose, only the facts stated in the plaint are to be considered to determine whether they constitute a cause of action or not?...
(7) The expression 'cause of action' used in the Code in its general sense, refers to and signifies averment of fact or state of facts, giving rise to a claim or right of the plaintiff, against the defendant, sufficient to enable a Court in rendering a judgment or to grant relief. It excludes relief sought for and plea of defendant. It may mean facts or allegations, contemplating a claim of right and infringement of a right.'
The point was debated before this Court in another case reported as Khadim Hussain v. Jamal Hussain and 2 others 1997 M LD 2952 where it was held as under:- 'It may be pointed out that if a defendant seeks rejection of a plaint for the non-disclosure of cause of action, he has to show that even if the allegations in the plaint are presumed to be true, the plaintiff was not entitled to any relief. In the instant case, it is not correct to suggest that even if the averments made in the plaint are presumed to be true, the plaintiff is not entitled to the relief claimed."
The suit has been filed on 6.4.2000 which appears to be a declaratory suit filed under Section 53 of the West Pakistan Land Revenue Act, 1967. The suit is filed within less than one month's time from the date of entries made in the revenue record. Thus, the question that the suit has been filed beyond limitation does not arise.
12. The material factual aspect of the matter is admitted. The defendant respondent in his Court statement recorded on 8.9.2005 has admitted that he had withdrawn the suit. He deposed that the mutation No. 231 was attested on 30th March, 2000 in his favour. Lie further submitted that the decree granted in favour of the plaintiff-appellant was not cancelled. As in the light of the peculiar facts of this case, the parties have compromised regarding the suit property and the suit filed by the defendant-respondent for cancellation of decree dated 26.7.1995 had been withdrawn, thus, the plaintiff-appellant's rights stood admitted, hence, there was no need to file the suit. New cause of action due to entries in the revenue record i.e. Mutation No. 231, attested on 30.3.2000. Under the provision of Section 53 of the West Pakistan Land Revenue Act, any person who considers himself aggrieved by an entry in the revenue record, he is entitled to institute a suit for declaration of his rights under Chapter VI of the Specific Relief Act, 1877. Thus, the declaratory suit filed by the plaintiff-appellant was actually covered by this section, hence, the same was not time-barred.
13. Although the decree dated 26.7.1995 attained finality against the judgment-debtor and the respondents herein but this finality is not absolute as the nature of the land, subject-matter of the decree is Shamilat Deh land. The appellant, decree-holder has been proved to be land owner in the village. Thus, he is entitled to Shamilat land according to his proportionate share. This Court has already enunciated principle of law in number of cases that the decree of ownership regarding the Shamilat land on the basis of the agreement of a private person on cognovits cannot be granted.
In this regard an authoritative judgment is reported as Khalid Hussain & 3 others v. Haji Muhammad Rafique & another [2008 SCR 207], relevant portion of which reads as under:- "21. The proposition was again considered by a learned Judge of this Court who subsequently rose to the prestigious office of Chief Justice of Azad Jammu & Kashmir in PLA No. 68 of 2006, decided on 23.6.2006 and reported as Walayat Khan v. Abdul Khaliq & others [2006 SCR 92]. In para-5 while holding that no declaration on title can be made on the basis of agreement-to-sell nor can a decree of title be granted in respect of Shamlat Deh without providing opportunity of hearing to other co-owners. It was held in para-5 of the judgment as below:--- '5. No doubt that the learned District Judge while deciding the appeal of petitioner has not recorded his findings on each issue as is postulated under Order XX, rule 5 of the Code of Civil Procedure but in this case without seeking amendment in the first suit, two more suits were filed.
The total acreage of shamlatdeh land is 316 kanals, out of which only 7 kanals of land is in dispute but its boundaries were not mentioned in any suit so that the same may become ascertainable as was the purpose of law. On imaginary grounds the declaration was sought. In these circumstances no error was committed by the learned Judge in the High Court while ignoring this objection raised by the learned counsel for the petitioner as that would not make any difference even if the case would have been remanded to the District Judge. This practice would have just dragged the parties to further litigation without any useful purpose. No declaration of title can be made on the basis of agreement-to-sell nor a decree of title can be granted in respect of Shamlat-deh land unless all the co-owners are given chance to contest on merit the suit of the plaintiff claiming rights exclusively or himself."
Thus, following the enunciated principle of law, we observe here that no title or ownership shall be conferred upon the appellant through the decree dated 26.7.1995. However, he is entitled to retain possession subject to the legal partition of the village in Shamlat land according to law and the decree shall only be treated final against the judgment-debtor and respondent herein in the light of hereinabove stated reasons and facts.
Consequently, we are constrained to accept this appeal, set aside the impugned judgment and decree of the High Court dated 13.2.2013 as well as that of the District Judge dated 13.2.2007.
Resultantly, the judgment and decree passed by the Trial Court dated 5.10.2006 stands restored with the modification indicated in para-13 hereinabove. No order as to costs.