Muhammad Khalid Mehmood Khan, J. Briefly stated the facts of this petition are that one Muhammad Umer, predecessor in interest of the petitioners was the owner of land measuring 242- Kanals in village Malka Tehsil Kamonki District Gujranwala likewise respondent No.4 got allotted an evacuee land measuring 242 Kanals in village Dargah Pur Tehsil Kamonki District Gujranwala in lieu of his abandoned claim. Both the owners exchanged their land with each other through a registered exchange deed dated 04.11.1966, a mutation No.1043 in village Dargah Pur and mutation No.32 in village Malka was attested on the basis of exchange deed dated 04.11.1966, both the parties to the exchange deed become the owners in possession of their respective land in the revenue record. In the year 1977 the land allotted to respondent No.4 in village Dargah Pur was cancelled on a "Mukhbari" petition submitted by the "Mukhbars". The predecessor in interest of the petitioners assailed the order of cancellation of allotment in favour of Khalil-ur-Rehman (one of the party of exchange deed) through a writ petition No.413/1977, the said petition was dismissed, CPSLA against the order of this Court was also failed, after the dismissal of CPSLA predecessor in interest of the petitioners filed an application to Tehsildar for restitution of his original land transferred to respondent No.4 in pursuance of an exchange deed, the petitioners' predecessor in interest's application was allowed and mutation No.496 was attested in his favour on 21.2.1986. Respondents No.1 to 3 who purchased land from respondent No.4 assailed the order dated 21.2.1986 through a writ petition but subsequently the writ petition was withdrawn. Respondents No.1 to 3 then filed an appeal against order dated 21.2.1986 before Assistant Commissioner Gujranwala which was accepted on 31.5.1994 and mutation No.496 was set aside. predecessor in interest of petitioners assailed the order dated 31.5.1994 through an appeal and the appellate court accepted the appeal vide order dated 09.1.1995 consequently mutation No.496 was restored. Respondents No.1 to 3 then filed revision against the order of Commissioner which was allowed on 05.3.1996 declaring that aggrieved party should approach to civil court for cancellation of registered exchange deed as the revenue courts have no jurisdiction to cancel the registered document. The petitioners assailed the order dated 10.4.1996 through writ petition No.5846/1996, the writ petition was admitted for regular hearing and this Court directed the parties to maintain status quo. The order of status quo was confirmed till the final disposal of writ petition. The writ petition was finally decided on 22.4.2003 declaring that order dated 05.3.1996 is in accordance with law and the petitioners should approach the civil court for cancellation of registered exchange deed. After the dismissal of petitioners' writ petition on 22.4.2003 the petitioners on 24.5.2003 filed a suit for possession of the land situated in village Malka against the respondents, claiming that the exchange deed dated 04.11.1966 be ordered to be cancelled and inoperative against the petitioners. Respondents No.1 to 3 moved an application under Order VII Rule 11 CPC for rejection of the plaint claiming that respondents No.1 to 3 are the bonafide purchasers for value of the land owned by Khalil-ur-Rehman and their rights are protected under Section 119 of the Transfer of Property Act and the suit is barred by time. The trial court dismissed the application vide order dated 22.12.2004. Respondents No.1 to 3 assailed the order dated 22.12.2004 of the trial court through revision, the learned revisional court vide judgment dated 02.7.2005 accepted the revision and rejected the plaint. The petitioners have assailed the order dated 02.7.2005 through the present constitutional petition.
2. Learned counsel for petitioners submits that the learned revisional court has failed to appreciate the true facts and has wrongly held that suit is barred by time and plaint is liable to be rejected.
The petitioners' writ petition assailing the order of Member Board of Revenue dated 05.3.1996 remained pending till 22.04.2003, this Court directed the parties to maintain status quo till final disposal of petition, hence the petitioners were unable to file a civil suit unless writ petition is finally decided. After grant of restraining order by this Court, the limitation to file the suit stand stopped, the petitioners filed the suit after final disposal of writ petition, which is within time. The petitioners asserted in their plaint that they continued to prosecute their case for restoration of mutation No.496 in different courts, hence there suit is within time. Learned counsel submits that petitioners have fulfilled the requirement of Order VII Rule 6 CPC. The petitioners' suit was within time or not, is a mixed question of law and fact and as such the learned revisional court was not justified to reject the plaint. Learned counsel adds that protection of Section 119 of the Transfer of Property Act is not available to respondents No.1 to 3, as the land allotted to Khalil-ur-Rehman was cancelled by the Settlement Department, hence the land of petitioners' predecessor in interest automatically stand restored to him. Learned counsel thus has relied on Narayan Jivangouda Patil and another V.
Puttabai and others (A.I.R. (32) 1945 Privy Council 5), Mubarak Ali and others V. Khushi Muhammad and others (PLD 2011 Supreme Court 155). Learned counsel submits that the Hon'ble Supreme Court of Pakistan has held that the provision of Section 119 of the Transfer of Property Act is founded on the principle of equity and the benefit of said principle cannot be extended to a person who is privy to the fraud adjudged by the court of competent jurisdiction.
3. Learned counsel for respondents submits that the petitioners' suit is hopelessly barred by time.
The predecessor in interest of the petitioners has himself assailed the order passed in the year 1977 whereby the allotment of Khalil Ur Rehman was cancelled on a "Mukhbari" application. The predecessor in interest of the petitioners coming to know about the cancellation assailed the order of Settlement Authorities up to the level of Hon'ble Supreme Court of Pakistan. After the dismissal of CPSLA by the Hon'ble Supreme Court of Pakistan the predecessor in interest of the petitioners approached the Revenue court and not resorted to civil court. The revisional court/Member Board of Revenue has specifically held vide order dated 05.3.1996 that the exchange deed is a registered document and as such the same can be cancelled by the civil court alone. The petitioners have assailed the order dated 05.3.1996 through a writ petition instead of approaching the civil court.
This Court only directed the parties to maintain status quo and no order was passed restraining the parties to approach the civil court, hence the limitation continued for filing the suit. Learned counsel submits that respondents No.1 to 3 are bonafide purchasers for value from Khalil- urRehman and Khalil-ur-Rehman is no more in possession of the suit property, hence respondents No.1 to 3's case is fully covered under Section 119 of the Transfer of Property Act. The petitioners have not filed any application under Section 14 of the Limitation Act claiming that they continued to prosecute their case before wrong forum under the bonafide impression that the said courts have the jurisdiction to decide the issue. The petitioners have only claimed in their plaint that they continued to prosecute their case before different courts and as such their suit is within time. Learned counsel submits that for availing the benefit of Section 14 of the Limitation Act the plaintiffs are bound to file an application and without filing the application mere averment in the plaint is not sufficient. The petitioners if intend to avail the benefit of Section 14 of the Limitation Act they have to provide full particulars as to the exact date of institution of earlier civil proceedings, appeals and the termination of the litigation and the accrual of cause of action. Learned counsel submits that if the application under Section 14 of Limitation Act is not filed with the plaint the court is unable to exclude the time for prosecuting the case before a court not having the jurisdiction.
Learned counsel adds that this Court while passing order on 10.4.1996 has not restrained to petitioners either expressed or implied to institute the civil suit, hence the order of status quo cannot be termed as restraining order from filing the suit. Learned counsel for respondents has relied on Mubarak Ali and others V. Khushi Muhammad and others (PLD 2011 Supreme Court 155), Muhammad Rafiq and others V. Muhammad Siddique and others (2006 MLD 892), Muhammad Jan V. Suleman and others (PLD 1968 Peshawar 181) and Noor Din and another V. Additional District Judge, Lahore and others (2014 SCMR 513). Learned counsel submits that the object of Order VII Rule 11 CPC is that the courts must put an end to the litigation at a very initial stage when the result of the suit is ultimate dismissal even after recording the evidence.
4. Heard. Record perused.
5. The following facts are admitted between the parties:- That respondents No.1 to 3 purchased the suit property from Khalil Ur Rehman s/o Mian Jan who was the allottee of land measuring 242 Kanals in village Dargah Pur Tehsil Kamonki District Gujranwala against his abandoned claim, the said Khalil ur Rehman exchanged his land with Muhammad Umer, predecessor in interest of the petitioners, through registered exchange deed dated 04.11.1966, two mutations were attested on the basis of exchange deed dated 04.11.1966 i.e mutation No.1043 in favour of Muhammad Umer of the land in village Dargah Pur and mutation No.32 in favour of Khalil Ur Rehman of the land situated in village Malka. The land transferred to Muhammad Umer on the basis of exchange deed was subsequently cancelled from the name of Khalil Ur Rehman prior to cancellation of land from the name of Khalil-ur-Rehman. Khalil Ur Rehman sold the land to respondents No.1 to 3 against consideration as the mutation No.54 was attested on 22.8.1967 in favour of predecessor in interest of respondents No.1 to 3, Muhammad Umer assailed the order of cancellation of land from the name of Khalil Ur Rehman passed in the year 1977 before the Settlement Commissioner, this Court and the Hon'ble Supreme Court of Pakistan. After the unsuccessful litigation up to the level of Hon'ble Supreme Court of Pakistan for setting aside cancellation order against Khalil-urRehman (predecessor in interest of petitioners), Muhammad Umer approached the Tehsildar for restitution of his original land in village Malka. The Tehsildar accepted Muhammad Umer's application and the land owned by Muhammad Umer prior to exchange deed was restored to him vide mutation No.496 attested on 21.2.1986.
Respondents No.1 to 3 assailed the order dated 21.2.1986 through a constitutional petition but withdrew the petition. After withdrawal of the constitutional petition respondents No.1 to 3 assailed the order dated 21.2.1986 through an appeal. The appellate court on 31.5.1994 accepted the appeal and set aside the mutation No.496. Muhammad Umer assailed the order of appellate court and the appellate court on 09.01.1995 accepted the appeal and restored the mutation No.496. Respondents No.1 to 3 assailed the order dated 09.1.1995 through a revision before Member Board of Revenue, the Member Board of Revenue vide order dated 05.3.1996 accepted the revision declaring that it is the civil court alone who can cancel the instrument of registered exchange deed. The petitioners instead of approaching the civil court assailed the order of Member Board of Revenue through a writ petition No.5846/1996. This Court on 10.4.1996 while admitting the writ petition for regular hearing passed the order that in the meantime status quo shall be maintained. The interim order dated 10.4.1996 was confirmed on 07.11.2000. The writ petition No.5846/1996 was finally dismissed on 22.4.2003 affirming the order of Member Board of Revenue dated 05.3.1996. The petitioners admittedly filed the suit on 24.5.2003 and in paragraph No.12 of the plaint they asserted that the petitioners/plaintiffs continued to prosecute their case for restoration of mutation No.496 before revenue courts and High Court, hence there suit is within time.
It is a proven fact on record that petitioners' predecessor in interest came to know about the cancellation of land from the name of Khalil ur Rehman in the year 1977, meaning thereby the cause of action arose in favour of petitioners in the year 1977. The petitioners instead of approaching the civil court in the first instance assailed the order of cancellation of Khalil-ur- Rehman's allotment before this Court in its constitutional jurisdiction but failed even up to the level of Hon'ble Supreme Court of Pakistan. The petitioners after dismissal of CPSLA have not resorted to civil court which is the ultimate court for cancellation of registered document. They continued to prosecute their case before revenue hierarchy and even after final order of the Member Board of Revenue they have not approached the civil court but assailed the order of Member Board of Revenue through a constitutional petition. The constitutional petition was dismissed on 22.4.2003 and after that the petitioners filed the suit that too without the application under Section 14 of the Limitation Act. The argument of learned counsel for petitioners is that this Court while admitting the writ petition No.5846/1996 directed the parties to maintain status quo and the maintenance of status quo means the petitioners were restrained to file the suit. Learned counsel for petitioners has relied on Narayan Jivangouda Patil's case supra. The said citation is not helpful to petitioners. The Privy Council while deciding the issue of Section 15 of the Limitation Act, has held as under:- "The question whether in a particular case a party has been restrained by an injunction or order from instituting a suit must always depend for its decision upon the order, or the decree, made in the case. It appears to their Lordships there is nothing in the injunction or in the decree to support the contention that the appellant was prevented from instituting a suit for possession in 1920, or at any time before the expiry of the period of limitation. The various restraints imposed on the appellant by the decree cannot be made to mean by any process of interpretation that he is thereby prevented from instituting a suit for possession for the suit properties. It is not maintained that there is any express order restraining him from instituting such a suit. Mr. Parikh, the learned counsel for the respondents, said that the injunction or order relied upon, to be effective should contain an express prohibition, but it is not necessary to consider that point as their Lordships are satisfied that there is no prohibition, either express or even implied in the injunction or the decree in the present case, which restrains the appellant from instituting a suit for possession. Sir Thomas Strangman contended strongly that since the title of the contending parties was involved in the suit it would be quite futile to institute a suit for possession. Their Lordships are unable to appreciate this point for the institution of a suit can never be said to be futile, if it would thereby prevent the running of limitation. For the above reasons their Lordships hold that the appellants' suit was barred by limitation, and also that the appellant was not entitled to restitution and other reliefs claimed by him in his petition under S. 144 and S.151, Civil P.C. They will therefore humbly advise His Majesty that this appeal should be dismissed with costs of the contesting respondents".
The second argument of learned counsel for petitioners is that the petitioners have asserted in the plaint that the suit is within time as the petitioners were prosecuting their grievance in revenue courts and before High Court and after the final termination of the litigation from this Court they are filing the suit and as such the petitioners are entitled for the benefit of Order VII Rule 6 CPC. The argument of learned counsel for petitioners is not sustainable in the circumstances of the present case. The petitioners have only asserted in the plaint that they were prosecuting their case before revenue courts as well as before High Court. No particulars and dates of institution of the earlier civil proceedings before revenue courts, this Court and Hon'ble Supreme Court of Pakistan are given nor any application under Section 14 of the Limitation Act was filed. The issue about the Order VII Rule 6 CPC was dilated upon by the learned Division Bench of this Court in Pakistan Industrial and Commercial Leasing Ltd. through authorized Manager Recovery V. Haq Knitwear (Pvt.) Ltd. through Chief Executive and 2 others (PLD 2009 Lahore 52) and the learned Division Bench of this Court has held as under:- "The plaintiff of the case, asking for the benefit of the noted section, must move an independent and a separate application along with plaint, with full particulars about the exact dates of institution of the earlier civil proceedings in original or appeal, and their termination and the cause on account of which the claim was dismissed/rejected; furthermore, affirming and establishing from the contents of the said application, that the conditions mentioned above have been met; if the requisite application is not made, the Court shall not be empowered to exclude the time on the basis of section 14".
The learned Division Bench of Peshawar High Court while dealing the case in similar circumstances in Muhammad Jan's case supra has held as under:- "Since no application was given for condoning the delay under section 14 of the Limitation Act, we decline to condone the delay and hold that the appeal is time-barred".
Learned counsel for petitioners thus has failed to substantiate his argument that there was no need for filing the application under section 14 of the Limitation Act when the plaint itself provides that the suit is within time. The petitioners have not asserted in the plaint that they were prosecuting their case before different courts under the bonafide impression that the said courts have the jurisdiction to decide their matter. The facts of this case show that the petitioners in the first instance came to know in the year 1977, that the exchange deed has become ineffective due to cancellation of property of Khalil Ur Rehman. The petitioners instead of filing the suit continued to prosecute the case of Khalil Ur Rehman before this Court as well as before Hon'ble Supreme Court of Pakistan. Further while filing the plaint they have not claimed exception for excluding of time which according to them was consumed in prosecuting the litigation in revenue courts and this Court. The petitioners are not claiming the exclusion of time and condonation of delay but the case of petitioners in the plaint is that their suit is within time as they were prosecuting their grievance before revenue courts and this Court. In my humble opinion, for claiming the benefit of Section 14 of the Limitation Act, 1908 the petitioner has first to admit that their suit or appeal is time barred then Court can consider the request of condoning the delay. As already discussed above that no particulars of any litigation was given in the plaint and no prayer was made for condonation of delay, the petitioners cannot take the benefit of Order VII Rule 6 CPC and Section 14 of the Limitation Act.
6. The third argument of learned counsel for petitioners that protection of Section 119 of the Transfer of Property Act is not available to respondents No.1 to 3, is concerned, learned counsel for petitioners has relied on Mubarak Ali and others' case supra. Admittedly respondents No.1 to 3 are in possession of property on the basis of a sale mutation in their favour, hence respondent No.4 is not in possession of the land, the second portion of Section 119 of the Transfer of Property Act thus is fully applicable in the respondents' case. The Hon'ble Supreme Court of Pakistan in Mubarak Ali and others' case supra has held as under:- "Right of party deprived of thing received in exchange.---If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration."
According to the plain reading and interpretation of the section, which is based upon principles of equity, it has two parts. The first part which may be described as substantive is the governing portion of the section and the later part being remedial in nature is regulated and controlled by the first. The substantive part clearly prescribes that if one of the exchangers, including person claiming through or under him, is deprived of the property received in exchange from the other person because of the defect in the title of the latter, only in that eventuality the section would be attracted. This means that the deprivation must be on account of the defect in the title alone and not otherwise. If an exchanger is deprived of the property for some other reason, the first part of the section shall have no application. The second part only provides for the remedies; however, subject to the proof of such a defect and it gives two options to the party at loss, either to enforce for the loss occasioned on account of such deprivation, not restricted to the pecuniary compensation but also from some other property of the delinquent exchanger as well Or to seek the return of that very property from which the exchanger has been deprived. This second option is again circumscribed by the clear expression of the section i.e. "if still in possession of such other party" meaning thereby that possession could only be sought if that is being retained by the exchanger, having a defective title and not otherwise".
It is an admitted fact that petitioners have not claimed that respondents were privy to the fraudulent allotment of Khalil Ur Rehman, hence second portion of Section 119 of Transfer of Property Act is fully attracted in the present case.
7. The upshot of the above said discussion is that the petition fails and is dismissed.