' MAQBOOL BAQAR, J.---Assailed through the instant appeal is a judgment of a learned Single Judge of the High Court of Sindh, whereby a Revision Application filed by the appellant against an order rejecting his plaint in a suit has been dismissed.
2. The afore-said suit was filed by the appellant against the respondents for a declaration that land bearing Nos. 280A, 280/B, 281, 282, 283, 288, 273, 274/A, 274/B, 275 and 295, measuring 49-27 acres, situated in Deh Gujo Tapo, Hyderabad City Taluka and District Hyderabad has been gifted to the appellant by Syed Agha Zulfiqar Ali Shah, and Mst. Bibi Shakar Bano, and that the appellant, since the day the land was so gifted, has been in cultivating possession thereof, and for a further declaration that he is the owner of the said land on the basis of the above gift. An order directing the concerned Mukhtiarkar to cancel the entry dated 11.04.1990, effected in respect of the said land in favour of respondents Nos. 1 and 2, was also sought.
3. The appellant claimed that his father, Agha Zulfiqar Ali Shah, owned 58 paisa share, being 49-27 acres, in the above land, whereas the appellant's grandmother owned 12 paisa share therein, and that through gift deed dated 10.04.1971, Agha Zulfiqar Ali Shah gifted his entire share in the above land to the appellant. The gift was accepted by the appellant and possession of the land was delivered to him. Whereas a house bearing CS No, 1230, Ward "G", Tando Agha Hyderabad was gifted by Syed Agha Zulfiqar Ali Shah to his daughter, the respondent No, 1, through another gift deed.
4. It is further alleged that both the above gift deeds were handed over by the Donor to respondent No,3, for necessary mutation in the record of rights. Though the respondent No,3 got mutation regarding the above house in favour of respondent No,1, he, however, avoided the required mutation in favour of the appellant, despite repeated requests, and kept the appellant on false hopes.
5. The appellant further claimed that his grandmother Mst. Bibi Shakar Bano also gifted her entire share of 12 paisa in the aforesaid land to the appellant, and mutation in respect of such land was accordingly effected.
6. It was further averred that Agha Zulfiqar Ali Shah passed away in the year 1989, and when after his chehlum the appellant requested respondent No,3 for the mutation of the land gifted by the deceased to the appellant, the said respondent informed the appellant that the gift deed has been misplaced, and told him not to worry as he (respondent No,3) shall soon locate the deed and get the necessary mutation effected.
7. It was also stated that in March 1990, respondent No, 3 informed the appellant that some notorious persons are trying to get the record pertaining to the subject land mutated in their favour on the basis of some forged and fabricated documents and, suggested that to secure the land it may be transferred in favour of all the legal heirs of the deceased, so that as and when the lost deed is found the land may then be accordingly transferred in favour of the appellant exclusively.
The respondents Nos.1 and 2, agreed with the proposal, and thus on 11.4.1990 the record of the subject land was mutated in favour of the appellant and respondents Nos.1 and 2, being the legal heirs of the deceased.
8. It was further claimed that on 02.09.2009 respondent No 3 informed the appellant that he has found the lost gift deed. The appellant thus, approached respondents Nos. 1 and 2 for their consent for mutation in his favour, the said respondents however, refused to comply.
9. On 14.09.2009, the appellant approached the revenue authorities for the required mutation which issued notices to respondents Nos.1 and 2. The said respondents challenged the issuance of notices through a Constitution Petition before the learned High Court of Sindh. The learned High Court, through order dated 07.07.2010, held that the notices were issued without jurisdiction and dismissed the petition with an observation that the appellant may approach a Court of competent jurisdiction in the matter. The appellant thus, filed the above suit on 24th August 2010.
10. However, upon an application filed by respondents Nos. 1 and 2 for rejection of the plaint under Order VII, Rule 11, C.P.C., the learned Civil Judge, through order dated 10.01.2011, rejected the plaint on the ground that the suit was barred by limitation and that no cause of action has accrued to the appellant for the suit. The order was upheld by the two fora below.
11. The respondents Nos. 1 and 2 who appeared in person, in support of the impugned judgment, they relied upon the contents thereof. Whereas Mr. Aqil Awan, learned Senior ASC, who appeared for the appellant, submitted that neither was the appellant's suit barred by limitation nor was it filed without any cause of action. The learned counsel contended that the appellant, since the day the subject land was gifted to him by his father, is in possession thereof as its owner, and therefore, provisions of section 42 of Specific Relief Act, 1877 were applicable to the appellant's suit whereby the appellant sought declaration as to his rights and interest in the subject land. He further submitted that in terms of Article 120 of the Limitation Act, 1908, the suit could have been filed within six years from the date on which right to sue accrued to the appellant, which right so accrued in September 2009, when respondents Nos. 1 and 2 refused to consent to the transfer of the entire subject land in favour of the appellant to their exclusion. Mr. Awan further submitted that the mutation by way of gift in favour of the appellant could not be effected earlier as the relevant gift deed was misplaced by respondent No, 3, who was entrusted with the same by the donor, and it was under compelling circumstances, as explained above, that the mutation in favour of all the legal heirs was effected on 11.04.1990, by way of inheritance, and such was done with a clear understanding between the parties that, so soon the lost gift deed is found, the entire land shall be transferred in favour of the appellant. According to the learned counsel, the question of limitation being a mixed question of law and facts which could not have been lawfully determined without recording evidence. In support of his contentions Mr. Awan relied upon the under noted judgments, which shall be discussed and analyzed in the later part of this judgment:
(1) Mst. Izzat v. Allah Ditta (PLD 1981 SC 165)
(2) Rehman v. Yara (2004 SCM R 1502)
(3) Fatima Moeen v. Additional District Judge, Sheikhupura (1992 SCM R 1199)
(4) Wall v. Akbar (1995 SCM R 284)
(5) Mst. Gul Nisa v. Muhammad Aril (1996 SCM R 1239)
(6) Haji Abdul Sattar v. Farooq Inayat (2013 SCM R 1493)
(7) Irshad Ali v. Sajjad Ali (PLD 1995 SC 629)
(8) Muhammad Afzal v. Muhammad Hayat (1994 SCM R 12)
12. The story that emerges from the plaint in this case is that the appellant's father, through a gift deed dated 10.04.1971, gifted to the appellant his entire share in the land detailed hereinbefore.
However, the said deed was handed over to respondent No, 3 for seeking necessary mutation accordingly. Though according to respondent No,3, there was no difficulty in his way in getting the necessary mutation affected, and has in fact got such mutation in respect of the house gifted to respondent No, 1, in favour of the said respondent, he however, avoided to do the needful and kept the appellant on false hopes through a long period of about 18 years, from April 1971 up to April 1989, when Agha Zulfiqar Ali Shah, the donor passed away. But when after the chehlum of the deceased donor the appellant requested respondent No, 3 to do the needful, he disclosed to the appellant that the gift deed has been misplaced, but told him not to worry, as so soon the lost deed is found he shall have the mutation effected. In the month of March 1990, respondent No, 3 informed the appellant that some notorious persons, on the basis of some forged and fabricated documents, are trying to seek mutation with regard to the subject land in their favour and therefore, in order to secure the land, and by way of an interim measure only, he will have the mutation effected in favour of all the legal heirs of the deceased donor by way of inheritance, and that as soon as the lost gift deed is found the entire land shall be transferred in favour of the appellant by way of gift accordingly. The respondents Nos. 1 and 2 agreed to the proposal and thus, mutation in favour of all the three legal heirs was effected in the revenue record on 11.04.1990. It was on 02.09.2009 that respondent No, 3 informed the appellant that he has found the lost gift deed.
However, when the appellant requested the respondents Nos. 1 and 2 to consent to the mutation as was agreed, they refused and therefore, the appellant filed the above suit.
13. As can be seen from the prayer clause in the plaint, the main relief sought thereby was for a declaration that Syed Agha Zulfiqar Ali Shah and Mst. Bibi Shakar Bano, the father and grandmother of the appellant and the respondents Nos. 1 and 2, have gifted their entire land to the appellant, and that in pursuance of the above gifts he is in cultivating possession of the subject land, as owner thereof. Whereas order for cancellation of the existing revenue entry pertaining to the subject land and for an injunction were merely ancillary and consequential to and dependent upon the main relief.
14. The relief of cancellation of mutation and of the impugned injunction were solely dependent upon the determination of ownership by way of gift, and of the question as to whether the subject mutation was affected with an understanding and agreement between the parties that the same shall be altered in favour of the appellant exclusively, as and when the alleged gift deed is found.
However, certain facts pleaded by the appellant for seeking the above relief are really intriguing. In the first place, there seems no logic and reason behind handing over the gift deed to respondent No, 3 instead of the appellant as alleged or otherwise, it is also not explained as to why and for what reason the deed was not handed over to the appellant. There is no explanation as to who prevented the donor and the appellant, the done, to, within three months of the gift, appear before the Revenue Official as essentially required in terms of section 42 of the Land Revenue Act 1967, so that factum of the alleged gift could have been recorded in the Roznamcha and the register of mutation under subsection (1) of the said Provision, and attested by the Revenue Officer as prescribed by subsection (7) thereof, and, as laid down by this Court in Muhammad Zaman Khan v.
The Additional Chief Land Commissioner (1986 SCM R 1121), would have served as a proof of A the alleged gift. It also seems rather strange as to why respondent No, 3 kept avoiding to proceed to have the necessary mutation effected, and/or hand over the gift deed to the appellant over a long period of about eighteen years, though he has throughout this period claimed that it was in his power to have the mutation effected and never expressed any difficulty or handicap in that regard, and had in fact got the mutation with respect to the house gifted to respondent No, 1, in favour of the said respondent accordingly, and then as to why the appellant remained unmoved and failed to take any steps to ensure that either the respondent No, 3 do the needful or return the gift deed to him. He has not even claimed to have informed the donor, who was his father, about the reluctance of the respondent No, 3 in that regard. It is also not explained as to how, where, under what circumstances and when the deed was lost/misplaced. No such explanation is given in respect of its recovery also. From the order/letter dated 25.1.2010 (annexure F to the plaint), in terms whereof the District Officer Revenue, Hyderabad forwarded the appellant case for cancellation of the revenue entries/mutation dated 11.4.1990, it seems that in his application to the said District Officer for cancellation of the said entry and for transfer of the entire land exclusively in his name by way of gift, the reason given for the delay of 38 years in seeking mutation by way of gift simply was that the gift deed was lying with respondent No, 3, it was not claimed before the revenue authorities that the deed was ever lost and/or that the inheritance mutation/entry sought to be cancelled was affected as an interim measure only. Similarly in their detailed statements recorded by respondent No, 3, and by Bibi Shakar Bano, the grandmother of the appellant, in support of the appellant's claim before the Mukhtiarkar, City Hyderabad, (annexure G/1 and H/1 to the plaint) none claimed that the gift deed was either kept with the respondent No, 3, and/or that the same was ever lost. The two also did not allege that the entry dated 11.04.1990 was by way of an interim measure only and was so affected with an understanding as claimed in the plaint. The reason for transferring the subject land in favour of all the legal heirs as explained in the plaint is equally unconvincing, as in the first place it is difficult to see how such transfer would have better secured the land from being transferred to anyone through unscrupulous means. Secondly, it is not even explained as to how, when, through what means, respondent No, 3 came to know that some unscrupulous persons were trying to have the land transferred in their favour on the basis of some forged documents, and as to what was the nature of those forged documents. It is not even claimed that the appellant sought any of the above information from respondent No,
3. The story thus, on the face of it appears to be wholly absurd.
15. The mutation entry sought to be cancelled is an entry whereby the property has been transferred in favour of the legal heirs of the deceased, being the appellant and respondents Nos. 1 and 2, by way of inheritance. The same has been affected with the knowledge, rather active participation of the appellant, the transfer is unconditional. No fraud, misrepresentation, coercion and/or intimidation in relation to the recording of the said entry has been alleged. No error or mistake in the entry has been pointed out. Absolutely no document has been referred to in support of the claim that the said transfer of land in favour of respondents Nos. 1 and 2, effected twenty years before the filing of the suit, was by way of an interim arrangement only, and was so affected with an understanding and agreement with the said respondents that the same shall be cancelled, and the entire land shall be transferred exclusively in favour of the appellant so soon the lost gift deed is found. Had there been any such understanding/agreement, the appellant would have had the same recorded in writing, he could have obtained affidavits from respondents Nos. 1 and 2 to the above effect, or at least would have had his statement recorded before the revenue authorities to such effect, and got the same incorporated in the relevant revenue record, but none of the above was done. It hardly need any mention that nothing more can be read into, added or deleted to/from what is mentioned in a document, and more so when it is an entry in the record of rights, without their being an overriding, or a supplementary document, justifying such reading/interpretation. However, in the instant case there is not a single document/material, or circumstance in support of the contention that the mutation in question was merely a temporary device meant to be altered in favour of the appellant upon a contingency. The appellant thus having agreed to the transfer of the land by way of inheritance, without incorporating any conditionality and/or having even recorded the consent of the respondents Nos. 1 and 2 for subsequent amendment in his favour, had in fact waived his purported right under the purported gift deed.
16. From the foregoing it is palpably evident that there was/is absolutely no basis and/or justification for seeking cancellation of the revenue entry as was sought by the appellant. Merely the alleged refusal of respondents Nos. 1 and 2 to accede to the appellant's request for consenting to the transfer of the entire land in his favour did not provide any cause of action to the appellant for the above suit, as neither the said respondents were under law obliged to accede to such request, nor their denial to oblige could be deemed to be a denial/infringement of any legal or contractual right to the appellant, to entitle him to the relief sought.
17. The suit was also rightly found to be patently barred by limitation. The declaration sought was with regard to a purported gift, allegedly made on 10.4.1971. The suit, in terms of Article 120 of the Limitation Act, under which Article a suit for a declaration of the nature sought, falls, ought to have been filed within six years of the said gift deed, but was filed on 24.08.2010, after a lapse of more than, thirty eight years. Whereas the mutation sought to be cancelled has been effected on 11.04.1990, twenty years prior to the filing of the suit, although limitation for such relief also was/is six years from the date of the cause of action.
18. The principle of law, enunciated by this Court, that the date of accrual of the cause of action for a suit for a declaration and injunction in respect of an immoveable property, is not necessarily relatable to the date of the offending deed and/or the adverse entry, (as will be seen from the analysis of the judgments relied upon by Mr. Aqil Awan to press the above principle, contained in paragraph 20 herein), is not of universal application, and can be pressed into service only in such cases where the plaintiff remains in possession of the property as its owner, and the document, (either it be a sale deed or a gift deed, or an adverse entry in the record of rights), on the basis whereof the defendant is threatening, and seeking to dispossess the plaintiff from the property, is ineffective on the rights of the plaintiff, and does not bind him in relation to the subject property, for such document being void ab initio, and thus a nullity, either for want of consideration, or on account of fraud and/or for lack of free, conscious and informed consent, and/or on account of the fact that the plaintiff was a minor, when the purported document, infringing his rights, was allegedly, prepared, or the adverse mutation effected. And thus when the plaintiff's main grievance is that his possession is being threatened by the defendants, and the essential claim be that he be accepted in possession, and the effective relief prayed for is an injunction restraining the defendants from dispossessing him, and such relief is neither under or dependent on the deed/instrument, or the entry in question, and the declaration sought in relation thereto is merely of an ancillary nature, the plaintiff may seek protection of the Court whenever threat to his possession occurs, and the time in such circumstances, shall be computed from the date the possession is threatened. The plaintiff may in such a case seek protection of his right to continue to possess the property so long his such right is subsisting, as there is no compulsion to approach the Court with regard to the instrument which is void ab initio and a nullity.
19. Certainly where the plaintiff is not bound by the document or if he is not claiming under, or on the basis thereof, the date of accrual of his right to sue shall not be relatable to the date of the document, or to J the date when the existence and/or the nature of the document came to the knowledge of the plaintiff.
20. To fully comprehend the above principle it would be beneficial to analyze the judgments referred by Mr. Aqil Awan on the point of limitation. Thus:
(i) In Mst. Izzat v. Allah Ditta (PLD 1981 SC 165) the appellant/plaintiff, on 09.06.1969, filed a suit against her husband the respondent/defendant, for a declaration that she was owner in possession of the suit land, that the registered sale deed dated 11.02.1958, purported to be by the appellant in favour of the respondent, was void and unlawful on account of fraud and lack of consideration, and thus was without any effect on her rights, and the mutation dated 19.05.1969, sanctioned on the basis of the said registered deed was illegal. Her case was that the respondent defrauded her into execution of the sale deed by misrepresenting to her that it was a special power of attorney. The respondent contradicted these allegations and also raised a plea of bar of limitation. The learned Trial Court held that the appellant continued to be in possession of the land.
It was also held that notwithstanding the respondent's plea that limitation was governed under Article 120 of Limitation Act and would commence from the date of registration of the sale deed (11.05.1958), the suit was within time, because the time would run against the plaintiff from 19.05.1969 when the defendant got sanctioned a mutation with the object of denial of possession and ownership to the plaintiff. On merits the learned Judge found it a case of clear fraud by a husband with his wife for which there was ample evidence. Accordingly, the decree was passed declaring the deed as void, and granting all the reliefs claimed by the plaintiff. The matter was ultimately brought before this Court. Leave to appeal was granted to consider that "the foundation of the petitioner's suit was fraud, and since fraud vitiates the most solemn transaction the petitioner was entitled to ignore the sale deed altogether, and rest contents with her title in the land particularly when she had remained in possession of the land throughout, notwithstanding the purported execution of the sale deed in favour of the respondent".
' It was observed that the plaint very clearly highlights the main grievance namely that the possession of the appellant was being threatened by the respondents and she wanted to protect it. So her essential claim was that she was to be accepted in possession, her main grievance was the unlawful design of the respondents, and the effective relief prayed for was permanent injunction and restraint against this design. In connection with all this she sought ancillary declaration that she was the real owner and that being so the mutation dated 19.05.1969, and the deed dated 11.02.1958 on which the mutation was based, were void and ineffective on account of fraud. Relying upon the case of Hamida Begum v. Murad Begum (PLD 1975 SC 624) it was held that there was however, no such compulsion to approach the Court with regard instruments which are void ab initio and thus nullity. In the light of this basic rule, it was further held that Article 91 would not be attracted if the substantial relief claimed by the plaint is not the cancellation of the instrument. And it is merely ancillary to some other substantial claim, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiffs right as "the principle is that if the plaintiff is not bound by the document, or if he is not claiming under the same, and the substantial relief prayed for by him is not the cancellation or setting aside of the instrument, then the suit is not governed by Article 91". It was found that the defendant had made her believe that she was executing a power of attorney, but in reality, on account of fraud practiced on her she had signed a sale deed and that the relief with respect to the registered deed, that it may be declared void, was only ancillary and that if the deed, as a matter of fact never affected her rights, the need for its being set aside would never arise. Thus, the date of the accrual of the cause of action would not be necessarily relatable to the date of the registered deed, or the knowledge of the plaintiff with regard to the fact that she has been defrauded. It was held that the cause of action in this behalf, in the case, accrued to the plaintiff- appellant, firstly on account of the effort made by the defendant to disturb the then existing status quo through the sanction of the mutation. The mutation was sanctioned on 19.05.1969. Therefore, this would be one relevant date of accrual of the cause of action and thereafter on every date when the respondent continued making claim against the plaintiffs right to possess the suit land, this Court thus set aside the impugned judgment, and restored the judgment and decree passed by the Trial Court.
(ii) In the case of Rehman v. Yara 2004 SCM R 1502 while the plaintiff, Yara was a minor, his mother transferred his rights in a certain land, through a mutation effected on 12.09.1923, in favour of the defendants 1-8, who, along with certain other land purchased by them from the deceased father of the plaintiff, through a sale deed dated 16.08.1966 sold the same to defendant No, 9, but the possession of the land was not delivered to the said defendants, as defendants Nos. 1-8 themselves never held its possession. The plaintiff, Yara on 19.05.1997 filed a suit for declaration to the effect that he was owner in possession of the said land, and that the defendants had no interest in the suit land, on the ground that the said sale deed was illegal and void. After framing of issues and recording evidence of the parties the Trial Court held that the transfer of the suit land in favour of defendants Nos. 1-8 was illegal and ineffective so far as the rights of the plaintiff were concerned, and decreed the suit accordingly. Appeal filed against the said judgment was accepted by the learned District Judge who reversed the findings of the Trial Court on material issues and dismissed the suit. In an appeal filed before the Lahore High Court the judgment of the first Appellate Court was set aside and the judgment and decree of the Trial Court was restored.
This Court, whilst, observing that since the suit was filed for declaration to the effect that the plaintiff, Yara was the owner in possession of the suit land and the defendants had no right or interest in the suit land, therefore, section 42 of the Specific Relief Act, and Article 120 of the Limitation Act would be applicable whereby a suit for declaration as to right or interest in immovable property could be filed within six years from the date the right to sue accrues to the plaintiff which would give him right to seek relief from the court of law that a right to sue had accrued to the respondent's predecessor-in-interest, Yara to whom, one week prior to the filing of the suit, the defendants in the suit, denied his right of ownership, and threatened his possession of the suit land, and since the suit was filed just after a week of the cause of action, therefore within the prescribed period of six years, and was not barred by time. It was further held that since the plaintiff, Yara was all along in possession of the suit land the suit would be covered by Article 120 of the Limitation Act, and in view of the facts that he was a minor at time the mutation entry in favour of defendants Nos. 1-8 was effected, and that no consideration was paid for the land transferred through the said entry, the purported transaction was thus void and inconsequential. The Court also held that the plaintiff was not essentially required to sue on the original/initial adverse entry, rather every denial of his right, and every subsequent adverse entry, and every threat to his right to possess the land, would have furnished him a fresh cause of action. The cause of action, therefore arose when the plaintiff felt-threat to his possession of the property and felt it necessary to approach the Court. It was further observed that in case the time is computed from the date of the sale deed dated 16.08.1966, the suit would still be within time.
(iii) In case of Fatima Moeen v. Additional District Judge, Sheikhupura (1992 SCM R 1199), the plaintiff's mother who was appointed her Guardian by a Guardian Judge, alienated the plaintiffs property in favour of Defendants 1-3, vide mutation dated 29.11.1973, who in turn sold the property to the other defendants through different deeds. The plaintiff-appellant went abroad for her higher studies and on her return in the year 1984 came to know of the alienation of her property. She thus, filed a suit for declaration that the original sale through the afore noted mutation, having been effected without permission of the Guardian Judge, and also not being for her benefit, or for any legal necessity, was void ab initio. A prayer for joint possession was also made. The defendants in their written statement, among others, raised the plea of limitation and sought rejection of the plaint under Order VII, Rule 11, C.P.C. They raised the same plea and sought such rejection through an application also. The application was dismissed by the Trial Court as being premature. A revision petition against the order was accepted and the plaint was rejected. Appellant's constitutional petition against the said order was dismissed. This Court observed that from the perusal of the provisions of Order VII, Rule 11, C.P.C. It is apparent that the Court can reject a plaint, if from the contents thereof it finds the suit to be barred by limitation, but did not find the contents of the plaint in that case, as calling for its rejection as sought by the defendants-respondents. It was observed that the plaintiff was a minor at the time of the original sale and was within her right to challenge the same on any ground available to her under law after attaining majority, and that though the period of limitation for a suit for declaration a six years from the accrual of cause of action, but every subsequent invasion on the plaintiff 's right afford fresh cause of action. It was further observed that the subsequent alienation by the original transferee took place within a period of six years from the institution of the suit. Moreover the plaintiff had also prayed for joint possession for which the period of limitation is twelve years, Which commences from the date when the possession of the defendants become adverse, and also the fact that there was no written deed evidencing the original transfer and whilst holding, that it was incumbent to examine as to whether it was necessary to seek cancellation of the mutation, and also to determine the age of the plaintiff and that the lower Courts could not have delved into the foregoing questions summarily, without framing of an issue and without allowing the parties to produce evidence thereon, allowed the appeal, upheld the order of the Trial Court and remanded back the case for decision according to law.
(iv) In the case of wali v. Akbar (1995 SCM R 284) a suit for declaration to the effect that the respondents-plaintiffs were owners in occupation of the suit land, and for permanent injunction restraining petitioners-defendants from interfering with their possession and proprietary rights, was filed by the respondents. It appears that the respondents-plaintiffs claimed that though they are/were the owners in physical possession of the suit land and that the parties were co-sharers, however, in the consolidation of land they were not given any land in lieu of their land which they have obtained through mutation dated 11th March 1918, and that mutation entry dated 05.02.1922 in favour of the petitioners-defendants, which resulted in the above deprivation of the respondents- plaintiffs were obtained by the petitioners-defendants behind the back of the respondents- plaintiffs, and in collusion with the revenue officials, through fraud and misrepresentation. The suit was decreed. The judgment and decree was however, set aside by the Appellate Court, which findings were reversed by the learned High Court in the second appeal and the judgment and decree of the Trial Court were restored. The matter then came up before this Court through a petition for leave to appeal. It was in the above back drop, and in view of the fact that the Trial Court and the High Court, both were of the view that the impugned mutation in question was in fact a result of fraud and of collusion between the petitioners-defendants and revenue officials, that this Court, on the point of the limitation held "that the starting point of limitation is the date when the right to sue accrues. The question, when a right to sue will accrue in a suit for declaration will, to a certain extent, depend upon the facts and circumstances of each case. A suit for declaration of title of the plaintiffs to a particular property is a subsisting right and the right to bring a declatory suit is a continuing right, so long as the right to the property itself is subsisting. The right to sue accrues when the right in respect of which the declaration is sought is denied or challenged by the defendants. The time starts running only when the rights are actually interfered with. In such cases, a fresh cause action would arise from the date of the last attack on the plaintiffs' right or denial thereof. Where the plaintiff is in possession more particularly as a co-sharer in the joint Khata, he is not bound to sue on every denial of his right. He can file a declaratory suit on his option, because every denial or invasion of his right will furnish him a fresh cause of action. In the instant case, the two Court below have concurrently found that despite entries to the contrary in the records of rights, the plaintiffs-respondents remained in physical possession of the suit land and that the parties were the co-sharers. We do not see any reason to disagree with the conclusion arrived at by the Courts below", and refused to grant leave to appeal.
(v) Mst. Gul Nisa v. Muhammad Arif (1996 SCM R 1239), in this case the parties had purchased vast tracts of land from the same owner, in mauza Aminabad Dalbadin. At the time of the purchase, the lands were not surveyed or measured, and were broadly described in terms of boundaries and not by numbers, as none was assigned. In the settlement that was effected in the year 1968, the subject land, measuring 8 Rods and 11 Polls, was assigned khasra number 995, and came to be recorded in the ownership and possession of respondents, and was described as Banjar Qadeem.
An earlier suit filed by the appellant to preempt sale of a land contiguous to the subject land, on the basis of his ownership and possession of the subject land, was compromised, in terms whereof the sale was undone, and the preferential right of appellant to acquire the land, if it was ever sold subsequently, was recognized. The dispute pertaining to the ownership of the subject land, that came to be resolved by the Court in the reported case, was that, according to the appellants, it was installation of a tube well in the subject land by the government' with the efforts of the appellant-plaintiffs, which prompted the respondents to claim the land on the basis of the settlement record. This happened in 1977. Becoming aware then of the incorrect entries in the revenue record,.. The appellant sought correction, but the Board of Revenue refused to comply, the appellants thus, filed a suit claiming ownership and possession of the subject land. The Trial Court framed several issues including an issue of limitation. But without going into the merits of the case dismissed the suit as being barred by limitation. It was held that the plaintiffs were not ignorant about the mutation in question at the time of the settlement, but they slept over their alleged rights and approached the Court after a lapse of 11/12 years. However, the first Appellate Court held the suit to be within time, whereas in the revision the High Court held that since it is not clear on the record as to who was in possession of the land when the suit was filed, therefore, no recurring cause of action was available to the respondents/plaintiffs. This Court, therefore, held that in order to resolve the controversy as to who was in possession of the land in question when the suit was instituted, the title and the nature of the land should have been determined, so that in case it is found that the land was Bangar Qadeem till the year 1977, the time when the appellants/plaintiffs became aware of the impugned entries, and the title is found to be of the appellant then possession over it also be held in their favour. However, if the title, on account of its purchase, is found to be of the respondents, then the possession of the land, being Bangar Qadeem, shall be assumed to be of the respondents. The Court observed that such an inquiry was necessary for determining the nature of the cause of action, the period of limitation available, and the rights of the parties in the property in dispute, and whilst, reiterating the well established principle of law that where a party is in possession of a property as its owner then a simple entry in the revenue record to the contrary would not necessarily require it to institute a suit and that it is only when positive threat to its possession and title occurs then it can institute the suit, remanded the case to the High Court for decision on merits altogether.
21. However, in the present case, as noted earlier also, the appellant's entire claim is based on the gift deed dated 10.04.1971, and the question of his exclusive ownership and right to exclusive possession depends solely on the said deed, therefore, the linchpin and the soul of the appellant's case is the gift deed, the same can therefore not be ignored for the purposes of computing the period of limitation. It is not a case where the defendants are admitting the plaintiff as the original owner, and are seeking to replace him on the basis of a void instrument and where the effective relief sought by the plaintiff is protection of his possession as the owner. On the contrary, it is the appellant who, for claiming exclusive ownership is relying solely on a document which is more than thirty eight years old. Furthermore the appellant being the brother of respondents Nos. 1 and 2 cannot claim to be in exclusive possession of the property, which, as per the revenue record is jointly owned by all three of them, and as laid down by this Court in the case of Ghulam Ali v.
Ghulam Sarwar Naqvi (PLD 1990 SC I), heir in exclusive possession has to be considered to be in constructive possession of the property on behalf of the other heirs also, and that possession of the brother thus would be taken to be the possession of his sisters, unless there is an express repudiation of the claim of the sisters by the brother, and therefore neither can the appellant seek to prevent the said respondents from taking over possession of their share of the land, nor has he in fact sought such relief, in fact he has not even alleged that his sisters are threatening to dispossess him from the land, nor has he expressed any such apprehension, and therefore, the instant case, being clearly distinguishable from the afore discussed cases, the same are of no avail to the appellant, and do not save his case from the bar of limitation.
22. As regards Mr. Awan's contention that the question of limitation being a mixed question of law and facts ought to have been decided after recording evidence, we may observe that it is only in cases where determination as to when the cause of action for the suit arose, is dependent upon a certain factor, situation, happening or occurrence, existence, extent and the nature whereof could only be ascertained after recording evidence, that the question of limitation needs to be determined after such evidence. However, where on the plain reading of L the plaint, as in the present case, it can be clearly seen that the suit is patently barred by limitation, no evidence is required. In fact to plead that a plaint cannot be rejected, for the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in Order VII, Rule 11 of the Code of Civil Procedure, which essentially requires the Court to reject the plaint which appears from its contents to be barred by limitation. The five judgments relied upon by the learned ASC for the appellant on question of recording evidence, listed at Sr. Nos. 3, and 5 to 8 in para 11 of this judgment, also are of no avail to the appellant. As in the case of Fatima Moeen, supra, where the plaintiff assailed the sale of her immovable property by her mother on the ground that at the time of the impugned sale she was a minor, the Court found it necessary to record evidence to determine the age of the plaintiff at the relevant time i,e, time of the impugned sale, as it was found incumbent to determine the age of the plaintiff and such determination in that case was not possible without framing an issue and without allowing the parties to produce evidence thereon. It may also be noted that in the said very case this Court has also observed that from the provisions of Order VII, Rule 11, C.P.C. It is apparent that the Court can reject a plaint if from the contents thereof it finds the suit to be barred by limitation. However, the plaint in that case by itself did not indicate so. Similarly in the case of Mst. Gul Nisa, supra, as discussed in para 20 above, it was found necessary to determine the nature of the land for deciding as to whether recurring cause of action was available to the plaintiff that this Court ordered decision of the case on merits altogether. Likewise in the case of Haji Abdul Sattar, supra, where the plaintiff had impugned issuance of PTDs in respect of her property in favour of the defendants on 9th January 1961 and 28th June 1963 through a suit filed on 30th March 1995, and for the purposes of limitation had pleaded that he came to know of the issuance of the impugned PTDs in another proceedings on 08.02.1999 only, this Court held that the issue of limitation involved therein was a mixed question of law and facts, and therefore the same cannot be decided without evidence and directed the Trial Court to decide the issue of limitation upon evidence produced by the parties. In Irshad Ali, supra, where the plaintiffs suit for rendition of accounts was dismissed after framing of a preliminary issue regarding limitation and after recording some evidence thereon, this Court, in view of the fact that the controversy as to whether the partnership between the parties had been dissolved on 30th June 1989, as alleged by the defendants, or was subsisting as claimed by the plaintiff, which had a direct bearing on the question of limitation, was not delved into by the Trial Court, whilst holding that a sound decision on the question of limitation was dependent on a well considered decision regarding the dissolution of partnership, upheld the decision of the High Court of remanding the case for framing an issue on the question of dissolution of partnership, recording evidence thereon and deciding the matter afresh. In the case of Muhammad Afzal, supra, this Court, in view of the fact that in holding that an appeal filed before the Divisional Canal Officer against an order of Sub- Divisional Canal Officer was barred by limitation, the two fora below had failed to take into consideration the time consumed for obtaining the copy of the order of Sub-Divisional Canal Officer, remanded the case for recording evidence on the question of limitation, for the reason that from the copy of the relevant order of the Sub-Divisional Canal Officer, it was apparent that the time beyond the prescribed period of limitation was in fact consumed in obtaining the copy of the order. It seems that recording of evidence was found necessary for the reason that the copy was of an order passed by a non-judicial forum and the certification/endorsement thereon did not carry the degree sanctity and authenticity as that of a court of law.
23. In view of the foregoing, we are of the firm view, that in the present case the Courts below had no option but to reject the plaint, we do not find any justification for interfering with the impugned judgment. The appeal is dismissed.