AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioners, who are defendants Nos,3 to 6 in a suit for declaration filed by the plaintiff / respondent No,1, have challenged the judgment and decree dated 22.11.2012, passed by the learned first appellate court/Additional District Judge, Mankera, whereby the appeal filed by respondent No,1/plaintiff was accepted and the, judgment and decree dated 30.09.2011, passed by the learned Civil Judge Ist Class, Mankera, dismissing the suit of the plaintiff/respondent No,1, was set aside.
2. I have heard the learned counsel for the parties at length and gone through the available record appended with this revision petition as well as the case law cited by the learned counsel for respondent No,1.
3. Respondent No,1/plaintiff, on 21.12.2008, filed a suit for declaration alleging that mutation No,975 in favour of defendants Nos,3 to 5 to the extent of land measuring 200 kanals and mutation No,977 in favour of defendant No,6 to the extent of land measuring 100 kanals, are incorrect to the extent of land measuring 50 kanals and 4 marlas, as a result of collusion of defendants Nos,1 and 2 with them, therefore, the same are liable to be cancelled.
Separate written statements were filed by defendant No,1, defendants Nos,3 to 5 and defendant No,6. The suit was contested. Issues were framed. The parties were directed to produce their evidence. Both the parties produced their respective evidence. The learned trial court/Civil Judge Ist Class, Mankera, dismissed the suit vide judgment and decree dated 30.09.2011, whereagainst an appeal was preferred by the plaintiff/ respondent No,1, which was accepted by the learned first appellate court/Additional District Judge, Mankera, vide judgment and decree dated 22.11.2012.
Hence, this civil revision.
4. I have gone through the plaint. The case pleaded by the plaintiff/ respondent No,1 is that one Chiragh son of Shah Muhammad was owner of land in question along with other land bearing Khata No,998, measuring 699 kanals and 12 marlas, situated in Mouza Karlu Wala, Tehsil Mankera, who sold the total land measuring 350 kanals through a consent decree dated 03.03.1982, i,e, land measuring 300 kanals, in favour of the plaintiff and land measuring 50 kanals in favour of defendant No,2, however, the remaining land measuring 249 kanals and 12 was with Charigh but defendant No,2 with the connivance of defendant No,1 got transferred the remaining land of Chiragh Shah in his favour and defendant No,2 subsequently transferred land measuring 100 kanals through mutation No,811, attested on 06.07.1987, in favour of Zafar etc., and also transferred land measuring 200 kanals through mutation No,975 in favour of defendants Nos,3 to 5 as well as through mutation No,977, land measuring 100 kanals in favour of defendant No,6. It is further pleaded by the plaintiff that the revenue officials with the connivance of defendant No,2 transferred 299 kanals 12 marlas land through mutation No,752 in favour of the plaintiff and defendant No,2 instead of 350 kanals and the reason was that the full sold land measuring 350 kanals cannot be transferred, which will break subsisting holding of the vendor from subsisting holding. The case of the plaintiff is that now it is a subsisting holding and the superior Courts have declared keeping the subsisting holding intact against the injunctions of Islam. Hence, the suit.
5. At the very outset, the learned counsel for respondent No,1/plaintiff was confronted that how he can defend the judgment and decree, passed by the learned first appellate court, when neither mutation No,752, attested on 29.01.1986 nor mutation No,881, attested on 06.07.1987 have been challenged nor the transferee of the said mutations, namely, Zafar etc. have been impleaded as defendants in the suit and further filing of the suit with a delay of more than 20 years, he explained while relying upon the cases of National Bank of Pakistan v. Emirates Bank International Ltd. and others (2004 CLD 1490), Messrs Chanar Sugar Mills Ltd. and others v. Collector (Sales Tax) and others (2006 SCM R 901) and Saddar Hussain through L. Rs, and others v. Dost Muhammad (2007 CLC 1349 [Lahore]).
6. It is not a case of the purchaser, prior and subsequent, when the alleged decree on the basis of which the plaintiff/respondent No,1 lodged his claim was implemented in the presence of the petitioners through mutation 752, dated 29.01.1986 and the plaintiff/respondent No,1 admitted his rights in accordance with the said mutation as it was attested on the basis of the applicable law at that time. Filing of a suit even without challenging the mutations in the suit after more than twenty(20) years is barred by time and no question remained and prior purchase is involved in this lis, therefore, the case law referred by the learned counsel for respondent No,1 is not applicable and helpful for him. When a suit was filed after more than 20 years of the attestation of mutation and that too even without challenging the said mutations, the suit was not competent. The maximum limitation provided for filing a suit for declaration under Article 120 of the Limitation Act is six years from the date when the right to sue accrues.
7. Needless to observe that a declaratory decree can declare preexisting rights but cannot create a new right. The plaintiff/respondent in order to prove the pre-existing rights, when he has not challenged the original mutations allegedly injuring the rights of the plaintiff/respondent No,1 i,e, mutation No,752 and neither he has impleaded Chiragh son of Shah Muhammad as defendant in the suit nor challenged mutation No,881 whereby defendant No,2 further alienated 100 kanals out of the suit property in favour of Zafar etc. and even Zafar etc. have also not been impleaded as defendants.
8. There is other defect that the transaction through which Chiragh has sold remaining property in favour of Lal-defendant No,2 has also not been challenged through the suit, therefore, the suit was not competent and the learned trial court has rightly dismissed the same. The findings recorded by the learned first appellate court are not only against the evidence available on the record as discussed supra but the same are against the principle of law settled by the superior Courts.
9. In this view of the matter, this civil revision is allowed, the impugned judgment and decree dated 22.11.2012, passed by the learned first appellate court/Additional District Judge, Mankera is set aside and the judgment and decree dated 30.09.2011, passed by the learned trial Court/ Civil Judge 1st Class, Mankera, is upheld and the suit stands dismissed with costs throughout.