MUHAMMAD SHAN GUL J. Through this judgment the titled civil revision is sought to be decided.
2. The petitioner/plaintiff has filed the instant civil revision against the judgment and decree dated 27.02.2017 passed by an Additional District Judge by virtue of which judgment and decree dated 18.04.2016 passed by a civil judge was reversed.
3. The brief facts of case are that the petitioner filed a suit for declaration alongwith cancellation of mutation of suit property bearing mutation No.98, khata No.110, measuring 7 Marlas, situated at Mouza Mond, Tehsil and District Muzaffargarh on the ground that the property in question was inherited by her from her real father namely Allah Ditta which was later sold in favour of her real brother/respondent Muhammad Qasim, through sale mutation No.98 dated 26.06.1990. She claimed that being an illiterate and Pardanasheen lady she never sold the property through the disputed mutation and the same resulted out of fraud and misrepresentation and thus the mutation in question ought to be set-aside. On the other hand, the respondent duly appeared in the trial court and filed written statement controverting the allegations raising preliminary objections about the suit being barred by limitation and averring that the petitioner had willingly sold the suit property to him after receiving consideration and which property had now been sold to another brother of the competing parties, Muhammad Hashim, who is in possession of the same having constructed a house upon it and thus the suit was liable to be dismissed.
4. The learned trial court framed seven issues. Both parties led evidence and the learned trial court vide judgment and decree dated 18.04.2016 decreed the suit of the petitioner.
Issues:
1. Whether the mutation No.98 dated 26.06.1990 was issued against facts/law, void, in-operative upon the rights of plaintiff? OPP
2. Whether the plaintiff had not duly affixed thumb impression on the Revenue record and mutation No.98 dated 26.06.1990 is based on fraud? OPP
3. Whether the instant suit is time barred? OPD
4. Whether the plaintiff has no cause of action/locus-standi to file the present suit? OPD
5. Whether the plaintiff had voluntarily issued mutation No.98 dated 26.06.1990 in presence of witnesses before the Revenue Officer? OPD
6. Whether the instant suit if false, vexatious and frivolous and is liable to be dismissed with special costs under section 35-A Code of Civil Procedure, 1908 C? OPD
7. Relief?
5. Aggrieved of the judgment and decree dated 18.04.2016 passed by the trial court, the respondent filed an appeal before an Additional District Judge which was accepted vide judgment and decree dated 27.02.2017 and suit of the petitioner was dismissed.
6. The basic issues which require consideration of this Court are issue No.1, 2 and 3. It is an admitted fact that the petitioner is a Pardanasheen and an illiterate lady who gained the suit property from the inheritance of her late father. It has been duly admitted by the petitioner in her oral evidence that the possession of the suit property was delivered to her at the time of sanctioning of mutation of inheritance in her favour i.e mutation No.4 dated 29.04.1989. It has been further stated in the oral evidence by the petitioner that after some time of obtaining possession, the respondent forcefully took possession from her and dispossessed her. This fact clearly shows that the case in hand does not relate to deprivation of the petitioner from the inheritance of her late father since the mutation of inheritance was sanctioned in her favour and possession was delivered to her rather this is a case of denying the subsequent sale of property by her through mutation No.98 dated 26.06.1990 and hence the case law relied upon by the trial court treating it as a case of depriving a Pardanasheen lady from her inheritable property is indeed not applicable and hence distinguishable.
7. It is also an admitted fact that the suit for cancellation of the disputed mutation was filed on 06.04.2013, which is after a lapse of almost 23 years, and hence not within the prescribed period of limitation of three years as laid down in Article 91 of the Limitation Act 1908 or even 6 years as prescribed under Article 120. No explanation whatsoever has been provided by the petitioner for the delay in filing the suit before the trial court despite being not in possession of the suit property and having been allegedly forcefully dispossessed from the same by the respondent. Moreover, as admitted by the petitioner, she was kicked out of possession of the suit property by the respondent, however, she failed to disclose the exact date of alleged dispossession. Furthermore, the petitioner despite being not in possession of the property in question failed to seek possession of the property even from the trial court. This by itself is fatal!
8. In the case reported as "Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167) the Honorable Apex Court has held "It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali's case the Court recognized that there could be exceptional circumstances wherein even in a suit based on inheritance the issue of limitation may become relevant. This Court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintiff in suits of inheritance. In "Mst. Phaphan through L.Rs. v.
Muhammad Bakhsh and others" (2005 SCMR 1278) a suit for declaration and possession was filed in 1983 by the plaintiff/petitioner claiming to be the owner of inherited property. The suit was held to be barred by time wherein mutations of the year 1959 and 1967 were challenged in the year 1983 when the plea of the defendants was that the plaintiffs had alienated the property of her own free- will. The plaintiff's plea of being Pardanasheen lady and reliance on the case of Ghulam Ali was not accepted as the plaintiff was found to have remained in deep slumber for 24 years despite the fact that the physical possession of the land was passed on to the defendant. Recently in the case of "Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs" (PLD 2011 SC 657) this Court had set aside concurrent findings of three Courts and dismissed the suit filed on 13-5-1970, where the plaintiff had challenged inheritance mutation of 13-2-1947; the Court held it to be barred by time".
9. The rationale of the law of limitation has been reiterated in "Atta Muhammad v. Maula Bakhsh and others" (2007 SCMR 1446) where concurrent findings of three Courts were set aside and the suit filed by the respondents/plaintiffs in the year 1988 questioning an inheritance mutation of 1942 was declared to be barred by time. The Court held:-- "The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence.
There have been cases where even in a claim for inheritance law of limitation was applied."
10. The Respondent has clearly stated in his oral evidence that the suit property consists of residential houses in which her real brother Muhammad Hashim who is now owner of the property is residing. The conduct of the petitioner becomes relevant and material when the bar of time limitation is pleaded by the adversary. The act of the petitioner of allowing the respondent or her other brother to remain in possession of the suit property demonstrates acquiescence on her part in the respondent's title to the suit property thereby allowing him to deal with it as exclusive owner and for developing it at his own expense over a period of time while within the knowledge of the plaintiff.
11. There is an additional factor present in the matter and which is that petitioner in paragraph No.2 of the plaint stated that the disputed mutation was got attested by the respondent in his favour while acting in connivance with revenue officials yet no revenue officials were arrayed as defendants by the petitioner in the suit filed by her. In the case reported as "Sikandar Hayat and another v. Sughran Bibi and 6 others" (2020 SCMR 214) it has been held by the Honorable Apex Court that "We are clear in our mind that when it is pleaded in a suit that with the connivance of the revenue officials any mutation was got attested and the same is challenged through a civil suit, the Province of the Punjab as well as revenue officials against whom such connivance for attestation of the mutation is alleged, are a necessary party in such suit. The reason is that when anyone alleges connivance of the said officials of Revenue Department with the Defendants of the Suit for getting a mutation attested, without participation of the said party, no valid adjudication can be carried out against the said party and no finding can be recorded against them in their absence." It was further held that "The Plaintiffs challenged the attestation of mutation, which was subsequently incorporated in the Revenue Record by a father in favour of his minor son. The principle of regularity available under Article 129(e) of the Qanun-e-Shahadat Order, 1984 is attached to the impugned mutation as the same was entered and attested by officials in performance of their regular duty. Though, the same is rebuttable but the Plaintiffs absolutely failed to rebut the presumption attached to the impugned mutation therefore the Plaintiffs failed to prove the fact that the suit property was in the ownership of their propositus, therefore, it is not a case of dispute of inheritance, therefore, case law cited by them is not helpful to them, their suit was barred by time."
12. In the case in hand the petitioner not only failed to implead revenue officials as party to the suit but also failed to bring evidence with regard to alleged connivance of revenue officials in sanctioning and attestation of the alleged mutation. Hence there was nothing before the Court in the shape of evidence or documents to condone the act of not impleading revenue officials or for that matter to rely on "Ghulam Muhammad v. Zohran Bibi and others" (2021 SCMR 19) and proceed with the suit as filed.
13. Interestingly the petitioner has not denied her thumb impression on the disputed mutation and has rather stated that her thumb impression was obtained by the respondent on some papers on the pretex of obtaining financial aid in terms of Zakat for her. On the other hand, it has been stated by the petitioner in her cross examination that her thumb impression was obtained on blank papers. Interestingly no evidence whatsoever has been led by the petitioner with regard to receiving of Zakat or about any efforts made by her in finding out about the actual truth.
14. In view of what has been discussed in the preceding narrative the trial court was clearly in error in treating the matter as being laden with inheritance overtones. It is therefore that the trial court did not properly advert to the question of limitation.
15. On the other hand the approach of the learned appellate court is quite correct and in sync with the law laid down by the Honorable Apex Court as also this Court. The appellate court has rightly noted that even as per her own contention, evident from her cross examination, the petitioner knew about the possession of the suit property changing hands from the respondent to one Muhammad Hashim on 30.04.1997. The said Muhammad Hashim having raised construction of his residence on the suit property. Even if this benchmark is used for gauging limitation even then the suit of the petitioner was barred by time having been filed after sixteen years from the date of knowledge!
16. In the case reported as "Mst. Ghulam Fatima v. Muhammad Khan through L.Rs. and 4 others"
(2017 YLR 23) it has been lucidly held that "where a plaintiff failed to cross the hurdle of limitation there was no need to dilate upon the matter any further". Hence the question of proving or disproving the mutation in question loses its relevance in the peculiar facts and circumstances of the instant case.
17. In "Muhammad Sharif (deceased) through LRs. and others v. Province of Punjab through District Collector Layya h and 10 others" (2017 YLR 794) it has been held as follows at paragraph No.16: "It is also pertinent to mention that the disputed sale deeds were attested on 02.10.1961, 10.10.1974 and 02.03.1976 whereas the suit in hand was filed on 10.01.1989, which was badly time barred as the limitation for filing such a suit was only six years as provided under Article 120 of the Limitation Act, 1908. The limitation provided by the Statute to perform any action or agitate the remedy within the specified period is not a mere technicality, but it is a mandatory statutory provision and treating it as a formality would tantamount to declare the entire Limitation Act, 1908 redundant the object whereof is to help the vigilant and not the indolent. The availing of remedy by the aggrieved party beyond the period of limitation prescribed, therefore, by the Statute creates a valuable right in favour of the opposite party. In such an eventuality delay of each and every day has to be explained by the defaulting party to the satisfaction of the Court, which cannot be condoned as a matter of right in routine, but arbitrary exercise of discretion would cause serious prejudice to the opposite party. In "Manzoor Afzal Pasha and another v. DHA, Karachi and another" (2008 SCMR 877) the suit was filed after the lapse of more than thirteen years and the plaint was rejected by invoking the provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908."
18. However, what clinches the matter is the case reported as "Muhammad Rafique and another v.
Syed Warand Ali Shah and others" (2021 SCMR 1068) in which it has been held at paragraph No.7 as follows: "the suit was not only barred by time but the long silence of the plaintiff during the continuous change of hands of property through sale, gifts, its acquisition and construction and no objection was raised by the plaintiff for a long period of time speaks volumes about her acquiescence in the matter".
19. Furthermore in "Shamshad Ali v. Khan Muhammad and 2 others" (2016 YLR 356) it has been held as follows at paragraph No.6 of the judgment: "As per argument of learned counsel for the petitioner fraud has been committed by the defendants with the connivance of the revenue officials who entered and attested the mutation. I have noticed that if any person claims that any transaction is fraudulent, he is required to plead fraud specifically and prove the same by producing concrete, convincing and reliable evidence.
The basic thing in the suit was that plaintiff was to satisfy on the point of limitation only then the principle of shifting of onus would have come into picture if valid filing of suit within the prescribed period of limitation was proved by the plaintiff-petitioner, therefore, important question in this case is of limitation when the mutation attested on 14.1.1986 has been challenged through a suit filed on 13.3.1996. When period of limitation provided under Article 120 of the Limitation Act, 1908 has been provided six years when the right to sue accrues and this suit has been filed more than four years after the prescribed period of limitation, plaintiff was required to plead grounds for exemption from limitation law in accordance with Order VII Rule 6 of C.P.C. Even I have noticed that no detailed pleadings with regard to commission of fraud have been mentioned, which were necessary under the law and further no ground for exemption from limitation law has been pleaded in accordance with Order VII Rule 6 of the C.P.C, therefore, petitioner-plaintiff was not entitled for exemption from period of limitation."
20. In this view of the matter, the findings recorded by the appellate court are unexceptionable and call for no interference. The decision in appeal is unexceptionable since it doesn't suffer from any illegality, procedural impropriety or erroneous exercise of jurisdiction.
21. Dismissed.