1. The captioned writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, qua a judgment and decree passed by learned Additional District Judge Muzaffarabad dated 02.03.2020 has been assailed.
2. The learned counsel for the petitioners reiterated the facts and grounds already taken in the writ petition by submitted that the learned Court below has miserably failed to understand the instant controversy by erroneously rejected the suit filed by petitioners. The learned advocate vehemently contended that only a civil Court has got jurisdictional competence to annul a sale deed, hence the learned trial Court was justified to observe that the said controversy can only be resolved after recording pro and contra evidence.
3. The learned counsel for the respondents supported the impugned judgment on all counts and requested for the dismissal of the instant writ petition.
4. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.
5. A perusal of record reveals that petitioners herein filed a suit for declaration cum perpetual injunction alongwith cancellation of sale deed dated 04.11.1989, gift deeds dated 23.07.2003 and 12.03.2014 on the ground that the same were based on fraud and cheating. The plaintiffs categorically mentioned in para 5 & 6 of the plaint that suit land has been awarded, Defendant No. 1 has received compensation and reference for enhancement of compensation is subjudice before Reference Judge. The plaintiffs did not take stance in the suit that he was not aware of award of land and how and when he came to know about the award of the land. The plaintiffs also failed to mention in the plaint that how and when they came to know about sale deed dated 04.11.1989 as well as gift deed dated 23.07.2003 and simply stated in para 10 of the plaint that they get knowledge about entire fraud on 25.03.2018. For taking advantage of Section 18 of the Limitation Act, party who approaches the Court after delay has to plead in the suit that how and when he came to know about the fraudulent transaction.
6. If the party fails to mention that how and when he came to know about fraudulent transaction then it would be deemed that he was aware of transaction from the date of its registration. Reliance may be placed on 2011 SCMR 222, wherein it has been held as under: "In the memo of plaint no averment was made as to how and when the disputed mutation first came to the knowledge of the appellants/plaintiffs except making a vague averment without any particular when and how the appellants came to know about the mutation of land in question in favour of the respondent and what steps were taken by them to protect their interest nor any particular has been given if the land in question was allotted to them when would they do to take possession of the same and why they kept quiet for a period of 28 years."
7. Furthermore, sale deed dated 04.11.1989 and gift deed dated 23.07.2003 have been assailed through suit filed on 18.04.2018 on the ground of fraud. The plaintiffs remained slumber for period of 15 years from the date of gift deed dated 23.07.2003 and about 29 years from the registration of sale deed dated 04.11.1989, hence, the suit was time barred. A document which is registered one cannot be deemed to have been concealed by a party in whose favour it is registered because registration of a document is a notice to general public regarding execution of such deed. Reliance may be placed on 1992 MLD 2111, wherein a bench of this Court has observed as under: "Even otherwise, the sale-deed has never been concealed by the respondents-defendants because the sale-deed was registered by the Sub-Registrar. Any document which contains certificate of registration from Sub-Registrar cannot be said to have been concealed by a party, because the registration is a notice to the General Public-at-large. The copy of any registered document can be obtained from the office of the Sub-Registrar."
8. It is also relevant to note that plaintiffs themselves mentioned in the plaint that land has been awarded and Defendant No. 1 has obtained compensation, filed reference for enhancement of compensation, hence, it would be deemed that firstly plaintiffs were in the knowledge of the impugned sale deed and gift deed at the time of their registration and secondly when the land was acquired through award dated 14.07.2008 but filed their suit on 18.04.2018, hence, the suit is time barred, thus, was liable to be rejected on the ground of limitation to the extent of sale deed dated 04.11.1989 and gift deed dated 23.07.2023.
9. The learned Additional District Judge rejected the suit solely on the ground that suit land has been awarded, hence, civil Court has got no jurisdictional competence to entertain a civil suit regarding the land which has already been acquired. The observations given by the Additional District Judge are not in line and consonance with the relevant law because plaintiffs have assailed the sale deed as well as gift deeds for the reason that only a civil Court can judge its validity and no other Court including Reference Judge has got any jurisdictional competence to entertain the said ticklish debate. The superior Courts while interpreting Section 31(2) of the Land Acquisition Act have held in various judgments that if a person concerned had no knowledge of the proceedings taken under the Land Acquisition Act, he may assail the same through a civil suit irrespective of the fact that a mechanism is provided in the special statute for that purpose but if he was aware of proceedings initiated under the said Act and had a chance to approach the relevant forum for redressal of his/her grievance but failed, then he cannot file a civil suit. Reliance may be placed on PLD 1986 AJK 100, wherein at page 104 it has been observed as under: "5. Section 31(2) further laid down that if a person interested in the compensation refused to consent to receive it or if there was no person competent to alienate the land or there was any dispute as to the title to receive the compensation or as the apportionment of it, the Collector was empowered to deposit the amount of compensation in the Court to which reference would be submitted. Proviso 3 under subsection (2) of Section 31 laid down that nothing herein contained shall effect the liability of any person, who may receive whole or any part of any compensation awarded under the act to pay the same to the person lawfully entitled thereto. The language used in this proviso, prima facie, enlarged the scope of remedy for an aggrieved person, including a right of civil suit. The provisions of proviso of Section 31(2) received attention of the superior Courts of Sub-Continent innumerably and the consensus was that whenever a person interested failed to avail the remedy provided under Section 18 of the act for want of notice or disability or other sufficient cause, he was not debarred to invoke jurisdiction of civil Court to seek his redress Likewise, a person who availed the remedy by reference but failed to achieve the intended object, was not permitted to turn round and file a civil suit for the satisfaction of his grievance. It appears that the legislature provided a double check to safeguard the rights and interests of true owners of the property. Therefore, keeping in view the rule of limitation applicable under Section 18 of the Act, it provided further safeguard in the shape of third proviso to Section 31(2), so that the owner of the property was able to seek his redress at any time on knowing detriment cause to him. The powers of civil Courts were, thus, kept open to an aggrieved person not having availed the remedy provided under Sections 18 and 30 of the Act."
10. Same view has been taken in PLD 1988 SC (AJK) 142 and at page 147 it has been observed as under: "The Scheme of the Land Acquisition Act clearly shows that any redress arising out of an award must be sought by the procedure provided by the Act itself, until and unless, of course, it is shown that the person concerned had no knowledge of the proceedings under Act or of the award and the period of limitation for moving the Collector in making a reference had expired due to no fault of such person."
11. If such situation arises the proper course for aggrieved person is to file a suit before civil Court to assail impugned sale-deed/gift-deed and also to approach Reference Judge to stay proceedings for enhancement of compensation till decision by civil Court. However, as stated earlier where the party aggrieved is aware of issuance of award cannot file suit regarding matters fall within the Ambit of special Act.
12. A perusal of record reveals that plaintiffs also assailed gift deed dated 12.03.2014 and took a particular stance in para 6 of the plaint that Defendant No. 1 in order to protect frauds committed by him has alienated his whole remaining share from other khewats to his sons, thus, gift deed dated 12.03.2014 and Mutation No. 1068 attested in furtherance of said gift deed are liable to be set- at naught. As the gift deed dated 12.03.2014 has been assailed by the plaintiffs within the prescribed period of limitation and question of award was also not involved to that extent, hence, the suit to the extent of gift deed dated 12.03.2014 was maintainable and was required to be decided after recording evidence of the parties, thus, rejection of suit to that extent by Additional District Judge Muzaffarabad is not defensible.
13. The crux and epitome of the above discussion is, the instant writ petition stands accepted partly, the impugned judgment and decree dated 02.03.2020 is set-aside to the extent of gift deed dated12.03.2014 and case to that extent is remanded to the trial Court for fresh decision after recording evidence of parties, however, the suit to the extent of sale deed dated 04.11.1989 and gift deed dated 23.07.2003 is rejected as being barred by limitation.