SHAHID BILAL HASSAN J Perusal of order sheet reflects that in the instant revision petition pre- admission notice was ordered to be issued to the respondents on 02.05.2013. The respondents were represented by Mr. Muhammad Ishfaq Mughal, Advocate who submitted his power of attorney under Diary No.1018 dated 30.05.2013; however, despite fixation of case on 13.02.2015, 11.04.2017, 14.06.2021, 30.06.2021, 09.11.2021 and 19.01.2022 as well as today, none has entered appearance on behalf of the respondents, which shows their lack of interest in pursuing their case; thus, the instant revision petition is going to be decided after hearing learned counsel for the petitioner and going through the record.
2. Brief facts, giving rise to the instant revision petition, are as such that the petitioner instituted a suit for declaration and permanent injunction challenging the vires of registered sale deed No.300- 1 dated 03.04.1986 germane to land measuring 36-Kanals 9-Marlas situated at Mauza Chanda, Tehsil Shaiwal District Sargodha, by maintaining that the said sale deed was executed on the basis of fraud and the same is fictitious, having no effect upon the rights of the petitioner. It was further asserted that respondent(s)/defendant(s) Muhammad Ramzan (deceased) in connivance with the officials of Sub-Registrar got executed and registered the said document; that in fact the respondent(s)/defendant(s) was tenant and was paying share of produce; that when the defendant(s) started selling the trees, the petitioner tried to stop him and in response he disclosed the factum of alleged registered sale deed and mutation by stating that the petitioner has no concern whatsoever with the suit property; hence, the suit.
The suit was contested by the respondent(s)/defendant(s) while submitting written statement and raised factual as well as legal objections.
Out of divergent pleadings of the parties, the learned trial Court framed as many as (9) issues including "Relief". Both the parties adduced their evidence in pro and contra. The learned trial Court vide judgment and decree dated 12.01.2007 decreed the suit. An appeal was preferred which was accepted vide judgment dated 04.09.2008, the said decree was set aside and while framing additional issues, the case was remanded to the learned trial Court for decision afresh after recording evidence of the parties on additional issues and giving independent findings on issues No.3 to 8. After remand, the petitioner/ plaintiff did not produce additional evidence whereas the respondent(s)/defendant(s) produced D.W.3, D.W.4 and D.W.5 as well as submitted documentary evidence Ex.D2 to Ex.D10 and Mark-A. The learned trial Court, on conclusion, after hearing arguments decreed the suit in favour of the petitioner vide judgment and decree dated 27.09.2011.
The respondent(s)/ defendant(s) being aggrieved preferred an appeal and the learned appellate Court vide impugned judgment and decree dated 02.02.2013 accepted the appeal, set aside the above said judgment and decree and consequently dismissed suit of the petitioner/plaintiff, which has resulted in filing of the instant revision petition.
3. Heard.
4. It is an admitted fact that the suit for cancellation in the form of declaration of the disputed registered sale deed was instituted on 07.07.2001, which is after a lapse of almost 21 years; therefore, the same is not within the prescribed period of limitation of three years as required by Article 91 of the Limitation Act, 1908 or even 6 years as prescribed under Article 120 of the Act ibid. No explanation whatsoever has been provided by the petitioner for the delay in filing the suit before the trial court despite not being in possession of the suit property. Furthermore, the petitioner despite being not in possession of the disputed property has failed to claim relief of possession in her plaint, which is fatal for her cause as has been held in judgment reported as Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 Supreme Court 167) by Apex Court of the country that:- "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".
Even earlier, in judgment reported as Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) it has invariably been 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."
The act of the petitioner of allowing the respondent(s) to remain in possession of the suit property attracts the principle of 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, because she could not bring on record anything showing that the share of produce used to be paid to her by the respondent(s).
5. Another aspect in this case is that petitioner in her plaint stated that the disputed registered sale deed was got attested by the respondent(s) in his favour in connivance with revenue officials, however, no revenue officials were impleaded or arrayed as defendants by the petitioner in the suit. In a case reported as Sikandar Hayat and another v. Sughran Bibi and 6 others (2020 SCMR 214) it has been held by the Apex Court of the country 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."
The principle of regularity available under Article 129(e) of the Qanun-e-Shahadat Order, 1984 is attached to the registered sale deed in question as the same was executed and attested by officials in performance of their regular duty. Though, the same is rebuttable but the plaintiff has absolutely failed to rebut the presumption attached to it. In the case in hand the petitioner has not only failed to implead revenue officials as party to the suit but has also failed to bring evidence with regards to alleged connivance of revenue officials in respect of registered sale deed.
Therefore, there was nothing before the Court in the shape of evidence or documents to overlook the act of not impleading the revenue officials.
In addition to the above, the petitioner has not denied her thumb impression on the disputed sale deed and even did not move any application seeking comparison of the same with the admitted one. She has only relied upon her solitary statement and no independent witness has been produced in this regard. Moreover, mere assertion of fraud and misrepresentation is not sufficient but the same has to be proved by the person who asserts as such. Order VI, Rule 4 of the Code of Civil Procedure, 1908 postulates that, In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items necessary) shall be stated in the pleadings.?
But in the present case, the petitioner could not substantiate the stance taken up by her and could not chain the links of alleged fraud played against her. As against this, the respondent(s) by producing the marginal witnesses and identifier as D.W.2 to D.W.5 has successfully fulfilled the requirement of Article 17 and 79 of the Qanun-e-Shahadat, 1984.
6. Apart from the above, it has also been admitted by the petitioner that she earlier instituted a suit on the same subject matter, which was dismissed for non-prosecution, copy of which was produced by the respondent(s) as Ex.D2; thus, in such scenario, the present suit was barred under Order II, Rule 2 and Order IX, Rule 9(1), Code of Civil Procedure, 1908, which enunciates:- "9. Decree against plaintiff by default bars fresh suit.--(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit."
7. In view of the above, it can safely be held that the trial court has blatantly failed to adjudicate upon the matter in hand in consonance with law on the subject. On the other hand the approach of the learned appellate court is upto the dexterity and as per law of the land and ratio of the judgments rendered by the Apex Court as well as High Courts.
8. Pursuant to the above, the findings recorded by the learned appellate court are based on proper appreciation of evidence as well as law on the subject and do not call for any interference. No illegality and irregularity has been found to have been committed by the learned appellate Court warranting interference by this Court in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908. Even otherwise, it is a settled principle, by now, that in case of inconsistency between the findings of the learned Trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary as has been held in judgments reported as Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).
9. Compendium of the discussion above is that the revision petition in hand comes to naught and hence, the same is hereby dismissed with no order as to the costs.