Through the captioned appeal, validity of judgment and decree of District Judge, Bhimber dated 27.02.2015, has been called in question, whereby, the learned District Judge, while dealing with the appeal of respondents herein allowed the same and setting aside the judgment and decree of Civil Judge, Samahni dated 16.11.2006, suit of the appellants herein-plaintiffs was ordered to be dismissed.
Succinctly, the facts giving rise to the appeal in hand are that initially appellants herein-plaintiffs filed a suit of declaration cum cancellation of Mutation No. 43 in the Court of Civil Judge, Samahni, claiming therein, that one "Salfoo" was real brother of their grandfather and after death of said Saifoo, the inheritance of "Saifoo" was also to be devolved in favor of plaintiffs but defendant No. 1, Noor Ali, claiming himself a sole legal heir of the Saifoo, succeeded to record the mutation of inheritance of deceased in his favor in favor of daughter of deceased by excluding the plaintiffs and subsequently, a piece of land measuring 10 kanals 08 marlas was alienated in favor of defendant No. 2 through a gift deed, hence, Mutation No. 43 and gift deed dated 07.11.1977 to the extent to share of plaintiffs are liable to be revoked.
Defendants/respondents herein resisted the suit and while filing their written statement, the claim of plaintiffs was refuted in toto on legal and factual grounds as well.
Out of divergent claims of the parties, the learned trial Court framed as many as 11 issues.
It is worth mentioning that during the pendency of said suit "Mastou Begum" also filed a suit of recovery of suit land against respondents herein, which on conclusion of trial was dimissed and the parties to the said suit have not challenged the said judgment of trial Court, hence, it deems appropriate that dispute between the parties before the Court be addressed.
The learned trial Judge after recording evidence of the parties decreed the suit, whereby, the appellants herein-plaintiffs, Noor Hussain and others were declared entitled to obtain their legal share out of inheritance of "Saifoo" and the Mutation No. 43 and gift deed dated 07.11.1977 and mutation sanctioned in pursuance of gift deed were ordered to be revoked vide judgment and decree date 16.11.2006.
Dissatisfied form the aforesaid judgment and decree, respondents herein assailed the same before. District Judge, Bhimber, who after hearing the learned counsel for parties, while setting aside the judgment and decree of Civil Judge dated 16.11.2006 has dismissed the suit of plaintiffs- appellants herein vide judgment and decree impugned herein dated 27.02.2015, hence, this appeal.
Arguments heard.
The learned counsel representing the appellants herein submitted that in the light of record available at the file, it is proved that appellants herein were also entitled to be devolved, the inheritance of "Saifoo" but the Mutation No. 43 pertaining to inheritance of "Saifoo" was got sanctioned by excluding the plaintiffs from the list of legal heirs of deceased, hence, plaintiffs brought a suit before Civil Judge Samahni, who decreed the suit accordingly but in appeal, the learned District Judge has non suited the plaintiffs, mere on the ground of limitation. The learned counsel maintained that as soon as a person dies, his legal heirs forthwith become the sharer in the estate of deceased, hence, no question of limitation in the matter of inheritance involves, therefore, while allowing the appeal, judgment and decree of trial Court is solicited to be restored.
In support of his contention, the learned counsel referred to and relied upon case law reported as under:
3. 1991 CLC 1331.
In a case law reported as "1991 CLC 1331" in the Matter of co-sharer, it is opined that plaintiff, being a co-sharer, in joint land, her suit in default of clear evidence, could not be found to suffer from the bar of limitation.
So far as the other case law reported as 2005 YLR 1324 is concerned, the same does not support the contention of learned counsel for appellants as the same speaks as "the Mutation No. 545 of original owner late "Ismail" was sanctioned in favor of legal heirs on 09.06.1952. The petitioners filed the suit for challenging the vires of mutation of inheritance by filing the suit, out of which, present revision arises on 02.01.1994, therefore, First Appellate Court was justified to hold that suit of petitioners-plaintiffs was time barred.
Conversely, the learned counsel appearing for the respondents herein while defending the judgment impugned herein argued with vehemence that admittedly Noor All was an adopted son of "Saifoo" and the plaintiffs claiming the share from inheritance of "Saifoo". participated in the matter of sanctioning of Mutation No. 43, in the year 1955. It is claimed that prior to suit in hand, at the instance of appellants herien, "Lal Begum" filed a suit which was got dismissed, moreover, it is an admitted position, that defendants obtained proprietary rights under the agricultural reforms law and for which Mutation No. 108 was sanctioned and at the occasion of sanctioning of said mutation, plaintiffs appellants herein submitted their objections but they failed to achieve their purpose but now after elapsing a period consisting of decades have filed the instant suit, which being hopelessly time bared has lightly been ordered to be dismissed by the learned District Judge, hence, the appeal in hand, being devoid of substance is liable to be dismissed. In support of his contention, the learned counsel refereed to and relied upon the following case law:
1. PLJ 2007 Lahore 380,
2. 1985 SCMR 1218,
3. 2007 SCMR 1446,
4. 1993 SCR 44,
5. PLJ 2005 Karachi 75, In a case law reported as "PLJ 2007 Lahore 380" regarding question of limitation, it is observed that suit brought beyond the period of six years was barred by way of limitation and was not protected on principle that in inheritance cases there is no period of litigation.
In a case law reported as 1985 SCMR 1218, while dealing with this plea of limitation taken on behalf of "grandson at belated stage, that limitation starts after petitioners had acquired knowledge of mutation, was repelled on the ground that predecessor in interest-father of petitioners, having knowledge of mutation and even having objected to sanction of said mutation, the limitation starts running from the date of which, it was sanctioned and ultimately, it was observed that suit has rightly been dismissed.
In a case law reported as "2007 SCMR 1446", where mutation of inheritance attested in the year 1942 was assailed by plaintiff in the year 1988 and trial Court and First Appellate Court concurrently dismissed the suit and appeal on the basis of limitation but the High Court decreed the suit, it is observed that there was no justification, factual or legal to overlook the delay of 46 years existed in assailing the mutation of inheritance by filing the suit as such delay adversely reflected on the bonafide claim of plaintiffs and it was declared that suit was rightly dismissed and ultimately judgment and decree passed by High Court was set aside and that of First Appellate Court and trial Courts were restored.
In a case law repotted as 1993 SCR 44, it is observed that if a suit, appeal or other cause is brought beyond limitation, it is for the party seeking the relief to allege and prove the suit or Appeal etc. has been filed within period of limitation. If prima facie, any such proceedings are time barred, the ground for exemption must be stated in the plaint or appeal.
In a case law reported as PLJ 2005 Karachi 75, it is observed the where provisions of limitation Act, 1908 do not apply, the principle of lathes would play a role.
Having heard the arguments of both sides, I have also gone through the record with the assistance of esteemed Precedents referred to hereinabove with utmost muse and Consideration.
Admittedly, the appellants herein challenged the mutation regarding inheritance bearing No. 43, sanctioned on 19.07.1955 before Civil Judge in the year 2006 and the learned Civil Judge while dealing with the question of filing of suit "beyond limitation" observed that in the matter of inherited property, the law of imitation does not attract, whereas, the learned District Judge, while allowing the appeal in hand. disagreeing with the findings of learned trial Judge regarding question of limitation is of the view that predecessor of plaintiffs participated in the matter of sanctioning of said Mutation No. 43 and subsequently, the plaintiffs challenged the mutation sanctioned under the land Reforms laws but the Mutation No. 108 sanctioned in the light of said proceedings regarding alienation of proprietary rights and having the knowledge of mutation from day one they filed the suit beyond period of limitation, so, their suit suffers from bar of Limitation.
In the light of afore-narrated situation, main question which needs deliberation is as to whether the limitation in the matter in hand is applicable or not and whether the Suit of the appellants is within time or not ?
So far as, this question that regarding the matter of inheritance "no limitation applies", is concerned, to my mind, said argument is based on misconception, as admittedly, no specific provision in Limitation Act dealing with the matter of inheritance is provided but it does not mean that where for a certain matter, no limitation is provided. There will be no bar of limitation for filing the suit of declaration rather the nature of dispute in terms of declaratory and cancellation of different instruments is to be looked into and in this regard, guidance from the judgments of apex Court can be gathered and regarding the matter in hand, a judgment of Hon'ble apex Court of Pakistan authored by Hon'ble Justice Mr. Syed Mansoor Ali Shah reported as "2023 SC 362" regarding matter of limitation pertaining to dispute of inheritance may be helpful as in the said judgment, it is observed that "as per the residuary Article 120 of Schedule I of the limitation Act, 1908, the suit for which no period of limitation is provided elsewhere in schedule, the period of limitation for that suit is six year form the time when the right to sue accrues. It is further observed that "no specific article of schedule I of limitation Act, 1908 provides a period of limitation for suit instituted by person under Section 42 of the Specific Relief Act, 1877, for declaration of his ownership, rights to any property against a person denying his said right, the residuary Article 120 applies to such suit. It is further observed that "suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in inheritance, against his brother, who denies her right is thus governed by the provisions of Article 120 of Limitation Act, 1908".
From the aforesaid dictum laid down by the Hon'ble Supreme Court, it is abundant clear that though no provision for declaration of right in inherited property, is provided in the Limitation Act but suits of such nature may be governed by Article 120 of Limitation Act, which provides period of six years for filing the suit. Furthermore, the judgments referred to on behalf of learned counsel for the respondents also speak regarding proposition of similar nature, so, it can safely be observed that the arguments of no limitation for filing suit of declaration on the basis of inheritance, being misconceived is repelled.
Now we advert to the question as to whether the plaintiffs-appellants herein filed a suit within prescribed period of limitation or not?
From the perusal of contents of plaint, it reflects that in para No. 4 of the plaint, it is claimed that plaintiffs remained unaware regarding the proceedings of sanctioning of Mutation No. 43 and gift deed dated 07.11.1977 and mutation in pursuance of gift deed and now after obtaining copies of record, they have come to know that defendant No. 1 has snatched the share of plaintiffs, so, plaintiffs stand entitled to be awarded the condonation of delay.
From the perusal of documentary and verbal evidence, adduced on behalf of parties, it reflects that "saifoo's status in the revenue record was recorded as "Mouroos" of sub section (4) of Section 4, who died in the year 1954, whereupon, mutation bearing No. 43 was sanctioned in favor of Noor Ali and Lal Begum with the proportion of equal shares. In the year 1961, Lal Begum and Noor Ali for the purpose of proprietary rights under Agricultural Reforms Act, prepared a file bearing No. 467 and deposited the requisite amount in the treasury, pursuance of which, Mutation No. 108, was sanctioned in their favor.
It is an admitted position that at the time of sanctioning of Mutation No. 108, on behalf of appellants herein plaintiffs objections were filed but their claim was declined and said mutation remained intact and no further appeal, revision, or review etc. was field before the proper for a on behalf of appellants herein.
Form the aforesaid situation, it stands crystal clear that while challenging the Mutation No. 108, they were quite aware of Mutation No. 43, pertaining to alienation of inheritance of Saifoo, as being claiming themselves the possessor on the basis of said Mutation No. 43, Noor Ali and Lal Begum preferred the application for obtaining proprietary rights of land devolved in their favor vide Mutation No. 43, but despite of having knowledge of said mutation, appellants herein-plaintiffs remained mum, approximately more than 40 years, so, it stands proved that predecessors in interest of plaintiff's, challenged the subsequent mutation regarding granting of proprietary rights but did not challenge the Mutation No. 43 which was the base of subsequent Mutation No. 108 and remained mum, so, this claim of plaintiffs taken the plaint that "they have acquired knowledge on receiving copies of record, being against the evidence and record" available at the file is declined and it is observed that plaintiffs failed to file a suit within prescribed period of limitation, hence, learned First Appellate Court, while dealing with the question of limitation has recorded its findings quite in a legal fashion, which being consonance with law and evidence are concurred with.
The epitome of the above discussion is that appeal in hand, being devoid of substance is hereby dismissed with no order as to the costs.