Muhammad Hafeez vs Muhammad Ramzan & 17 others

KHALID ISHAQ, J: Through this Constitutional Petition, the petitioner has called into question the Order and Decree dated 24.12.2018 (the "Impugned Decree") passed by learned Addl. District Judge, Shahkot, District Nankana Sahib ("Revisional Court").

2. Brief facts leading to the filing of this petition are that the Petitioner/Plaintiff along-with Mst. Ishrat Bibi (respondent No.16 in this petition) filed a suit for declaration and Permanent Injunction (the "Suit") challenging the registered gift deed bearing Document No. 6231 dated 03.09.1981 ("Impugned Gift Deed") executed in favour of respondent Nos. 7 to 10 by Elahi Bakhsh ("Original Owner") (maternal grand-father of the Petitioner/Plaintiff) in respect of two parcels of land^[1], measuring 34- Kanals, 9-Marlas & 6-Kanals, 14- Marlas, situated in Nizampura Chak No. 38/R.B Deva Singhwala Tehsil Shahkot District Nankana-Sahib (the "Suit Property"). Plaint avers that the Original Owner was an old age bed ridden person who remained ill for a long time before his death and had lost normal prudence due to protracted illness. It was asserted by the Plaintiffs that respondent Nos. 7 to 10, in connivance with the revenue staff, got registered the Impugned Gift Deed in their favour by depriving Mst. Safia Bibi (real sister of the respondent Nos. 7 to 10) of her due legal share. Needless to add that mutation No. 957 dated 24.01.1982 was also sanctioned on the basis of Impugned Gift Deed. It was contended that above-mentioned respondent Nos. 7 to 10 further sold out the land to Respondent Nos. 1 to 6 through registered Sale Deeds bearing Document No. 2545 dated 18.03.1984 and Document No. 2544 dated 18.03.1984 ("Registered Sale Deeds"). Mutations bearing Nos. 1441 dated 24.09.1988 and 1442 dated 24.09.1984 respectively were also sanctioned on the basis of Registered Sale Deeds. As per the averments of the plaint, the Petitioner contacted the beneficial owners/respondents for his inheritance but in vain. Contesting Defendants filed written statement and supported the Impugned Gift Deed, as well as, Registered Sale Deeds executed and registered thereafter. During the proceedings of the Suit, contesting defendants also filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 ("C.P.C") which was disposed of by learned Civil Judge Class-I, Shahkot ("Trial Court") vide order dated 08.07.2017 ("Trial Court Order"), erroneously treating the Suit inter-se the co-owners, completely ignoring the 3rd party rights and questions of waiver, acquiescence and limitation.

Being aggrieved of the Trial Court Order, the contesting respondents preferred a Civil Revision Petition in terms of Section 115 of the C.P.C, which was allowed vide the Impugned Decree, consequently the plaint was rejected under Order VII Rule 11 of the C.P.C being barred by limitation.

Hence this Constitutional Petition.

3. Leaned counsel for the Petitioner argued that question of limitation is irrelevant in inheritance claims and if right of a legal heir is accrued, all subsequent transactions, denying that right, are liable to be cancelled. Further submits with vehemence that it was a matter of recording of evidence as limitation is a mixed question of law and facts, therefore, plaint was not liable to be rejected under Order VII Rule 11 C.P.C. Placed reliance upon "Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others" (2017 SCMR 1476).

4. Conversely, learned counsel for respondent Nos. 1 & 6 has ably assisted this Court by confining his submissions to legal premise of rejection of plaint through Impugned Decree; submits that the recording of evidence was not required as the Suit was patently barred by limitation; argues that Court must put an end to litigation at the very initial stage when it becomes evident that a full- fledged trial would be a futile exercise. Further submits that limitation cannot be brushed aside in every claim based on inheritance; adds that admittedly the impugned transaction of gift and subsequent sales were never challenged by the deceased lady who remained alive till 2009 and as such, legal heirs of the said deceased cannot challenge the same. Finally submits that Mst. Safia Bibi was married in the same village where the Suit Property is situated, the plaintiffs, who are her successors, are also residing in the same village, which fact is admitted and evident from the address of the plaintiff/petitioner supplied in the plaint as well as in the Petition in hand. Learned counsel has placed reliance on the cases reported as "Agha Syed Mushtaque Ali Shah v Mst. Bibi Gul Jan and others" (2016 SCMR 910), "Noor Din and another v Additional District Judge, Lahore and others" (2014 SCMR 513), "Mst. Grana through Legal Heirs and others v Sahib Kamala Bibi and others" (PLD 2014 SC 167), "Lal Khan through Legal Heirs v Muhammad Yousaf through Legal Heirs" (PLD 2011 SC 657), "Muhammad Rustam and another v Mst. Makhan Jan and others" (2013 SCMR 299), "Muhammad Raz Khan v Government of N.-W.F.P and another" (PLD 1997 SC 397) and "Pakistan Agricultural Storage & Services Corporation Ltd v Mian Abdul Latif and others"

(NLR 2008 Civil 578).

5. Arguments heard. Record perused.

6. It is pertinent to mention here that Safia Bibi died on 01.12.2009. It is also admitted that she never challenged the Impugned Gift Deed in her lifetime, although she remained alive for 28 years after the Impugned Gift Deed but did not come forward to impugn the same. It is worth mentioning here that Impugned Gift Deed is a registered document on the basis of which Mutation No. 957 dated 24.01.1982 was sanctioned in favour of respondent Nos. 7 to 10, who are real brothers of Mst. Safia Bibi. It is also noteworthy that aforementioned respondents/brothers of Mst. Safia Bibi further alienated the Suit Property in favour of respondent Nos. 1 to 6 through Registered Sale Deeds/ Mutations and since then the said purchasers are in cultivating possession of the Suit Property. The Impugned Gift Deed was challenged by the Petitioner/Plaintiff on 24.11.2015, after 34 years of the Impugned Gift Deed and 06 years after the death of Mst. Safia Bibi. At the outset I will discuss as to what right vests in the Petitioner/Plaintiff when no such right was claimed by Mst. Safia Bibi within her lifetime and whether the most important question of limitation involved in this case can conveniently be brushed aside, ignored or condoned on simple claim of inheritance. It needs to be appreciated that the present petitioner/plaintiff has not inherited anything qua his claim on the basis of his relationship with his deceased mother Mst. Safia Bibi as she did not leave behind any inheritance with respect to the Suit Property. Not only the Impugned Gift Deed was not challenged within her lifetime, the subsequent transactions of sales to 3rd parties, evidenced by registered instruments were not challenged either. The law has been well settled that if a predecessor has not challenged a transaction in his/her lifetime, which transaction purports to deprive the predecessor of his/her share and 3rd party rights have been created, simple claim on the basis of inheritance will not absolve the question of limitation.^[2] A careful perusal of the law laid down by the Apex Court clearly leads to an ineluctable conclusion that the question of limitation cannot be dubbed irrelevant in every claim of inheritance. Based on a thorough analysis of the judgments of the Supreme Court of Pakistan, the settled legal position emerges that only in the cases of exceptional facts, the question of limitation has not been treated as a statutory bar against the claims of inheritance. Those exceptional cases may be summed up in the following terms: i. Cases filed by female heirs, within their lifetime, claiming fraud and misrepresentation played against them qua the immoveable property left behind by their predecessor in interest; ii. Cases where it is pleaded and proved that the deprived female heir(s) were being paid some proportionate share from the income/lease of the immoveable property in question; iii. Cases where a co-sharer has successfully pleaded and proved that the rival heir or co-sharer was in deemed possession of immoveable property on behalf of all other heirs/siblings; iv. Cases where no third-party rights have been created in the immoveable property, which is/was subject matter of undisputed inheritance; v. Cases where the elements of acquiescence and waiver are absent on the part of the claimant legal heir or his/her predecessor in interest.

Muhammad Rustam's case^[3] relates to plea of inheritance agitated by a successor through predecessor, whose predecessor never agitated his right of inheritance during his lifetime. The Supreme Court of Pakistan has held: "11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioner, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom the claimed inheritance himself had not challenged the same during his lifetime."

7. Similarly, while dealing with the often-argued ground that the limitation does not come in the way of claims based on inheritance, the Supreme Court of Pakistan in Mst. Grana^[4] case had considered the landmark judgment on the subject in Ghulam Ali's case^[5], and enunciated the law in the following clear terms: "6. 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 a suit based on inheritance, issue of limitation may become relevant. This Court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintiff material in suits of inheritance. In Mst.

Phaphan v. Muhammad Bakhsh (2005 SCMR 1278) a suit for declaration and possession was filed in the year 1983 by the plaintiff/petitioner claiming to be the owner of the 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 pardanashin 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 v Muhammad Yousaf (PLD 2011 SC 657) this Court had set aside the concurrent findings of the three Courts and dismissed the suit filed on 13.05.1970, where the plaintiff had challenged inheritance mutation of 13.02.1947; the Court held it to be barred by time. The rationale of the law of limitation has been reiterated in Atta Muhammad v. Maula Bakhsh (2007 SCMR 1446) where the concurrent findings of the three Courts were set aside and the suit filed by the respondents/plaintiffs in the year 1988 questioning the 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 the 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 to claim inheritance law of limitation was applied."

The Court found that real dispute was whether a particular person was or not a legal heir of one, Mst. Khairan, whose inheritance mutation was attested in favour of appellant, Atta Muhammad.

7. It emerges from the afore discussed case-law that the law of limitation is not entirely to be ignored or brushed aside whenever property is claimed on the basis of inheritance. The conduct of such claimant may become relevant and material when the bar of time limitation is pleaded by the adversary. A defendant may show that the plaintiff by her or his act, overt or implicit, had demonstrated acquiescence in the defendant's title to the suit properly thereby allowing him to deal with it as exclusive owner, for instance regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff.

When in such circumstances the defendant/heirs transfers the property for valuable consideration the transferee is entitled to believe that the transferor had a valid title to transfer. It may be reiterated that in Ghulam Ali's case the question of interest protection of transferees from a legal heir in a suit of inheritance was left open as the transferees were not impleaded as defendants.

That is not the case here. The very facts of this case would demonstrate that the plaintiff had acquiesced in the various transfers made of the suit property from time to time."

[Emphasis Supplied]

8. Likewise, in the case of Atta Muhammad^[6], it is held: "8. The findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which disentitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, rewritten the law of limitation. It was not a case of inheritance between the co-sharers because the plaintiffs case was that the appellant was a stranger. As the mutation of inheritance of the estate of Mst. Khairan in 1942 is concerned, there was absolutely no justification, factual or legal, to overlook the delay of 46 years in filing the suit. This delay of 46 years adversely reflected on the bona fides of the claim of the respondents. The learned High Court observed that on account of river action the land suffered erosion but was reclaimed 10/12 years preceding 1988 could hardly be accepted in view of the absence of the pleadings. What happened in 1942 when the mutation was attested could hardly be properly and justly inquired into after 46 years."

[Emphasis Supplied] The above judgments have consistently been approved and followed by the Supreme Court of Pakistan. In Salamat Ali's case^[7], the true import and exceptions of Section 18 of the Limitation Act, 1908, read with Order VI Rule 4 C.P.C has authoritatively been settled in the following terms: "20. We find that all the three courts have failed to notice the exception provided in section 18 of the Limitation Act 1908 ("Limitation Act"), according to which the benefit of postponing the commencement of the period of limitation provided to an injuriously affected person is not applicable against a bona fide purchaser. The section reads:--

18. Effect of fraud. Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application--

(a) against the person guilty of the fraud or accessory thereto, or

(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production.

(Emphasis added)

Before we consider and explain the exception provided in the above provision, it would be pertinent to understand the true purport of the general rule encompassed in the section. In essence, this provision is a safeguard against fraud committed to conceal from a person his right to sue. It postpones the commencement of the period of limitation to the date when the fraud first became known to the "person injuriously affected". Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule ("Schedule") to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit.

21. We, however, must appreciate that the "fraud" envisaged in this provision of the law only relates to concealing, not creating, the right to sue and thus, affects only the limitation period and has nothing to do with the cause of action and the relief prayed. It is also needless to mention that, a plaintiff who wants to avail the benefit of section 18 of the Limitation Act, must assert the commission of such fraud by the defendant in the plaint, and should also give the particulars thereof, and the date of knowledge as required under Rule 4 of Order VI of the C.P.C., and then prove the same through positive evidence.

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27. In an inheritance case, like the present one, a wrong mutation in the revenue record, as to inheritance rights does not affect the proprietary rights of a legal heir in the property, as the devolution of the ownership of the property on legal heirs takes place under the Islamic law, through inheritance immediately, without any formality including sanction of inheritance mutation. Therefore, a wrong mutation is a mere "apprehended or threatened denial" of right, not necessitating for the person aggrieved thereby to institute the suit. The position is, however, different when the co-sharer in possession of the joint property, on the basis of a wrong inheritance mutation, sells the joint property, or any part thereof exceeding his share, claiming him to be the exclusive owner thereof and transfers possession of the sold land to a third person, the purchaser. In such a circumstance, the co-sharer by his said act "actually denies" the rights of the other co-sharer, who is only in constructive possession of the same, and ousts him from such constructive possession also by transferring the possession of the sold land to a third person, the purchaser.

In such circumstances, the right to sue accrues to the aggrieved co-sharer from the date of such sale, and transfer of actual possession of the sold land to the third person, the purchaser."

[Emphasis Supplied]

9. For the cases, where the element of acquiescence and waiver is depicted from the facts of the case, though the claim was based on inheritance, the argument of brushing aside the limitation on the basis of inheritance claim was not entertained, the reliance may be placed on Syed Kausar Ali Shah's^[8] case, the relevant paragraph whereof is reproduced herein below: "10. In our opinion there is a clear distinction between (a) cases in which an heir alleges that his/her rights to inheritance have been disregarded and his/her share not mentioned in the inheritance mutation, and (b) those cases in which such an heir sits idly by, does not challenge mutation entries of long standing, or acquiesces, and only comes forward when third party rights in the subject land have been created. To succeed in respect of the latter (b) category cases an heir must demonstrate that he/she was not aware of having been deprived, give cogent reasons for not challenging the property record of long standing, and show complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of such heir's interest yet proceeded to acquire the land. If these two categories are kept in mind, then the judgments of this court, respectively relied by both sides, which are apparently at variance, become reconcilable."

[Emphasis Supplied] Similarly in the case of "Mst. Faheeman Begum (Deceased) through L.Rs and others v Islam-Ud- Din (Deceased) through L.Rs and others" (2023 SCMR 1402), lack of challenge by the donor within her life time was declared fatal by the Supreme Court and bar of limitation was accordingly applied. The principle is also followed in plethora of other judgments^[9].

10. In various claims of inheritance brought by female legal heirs against their brothers/male heirs, the Supreme Court of Pakistan has authoritatively held that the question of limitation cannot be ignored in every such case and such question of limitation is dependent upon the facts and circumstances of each case. In Saadat Khan's case^[10], it was held: "9. We may say at the very outset that in view of the provisions of the residuary Article 120 of Schedule-I to the Limitation Act 1908, there can hardly be any suit to which the bar of limitation does not apply. As per the said Article a suit for which no period of limitation is provided elsewhere in the Schedule, the period of limitation for that suit is six years from the time when the right to sue accrues. No specific Article of Schedule-I to the Limitation Act provides a period of limitation for a suit instituted by a 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 rights; therefore, the residuary Article 120 applies to such suit. A suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article

120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The actual denial of rights gives rise to a compulsory cause of action and obligates the plaintiff to institute the suit for declaration of his rights, if he wants to do so, within the prescribed period of limitation; while in case of a threatened denial of rights, it is the option of the plaintiff to institute such a suit on a particular threat. On the actual denial of rights, the cause of action and the consequent right to sue matures for instituting the suit for declaration; whereas every threatened denial of rights gives rise to a fresh cause of action, and thus a fresh right to sue accrues on such a denial. This Court has, therefore, decided the question of limitation in the cases relied upon by the High Court and referred to by the counsel for the petitioners, in the peculiar facts and circumstances of each case."

11. The above makes it abundantly clear that neither the question of limitation may be ignored in every claim based on purported rights of inheritance nor it is permissible for the litigants to lay a statute barred challenge by couching the relief in the form of an inheritance claim. Indeed, there are few judgments by the Supreme Court of Pakistan, the first blush wherefrom may lead to an inference otherwise, however, appreciating the facts of all such cases in true perspective will predominantly lead to the conclusion that all such cases fall in the exceptions formulated above.

For instance, In Shabla's case^[11], it was held by the Supreme Court of Pakistan that in a case where a female is deprived of her share in the immoveable property of her predecessor, limitation will not be a question against her claim of inheritance. A perusal of the facts of the case would reveal that the female claimant had successfully pleaded all the ingredients of fraud being played upon her while sanctioning the inheritance mutation by excluding her from inheritance; she was a minor at the time when the impugned mutation was sanctioned; she proved that she was consistently paid the share from the income of the immoveable property; she claimed her right in her lifetime; the mutation through which her right was infringed was not brought about as required under Section 42 of the Specific Relief Act, 1877. Similarly, in the case of Mst. Fatima^[12], the Supreme Court of Pakistan, while relying upon Shibla's case has held that the limitation will not be an obstacle in the case of inheritance as in this case too, the fact of claimant lady being deprived from the inherited property by way of impugned mutation was concealed from her, however, she pleaded and proved that she was being paid her share of income from the property and once the same was denied, she brought the suit within her lifetime. Similar are the facts of the case of Noor Din^[13]. Likewise, the case of Mst. Khatoon Bibi supra, (also relied upon by the learned counsel for the petitioner), the Supreme Court has not held that no limitation runs against all kind of claims based on inheritance nor the applicability of Article 120 of the Limitation Act, 1908 has been excluded per se in the claims based on inheritance. The cited precedent just holds that if a person feels himself aggrieved of entries in the revenue record, on the basis of an inheritance mutation, he can file a suit for declaration within six years of such wrong entries or knowledge; the scope and exception has also been confined to the claims against co-sharer. It is worth noting that Mst.

Khatoon Bibi's judgment also duly recognizes the questions of waiver, acquiescence and estoppel.

12. The above judgments authoritatively settle the law on the subject that a claim of inheritance must cross the bridge of limitation, waiver and acquiescence. An unchecked tendency of encouraging a relief in the guise of inheritance is not warranted under the law, particularly when the property in issue changes hands and the slumber of a purported claimant of inheritance crystalizes valuable rights in favour of third party(s). The encouragement of such claims and long drawn trials in statute barred suits is counterproductive for genuine and bona fide claims of female heirs. In the case in hand, predecessor in interest of the Petitioner/Plaintiff (Mst. Safia Bibi) never voiced any grievance against the Impugned Mutation, even on her demise in 2009, her legal heirs (Petitioner/Plaintiff), who kept a mum for almost six years despite being resident of same village, suddenly woke up from his slumber and filed the Suit in November 2015, which is not permissible under the law.

13. Insofar as the ground taken by learned counsel for the Petitioner/Plaintiff qua the rejection of plaint under Order VII Rule 11 C.P.C without recording of evidence is concerned, it is observed that when the plaint is barred by any law on the face of it, recording of evidence would be a futile exercise and meant to encourage the abuse of process of law. In the case of Mst. Bibi Gul Jan^[14], the Hon'ble Supreme Court has held: "22. As regards Mr. Awan's contention that the question of limitation being a mixed question of law and facts ought to have been decided after recording evidence, we may observe that it is only in cases where determination as to when the cause of action for the suit arose, is dependent upon a certain factor, situation, happening or occurrence, existence, extent and the nature whereof could only be ascertained after recording evidence, that the question of limitation needs to be determined after such evidence. However, where on the plain reading of the plaint, as in the present case, it can be clearly seen that the suit is patently barred by limitation, no evidence is required. In fact to plead that a plaint cannot be rejected, for the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in Order VII, Rule 11 of the Code of Civil Procedure, which essentially requires the Court to reject the plaint which appears from its contents to be barred by limitation. The five judgments relied upon by the learned ASC for the appellant on question of recording evidence, listed at Sr. Nos. 3, and 5 to 8 in para 11 of this judgment, also are of no avail to the appellant. As in the case of Fatima Moeen^[15], supra, where the plaintiff assailed the sale of her immovable property by her mother on the ground that at the time of the impugned sale she was a minor, the Court found it necessary to record evidence to determine the age of the plaintiff at the relevant time i.e. time of the impugned sale, as it was found incumbent to determine the age of the plaintiff and such determination in that case was not possible without framing an issue and without allowing the parties to produce evidence thereon. It may also be noted that in the said very case this Court has also observed that from the provisions of Order VII, Rule 11, C.P.C. it is apparent that the Court can reject a plaint if from the contents thereof it finds the suit to be barred by limitation.

However, the plaint in that case by itself did not indicate so. Similarly in the case of Mst. Gul Nisa^[16], supra, as discussed in para 20 above, it was found necessary to determine the nature of the land for deciding as to whether recurring cause of action was available to the plaintiff that this Court ordered decision of the case on merits altogether. Likewise in the case of Haji Abdul Sattar^[17], supra, where the plaintiff had impugned issuance of PTDs in respect of her property in favour of the defendants on 9th January 1961 and 28th June 1963 through a suit filed on 30th March 1995, and for the purposes of limitation had pleaded that he came to know of the issuance of the impugned PTDs in another proceedings on 08.02.1999 only, this Court held that the issue of limitation involved therein was a mixed question of law and facts, and therefore the same cannot be decided without evidence and directed the Trial Court to decide the issue of limitation upon evidence produced by the parties. In Irshad Ali^[18], supra, where the plaintiffs suit for rendition of accounts was dismissed after framing of a preliminary issue regarding limitation and after recording some evidence thereon, this Court, in view of the fact that the controversy as to whether the partnership between the parties had been dissolved on 30th June 1989, as alleged by the defendants, or was subsisting as claimed by the plaintiff, which had a direct bearing on the question of limitation, was not delved into by the Trial Court, whilst holding that a sound decision on the question of limitation was dependent on a well considered decision regarding the dissolution of partnership, upheld the decision of the High Court of remanding the case for framing an issue on the question of dissolution of partnership, recording evidence thereon and deciding the matter afresh. In the case of Muhammad Afzal^[19], supra, this Court, in view of the fact that in holding that an appeal filed before the Divisional Canal Officer against an order of Sub-Divisional Canal Officer was barred by limitation, the two fora below had failed to take into consideration the time consumed for obtaining the copy of the order of Sub-Divisional Canal Officer, remanded the case for recording evidence on the question of limitation, for the reason that from the copy of the relevant order of the Sub-Divisional Canal Officer, it was apparent that the time beyond the prescribed period of limitation was in fact consumed in obtaining the copy of the order. It seems that recording of evidence was found necessary for the reason that the copy was of an order passed by a non judicial forum and the certification/endorsement thereon did not carry the degree sanctity and authenticity as that of a court of law."

Similarly, while interpreting the scope, true import and applicability of Order VII, Rule 11 of the C.P.C, the Supreme Court exhaustively enunciated the law in the case of Florida Builders^[20]. The judgments rendered on the question were extensively discussed and the issue was summed up in the following terms: "After considering the ratio decidendi in the above cases, and bearing in mind the importance of Order VII, Rule 11, we think it may be helpful to formulate the guidelines for the interpretation thereof so as to facilitate the task of courts in construing the same.

Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint. However, this does not mean that the court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order VII, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which is inherent in every court of justice and equity to decide whether or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the court must examine the statements in the plaint prior to taking a decision.

Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect. In other words the court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence.

In Order VII, Rule 11 cases the question is not the credibility of the plaintiff versus the defendant. It is something completely different, namely, does the plaint appear to be barred by law.

Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint."

14. Aggrieved person has to pursue his legal remedies with diligence and if a suit is beyond limitation, the delay of each and every day consumed for approaching the Court beyond the period of limitation has to be explained^[21]. In the case in hand, the plaint on the face of it fails to explain the delay of a period of 34 years. The contents of the plaint fail to set up a case in a manner which renders the question of limitation as a mixed question of law and fact. Mere reading of the contents of the plaint makes it abundantly clear that it is statute barred and was liable to be dismissed in terms of Order VII Rule 11 C.P.C without employing valuable judicial resources and time of the Civil Court, which Courts are already inundated with the cases requiring determination on merits. By specifically incorporating the provision in terms of Order VII Rule 11 C.P.C, the legislature has empowered the Court with an independent Suo Motu and Sua Sponte power to examine the plaint by using its wisdom. The Courts always nip a frivolous suit in the bud, by rejecting such frivolous, fictitious and untenable claims in order to retain Courts' docket and time for more serious claims. It has been held by the respectable authority that non-actionable plaint or suit is non- starter and in the interest of administration of justice and good judicial governance, it is best if such plaints are dismissed at the earliest. Keeping in view the mandatory provision of Section 3 of the Limitation Act, it is duty of every Court and forum itself to look into the question of limitation irrespective of the fact whether any objection in this regard has been raised or not^[22]. Moreover, where a person is aggrieved of an action and if such person did not object, he/she shall be held to have waived his/her right to object and shall be estopped from raising such objection at later stage^[23]. It is also settled principle of law that the limitation runs even against a void order and a void order too has to be challenged within limitation.^[24] There is no justification at the outset merely by considering the averments of the plaint to overlook the delay of 34 years^[25]. When Mst.

Safia Bibi did not challenge the Impugned Gift Deed in her life time despite 3rd party transfers through Registered Deeds, Petitioner/Plaintiff has no right to claim inheritance of Mst. Safia Bibi^[26]. It is worth mentioning here that under Article 100 of Qanun-e-Shahadat, 1984 a presumption is attached to the Impugned Gift Deed which was 34 years old document at the time of its challenge before the Trial Court.

15. Since the petition in hand is filed under Article 199 of the Constitution of Islamic Republic of Pakistan (the "Constitution"), therefore, the question of exercise of jurisdiction of judicial review of this Court under Article 199 is also required to be considered before interfering with the Impugned Decree. The extent to which the jurisdiction under Article 199 of the Constitution can be invoked has been assessed by the Supreme Court of Pakistan over the course of several decades. In the case of Muhammad Hussain Munir^[27], Supreme Court of Pakistan has held that High Court, while exercising Jurisdiction under Article 199 of the Constitution, in the matters arising from Appellate or Revisional orders, should only be concerned with whether or not the Courts below acted within their jurisdiction. If such a Court has the jurisdiction to decide a matter, it is considered competent to make a decision, regardless of whether the decision is right or wrong and even if the said decision is considered to be incorrect, it would not automatically render it as being without lawful authority so as to invoke High Court's constitutional Jurisdiction. While dealing with the tendency of large number of petitions under Article 199 of the Constitution in the matters arising out of civil matters decided by Appellate or Revisional Courts, a five-member larger bench of the Supreme Court in Noor Muhammad's case^[28] had deprecated such practice, as back as in 1985 in the following terms: "6. Before parting with the case we may observe that there is an increasing tendency to file Constitutional petitions even when the Court whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata, has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it `without lawful authority' and certainly not illegal. Refer Badrul Faque Khan v. The Election Tribunal, Dacca and others (PLD 1963 SC 704), Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139) and Abdul Rehman Bajwa v.

Sultan and 9 others (PLD 1981 SC 522).

We are of the view that the tendency to file such Constitutional petitions tends to clog the superior Courts with frivolous litigation and causes unnecessary delays in the disposal of other cases and this tendency should therefore, be curbed with a strong hand.

[Emphasis Supplied] In the case of Hasan Din^[29], Supreme Court followed the law settled in Noor Muhammad supra.

The object of exercising Jurisdiction under Article 199 of the Constitution is to foster justice, preserve rights and to right the wrong. The conversion of scope of exercise of constitutional jurisdiction into that of a second appeal or second revision has consistently been deprecated by the Supreme Court of Pakistan^[30]. There are no grounds or basis in this case, requiring interference by invoking extraordinary Constitutional Jurisdiction of this Court.

16. For what has been discussed above, I find no grounds to interfere with the well-reasoned Impugned Decree passed by the Revisional Court. There is no substance in this petition, therefore, the same is hereby dismissed.

^[1]The Suit Property is more fully described in the Plaint and its description/measurement is not in issue.

^[2]"Muhammad Rustam and another v Mst.Makhan Jan and others" (2013 SCMR 299),"Mushtaq Ul Aarifin and others v Mumtaz Muhamamd and others" (2022 SCMR 55), "Mst. Grana through Legal Heirs and others v Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167), "Lal Khan through Legal Heirs v Muhammad Yousaf through Legal Heirs" (PLD 2011 Supreme Court 657) and "Atta Muhammad v Maula Bakhsh and others" (2007 SCMR 1446)

^[3]"Muhammad Rustam and another v Mst.Makhan Jan and others" (2013 SCMM 299)

^[4]"Mst. Grana through Legal Heirs and others v Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167).

^[5]"Ghulam Ali v Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1).

^[6]"Atta Muhammad v Maula Bakhsh and others" (2007 SCMR 1446).

^[7]Salamat Ali and others v Muhammad Din and others" (PLD 2022 SC 353)

^[8]"Syed Kausar Ali Shah and others v Syed Farhat Hussain Shah and others" (2022 SCMR 1558)

^[9]"Abdul Haq and another v Mst. Surrya Begum and others" (2002 SCMM 1330), "Taj Muhammad Khan through L.Rs. and another v Mst. Munawar Jan and 2 others" (2009 SCMM 598), "Muhammad Rustam and another v Mst. Makhan Jan and others" (2013 SCMM 299).

^[10]"Saadat Khan and others v Shahid-Ur-Rehman and others" (PLD 2023 SC 362)

^[11]"Shabla and others v Ms. Jahan Afroz Khilat and others" (2020 SCMR 352) [2-MB] ^[12]"Agha Syed Mushtaque Ali Shah v Mst. Bibi Gul Jan and others" (2016 SCMR 910).

^[13]"Noor Din (Deceased) through LRs v Pervaiz Akhtar and others" (2023 SCMR 1928)

^[14]"Agha Syed Mushtaque Ali Shah v Mst. Bibi Gul Jan and others" (2016 SCMR 910).

^[15]"Fatima Moeen v. Additional District Judge, Sheikhupura" (1992 SCMR 1199).

^[16]"Mst. Gul Nisa v. Muhammad Arif" (1996 SCMR 1239).

^[17]"Haji Abdul Sattar v. Farooq Inayat" (2013 SCMR 1493).

^[18]"Irshad Ali v. Sajjad Ali" (PLD 1995 SC 629).

^[19]"Muhammad Afzal v. Muhammad Hayat" (1994 SCMM 12).

^[20]"Haji Abdul Karim and others v. Messers Florida Builders Pvt. Ltd". (PLD 2012 SC 247)

^[21]"Saqib Ali v. Government of Punjab and others" (2023 PLC (C.S.) 310), "Shahin Shah v.

Government of Khyber Pakhtunkhwa through Secretary Irrigation Department, Peshawar and others" (2022 SCMM 1810), "Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs" (PLD 2011 Supreme Court 657), "Qaisar Mushtaq Ahmad v. Controller of Examination and others" (PLD 2011 Supreme Court 174).

^[22]"Hakim Muhammad Buta and another v. Habib Ahmad and others" (PLD 1985 Supreme Court 153), "Ahsan Ali and others v. District Judge and others" (PLD 1969 Supreme Court 167), "Syed Iftikhar Hussain v. Ijaz Ahmad Cheema and another" (1996 SCMM 943), "Dilmir v. Ghulam Muhammad and 2 others" (PLD 2002 Supreme Court 403), "Haji Ghulam Rasul and others v.

Government of the Punjab through Secretary, Auqaf Department, Lahore and others" (2003 SCMM 1815), "Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore" (2006 SCMM 783), "Muhammad Sami v. Additional District Judge, Sargodha and 2 others" (2007 SCMM 621), "Government of N.W.F.P. and others v. Akbar Shah and others" (2010 SCMM 1408).

^[23]"Dr. Muhammad Javaid Shafi v Syed Rashid Arshad and others" (PLD 2015 SC 212).

^[24]"Chief Engineer, Gujranwala Electric Power Company (GEPCO), Gujranwala v Khalid Mehmood and others" (2023 PLC 65), "Kiramat Khan v IG. Frontier Corps and others" (2023 SCMR 866), "Abid Hussain v Secretary, Ministry of Defence, Government of Pakistan through Chief of Air Staff, Islamabad" (2021 SCMR 645), "Muhammad Sharif and others v MCB Bank Limited and others" (2021 SCMR 1158), "Haji Wajid v Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others" (2020 SCMR 2046), "Ghulam Hussain Ramzan Ali v Collector of Customs (Preventive), Karachi" (2015 PTD 107)=(2014 SCMR 1594), "Ch. Shujaat Hussain etc v Zafar Ahmed Qureshi etc" (2014 SCMR 585), "Messrs Blue Star Spinning Mills Ltd v Collector of Sales Tax and others" (2013 SCMR 587), "Evacuee Trust Property Board and others v Mst. Sakina Bibi and others" (2007 SCMR 262), "Rehmatullah and others v Saleh Khan and others" (2007 SCMR 729), "Government of Sindh through Advocate-General, Sindh, Karachi v Masood Hussain and others" (2002 SCMR 155), "Ali Muhammad through Legal Heirs and others v Chief Settlement Commissioner and others" (2001 SCMR 1822), "S.Sharif Ahmad Hashmi v Chairman, Screening Committee, Lahore and another" (1978 SCMR 367).

^[25]"Atta Muhammad v Maula Bakhsh and others" (2007 SCMR 1446).

^[26]"Abdul Haq and another v Mst. Surrya Begum and others" (2002 SCMR 1330), "Jamil Khatoon and others v Aish Muhammad and others" (2011 SCMR 222).