' Ghulam Jan and his minor brothers, respondents Nos. 1 to 3 herein, had instituted a suit against Qureshi Noor Hussain and his two sons, petitioners herein, for declaration in the Court of Civil Judge, Lakki Marwat for (a) a declaration that they and defendants 4 to 6 in the suit were owners in possession of the suit land and gift Mutation No, 19600 attested on 9-1-1964 was fraudulent, wren and illegal and that gift Mutation No, 20939 attested on 30.11-1972 by petitioner No, I in favour of petitioners 2 and 3 herein was also void in effective and liable to cancellation and (h) for possession if same was not proved. It was mentioned by the plaintiffs in their plaint that the suit land belonged to their predecessor Braim Khan who died in 1965, with that the petitioner No, 1 had developed relationship with their predecessor and got the gift mutation No, '19600 attested in his favour fraudulently whereas the donor neither appeared at the time of attestation of mutation nor his statement was record, that moreover this mutation was against law, that subsequently the petitioner No, I fraudulently transferred the suit land to his sons petitioners Nos. 2 and 3 herein. The suit was contested by the present petitioners and the trial was held on the following issues
(1) Whether the plaintiff and defendants 4 to 6 are owners is possession of the suit land and Mutation No, 19600 attested on 9.1-1964 and Mutation No, 20939 attested on 30-114972 are ineffective on the rights of the plaintiff ? O.P.P.
(2) Whether the plaintiffs are estopped to institute the suit ?
(3) Whether the suit is within time?
(4) Whether the defendant No, 1 has got an acquirable charge if, so, what is charge amount ?
(5) Whether the transaction amount to 'Hibbah Bil-Awiz' if so, its effect ?
(6) Whether the suit is incompetent in the present form ?
(7) Whether there has been a valid gift under the Law in favour of defendant No, 1 ?
(8) Pursuant to the remand order, the issues reproduced above are separately discussed as under :-
2. After recording the evidence of the parties the learned Civil Judge, Lakki decided issues Nos. 1 and 3 in favour of the plaintiffs and the remaining issues against the petitioners herein vide his judgment dated 28-1-1977 and decreed the suit in favour of the plaintiffs, but on appeal by the petitioners in the Court of Additional District Judge, Bannu at Lakki, the case was remanded back to the trail Judge vide judgment dated 17-11-1977 for discussing the issues separately. The learned Civil Judge again gave the same findings on the issues separately and again decreed the suit of the plaintiffs vide judgment dated 8-4-1978. The petitioners again, preferred an appeal in the Court of learned District Judge Bannu which was dismissed vide judgment dated 25-4-1979. Hence the present revision petition.
3. The only point raised in the revision petition, and on which a was admitted for hearing, was that the learned lower Courts had by-passed the point of limitation in deciding the suit and the appeal.
The learned MUNI for the petitioners had contended that the quit for the purposes of limitation was covered by Article 95 of the First Schedule to the Limitation Act, 1908, and the suit having been filed on 29-7-1976 was time-barred. His contention was that the plaintiffs applied for obtaining copy of gift Mutation No, 19600 on 30-6-1972 and obtained copy of Jamabandi of the suit land on 1-7-1972.
They instituted the suit on 29-7-1975, that they had knowledge of the said gift mutation at least on 30-6-1972 and having failed to come to the Court within 3 years as provided under Article 95, their suit was time-barred. However, this contention of the learned counsel for the petitioners is without any force for the reason that Article 95 of the First Schedule to the Limitation Act, 1908 would only apply when a party to the transaction himself challenges the same on the ground of fraud or other ground, whereas the said gift mutation was challenged by the successors-in-interest of the donor who allegedly got the Mutation No, 19600 attested. This mutation was not challenged by the party to it but by his successors-in-interest. As such Article 95 did not apply and on the contrary Article 120 was applicable to the case. In support of this contention the cases of Pahloomal Motiram v.
Abdul Quddus Behari and 8 others (1) Fatahuddin v. Zarshad and another (2) may be sighted.
4. Plaintiffs in the suit came to know of the alleged fraud on 30-6-1972 and they instituted the suit for a declaration within 6 years of the date of such D knowledge as provided under Article 120 of the First Schedule to the Limitation Act. The suit was, therefore, within time. Finding no merit in this revision petition, I would dismiss it with no order as to costs. {{FOOT NOTE}}
(1) PLD 1971 Kar. 250 (2) 1973 5 C M R 248 {{FOOT NOTE}}