1. ' This is an application under Order VII, Rule 11, C.P.C. For rejection of the plaint on the ground that the suit is barred by time and that the suit in so far it challenges the jurisdiction of the Controller in Rent Case No, 4970 of 1982 is not maintainable. The brief facts as stated in the plaint are that the plaintiffs are the legal heirs of late Mst. Kubra Bai widow of Muhammad Shafi. The plaintiff No,1 is the nephew of Muhammad Shafi. Tha plaintiff No,2 is the daughter of the real sister of late Mst. Kubra Bai and plaintiffs Nos. 3 and 4 are the sons of her real brother. By virtue of this relationship these plaintiffs claim to be the legal heirs of late Mst. Kubra Bai. Late Muhammad Shafi was the owner of Bungalow No, B-IV-5/24, Nazimabad, Karachi, measuring 750 square yards. After his death on 13- 10-1964 this bungalow remained in possession of Kubra Bai and plaintiff No,1 who was residing with them from the very beginning. Kubra Bai was an illiterate Pardahnashin lady. The defendant No,1 who is an Income-tax Practitioner and an Advocate, won the confidence of Kubra Bai and practised fraud upon her. It is not necessary to state all the facts stated in the plaint to substantiate the allegation of fraud. The defendant No,1 prevailed upon Kubra Bai to sell the major portion of the bungalow and deposit the sale-proceed in bank through him so that she may be able to have a regular income from such deposit. He got the said plot divided in two portions and prevailed upon Kubra Bai to sell it for a meagre amount of Rs,1,25,000 but the sale-deed was prepared for Rs,70,000. He personally received Rs,1,25,000 from the purchaser assuring her that this amount has been deposited in the bank and regularly paid Rs,500 per month to Kubra Bai to show that the amount has actually been deposited in the bank. Ultimately it transpired that no deposit was made and on demand from Kubra Bai he avoided to pay it. The bona fides of the defendant No,1 were suspected and the plaintiff No,1 was authorised by Kubra Bai to manage and deal the bungalow and ration shop. She also alleged that the defendant No,1 had obtained her thumb- impressions on various blank papers. The plaintiff No,1 called upon the defendant No,1 to render account and return Rs, 1,25,000, but only Rs, 37,000 was refunded. He also promised to return the documents and blank papers, with thumb-impressions of Mst. Kubra Bai. Later it transpired that the defendant No,1 has misappropriated the money of Kubra Bai and used the blank papers for transfer of the bungalow in the name of his wife by virtue of gift deed executed by Kubra Bai. He got the name of his wife (defendant No,2) mutated from the office of the defendant No,4 illegally and unauthorisedly and also got the leasehold rights of transferred in the name of defendant No,2. On 29-6-1978 Kubra Bai submitted an application to defendant No,4 for cancellation of the gift. Deed.
2. On 3-10-1978 she executed the last will and testament in favour of plaintiff No,l. A notice was also published on 6-10-1978. An application before Martial Law Authorities was filed on 7-10-1978 and also before the defendant No,4. A report was also lodged with the Police on 26-10-1978. On 28-10- 1978 Kubra Bai died and the plaintiff No,1 pursued the matter with the defendant No,4 and various other authorities. It is alleged in para. 18 of the plaint that on 20-11-1978 the plaintiff No,1 for the first time came to know through the Officers of the Defendant No,4 who for the first time informed that the defendant No,1 has already got the said property mutated and transferred in the name of his wife, the defendant No,2. Consequently notice was served on K.D.A. As well as to the Excise & Taxation Authorities who directed the parties to get the title of property decided by a competent Court. The plaintiff No,1 tried to reach all possible avenues from where he could get the remedy but they were frustrated by the defendant No,1. The defendant No,1 got filed Suit No,437/79 through a fictitious person i.e. Defendant No,3 against the plaintiff No,1 and others on the false ground that the defendant No,3 had been forcibly dispossessed from the Bungalow No, IV, B-5/25, Nazimabad, which is pending. Another suit No, 1920/81 was also filed by defendant No,3 at the behest of defendant No,1. It is alleged that defendant No,3 has never appeared in any proceedings. The defendant No,2 also filed an ejectment application No,4970/82 against the defendant No,3 alleging him to be a tenant of the premises occupying the bungalow and defaulted in payment of rent. The plaintiff No,1 applied to be joined as a party in the proceedings before the Rent Controller which was objected by the Defendant No,2 and the application was rejected. The plaintiff therefore filed the present suit seeking the following reliefs:-- "(1) A judgment and decree, declaring that gift deed, dated 29-7-1976, has been obtained by fraud by defendants Nos.1 and 2, possession of property under suit was ever delivered to the .Defendants Nos.1, 2 and 3 and the said gift deed is nullity in the eye of law.
(2) A judgment and decree, declaring that mutation/transfer order of 29-7-1976, in respect of property bearing No,B/IV-5/25, Nazimabad, Karachi measuring about 275 sq. Yds. In favour of defendant No,2 passed by defendant No,4 on the basis of forged gift orally or otherwise, is null and void ab initio, is not binding upon the plaintiffs and no gift deed in respect of property under suit has ever been executed by Mst. Kubra Bai (late) in favour of defendant No,2, in respect of the same.
3. ' A judgment and decree that all the title deeds in respect of Property No,B-IV-5/25 Nazimabad, Karachi, stood in the name of defendant No,2, her Legal Representatives attorneys, executors, administrators, and every body claiming or deriving any title through or under . Her, are null and void, illegal ab initio and not binding upon the plaintiffs.
4. ' To direct the defendant No,2, to surrender all such title deeds pertaining to the property under suit, before this Hontble Court.
5. ' To order for cancellation of all such title deeds in respect of Property No,B-IV/5/25 Nazimabad, Karachi which are in the name of defendant No,2, her Legal Representatives attorneys, executors, and every body else having the same through or under the said defendant.
(6) To declare that all the orders passed by defendant No,4 in respect of Property No,B-IV-5/25, Nazimabad, Karachi, in favour of defendant No,2 are illegal, null and void, not binding upon the plaintiffs and same have no force in the eye of law.
(7) To declare that the ejectment proceedings before the Rent Controller Court No,IX, Karachi, vide R.C. No,4970/82 filed by the defendant No,2 are void, male fide, without any just cause and are not binding upon the plaintiffs.
(8) Permanently restraining the defendants Nos.1, 2 and 3 and every body else from interfering with the peaceful possession of the plaintiff No,1 over the property under suit and Ration Shop No,769 and business of the plaintiff No,1.
(9) Permanently restraining the defendants, their agents, attorneys, Legal Representatives executors and every body claiming through or under them and or deriving any title on their behalf from claiming any right, title, interest into the property under suit and or denying the title of the plaintiffs into the same i.e. Property under suit.
(10) Costs of the suit may kindly be awarded and any other relief, which this Hon'ble Court may deem fit and proper under the circumstances of the case, may also be granted."
6. ' Mr. Iqbal Kazi the learned counsel for the plaintiff has contended that on plaintiffs' own showing in para. 18 of the plaint which appears at page 13 of the plaint (the number of subsequent paragraphs has wrongly been mentioned) the plaintiff No,1 came to know about the fraudulent transfer of the disputed property in favour of the defendant No,2 on 20-11-1978. Therefore, according to the learned counsel under Article 91 of the Limitation Act the suit should have been filed within three years from the date when the facts entitling the plaintiffs to have the instrument cancelled or set aside became known to him. It is contended that as the suit was filed on 20-8-84 it is barred by time. Article 91 relates to suits for cancellation or setting aside the instrument not otherwise provided for by the Limitation Act. Mr.Lqbal Kazi the learned counsel for the defendants Nos.1 and 2 has relied on Hameeda Begum v. Mst. Murad Begum and others PLD 1975 SC 624. At page 638 it was observed that Article 91 does not apply where the plaintiff was not a party to the instrument sought to be declared void and would be obliged to have the instrument set aside if it constitutes an impediment in the way of relief sought by him, and as in the quoted case the appellant had no other right or locus standi as a successor-ininterest of her father, it was held that she must ask for avoidance of the two instruments in question before she can succeed in the property in dispute. It was further held that if an instrument is executed by a person competent to do so, and if it is alleged that it was obtained by misrepresentation and undue influence, it would be a voidable instrument and would remain operative so long it is not set aside by the Court. It was observed "that the starting point of limitation under this Article (91) is the date when the plaintiff acquires knowledge of facts which give any cause of action and entitle him to have the instrument cancelled or set aside. Merely knowledge of facts bearing on the true character of the instrument is not enough".
7. ' On the other hand Mr. Izhar Hyder Rizvi the learned counsel for the plaintiff has relied on Mst. Izzat v. Allah Ditta PLD 1981 SC 165 where Hameeda Begum's case was also referred and discussed, and it was observed as follows:-- "In the light of these basic rules, it was further held that Article 91 would not be attracted if the substantial relief claimed by the plaintiff is not the cancellation of the instrument and it is merely ancillary to some other substantial claim, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiff's rights, as "the principle is that if the plaintiff is not bound by the document, or if he is not claiming under the same, and the substantial relief prayed for by him is not the cancellation or setting aside of the instrument, then the suit is not governed by Article 91". If this rule is applied to the facts of the present case, as already noted, the main relief claimed by the plaintiff was with regard to the protection of her possession, "for which a permanent injunction was sought against the respondent, and the declaration that the mutation dated 19-5-1969 and the registered deed, dated 11-2-1958 were void and ineffective was prayed for as an ancillary relief. That being so, the bar of Articles 91 would not be attracted".
8. ' It was further held at page 171 as follows:-- "It has already been held that the relief claimed with respect to the registered deed that it may be declared as void was only ancillary, therefore, Articles 91 and 95 of the Limitation Act would not be attracted. Thus, the date of the accrual of the cause of action in the case would not be necessarily relatable to the date of accrual deed, or the knowledge of the plaintiff with regard to the fact that she had been defrauded. The essential relief claimed was with regard to the maintenance of possession and issuance of injunction in this behalf, against the defendant. It would be seen that the cause of action in this behalf, in the light of the facts and circumstances, already analysed, accrued to the appellant, firstly, on account of the effort made by the defendant to disturb the then existing status quo through the sanction of the mutation. The mutation was sanctioned on 19-5- 1969, therefore, this would be one relevant date of the accrual of the cause of action, but as is well known, the cause of action may not be constituted by a single act, but consists, in reality of bundle of facts of varied types.
9. ' In the present case, the averment made in the plaint that after the sanction of the mutation notwithstanding the appellant's disclaimer of the right of the respondent and warning him against any interference regarding the suit land, he had insisted upon denying the appellant's right, and as stated by the appellant, this had necessitated the filing of the suit The plaintiff in this case, as already held was not bound to seek the cancellation of the deed through a suit filed for that purpose. She could wait till the threat to her possession had become not only visible, but more real, and that would be the point when the right to seek the reliefs claimed in the suit would accrue to her. The starting point of limitation in this case would remain 19-5-1969 and thereafter on every day when the respondent continued making the claim against the plaintiff's right to possess the suit land. Thus counted the suit was within limitation."
10. ' The learned counsel for the plaintiff also referred to Qureshi Noor Hussain and 7 others v. Ghulam Jan and 5 others PLD 1984 Pesh. 86 where mutation of gift was challenged on the ground of fraud by the successor-in-interest of the donor and it was held that Article 120 will apply. In the present case as is obvious from the allegation in the plaint, the plaintiff No,1 is in possession of the property.
11. In these proceedings no further inquiry about the facts can be made an the averment made in the plaint are to be taken to be correct. In the facts and in view of the principle laid in PLD 1981 SC 165 Mst. Izzat v. Allah Ditta the suit cannot be held to be barred by time. The plaintiff No,1 is in possession and the filing of the ejectment case on 5-11-1983 making the defendant No,3 as a party alleging to be a tenant was with a view to seek ejectment of the plaintiff No,1 and obtain possession. This by itself gave a cause of action to the plaintiff to file the suit. The suit is therefore, not barred by time.
12. The next contention of the learned counsel for the defendant I that the order passed by the Controller in Rent Case No,4970/82 cannot be challenged as it is final subject to appeal as provided by the Sind Rented Premises Ordinance. Suffice to say, the very title to the property has been challenged and if it is held that the defendant No,2 is no the owner of the property the ejectment proceedings instituted b defendant No,2 and orders passed in it will be rendered a nullity. Party is entitled to take proceedings to seek relief for setting aside a order which may have been obtained on the basis of fraud or illegal transaction and documents. The application is therefore, dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.