1. ' This revision is directed against the order dated 18-10-1986, passed by the Additional District Judge-II, Quetta whereby an application filed by the defendant/petitioner was dismissed.
2. ' Facts stated briefly are as under:- ' The petitioner is the brother of the respondent, whose father expired on 14-6-1963. The respondent Mst. Ghulam Zohra filed a suit for partition and possession for her share, according to Hanafi Law on 31-10-1978. The petitioner contested the suit inter alia, on the ground of Limitation with further averments that the plaintiff respondent got her share during the life of their father. On 23-2-1986, the petitioner moved an application that the suit being time barred may be dismissed. This application was contested by the respondent and a rejoinder was filed.
3. ' It seems that the petitioner wanted the dismissal of the suit without adducing any evidence whatsoever, on the basis of averments in the plaint, However, the learned Additional District Judge dismissed the application observing that the matter should be decided on -merits after recording the evidence of both the parties. The petitioner being aggrieved of the aforesaid order filed this petition under section 115, C.P.C. With the prayer that the suit may be dismissed as being barred by time. The learned counsel for the parties were heard at length .
4. ' It was vehemently urged by the counsel for the petitioner that material irregularity has been committed by the Additional District Judge-II Quetta in dismissing the application that suit being barred by limitation could not be proceeded further. He urged the following points in support of the petition:-
(1) That under Order VII, rule 11, C.P.C. The Court was under obligation to have rejected the plaint since cause of action was barred by limitation.
(2) Reference to section .3 of the Limitation Act, it was urged that even if the objection of limitation would not have been raised, the Court should have dismissed the plaint on its own contents as being time barred.
(3) The plaint was time-barred. Factually it was a suit for recovery of money, since the property has been sold by defendant within the knowledge of the plaintiff. Hence, the suit was liable to dismissal because the period prescribed for recovery of money is 3 years, whereas the present suit was filed after about 15 years. The father of the parties died on 14-6-1963 and the suit was filed on 31-10-1978.
5. It is prima facie barred by time, hence should be dismissed without any further proceedings.
(5) Regarding immovable property, it is Article 120 of the Limitation Act which would apply and the time prescribed is only 6 years.
(6) Since the property is in the name of the petitioner a suit for declaration should have been filed and not a suit for mere partition and possession. By transfer of title, it ceases to be a joint property.
6. Hence at the most, Article 144 of the Lirhitation Act would be applicable. On the other hand, it was urged by the learned counsel for the respondent as under:-
(i) Limitation is not only a vest ion of law but a question of fact as well. Question of fact Can I5e substantiated only by evidence, the suit could not' tuive' been dismissed without necessary evidence.
(ii) Mutation of the property in the name of petitioner was affected vide Mutation No, 418 dated 11- 4-1973, so also in Mutation No,281 'was attested on 18-4-1977. The suit therefore, is not time barred.
7. Adverting to the first contention raised by the petitioner's counsel, it may be observed that order 7 rule 11 (d) lays down that where the suit appears from the statement in the plaint to be barred by any law the same shall be rejected. Law includes subordinate legislation and as such if the Court finds that the plaint on the basis of its own contents prima facie is barred by time the plaint may be rejected under the aforesaid rule. But the pertinent question is whether or not a suit can be rejected under sub-rule (d) of rule 11 of order VII, C.P.C. If it is not transpired from the content of the plaint, without any further evidence that the same is time barred.
8. ' Mr. Zafar submitted that since the father of the parties expired on 14-6-1963 and the suit was filed in 1978, it is prima facie barred by time and the Court was under legal obligation in terms of Order VII, rule 11 (d) to have rejected the plaint without further proceedings. In determining this question it would be profitable to see whether prima facie the suit is barred by time. While rejecting the plaint as being barred by time under Order 7 rule 11 (d) care should be taken that it is the plaint alone which is to be seen and not the written statement. The averments in the plaint, inter alia, depict that the cause of action accrued in the beginning of 1977 when the plaintiff demanded partition of the property as contained is schedule-1 of the plaint and then in April 1977 when the defendant No,1 illegally, fraudulently and with ulterior motive and design got the joint immovable property transferred solely in his name. As per averments in the plaint the property was a joint property and it remained as such till the filing of suit. However, the plaintiff being the real sister of the defendant No,1 gave a General Power of Attorney to the defendant No,1 to do all acts on her behalf regarding movable and immovable property bequeathed by her father. The cause of action accrued to the plaintiff, according to the plaint in the beginning of 1977 as such it can neither be reasonably presumed nor prime fade held that the suit was barred by time, within the meaning of Order 7 rule 11 (d) of C.P.C.
9. Of course, further probe is required after recording of evidence to come to the conclusion whether the averments in the plaint were correct or not. The import of Order 7 rule 11 (d) of CPC is that when it appears to the Court from the contents of the plaint that suit is barred by any law, the Court shall reject the plaint. The legislature has intentionally used the word "appears" which connotes that if it appears to the mind of the Judge or the Court without taking any further proceedings but just what is reflected from the plaint. The word "appears" means a fact or matter as it is, and is apparent without any further probe. The dictionary meaning of the same as contained in Black's Law Dictionary is that frequently used in judicial proceedings has meaning "clear to the comprehension" when applied to the matter of opinion or reasoning". Thus this rule can be pressed into service only when at the time of presentation of the plaint in the Court, if the Judge or Presiding Officer comes to the conclusion from the bare reading of its contents that the same is barred by any law he shall reject it. But if further proceedings i,e, recording of evidence etc. Is required than this order cannot be invoked. In fact it is not the defendant who is to invoke jurisdiction of the Court on this aspect but it is duty of the Court to see whether prime facie the suit is barred by any law or not. In such view of the matter the contentions raised by the counsel for the petitioner loses its force because prima fade it does not appear from the contents of the plaint that it was barred by limitation. The plaintiff has categorically stated that she being legal heir of deceased was entitled to her share according to Hanafi Law and that immovable and movable property bequeathed by her father was jointly held by them and that the defendant acted only as General Attorney on her behalf.
10. ' Be that as it may, all such contentions need record of evidence, thus taking the case out of the orbit and compass of Order VII, rule 11 (d).
11. The scope of Order VII, rule (11) (d), CPC cannot be stretched to cover the matters which for determination, require further legal proof of evidence. In other words, this rule cannot be made applicable in a case where it is difficult for the Court to come to an irresistible conclusion on the basis of contents of the plaint that it is barred by any law. Therefore, the contention of Mr. Zafar, is devoid of force.
12. ' It was next contended by the learned counsel for the petitioner that as per section 3 of the Limitation Act,, the suit being presented after the limitation period shall be dismissed. There is no cavil to the aforesaid contention but the pertinent question is whether the question of limitation in a particular case can be decided without recording of evidence. Admittedly in the instant case an issue was framed by the learned Additional District Judge-II Quetta on the point of limitation. Since the same is sub judice, it would be premature to decide the said issue in this Revision particularly when neither the record is before this Court nor any other material has been placed alongwith the petition. Any 'observation in this context therefore, would definitely prejudice the lower Court in deciding this issue.
13. ' The last contention of Mr. Zafar, was that the suit is, for mere partition and possession and in view of the changed circumstances, unless the suit for declaration is filed, the proceedings shall result in futility. He may raise this point before the lower Court because this is again an objection which according to my considered view is premature since this suit so for merits are concerned is pending before the Additional District judge-II, Quetta. In the circumstances of this case, the question of limitation requires certain facts to be proved by way of evidence and it is therefore, difficult for me to interfere at this stage in the proceedings which are pending adjudicaton, ' It was lastly submitted by the counsel for the petitioner that the suit is covered by Article 144 of Limitation Act regarding immovable property. While counting the time of limitation from the death of the petitioner's father it was contended that the prescribed limitation period of 12 years have already elapsed and, therefore, the suit is barred by time. He relied on the Commentary of the Limitation Act by K.J. Rustomji published in 1977 page 1967, which is hereby reproduced:- "It is an established principle of law that possession of one co-sharer is ordinarily possession of all the co-sharers; but the co-sharer in possession can convert his possession into adverse possession by an overt act showing unequivocally to the co-sharers that in future he intends to hold for himself alone and the adverse possession so begun cannot be stopped by the other co- sharers, merely by affirmations that they are co-sharers."
14. ' But suffice to say that the said contention also cannot be determined in this revision petition without being first determined by the original. Court of competent jurisdiction, particularly when this point is in issue between the parties and evidence is to be led on the same.
15. ' For all the aforesaid reasons, I see no force in this petition which is hereby dismissed with no' orders as to costs.