This revision petition is directed against the judgments and decrees of the learned Civil Judge and the learned District Judge, Bahawalpur, dated 5-4--1977 and 9-3-1978 respectively.
2. The brief facts leading to the present revision petition are that one Imam Bakhsh died in 1957 and after his death two mutations of inheritance vide No. 165 of village Khairpur Nauranga and 105 of village Ghulamoo Mahar were sanctioned on 6-9-1957 and on 27-2-1964, respectively. And according to these mutations the mother of the deceased, defendant No.2, was to receive 3/18 as her share of inheritance and the brother, defendant No.1, was to receive 10/18 as his share and the sister, plaintiff No.2, was to receive 5/18 as her share of inheritance in the suit land.
3.Plaintiff No.1, the uterine brother of the deceased was completely ignored and left out of these mutations, whereas, as stated above, plaintiff No.2, the real sister was to receive 5/18 as her share.
Zainab Bibi and Ghulam Rasool plaintiffs MO a suit for declaration to the extent of 9/18 and 3/18 shares respectively as heirs of the deceased Imam Bakhsh. As stated earlier Mst. Zainab Bibi is the real sister of Imam Bakhsh deceased while Ghulam Rasool is the uterine brother of the said Imam Bakhsh.
4. The suit was decreed on 5-4-1977 by the learned Civil Judge Bahawalpur and the appeal against that judgment and decree was dismissed by the learned District Judge, Bahawalpur an 9-3-1978.
Thereafter, the petitioner/defendant filed the present civil revision which was admitted to regular hearing and respondents/plaintiffs restrained from disposing of the land in dispute meanwhile, on the ground of limitation which was issue No.1 in the said suit and was resolved in favour of the respondents/plaintiffs by the two Courts below.
5. The learned cowl for the petitioner has contended that the suit was filed on 5-5-1975 about 4 months from the date of knowledge of the mutations by the respondents/plaintiffs. Nd as the present case falls under Article No.120 of the Limitation Act, citation %tarts from the date the right to sue accrues and the, limitation is 6 years. Hence ire the instant case the relevant date is the date of sanctioning of the mutation i.e. 5-9-1957 and 27-2-1964 respectively, and whereas the suit was filed on S-5-1977, therefore, the suit stood hopelessly barred under the provision of the Article 120 of the Limitation Act. At the very out-set the learned counsel for the petitioner had made it clear that he shall be making submissions on the point of limitation only and that he gives up all other grounds of the revision petition.
6. In reply to these arguments the learned counsel for the respondent contended that themutations of inheritance Nos. 165 and 105 dated 5-9-1957 and 27-2-1964 respectively were sanctioned in the absence of respondents/plaintiffs and that this fact has been admitted by the defendant Ahmad Bakhsh who has appeared as D.W.1 before the trial Court and that respondents/plaintiffs are co--owners in the land in dispute and that in this respect Khasra Girdawaris Exh.P.1 and Exh.P.2 were relied upon, by the learned trial Court. He further contended that respondents/plaintiffs' rest to sue accrued at the time of initiation of consolidation proceedings m the Mauza which was 4 months prior to the filing of the suit, when they had come to know of the said mutations; and, therefore, the suit was within time and has been so held by the concurrent judgments of the learned lower Courts. In this respect he relied upon CLC 1986 Lah. 320 Fateh Sher and others v. Mst. Sharif ghatun and three others.
7. Therefore, it is imperative to determine as to when the limitation under Article 120 starts And to decide whether or not the suit was within time. In this respect Article 120 is as follows:- Art. 120.-- Suit for which period of limitation is not provided elsewhere in this schedule. six years.
When the rest to sue accrues.
8. Here it will be relevant to discuss the authorities cited by the learned counsel for the petitioner.
The first of these is PLD 1969 Lah. 418 Qutub-ud-din v. Muhammad Siddique and others and the relevant portion is on page 425 marked `F which is as follows-- "There is ample judicial authority in support of the view that Article 120 of the Limitation Act applies to declaratory suits not falling under any of the Articles 90, 92, 118, 119, 124 and 129 of the Act, which make special provisions for certain classes of declaratory suits. Therefore, where the declaration of title is sought in respect of immovable property without any further relief, as in this case, it will be governed by Article 120 which provides a period of six years from the date of the accrual of cause of action or right to sue. Privy Council case Satia Narain v. Ram Lal 52 IA 109 is clear authority in point. Francis Legge v. Behram Singh ILR 20 All.35 is also its the same effect."
There is no dispute as to the applicability of Art. 120 or that the limitation shall start from the date of the accrual of cause of action or right to sue. It may however, be pointed out that this case was in respect of evacuee land and the parties to this case had come in possession of the land through various schemes of Rehibilitation and Settlement.
9. Next case cited was PLD 1971 SC 762 Ahmad Din v. Muhammad Shafi and others. This is to the effect that period spent in prosecuting time-barred appeal against order of Revenue Authorities could not be excluded in computing the period of limitation under Article 120. As pointed out by the learned counsel for the respondents, it is not applicable to the facts of the present case.
10. The third authority is 1971 SCMR 514 Zil Muhammad and three others v. Mst. Hayat Bibi and two others, which is as follows:-- "Colonization of Government Lands (Punjab) Act (V of 1912), S.20---Inheritance to occupancy rights--Declaratory suit that plaintiff was owner or occupancy tenant entitled to be in sole possession to exclusion of daughter of deceased occupancy tenant--Article 120 Limitation Act, 1908 applicable to such suit--Terminus a quo: `when the right to sue accrues --Mutation in name of daughter of deceased tenant sanctioned in 1944 and daughter continuing to hold property on her own and receiving her share of produce while declaratory suit by her uncle instituted in 1957-- Suit, held, barred by time--Limitation Act (IX of 1908), Art.120."
As is clear from the reading of the above, the plaintiff in this case was neither in possession nor did he deny knowledge of mutation in the name of daughter of the deceased tenant sanctioned in 1944, therefore, this case is not on all four with the facts of the present revision petition and is distinguishable.
11. From the authorities cited by the learned counsel for the petitioner himself, it is clear that the limitation shall start from the date "of the accrual of cause of action or right to sue." and in this respect the authority relied upon by the learned counsel for the respondents is also to the same effect i.e. 1986 CLC 320 Fateh Sher and others v. Sharif Khatoon and others and holds that under Article 120, the period of limitation was to run from the date of accrual of cause of action.
12. The case of the respondents/plaintiffs is that the initiation of the consolidation proceedings had brought to light the mutations in question and had given rise to the present grievance and suit. As co-owners in possession, they had been peacefully enjoying their respective shares of the inheritance as co-owners and it was only now that their title was challenged and threatened. As held in AIR 1939 Lab. 428 Mst. Muhammad Bibi v. Shahab-ud-din and another where a person is in possession, it is not necessary for him to bring a declaratory suit at once; and each occasion on which his title is challenged furnishes a fresh cause of action and a suit filed within 6 years from last of such occasions would be well within time". The Hon'ble Court in this case had followed AIR 1922 Lah. 94, AIR 1925 Lah, 391 and AIR 1928 Lah. 516.
13. Similarly it was held in AIR 1933 Lah. 53, Shankar Das v. Mst. Dhan Devi, "that. The plaintiff need not bring his suit for declaration from the time of the first denial of his title, specially when the plaintiff is in possession of the property A fresh cause of action accrues to the plaintiff when he has his possession of the property disturbed"
14. In another case namely AIR 1930 Lah. 284 (2) Ghulam Rasool and others v. Rahim Bakhsh and others the Division Bench held that under Article 120 of Limitation Act the cause of action did accrue to the plaintiff on the rejection of the application for correction of entries in Revenue Records but as a fresh invasion of the plaintiffs rights accrued when the direction was made by the Revenue Officer for partition of the occupancy rights the limitation began to run from the later date".
15. In another case AIR 1938 Lah. 318, Desondhi Khan and others v. Jan Muhammad and others, the Division Bench held "that the final order for partition in 1932 threatened the possession of the plaintiff and thus gave him a fresh cause of action. The suit brought within 6 years of that date was within time".
16. The latest authority on the subject is by the Hon'ble Supreme Court of Pakistan i.e. PLD 1981 SC 165, Mst. Izzat v. Allah Ditta. In this case their Lordships of the Supreme Court have held:- "that the plaintiff was not bound to seek cancellation of deed through suit and could wait till threat to her possession became not only visible but more real--Right to seek relief against defendant, held further, accrued to plaintiff at such stage and starting point of limitation remained date of sanction of mutation and thereafter on every day when respondent continued making claim against plaintiff's right to possess suit land."
17. The averments of the respondents/plaintiffs are to the same effect. They had been in peaceful possession of their shares respectively, and as held by the lower Courts it was only because of the consolidation proceedings that their title was threatened and gave rise to the suit for declaration.
Even if for arguments A sake it is accepted that in the first instance the cause of action had arisen at the time and date the mutations in question were sanctioned in the light of the authorities cited above, a fresh cause of action had arisen in favour of the respondents/plaintiffs when there was likelihood of their being deprived of their, rightful shares through consolidation proceedings.
Therefore, the right to sue and the cause of action accrued to the plaintiffs four months before the filing of the suit. This being within 6 years of the limitation laid down under Article 120, there is no question of the same being time-barred.
18.Therefore, it was held by the concurrent judgments of the learned lower Courts that the suit was within time as the cause of action and the right to sue had accrued to the rspondents/plaintiffs in possession at the time of initiation of consolidation proceedings in respect of the suit land which was 4 months before the filing of the suit on 5-5-1975 which is well within the limitation of 6 years-- --under Article 120 of the Limitation Act, 1908, in light of the case-law discussed above.
19. In view of the reasons stated above this civil revision is devoid of merit. Therefore, this revision petition is dismissed. In the circumstances of the case the parties are left to bear their own costs.