MUHAMMAD AFZAL ZULLAH, CJ--Leave to appeal has been sought by the defendants' side; against the dismissal by the; High Court, of their Civil Revision. Respondents' suit has been decreed throughout.
The only question which was pressed before the High Court and which has been reiterated by the learned counsel in support of this petition also, is one of limitations. The learned Judge in the High Court noted and dealt with the point of limitation as follows:- .
2. "Record has been received and perused. Learned counsel for the petitioners mainly argued that the suit was barred by time inasmuch as the same was not filed within three years from the date of acquiring knowledge in respect of alleged fraud regarding sale of the suit land made by Nasir Shah in favour of Ali Muhammad petitioner No.1 who onward gifted the same to petitioners Nos. 2 to 9:1 have examined the record with the assistance of the learned counsel for the petitioners. The original mutation of sale bearing No.248 allegedly sanctioned on 21-3-1969 was summoned by the trial Court. Lal Khan Lambardar was examined as P.W.2 who stated that he was Sarbarah Lambardar and did not know Nasir --Shah the vendor. He also deposed that he did not know Nasir Shah at the time of attestation of this mutation. In this mutation this witness has been mentioned to have identified Nasir Shah. This original mutation was found to show that it was allegedly signed by Lal Khan Lambardar. Lal Khan denied the presence of his signatures on this mutation. Mian Maqbool Ahmad, Tehsildar who is said to have attested this mutation was examined as P.W.5. He also denied the presence of his signatures. Expert witness was also examined as PW-6 and the opinion was given that the alleged signatures of Nasir Shah were not similar with his admitted signatures: "After elaborate and careful appraisal of evidence produced in the case the two Courts below have recorded concurrent findings of facts that the sale in question was not made by Nasir Shah in favour of petitioner No.1. It was not a case where the sale was being challenged on the ground that the same was procured from the vendor through fraud and misrepresentation and that his signatures were obtained fraudulently. There is no cavil with the proposition that in a case where the vendor happens to challenge the sale on the ground of misrepresentation and fraud alleging that his signatures were obtained under those circumstances, the period of limitation is to start from the date of acquiring the knowledge by the plaintiff about the fraud. This rule is not applicable in the present case inasmuch as the factum of alleged sale by Nasir Shah was being denied on the ground that he never made the sale. The evidence also established beyond doubt that the impugned mutation of sale was not a genuine document. The suit was for the recovery of possession of land on the basis of title. It was a simple suit for possession, therefore, was governed by Article 144 of the Limitation Act and it was rightly held to be within limitation. No other point was urged. The two Courts below have not committed any material irregularity and illegality in exercise of their jurisdiction as no evidence has been shown to have been either misread or kept out of consideration."
3. In case the findings of fact as noted above are upheld and there is no reason why they should not be upheld, learned counsel could not advance the case of the petitioners any further on the line of arguments adopted in the High Court. Obviously the distinction made by the learned Judge in the facts and circumstances of this case between the ground of fraudulent transaction or alienation and ground of non-existence of alienation is unexceptionable. If as held in the impugned -judgment it is a case of latter type, then a plaintiff seeking possession could very well rely on Article 144 of the Limitation Act. Accordingly, the suit was rightly held to be within limitation.
4. Learned counsel for the petitioners, then raised a somewhat new argument which was not advanced before the High Court: namely, that in the plaint itself the respondents/plaintiffs' side had taken the plea that the time for purpose of limitation started running from the date of- their knowledge about fraud and that was the date of the disputed mutation: namely, 21-3-1969. And further that on the said date the plaintiffs having become aware of the fraud, the suit should have been instituted within three years as in usual case of fraud--thus Article 144 of the Limitation Act was not attracted.
5. Despite the fact that this point was not raised before the High Court we having perused the plaint, do not agree with the learned counsel regarding its reading and interpretation. It is a mufassil drafted plaint with regard to which the superior Courts have always adopted a liberal approach. In any case the paragraph relied upon by the learned counsel can also be read, showing as if the cause of action arose on 21-3-1969 when a mutation was sanctioned without there being any alienation at all. It would not mean that any averment in the plaint to that effect would deprive the respondents of their right to rely on Article 144 of the Limitation Act. The argument of the learned counsel in that behalf, therefore, has no basis.
6. Next the learned counsel contended that the suit should have been filed for cancellation of the mutation. Its form in seeking possession only was impermissible. He has relied on Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329. We do not agree with him, as the case relied upon is obviously distinguishable. He ultimately agreed in this behalf that the present case would be covered by the rule laid down by this Court in a subsequent judgment reported as Mst. Izzat v. Allah Ditta PLD 1981 SC 165. In this case the relief regarding setting aside of the mutation will have to be treated as ancillary to the main relief sought in the suit which related to possession.
After hearing the learned counsel at some length, we do not find any force in this petition. Leave to appeal, accordingly, is refused.