' This is an application under Order VII, Rule 11, C.P.C. Moved by the defendants Nos.1 to 9 for rejection of plaint mainly on the grounds of limitation.
2. Briefly the facts are that the plaintiff has filed this suit for declaration, partition and possession.
The case of the plaintiff is that Survey Nos.617, 323 and 327 measuring 13 Acres and 18 Ghuntas situate in Deh Thano, Tappo Malir, District Karachi (hereinafter referred to as the suit land) was initially allotted to the plaintiff's father Haji Fiquatullah Khan Lodhi vide an order dated 31-8-1954 and that he remained in possession thereof and built a house and raised a garden thereon.
Subsequently the deceased father of the plaintiff applied for transfer of the land in view of his verified claim in Settlement Scheme No,V, but by an order dated 30-6-1974 he was held entitled to purchase the land on payment of price. However, before making the payment he died on 16-12- 1974 and on the basis of the said order one of his sons namely, Shaukat Ali Khan Lodhi, the ancestor of Defendants Nos.1 to 9 got the said land transferred in his favour alone fraudulently suppressing the names of other heirs i,e. The plaintiff and defendants Nos.10, 11 and 12. This fact came to the knowledge of the plaintiff on 5-5-1977 when he moved an application' before the Settlement Commissioner, Sindh challenging the transfer in favour of said Shaukat Ali Khan Lodhi, the ancestor of Defendants Nos.1 to 9, who has since died. On this application the Settlement Commissioner held an enquiry and set aside the transfer by his order dated 18-5-1977. This said Shaukat Ali Khan Lodhi, who was the brother of the plaintiff and one of the heirs of deceased Haji Fiquatullah Khan Lodhi, challenged this order by way of Const. Petn. No,60/1977 in the High Court of Sindh and this petition was allowed by the judgment dated 2-10-1984 on the technical ground that the Settlement Commissioner was not a Notified Officer and could not entertain any application on administrative side and consequently the order dated 18-5-1977 was set aside. It was further held in this judgment that the plaintiff can take appropriate legal steps for vindication of his rights. That after the death of said Shaukat Ali Khan the defendants Nos.1 to 9 as his heirs have got the transfer-deed in their name, as he had paid the price of land etc. It is the case of the plaintiff that the suit land was transferred in the name of deceased Shaukat All Khan Lodhi as one of the heirs of deceased Haji Fiquatullah Khan Lodhi, and therefore, his possession or title should be deemed to be for and on behalf of all the heirs of the deceased Haji Fiquatullah Khan Lodhi and that deceased Shaukat All Khan Lodhi alone could not be entitled to the suit land. The suit was, therefore, filed for declaration and also for partition and separate possession.
3. I have heard Mr. Maroof All Khan, learned counsel for defendants Nos.1 to 9. He has contended that the present suit, which was filed on 13-4-1986, is on the very face of it barred by law of limitation. The learned counsel has submitted that the plaintiff on his own showing acquired the knowledge of transfer in favour of deceased Shaukat Ali Khan Lodhi on 5-5-1977. Therefore, the present suit which was filed about nine years thereafter is barred both under Article 14 and Article 120 of the Limitation Act. He has further submitted that the plaintiff was not a party to the Const.
Petn. No,60 of 1977 and therefore, he is not entitled to exemption of period spent in pursuing the said petition under section 14 of the Limitation Act. Articles 14 and 120 of the Limitation Act read as under:- {{MISARRANGED DATA}} "Description of suit. Period of Limitation. Time from which period begins . To run.
"14. To set aside any act or order (One year) _ The date of the act or order." of an officer of Government in his official capacity, not herein otherwise expressly provided for.
"120. Suit for which no period (Six years) When the right to sue accrues." of limitation is provided elsewhere in this schedule.
' According to the learned counsel, the present suit, therefor, is time-barred under either of the above-said two Articles and the plaint is, therefore, liable to be rejected under Order VII, Rule 11(d), C.P.C.
4.Mr. S.H. Rizvi, learned counsel for the plaintiff, repelling the above submissions of Mr. Maroof All Khan, has submitted that in case of the provisions of Order VII, Rule 11, C.P.C. It is the contents of the plaint which are to be taken into consideration and not. The case of the defence. According to the learned counsel, of course, the knowledge was acquired by the plaintiff on 5-5-1977 about the order passed earlier which was behind his back, and therefore, he moved an application before the Settlement Commissioner on which an order was passed on 18-5-1977, but this order was set aside by the Hon'ble High Court by a judgment dated 2-10-1984 and therefore, the matter remains relegated to the same position at it was on 5-5-1977 and thus the period could be excluded. It is also submitted that the order of Settlement Commissioner having been challenged as void order, it will be Article 120 of the Limitation Act which will be applicable and not Article 14 of the said Act which applies only where the. Order passed by the authority concerned is a lawful order.
5. It is next contended by the learned counsel for the plaintiff that admittedly the suit land was allotted to deceased Haji Fiquatullah Khan Lodhi and one of his heirs the deceased Shaukat Ali Khan Lodhi was transferred the said property by virtue of his being a heir. From this it is submitted by the learned counsel that, therefore, the possession or any right claimed by Shaukat Ali Khan Lodhi in the suit land, being a co-heir and co-sharer, was for and on behalf of other co-heirs/co- sharers,
6. It may also be pointed out that the plaintiff in the present suit has also sought the relief of partition and the suit also involves enforcement of a right to a share in the joint family !Property and thus Article 127 of the Limitation Act may also be pressed which reads as under:- {{MISARRANGED DATA}} Description of Period of Time from which suit. Limitation. Period begins to run.
"127. By a person excluded from (Twelve years). When the exclu- joint family property to enforce sion becomes a right to share therein. Known to the plaintiff."
The above Article of the Limitation Act provides for a period of 12 years from the date when the Exclusion becomes known to the plaintiff. Even if that date be taken 'to be the date of death of Haji Fiquatullah, Khan Lodhi (16-12 1974) then also the present suit having been filed on 13-4-1986 falls C within the period of 12 years and the relief of possession sought in the plant will be governed by Article 142/144 of the Limitation Act which also provide for a period of 12 years, The learned counsel for the plaintiff further submitted that this point cannot be decided conclusively unless evidence is brought on record.
From the above discussion I am in agreement with the contentions of the learned counsel for the plaintiff and am of the view that the suit, as appears from the contents of the plaint, is within time.
However, this is without prejudice to the final decision on the issue of limitation which may be decided after taking into consideration the evidence that parties may lead. For these reasons I dismiss the present application with no order as to costs.