' This is an appeal from the judgment and decree of the learned Additional District Judge, Kasur dated 3-3-1979 by which the appellants' appeal against the judgment and decree of the learned Civil Judge dated 29-7 1978 was dismissed. The learned Civil Judge had by his judgment dated 29- 7 1978 decreed the suit of the plaintiffs' successor-in-interest Sultan and had dismissed the suit of the remaining plaintiffs namely the successors-in-interest of Nathoo.
2. The crucial facts are mostly admitted. The land in suit was held by Wassan; he died on 15-3-1918.
He was survived by a widow Mst. Bakhtawar and his entire land was mutated in her favour as limited owner under custom. Mst. Bakhtawar died on 28-9-1961 and succession to the estate of Wassan opened out. Wassan had five brothers named Sultan, Pehlwan, Berhan, Nathoo and Kala.
The Revenue Officers sanctioned an inheritance mutation giving 1/8th to the heirs of Mst.
Bakhtawar and 1/2 share to the heirs of Mst. Saran a daughter of Wassan. As regards the remaining 3/8th share, the revenue authorities gave it to the successors-in-interest of Kala.
3. The plaintiffs, who are the successors-in-interest of Nathoo and Sultan brought this suit for declaration and possession, their claim being that Sultan and Nathoo were alive at the date of the death of Wassan and they were entitled to succeed to the exclusion of Kala. The defendants, successors-in interest of Kala, who are appellants herein contested the suit. The learned trial Court returned the finding that while Nathoo had predeceased Wassan, Sultan was alive at his death and decreed the claim of the successors-in-interest of Sultan but dismissed it as regards the successors-in-interest of Nathoo. This finding of fact was affirmed on appeal by the learned Additional District Judge's judgment dated 3-3-1979.
4. The only question requiring determination on this appeal therefore is whether Sultan too had died before Wassan.
5. The parties led oral as well as documentary evidence, but the learned Courts below did not rely upon their oral evidence, that evidence was not relied upon before me either. It will however be necessary to refer to the statement of Musa, one of the plaintiffs who appeared into the witness- box as P.W.4, for it was in his evidence that the death entry of Sultan (Exh.P.7) upon which the finding of the Courts below that Sultan had survived Wassan was mainly based, was produced.
6. As observed above, Wassan had died in 1918. The plaintiffs called two witnesses in affirmative evidence namely Fateh Din and Yousan. The defendants then led their evidence and called three D.Ws. It was in rebuttal that Musa plaintiff appeared as his own witness; in his examination-in-chief, he tendered in evidence the death entry of Sultan Exh.P.7 and copies of pedigree-table Exhs.P.8, P.9 and P.10. Counsel for the defendants objected to those documents being admitted in evidence at that stage but the learned Civil Judge allowed those documents to be produced on payment of costs.
7. Earlier the plaintiff had tendered in evidence the death entry of Mst. Saran Exh.P.3, death entry of Kala Exh.P.4 and the inheritance mutation of Sultan Exh.P.6.
8. Learned counsel for the appellants referred to the death entries Exhs.P.3, P.4 and P.5 and pointed out that all those persons had died in Mauza Hussain Khan Wala in Tehsil Chunian; he particularly referred to column 9 of those documents to show that all those persons were described as Arain Muslims. In contrast, he pointed out, Exh.P.7 showed that Sultan to whom that entry related was a resident of a place called Shakargarh in Tehsil Okara and that that Sultan was `Lehra' or 'Mehra'
Muslim. His argument therefore was that Exh.P.7 did not relate to Sultan, brother of Wassan and predecessor-in interest of the plaintiffs. I do not however think that this contention is entitled to succeed. True that the death entry Exh.P.7 related to a place different from the one mentioned in Exhs.P.3, P.4 and P.S. But this entry was tendered in the evidence of Musa plaintiff and no question by way of cross-examination was put to him that this entry did not relate to Sultan brother of Wassan. It has been seen that the death of Mst. Saran, Kala and Wassan had been registered and so must have been the death of Sultan in Mauza Hussain Khan Wala. And it is obvious that if Exh.P.7 did not belong to that Sultan, his death entry from village Hussain Khan Wala could be procured and produced. I, therefore, concur in the view taken by the learned Courts below that the entry Exh.P.7 related to the pedecessor-in-interest of the plaintiffs and that he had died on 15-11-1938 i.e. long after the death of Wassan.
9. It was then argued that the suit was barred by time. In that behalf it was pointed out that the time had started running against the plaintiffs under Article 120 of the Schedule to the Limitation Act, from 27-3-1963 when their revision petition was dismissed by the Board of Revenue. The suit it was said should have been instituted within six years of 27-3-1963 and instituted as it was on 28-11- 1973 was out of time.
10. This contention too has little merit. For one, this was a suit for possession and assuming that the starting point of limitation was 27-3-1963, as it was instituted within 12 years of that date, it was well within time. Learned counsel for the appellants invited me to hold that in substance the suit was for declaration. I decline the invitation, for I see no reason for not treating the suit as one for possession. There can be no question that as heirs of Sultan the relief of possession was open to the plaintiffs. Indeed they could sue for declaration also but as to what relief they should seek it was entirely for the plaintiffs.
11. Then, assuming that Article 120 of the Schedule to the Limitation Act applied, the starting point of limitation under that Article was when the right to sue accrues. In that connection, it is important to keep in mind that for the purposes of Article 120, the decided cases make a clear distinction between the class of case in which the mutation order was made by an authority competent to decide the question of title and the class of case in which mutations are sanctioned under the ordinary law, namely, the Punjab Land Revenue Act. As regards the latter class of case, it is well- settled that the Revenue Officers are not competent to decide the questions of title, that the mutations sanctioned by them do not decide those questions and that such mutations are sanctioned for fiscal purposes only. In such cases, for the purpose of limitation Courts generally read Article 120 of the Schedule to the Limitation Act with section 53 of the Punjab Land Revenue Act, 1967. That section recognises the right of a person to institute a suit for a declaration under the Specific Relief Act, 1877, section 42, if he 'considers himself aggrieved by an entry in a record of rights or in a periodical record as to any right of which he is in possession'. The reason why this tight is recognised is that the entries in the record of rights and periodical record are by section 52 of the Act presumptive evidence of title; no such presumption exists in regard to the entries in the mutations. So, when a mutation entry finds its way into the record of rights or periodical record, a person feeling aggrieved by the entry so made may institute a suit under section 42 of the Specific Relief Act. And as a mutation is neither a document of title, nor presumptive evidence of title, a person may not feel aggrieved by its entries. It is, therefore, inexorable logic that cause of action does not in such cases accrue when the mutation order, original, appellate or revisional, is made and that it accrues when the person concenred 'feels himself aggrieved' by such an entry.
12. This is what distinguishes the cases in which the officer making the mutation order is competent to determine rights. To this class belonged the well-known cases decided under paras.46 and 46-A of .the Rehabilitation Scheme. In such cases, the mutation order is, in itself, capable of legal consequences and takes effect as soon as it is made and the affected party can ignore it only at his own risk. To put it differently, as such a mutation order creates rights, the affected person must have it set aside. It should follow therefore that in such cases, the date of the accrual of the cause of action is the date of the mutation order itself; it does not depend upon the occurrence of any other event. Thus, in Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 it was held that mutations sanctioned under paras. 46 and 46-A were simply a measure for a re-settlement of refugees in Pakistan; they did not pertain to the inheritance of the deceased right-holders, and that the rehabilitation authorities had the necessary powers to decide the claims under those paras.
Learned counsel for the appellants referred Ghulam Haider v. Hafiz Allah Bakhsh 1985 SCM R 1218 and Ali Khan v. Rahim Bakhsh etc. 1989 MLD 3625. Both these cases were decided in the context of, and were authority for, their own facts. In Ghulam Haider's case, the mutation in question was a mutation of gift and it was held that the time had begun to run against the plaintiff from the date of the mutation. In Ali Khan's case, it was held that the plaintiff "after having acquiesced in the title of the respondent in the land", had belatedly brought the suit when warrants of possession were issued against him on the basis of the Consolidation Scheme.
13. For these reasons I find no merit in the appeal and dismiss it. The parties are, however, left to bear their own costs.