' The facts relevant for the decision of this revision petition are that the petitioner purchased a piece of agricultural land situated in Mauza Keer Kalan, District Lahore from Riyasat Ali, General Attorney of respondent No,1 who filed a suit on 25-1-1987 for declaration to the effect that the General Power of Attorney dated 23-12-1978 in favour of Riyasat All and the sale-deed dated 9-8- 1982 in favour of the petitioner are forged and fabricated documents and sought their cancellation as well as prayed for possession and declaration. The petitioner resisted the suit. The trial Court framed the following issues:--
(1) Whether the plaintiff is entitled to the decree as prayed for? OPP
(2) Whether the suit is time-barred? OPD
(3) Whether the suit is not maintainable and is liable to be dismissed? OPD
(4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD
(5) Whether the suit is barred under section 42 of Specific Relief Act? OPD
(6) Relief.
' The trial Court recorded evidence and after hearing the arguments decided issue No,2 as to limitation in favour of the petitioner and proceeded to dismiss the suit vide judgment and decree dated 11-11-1992, which was assailed by respondent No,1 through an appeal before the lower appellate Court, proceeded to reverse the finding recorded by the trial Court on issue No,2 and accepted the appeal vide judgment and decree dated 22-6-1994. Hence this revision petition, which was admitted to regular hearing and notice was issued to the respondents but in spite of service respondent No,1 alone appeared and contested the petition.
2. The learned counsel for the petitioner argued that the suit filed by respondent No,1 was suit for cancellation of the documents, therefore, limitation would be governed by Article 91 of the Limitation Act. It was added that according to para. 9 of the plaint the date of knowledge is July 1984 but it was not explained how the plaintiff came to know of the sale and, on other hand, as P.W.1 she admitted that she learnt about the same 10/12 years back. Therefore, the suit filed on 25-1-1987 was barred by limitation. The suit was not one under section 42 of the Specific Relief Act, therefore, not covered by Article 120 of the Limitation Act. In this behalf the learned counsel referred to the cases reported as Fatahuddin v. Zarshad and another (1973 SCM R 248) and Hamida Begum v.
Murad Begum (PLD 1975 SC 624).
3. On the other hand, the learned counsel for respondent No,1 argued that it was a suit for declaration as is clear from the title of the plaint and the prayer, therefore, limitation would be governed by Article 120 of the Limitation Act. It is added that the petitioner failed to prove that the plaintiff appointed respondent No,2 as her Attorney. It is added that the trial Court rightly noted that when the plaintiff was herself present then what was the occasion for executing the power of attorney. The learned counsel in this behalf referred to Article 118 of the Qanun-e-Shahadat and referred to Ihsan Illahi v. Abdul Sattar (1993 CLC 1243). He also relied on Fatahuddin v. Zarshad (supra) and portion of the judgment in the case of Hamida Begum (supra) relied by the learned counsel for the petitioner.
4. The learned counsel for the petitioner while summing up the arguments submitted that the suit was essentially under section 39 of the Specific Relief Act, therefore, limitation would be governed by Article 91. Besides the other cases as noted in the earlier part of this judgment he also referred to the judgment reported as Rashid Ahmad v. Haq Nawaz and others (1982 CLC 9). It is added that respondent No,1 clearly admitted in her statement as P.W.1 that she came to know of the sale 10/12 years back. It is added that to the same effect is the statement of P.W.3, the tenant of the plaintiff. It is explained that the petitioner immediately after the sale got the mutation entered and sanctioned. The plaintiff filed the first suit, which was dismissed for non-prosecution on 17-12-1984 while the second suit was dismissed on 30-9-1986 and the third suit met the same fate and was dismissed on 5-1-1987. It is maintained that the respondents were blackmailing the petitioner and trying to extract more money or get back the land. The present suit, which is 4th in the series was filed on 25-1-1987. Therefore, the plea in the plaint that the plaintiff came to know of the power of attorney and registered sale-deed in July 1984 was false on the face of it.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as the precedent cases. The main question is whether the suit was time-barred or not? It is worthwhile to mention here that the trial Court decided the issue of limitation in favour of the petitioner and dismissed the suit of respondent No,1 while on appeal the lower appellate Court reversed the findings of the trial Court on this issue and as a result thereof decreed the suit. The learned counsel for the petitioner argued that the suit was essentially for cancellation of document, therefore, it was governed by Article 91 of the Limitation Act. On the other hand, as already noted, the argument of the contesting respondent-plaintiff was that it was, in fact, a suit for declaration, therefore, governed by Article 120 of the Limitation Act.
6. I am conscious of the fact that the scope of the provisions of sections 39 and 42 of the Specific Relief Act is somewhat overlapping but if reference is made to judgments of the superior Courts then it becomes clear that-there is an obvious distinction between the scope of these two provisions of the Specific Relief Act. In this behalf, reference can be made to the judgments in the cases of Hamida Begum (supra), Abdul Hamid alias "Md. Abdul Hamid v. Dr. Sadeque Ali Ahmed and others (PLD 1969 Dacca 357), Mst. Halima Bibi and Rashid Ahmad (supra). Generally the parties do not keep this subtle but clear distinction in mind while drafting plaints. Therefore, the Court has to find out itself as to whether the suit as laid and framed is covered by section 39 or 42 of the Specific Relief Act. I am fortified in my view by the judgments in the cases of Akhlaq Ahmad v. Mst.
Karam Ilahi (AIR 1935 All. 207) and Bulakram and another v. Ganga Bishun Chaudhary (AIR 1940 Pat.
133). The distinction was made clear in the case of Abdul Hamid v. Sadeque All Ahmed (PLD 1969 Dacca 357). The relevant portion of the judgment reads as under:-- "There is ample authority for the view that a distinction should be drawn between the case where the plaintiff is a party to the deed and the case where he is stranger to it. Where a document is to be set aside or declared null and void by a person who is a party to the deed, mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not the party to the deed is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiff's rights would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as including a prayer for consequential relief, but if it is not incumbent on the plaintiff to get rid of the document the plaint must be treated as one for a declaration pure and simple.
' A distinction has to be made between documents that are void and those that are voidable only.
A document which is null and void ab initio need not be set aside, it may be treated as non- existent. But a voidable contract is valid until it is avoided or specifically set aside. In case of void document a person may rely on its invalidity as against himself without suing for as cancellation, and a suit by him for declaring its invalidity is not a suit for declaration with consequential relief. But in a case of a document that is only voidable the case is otherwise as the party cannot impeach the arrangement effected by it without having it cancelled."
' While in the case of Mst. Halima Bibi v. Muhammad Bashir (1989 CLC 1588) although there was no prayer for cancellation of the deed yet this Court held that the suit was covered by section 39 of the Specific Relief Act and not section 42 thereof. In this behalf reference can also be made to the cases of Ihsan Illahi (supra) and Hamida Begum (supra). The limitation would be governed by premier relief.
7. Now coming to the case in hand. The plaintiff clearly prayed for cancellation of the deed and also prayed for possession. The relevant portion reads as under:-- "It is, therefore, respectfully prayed that the suit of the plaintiff be decreed in his favour against the defendants: (i)
(iii) Further cancelling general power of attorney and sale-deed as detailed above.
' WITH THE CONSEQUENTIAL RELIEF:
(i) That the possession of the land Khasra Nos.782 and 783, out of Khewat No,3, Khatoni No,20, measuring 6 Kanals 8 Marlas situated in Mauza Keer Kalan, Tehsil and District Lahore be given to the plaintiff from the defendant No,1.
' That the defendant No, 1 be restrained to further alienate or dispose of the land in question to any body else during the pendency of the suit."
' While her witness Muhammad Ramzan P.W.3 admitted that possession was taken from him by the vendee about ten years back. The statement was recorded on 28-7-1992. The respondent while appearing as P.W.1 on 27-1-1992 admitted that her tenant informed her as to the sale about 10/12 years ago.
8. The sale-deed is dated 9-8-1982, therefore, if the aforementioned statements of plaintiff and D.W.3 are taken into consideration, it becomes clear that the plaintiff came to know of the sale- deed immediately after its registration. This is natural because the petitioner not only got the mutation entered and sanctioned but also took over the possession. This becomes further clear from the admission of the plaintiff that she moved revenue authorities requesting for not to sanction the mutation in favour of the petitioner, police and elders for settlement of this dispute.
Above all she was also admitted having filed a suit earlier but her explanation is that she was tricked by a counsel. Be that as it may, one thing is clear that the sale was in her knowledge.
Therefore, the case of the plaintiff would not be covered by Article 18 of the Limitation Act. If looked from this angle there is nothing wrong with the finding recorded by the trial Court on this issue. The same reads as under:-- "ISSUE NO.2: ' In para. 6 of the plaint it is admitted that the plaintiff came to know about the forged transaction in July, 1984 but while appearing as P.W.1 she admitted that matter was brought to his knowledge by his tenant about 10/12 years prior to her statement which was recorded on 27-1-1992. If it is calculated from the date on which her statement was recorded her knowledge comes to be near about 1978 - 80 meaning therebythat the plaintiff came to know about the impugned documents from the very beginning when sale-deed was executed and suit has been filed in January, 1987 after a delay of not less than 5 years. According to law of Limitation period prescribed for filing suit under section 39 of the Specific Relief Act is 3 years and suit is within four corners of said section.
The present suit is therefore, badly barred by time as prescribed by law. Issue is, therefore decided against the plaintiff."
9. Now coming to the other aspect. The sale-deed is clearly voidable, therefore, the cancellation was the only remedy and not suit for declaration. I am fortified in my view by the judgments in the cases of Hamida Begum, Abdul Hamid and Mst. Halima Bibi (supra). Now it is to be seen whether Article 91 of the Limitation Act as argued by the learned counsel for the petitioner would apply or Article 92. I am of the considered view that since the plaintiff has sought cancellation of a registered document, therefore, it will be fairly and squarely case covered by Article 92 and not 91 of the Limitation Act, which is general in nature and residuary clause. The limitation would be governed by the premier relief claimed in the plaint and not by the incidental and secondary relief.
The suit was, therefore, covered by Article 92 of the Limitation Act, which provides three years when the registration becomes known to the plaintiff. Therefore, suit was barred by limitation.
10. Now coming to the merits. The onus of issue No,1 was on the plaintiff, therefore, in order to succeed she was to prove that the alleged general power of attorney in favour of Riyasat All was a forged and fabricated document but she did not even attempt to get the same produced. In other words she failed to furnish the basis of her claim in the suit and discharge the onus. The non- production of the document was fatal to her claim. The Courts below held that the document was in possession of defendant No,2, who was proceeded ex parte. This is no justification for its non- production because the plaintiff and the trial Court were not helpless in this behalf. The plaintiff could have moved the trial Court for an order to the said defendant to produce the document or summoned him for production of document and even the trial Court could have itself directed the said defendant to produce the general power of attorney. This becomes clear if the reference is made to section 30, Order XVI, Rules 1, 6 and 7, C.P.C. And in cast of failure the trial Court should have resorted to penal provisions compelling him to produce the document. This having not been done, it was legally not possible to hold that the alleged general power of attorney was a forged and fabricated document. This amounts to exercise of jurisdiction in vacuum, which is not permissible under law. It is relevant to note here that it is not the case of the plaintiff that the petitioner was a privy to the general power of attorney. On the other hand, she admitted that Riyasat Ali, the alleged General Attorney, is her son-in-law and nephew.
11. Now coming to the sale-deed. It is nobody's case that the said Riyasat All did not execute and register the sale-deed in favour of the petitioner. The plaintiff in para. 3 of her plaint has clearly admitted the execution of the sale-deed by Riyasat All in favour of the petitioner, therefore, the plaintiff miserably failed to prove issue No,1.
12. The Courts below noted that witnesses of the petitioner have admitted that the plaintiff was also present at the time of the registration of the sale-deed in favour of the petitioner and according to them it was unbelievable. This is mere presumption and there is nothing on record to contradict this plea. The presumption is not well founded because the plaintiff may be anxious to receive the sale consideration immediately. This presumption is supported by evidence of P.W.2. The Courts below failed to appreciate that power of attorney was registered on 23-12-1978 and if it was forged and fabricated document then Riyasat All would not have waited for a long period of almost 4 years to have fruits of his fraud. This was a strong circumstance which has not been taken into consideration while deciding issue No,1.
13. The upshot of the above discussion is that this revision is allowed with costs. The result is that the suit of the respondent No,1 is dismissed both as barred by limitation and on merits.