' C.M.A. No,1392 of 1992 ' In this suit for declaration, possession, mesne profits, and damages valued at Rs,5,08,000 defendants Nos.3 to 10 seek an order for rejection of plaint under the provisions of Order VII, rule 11, C.P.C. On the grounds: firstly, that there is no cause of action against these defendants for filing the suit secondly that the suit for declaration as well as possession is barred by limitation.
2. Briefly stated plaintiff's case is that she was married to defendant No,1 on 6-2-1972 at Karachi against a dower amount of Rs,10,000. From the wedlock two sons and one daughter were born to the spouses. One Badaruddin resident of Sultanabad Colony being in physical possession of a house constructed on a parcel of land bearing Plot No,491-2/B admeasuring 127 sq. Yards in Suitanabad Colony for a pretty long time on 11-3-1975, agreed to grant and sell the said property to the plaintiff for consideration of Rs,10,000. She after payment of consideration received the possession of the property free from all claims, disputes and encumbrances. Defendant No,1, however, who happened to be a native of Tanzania desired to take the plaintiff and her three children to Tanzania to which she was not agreeable with the result that she abandoned her home and shifted to B-6, 285 Alhadi Society, Karachi for her shelter. On 10-2-1983 defendant No,1 through a letter pronounced divorce to the plaintiff and in lieu of dower debt gave her house purchased by her from aforesaid Badaruddin. However, he continued to remain in occupation of the aforesaid property as licensee of the plaintiff. Apprehending foulplay at his hands plaintiff called upon him to give back the possession of the property to her but in vain. She therefore, published a public notice in daily "DAWN" dated 18-5-1990 warning general public not to enter into any transaction with defendant No,1 in respect of the property. Latter, however, taking undue advantage of plaintiff's absence form the property obtained possession and transfer of their share in the property from defendants Nos.3 to 10 or a nominal consideration of Rs,3,810 on the strength of their ownership by way of registered sale-deed dated 11-1-1981.
3. It is the case of the plaintiff that defendants Nos.3 to 10 disclosed that the property earlier forfeited by the Government due to unauthorised construction thereon had been temporarily restored and that after the completion of sale the purchaser will have his share regularized. She alleged that as they were not fully seized and possessed of the property they did not hand over possession of the property to defendant No,1. Plaintiff averred in the plaint that in the record of rights maintained by the City Deputy Collector, Karachi, name of Badaruddin appeared under caption "owner's name" with an entry to the effect "temporarily restored for two years vide D.C's Order No,CJS/Est.3532, dated 21-8-1974". Allegedly defendant No,1 abandoned the property by placing a lock on the main entrance when plaintiff through her eldest son claims to have secured the property by placing a lock on the entrance which was broken open by defendant No,1 who threatened her of dire consequences but she did not care and replaced more stronger locks which were wrongfully removed on 2/3 occasions by the defendant No, 1 . She then reported the matter to Soldier Bazar Police Station whereupon proceedings under section 145, Cr.P.C. Were taken before S.D.M. Jamshed Quarters who having decided against her, she filed a criminal revision application before the Sessions Judge, Karachi-East but without any success. On these averments plaii iff filed this suit for declaration, recovery of physical possession of the property, mesne profits at the rate of Rs,2,000 per such month and damages/compensation.
4. As regards the cause of action her case is that as against defendant No,1 cause of action arose on 10-2-1983 when a letter pronouncing divorce was served upon her and subsequently on 18-5- 1990 when she published a public notice in daily "DAWN", Karachi and lastly when defendant No,1 wrongly sold out the property to defendant. No,2 by way of a bogus transaction in August, 1991. With regard to defendant No,2 according to the plaint cause of action arose on 26-8-1991 when a bogus sale-deed was presented for registration. As against defendants Nos.3 to 10 the cause of action allegedly accrued to her on or about 11-6-1981 when they transferred their share in the property to defendant No,1 in a clandestine manner for a nominal value of Rs,3,810. With regard to defendants Nos. 11 and 12 the cause of action arose to plaintiff on 11-6-1981 when the defendant No,11 accepted the sale-deed for registration while defendant No,12 discarded his administrative and supervisory duties. Defendants Nos. 13 to 15 were joined as pro forma defendants, without any cause of action and without seeking any relief against them.
5. Precisely case of defendants Nos. 3 to 10 as given out in their written statement is that by a registered conveyance deed dated 11-1-1981 they sold away the property in suit with delivery of possession to defendant No,1 for Rs,3,810. Stand taken by defendant No,2 essentially is that he acquired ownership and possession of the property in suit from defendant No,1 for valuable consideration by virtue of a valid sale-deed registered on 26-8-1991.
6. Under the provisions of Order VII, Rule 11, C.P.C. The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) . .. .. . .
(c) . .. . .. .
(d) where the suit appears from the statement in the plaint to be barred by any law
7. A glance at the prayer clause in the plaint filed by the plaintif indicates that in the first instance she is seeking a declaration of her exclusive wnership of the suit property by virtue of an agreement to sell dated 11-3-1 75 from Badaruddin for a consideration of Rs,10,000 with delivery of physical possession. Besides she claims a declaration of her ownership by prescription having perfected her title against defendants Nos. 3 to 10 which is completely inconsistent and destructive of her case of title in her own right. Plaintiff also prayed for a declaration that defendants Nos. 3 to 10 had no right, title and authority to transfer the suit property and a further declaration that defendant No,1 was never the owner of the suit property and thus transaction of sale entered into by him in favour of defendant No,2 be adjudged as bogus and fraudulent. In addition she seeks to recover mesne profits at Rs,2,000 (per month) from defendant No,1 with effect form February, 1983 onwards and mesne profits at similar rate from defendant No,2 without specifying the period of his occupation.
8. It is rightly contended on behalf of the contesting defendants t at mere agreement to sell purportedly executed by Badaruddin on 11-3-1975 in avour of the plaintiff in respect of the suit property does not confer any right title or ownership in her favour inasmuch as any transaction of sale in respect of immovable property worth Rs,100 or upwards is required to be compulsorily registered under sections 17 and 49 of the Registration Act and section 54 of Transfer of Property Act. Simply because there existed an entry in favour of Badaruddin in the record of rights in the Office of City Deputy Collector, Karachi as owner would not be enough to clothe the plaintiff with the rights of an absolute owner of the property irrespective of the fact whether she was put in possession thereof or not. An agreement to sell suggests that the vendor agrees to execute a conveyance deed in respect of the property on certain terms and conditions in favour of the vendee on a future date agreed upon followed by registration of the transaction. I am fortified in my view by the judgments in M. Ghulam Muhammad v. Custodian, Evacuee Property, Lahore PLD 1966 Lahore 953 and Dip Narain Singh v. Nageshar Parasad AIR 1930 Allahabad 1. This view was also affirmed and approved in Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR 949.
9. Since the plaintiff claimed the purchase of suit property from Badaruddin for a consideration of Rs,10,000 alleged agreement of sale dated 11-3-1975 does not furnish her a cause of action to approach the Court after 16 years for a declaration of title in her favour. Subject to title of the vendor and a valid cause of action proper course for the plaintiff was to sue for the relief of specific, performance within a period of three years from the date fixed for performance of agreement or if no date is fixed when she had the notice that performance is refused. Obviously, she has no right and title to the property in suit therefore she cannot legitimately seek a declaration of ownership to the property against defendants Nos.3 to 10 who sold away a portion of the property by a registered sale-deed on 11-1-1981 in favour of defendant No,1. At any rate defendants Nos.3 to 10 having transferred their right to property, if any, in favour of defendant No,1 there is no lawful cause of action for dragging them to Court nearly after eleven years.
10. Likewise since the plaintiff has no right to property within the meaning of section 42 of Specific Relief Act she has no locus standi to seek a negative declaration in respect of the right, title and ownership of the property in suit by defendants Nos. 1, 2 or defendants Nos. 3 to 10. This observation is based on the assumption that all averments made in the plaint are deemed to be correct and accepted on the face of it. There is no gain observing that in fact no cause of action arose to the plaintiff against defendant No,1 when he issued letter, dated 10-2-1983 pronouncing divorce to her or in August, 1981 when he sold away the property in suit to defendant No,2 similarly hardly any cause of action accrued to plaintiff against defendant No,2 on or about 26-8-1991 (in fact the correct date is 26-8-1981) when sale-deed by defendant No,1 in favour of defendant No,2 was registered. For the same reason no cause of action accrued to plaintiff against defendants Nos. 3 to 10 when they transferred their share in the property to defendant No,1 for valuable consideration.
On the averments made in the plaint and for the aforesaid discussion I am of the considered view that the suit filed on 15-12-1991 by the plaintiff is without any cause of action and on this ground alone plaint is liable to rejection.
11. Assuming without conceding that the plaintiff can maintain this suit for declaration, relief of declaration is barred by Article 120 of the First Schedule to the Limitation Act which prescribes a period of six years from the date when the alleged right to sue accrued to her. Right to sue may be said to be analogous to a right to approach the Court. Cause of action arose to the plaintiff as admitted in para. 11 of the plaint on 11-6-1981, thus the present suit filed on 15-12-1991 is very clearly hit by the provisions of the Limitation Act.
12. Under section 3 of the Limitation Act it is paramount duty of the Court to examine the plaint and to ensure that a suit is not entertained which is barred by limitation even though no such defence has been taken up. Legal system dealing with the limitation makes it imperative on the Court to see that no cause beyond the period of limitation is entertained without proper scrutiny. Even if a suit has been inadvertently admitted for regular hearing such order is always amenable to review by the Court which is the spirit of law as can be spelt out from the aforesaid provision of law. I am fortified in this opinion by their Lordships of the Supreme Court in Hakim Muhammad Buta v. Habib Ahmed and others PLD 1985 SC 153 in which this question was dealt with at quite some length and even with reference to the law on the subject from the Indian jurisdiction. Relevant portion from the judgment authored by M.S.H. Quraishi, J. May be reproduced for the sake of convenience and advantage as under:- "The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami ILR 38 Mad.
374, where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that 'the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation' and that 'the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it'. The same Court in a subsequent case, Ramamurthy v. Gopayya I.L.R.40 Mad. 701 reiterated that the parties cannot stop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram AIR 1940 Lahore 75 and held that 'there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves."
13. Even with regard to the prayer for mesne profits as against defendants Nos. 1 and 2 the relief asked for is completely misconceived and without any legal foundation inasmuch as plaintiff herself is not shown to be the rightful owner of the property or illegally dispossessed therefrom by these defendants. In the prayer clause the plaintiff prayed for attachment of the property before judgment and delivery thereof to her she being real owner of the property but neither the date of dispossession is shown in the plaint nor relief for possession sought within time prescribed by Article 142 of Limitation Act. At any rate, in the absence of any right and title to property the plaintiff has no cause of action for the relief of possession and on this score also the plaint is liable to be rejected.
14. Before parting with this judgment reference may be made to Dr. Mehboob Rabani v.
Government of West Pakistan PLD 1963 (W.P.) Lahore 53 and Kalimuddin Ansari v. Director, Excise and Taxation PLD 1970 Karachi 1 relied upon by the learned counsel for the plaintiff in support of his submission that the defendants could not claim to be owners of the property in suit and at the most they could be allowed to raise construction on the land belonging to State. Learned counsel heavily relied upon the observation by late Qadeeruddin Ahmed, J. (as his Lordship then was) in the Karachi case to the effect that 'in the stant case; the Central Government has allowed the sub- licensees to construct building on the assurance that they would be entitled to a registered lease in their favour, therefore, the application of this maxim would be contrary to that agreement. Both the cases are completely distinguishable on facts and of no assistance to the plaintiff.
15. For the aforesaid facts and reasons, the plaint is very clearly hit by the provisions of Order VII, Rule 11, C.P.C. The plaint is accordingly rejected.
' With the rejection of the plaint C.M.As. Nos. 5604 of 1991 and 6505 of 1991 shall stand disposed of.
Plaint rejected.