MUHAMMAD ZAFAR YASIN, J.- This second appeal has been filed by the legal heirs of Karim Bakhsh, vendor, against the judgment and decree passed by the District Judge, Mianwali dated 5.7.1974, whereby, the lower Appellate Court has been pleased to accept the appeal of the plaintiffs/respondents, set aside the judgment and decree of the Trial Court and as a result thereof decreed the suit of the plaintiffs/respondents in their favour.
2. Brief facts relevant for the decision of the present appeal are that the plaintiffs/ respondents filed a suit for possession alleging therein that they had purchased land measuring 61 kanals - 4 marlas from Karim Bakhsh, the predecessor in interest of defendants through registered sale deed dated 21.10.1953 and in this respect Mutation No. 2430 was also attested in their favour on 30th of August, 1954. The land was acquired by the Thai Development Authority for the purpose of development and thereafter, the defendants in collusion with the Revenue Officer, got the land adjusted in their on name in recognition of right of return of the land sold to the plaintiffs, from the Thai Development Authority. It was further averred in the plaint that the defendants had no title for the suit land in their favour but they refused to hand over the possession of the land in favour of plaintiffs. Hence the suit.
3. The defendants contested the suit by filing written statement. On the divergent pleadings of the parties, following issues were framed:-
1. Whether the suit is bad for the non-joinder of the necessary parties in the suit?.
2. Whether the T.D.A. Is a necessary party in the suit?
3. Whether the suit is bad for the mis-joinder of the necessary party in the suit?
4. Whether the suit is time barred?
4. A Whether the plaintiffs are the owners of the property in dispute?
5. Relief?
4. The plaintiffs produced, PW-1, Patwari Halqa in oral evidence, and further tendered documents Exhibits P/l to P/7 through his counsel. However, defendants neither produced any oral evidence nor tendered any documentary evidence to rebut the evidence of the plaintiffs. The Trial Court was pleased to return its findings on Issues No. 1 & 3 against the defendants/appellants and decided Issues No. 2,4 & 4/A against the plaintiffs, and as a result thereof, the Trial Court dismissed the suit of the plaintiffs. Being aggrieved by the judgment and decree of the Trial Court dated 23.11.1973, the plaintiffs filed an appeal before the District Judge, Mianwali. The learned District Judge has been pleased to reverse the findings of the Trial Court on Issues No. 2,3,4 & 4/A, accepted the appeal of the plaintiffs/appellants and as a result thereof decreed their suit for possession to the extent of Vi of the land adjusted by the Thai Development Authority in recognition of right of return of the land sold by Karim Bakhsh to the plaintiff i.e. To the extent of land measuring 31 kanals - 12 marlas.
Hence this regular second appeal by the defendants, the legal heirs of vendor Karim Bakhsh.
5. The learned counsel for the appellants has only challenged the findings of the lower appellate Court on issue No. 4 which reads as under:- "Whether the suit is time barred".
The learned counsel has argued the Mutation No. 2430 was sanctioned in favour of the plaintiffs on 30.8.1954 while they have filed suit for possession on 9.3.1971. The plaintiffs have been out of possession since 1954, hence their case is governed by Article 142 of the Limitation Act. Hence the suit having been filed after lapse of more than 12 years, of the mutation of sale, is barred by law of limitation. In this respect, the learned counsel has relied upon the Ahid Hussain v. Mrs. Asfar Jahan Siddiqul (P.L.D. 1976 Kar. 836).
6. Learned counsel for the plaintiffs/ respondents has vehemently contested the appeal and argued that as no challenge has been made by the learned counsel for the appellants on issue No.3, hence the plaintiffs are admittedly the vendees from Karim Bakhsh. The land had been acquired by Thai Development Authority for development and it was returned by the Thai Development Authority in recognition of the Right of Return and in this respect Mutation No. 34 and Mutation No. 69 Ex.P/5 and Ex.P/3 were attested on 20.9.1962 and 19.11.1964, respectively in favour of the defendants instead of the plaintiffs/vendees. Hence plaintiffs' suit filed on 9.3.1971, is well within time. The learned counsel for the respondents argued that their case is governed by Article 144 of Limitation Act and not by Article 142, of the said Article. The learned counsel for the respondents further argued that the defendant/appellants had become owners of the suit land by principle of estoppel by feeding contained in Section 43 of the Transfer of Property Act. In this respect the reliance is placed on unreported judgment of Lahore High Court, Lahore passed in R.S.A. 566 of 1971, dated 1.3.1994, and maintained by Hon'ble Supreme Court of Pakistan by dismissing CPSLA No. 578- L-94 on 16-10- 1995 against the said judgment; wherein identical point of law was involved.
7. I have given my anxious consideration to the arguments advanced by both sides. The appellants had admitted the sale in favour of the plaintiffs and also admitted position that the land had been acquired by the Thai Development Authority and thereafter under Thai Development Act V2 of acquired land was returned in recognition of the right of return of the original owner i.e. Vendor in accordance with the practice of the Thai Development Authority; and in this respect Mutations No. 69 & 34 were respectively sanctioned on 19.11.1964 and 20.9.1962. Hence the suit of plaintiffs/respondents having been filed on 9.3.1971, is well within time. The arguments of the learned counsel for the appellant that the suit was time barred is devoid of force, therefore, the appeal is dismissed. However, there will be no order as to costs.