1. ' SAIDUZZAMAN SIDDIQUI, C.J.---The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of Lahore High Court dated 27-2-1998 whereby Regular Second Appeal No,113 of 1989 filed by the petitioners was dismissed and the concurrent judgments of the two Courts below were affirmed.
2. The learned counsel for the petitioners did not assail the judgment of the High Court on merits but only pressed his petition on the ground that the suit filed by the petitioners before the trial Court was barred by limitation as the suit was governed under Article 91 of the Limitation Act. It is contended by the learned counsel that the sale in this case was executed on the basis of an alleged general power-of-attorney on 27-11-1965 while the suit was instituted by the respondents on 23-12-1978 which was clearly barred by limitation. The learned counsel contends that as the suit in substance was one for cancellation of the document, therefore, it was governed under Article 91 of the Limitation Act. In the suit instituted by the respondents before the Civil Judge, the only relief claimed was for possession of the land in 'occupation of the petitioners. No doubt, in the copy of plaint it was alleged that the alleged sale executed in favour of petitioners was void but that was only ancillary to the main relief of possession claimed in the suit. In the case of Hamida Begum v.
2. Murad Begum (PLD 1975 SC 624) the scope of application of Article 91 of the Limitation Act was examined and after exhaustively referring to the case-law on the point, the following observations were made:- "Article 91 provides a period of three years for a suit to cancel or set aside an instrument not otherwise provided for, and the limitation is to commence 'when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.'
3. ' It is correct that the article does not apply where the plaintiff was not a party to the instrument sought to be avoided, for the reason that in that case he is not bound by it and it is not necessary for him to have it set aside. At the same time it is also clear that a plaintiff claiming through, or as a successor-in-interest of a party to the instrument is in the same position as the principal, and would be obliged to have the instrument set aside if it constitutes an impediment in the way of the relief sought by him. (See Sajjad Ali v. Muhammad Zulfiqar Ahmed Khan (83 PR .1916), Vithu v.
4. Devidas (AIR 1918 Nag. 20), Kunjilal v. Chandar Singh, (AIR 1921 Nag. 74) and Ganapathi Aiyar v.
5. Sivamalai Goundan (ILR 36 Mad. 575). In the present case the appellant has no other right or locus standi except as a successor-in-interest of her father Sh. Mehar Din, and she must, therefore, ask for avoidance of the two instruments in question before she can succeed to the property in dispute.
6. ' From the language of the Article itself, it is clear that it will not apply when the cancellation of an instrument is not an essential part of the plaintiff's relief. An obvious case of this kind would be where the deed or instrument is ab initio null and void, in which case it can be treated as a nullity without having to be cancelled or set aside. If, on the other hand, the instrument is only voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of the plaintiff. It is perhaps not possible to enumerate exhausitvely the circumstances which would render an instrument null and void but it is at least clear that if the person who executes the document had no authority in law to do so or if he had only a conditional authority to dispose of property, and the conditions under which authority could be exercised were not fulfilled, then the instrument could be regarded as null and void. Similarly, if the instrument is executed by a person suffering under a legal disability at the time of its execution, say by reason of minority, unsoundness of mind etc., the document would be null and void. If however, the instrument is executed by a person competent to do so, but it is alleged that he was forced or persuaded to execute the same under coercion, fraud, misrepresentation of undue influence, then it would be a voidable instrument in accordance with the principles embodied in sections 19 and 19-A of the Contract Act. The instrument would remain operative as long as it was not set aside by a competent Court. As authority for this proposition we may mention Redhu Ram v. Mohan Singh (AIR 1915 Lah. 200) Unni v. Kunchi Amma, (ILR 14 Mad.26) Mt. Izhar Fatima Bibi v. Mt. Ansar Fatima Bibi, (AIR 1939 All. 348) Minalal Shadiram v. Kharsejit, (ILR 27 Bom. 560) Jaki Kunwar v. Ajit Singh (ILR 15 Cal. 58), Govindasamy Pilai v. Ramaswamy Pillai (ILR 32 Mad 72), Mahaant Gyan Prakash Das v.
7. Mst. Dukhan Kuar (AIR 1938 Pat. 69), Sh. Ibrar Ahmed v. Mt. Kamni Begum (AIR 1938 All. 451), Ramchandra Jivji. Kanago v. Laxam Shrini Vas Naik (AIR 1945 PC 54)" (The underlining is by us to supply emphasis).
8. ' The above case of Hamida Begum v. Murad Begum was referred with approval in. Muhammad Sharif v. Inayat Ullah (1996 SCMR 145) as follows:-- "12. Article 95 of the Limitation Act provides a limitation period of three years for a suit 'To set aside a decree obtained by fraud, or for other relief on the ground of fraud' and the terminus a quo is the date 'when the fraud becomes known to the party wronged.' Now the suit of the plaintiffs in the present case is a suit for declaration and recovery of possession of the land in dispute and for not for setting any decree or document based on fraud. It is manifest from the body of the plaint and the prayer made therein that the plaintiffs sought it to be declared that the power of attorney purporting to have been executed by them on the basis whereof, defendant No,1 having obtained allotment of the suit land further sold it to other defendant was a forged and fictitious document.
9. Case of the plaintiffs is that they never executed any power of attorney in favour of defendant No,1 and consequently they, sought a further declaration that the sale made by defendant No,1 in pursuance of the impugned power of attorney were not binding on them and were inoperative qua their rights. Prayer was also made for a decree for possession with a direction to be issued to the Registrar for cancelling all the registered deeds in favour of the defendants. It is an established proposition of law that when the plaintiff is not a party to a decree or fraudulent transaction, Article 95 will have no application, Refer Mst. Sheedi v. Muhammad Siddique and 2 others (PLD 1980 Lahore 477), wherein it was observed that for so long as a person is not actually a party to document or to a decree, he will not be bound by it and for this reason, it would not be necessary for him to get it cancelled. His purpose will be served by merely getting it declared as void. Reliance in the affronted case was also placed on a judgment of this Court reported as Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) wherein while interpreting Article 91 of the Limitation Act which, too, provides a period of three years for a suit to cancel or set aside an instrument not otherwise provided for, it was held that this Article will not apply when the concellation of the instrument is not an essential part of the plaintiff's relief. That is to say where the deed or instrument is ab initio null and void in which case it can be treated as nullity without having to be cancelled or set aside. For instance, if a person who executes a document had no authority in law to do so or he is suffering under a legal disability, at the time of its execution, say by reason of minority, unsoundness of mind etc., the document will be null and void. It was further observed in the said judgment that 'Article 91 does not apply to suit where the cancellation of the instrument is merely. Incidental or ancillary to the substantial relief claimed by the plaintiff, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiff's rights'. In an earlier case Shamshad Ali Shah v. Hassan Shah PLD 1964 SC 143) also, this examined the question as to whether it is always necessary to seek the setting aside and/or cancellation of instruments obtained by fraud and it was observed that 'A person who claims that a deed which purports to be executed by him is a forgery is not asking that the deed be set aside and is not bound to sue within three years'. In the present case, as seen above, the plaintiffs have not sought the setting aside/ cancellation of the impugned power of attorney. They also sought it to be declared as void' and the sales made in pursuance thereof as not binding on them. In fact, on the allegations made in the plaint which were not controverted by the defendants by filing any written statement as on their request, the plaint itself was rejected, it was not necessary for the plaintiffs to seek setting aside/ concellation of the power of attorney. Their prayer for a direction to the Registrar for cancelling the registered deeds, too, was only incidental to the main relief for declaration and possession. In the circumstances, we hold that on the averments made in the plaint, Article 95 of the Limitation Act would not be attracted. It may also be noted that limitation under Article 91 of Limitation Act as held by this Court in the afore referred case of Mst. Hamida Begum commences not when the plaintiffs acquires, knowledge of facts which render the instrument voidable but "When the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him' which phrase, it was observed, must be construed to mean 'when having knowledge of such facts, a cause of action has accrued to him and he is in a position to maintain a suit'. Again Article 120 which is a residuary Article provides that a suit can be brought within six years for the time 'when the right to sue accrues" Article 144 provides a limitation of twelve years from a suit for possession and the starting point of limitation is the time 'when the possession of the defendant becomes adverse to the plaintiff'. In the present case the moot point is as to when precisely the cause for action accrued to the plaintiffs so as to enable them to file the suit. This question as rightly held by the learned Judge in the High Court could not be decided without recording the evidence on the averments made in the plaint highlighted in the impugned judgment. The case has, therefore, been rightly remitted to the trial Court for decision of the suit in accordance with law."
10. In the case before us, there is concurrent finding by all the three Courts below that the petitioners failed to establish that the sale dated 7-2-1965 was executed by predecessor-in-interest of the respondents. It was also categorically found by the learned Courts below that the alleged power- of- attorney on the basis of which the sale was made in favour of Mst. Qamar Sultana, was not produced in evidence and even otherwise, it did not authorize the attorney to effect sale in favour of his wife. In view of the above mentioned categorical finding of three Courts below, the suit would not fall under Article 91 of the Limitation Act. Even otherwise, Article 91 of the Limitation Act provides the strong point of limitation on the date the fact regarding sale of property, become known to him.
11. In the plaint filed before the trial Court, the respondents alleged that they came to know the fact regarding sale of the property a few months before filing of the suit. Therefore, on these allegations, it could not be said that the suit was barred C under Article 91 of the Limitation Act. No case for interference with the judgment of the High Court is made out. The petition is, accordingly, dismissed and leave is refused.