1. ' WAJIHUDDIN AHMED, J.---A suit had been filed by the present petitioner against his four sons before the Senior Civil Judge, Hyderabad, Sindh. Such suit, one for declaration and permanent injunction, came to be numbered as FC suit 167 of 1989. The subject-matter of the suit was substantial agricultural land, situated in District Hyderabad about which the plaintiff stated that such he had purchased, in the year 1976 from one Karim Bux Panwhar, Benami, in the name of his wife, Mst. Khursheed Begum. Such wife, whom evidently the petitioner subsequently divorced, allegedly gifted 64 acres of the land to their three sons, defendants Nos. 1, 2 and 3 in the suit and that transpired per registered gift deed dated 16-5-1977. The gift deed, however, according to the plaintiff, was not given effect to because the corpus was never offered nor accepted nor followed by delivering of possession. In fact the defendant No,1 allegedly, was not in Pakistan at the time whereas the defendant No,3 was still a minor. Mere mutation in the names of the done, according to the plaintiff, served no purpose and the said gift was dubbed by him as "illegal, mala fide, inoperative, ultra vires, void ab initio and nullity in the eyes of law as such the same is neither binding on the plaintiff nor has created any rights, title or interest of any kind in favour of the defendants Nos. 1 to 3". The plaint then went on to recite that out of the 77-26 acres of land, thus purchased by the plaintiff, the remaining 13-26 acres were nominally shown by the plaintiff's ex- wife to have been sold to Muhammad Ali, the defendant No,4, another son of the parties.
2. Muhammad Ali also at the time was claimed to have been a minor. The plaint then proceeded to aver that another 21-32 acres of agricultural land were purchased by the plaintiff from one Ghulam Abbas. Possession had been obtained by him. This land, however, was allegedly purchased Banami in the name of one Ijaz Hussain son of Muhammad Hussain. However, Ijaz Hussain, statedly, executed an agreement of sale in favour of the plaintiff in 1969 whereupon a sale-deed, dated 9-6- 1980, followed. On the foregoing basis, the plaintiff claimed ownership of an area of land totaling 99-01 acres. The plaintiff, alternatively, pleaded adverse possession. Upon these pleas, judgment and decree were claimed against the four defendants' above named in these words:-- "(a) That this Hon'ble Court may be pleased to declare that the plaintiff is sole and exclusive owner of suit land and the defendants Nos. 1 to 4 have got no right, title or interest of any kind over suit land.
(b) That this Hon'ble Court may be pleased to grant permanent injunction against the defendants thereby restraining them from selling, exchanging, leasing. Mortgaging and also from dispossessing the plaintiff from suit land illegally and forcibly and also from interfering with the possession of plaintiff over suit land directly or indirectly, personally or through their agents, servants, or subordinates i,e, in any way and manner.
(c) That the cost of the suit be borne by the defendants.
(d) That any other relief which this Hon'ble Court deems fit and proper may also be awarded."
3. ' The defendants Nos.1, 2 and 3 submitted their common written statement dated 16-5-1990, whereas the defendant No,4 adopted the same written statement on 12-4-1994. Needless to say that the above allegations were denied and repudiated and the defendants claimed the land aforementioned as their own. Even as regards the purchase from Ijaz Hussain, aforementioned, it was stated that such was a joint purchase and the plaintiff later transferred his joint share to his sons. The defendants also stated that the plaintiff had divorced their mother in 1983, remarrying a lady of half his age, resulting in the instant litigation. They added that the suit property was then worth Rs,8 million, that the plaintiff had been dealing with the same, during their absence abroad, as their father and attorney and that they had absolute rights therein, contracting several loans thereon.
4. ' Be that as it may, the plaintiff submitted an amendment application dated 13-2-1994 where, in addition to specifically describing the lands which stood in the revenue record in the names of the defendants, the following paras were sought to be inserted:- "3-A. That even the vendor of Mst. Khursheed Begum, namely Karim Bux Panwhar was holding the suit land mentioned in para 2 of plaint Benami on behalf of the plaintiff. The plaintiff had purchased the abovesaid land of 72 acres and 30 Ghuntas from its original owner namely Nawab Khan Muhammad Khan through registered sale deed No,1956 dated 19-11-1964 from his own funds in name of his brother-in-law Karim Bux Panhwar as Benami. The plaintiff was Government servant and had not received sanction from Government for purchase of land by that time.
5. Therefore the land was purchased by plaintiff in the name of his brother-in-law Karim Bux. The physical possession and enjoyment and management was in fact of the plaintiff. It was barren and undeveloped land at the time of purchase. The plaintiff made heavy investments and developed the land at his own expenses, engaged tractors, bulldozers and installed two tube, wells, planted fruit plants, bought other equipments and made it cultivable. He got source of supply of water changed got garden water sanction for 60 acres and made all payments from his own funds in name of Karim Bux. The plaintiff was real owner and in physical possession of land and paying land revenue etc. To Government from his own funds. Karim Bux never claimed from his ownership rights over the land. After getting sanction of Government in 1967, the plaintiff got the land transferred in name of his wife Mst. Khurshid Begum, who was also Benami. On 5th October, 1968, plaintiff purchased Survey No,318 measuring 4 acres and 16 Ghuntas from Syed Wajid Ali in name of his wife Mst. Khurshid Begum through Benami Geed Registered Deed No,1657, dated 5-10-1968. The land is in possession of plaintiff and has paid all taxes, dues etc. The physical possession and enjoyment was all alongwith plaintiff and has made heavy payments over the development of land and paid Government Land Revenue and all other dues in name of Mst.
6. Khurshid Begum, after transfer of land in favour of Mst. Khurshid. So many payments for instance, the engagement of tractor, tubewells, and purchase of seeds and pesticides and others were made by the plaintiff from his own funds in name of Karim Bux up-to 1969, even after transfer of land in the name of Mst. Khurshid Begum in 1967 to the knowledge of Mst. Khurshid Begum. Mst.
7. Khurshid Begum was only house wife and had got no personal property or cash funds in any Bank etc. She never claimed the land or its possession or ownership rights at any stage. She used to acknowledge the plaintiff as real owner of the, land and plaintiff even fought cases before the authorities in his personal name. Her name in the records of rights was only Benami at the wish and sweet will of plaintiff. She had excuted transfer documents of gift and sale in favour of her sons, defendants, in above suit at the instructions of and directions of plaintiff. These transfers of gifts and sale in favour of defendants Nos. 1 to 4 are also formal and transfer in favour of defendants were Benami. Even after that the plaintiff continued as owner of the land. The defendants Nos. 1 to 4 have all along remained dependent upon plaintiff The plaintiff has been incurring all the education expenses of defendants, who were taking education in Pakistan as well as in United States of America throughout till filing of suit."
8. "8.A. That the plaintiff spent an amount of Rs,74,675 over the land said in para 7 above in the name of Aijaz Hussain towards development of land, tubewell and other labour and development charges which amount was adjusted towards consideration of the land. The plaintiff paid Land Revenue and other charges to Revenue Department right from 1972 continuously. During Land Reforms of 1972 (M.L.R. 115) the plaintiff had filled in Declaration Form and had shown total holding of land (103-18) acres including land said in para 7 above to have been in his possession by purchase from Aijaz Hussain alongwith no registered sale deed was yet executed in favour of plaintiff. Deputy Land Commissioner, Hyderabad had accepted the Declaration Form vide Letter No,LR/954 dated 12-6-1972. The said Aijaz Hussain had confirmed the transfer of land in favour of the plaintiff vide his statement dated 14th February, 1972 recorded by the Mukhtiarkar, Hyderabad in land Register Form XV, Book No,12118 Sheet No,25. Finally in February, 1980, the plaintiff settled with Aijaz Hussain to regularize the transfer of the land said above in para. 7 of the plaint and execute regular sale deeds in favour of plaintiff and his four sons in consideration of Rs,99, 675 the amount actually settled in 1972 of which Rs,24,000 were paid to him already by plaintiff and Rs,74,675 were spent by plaintiff on the development of land since 1969-70 to January, 1972. Thus, the consideration of the land was fully paid already by plaintiff. The plaintiff for the purpose of regularizing transfer through registered sale deeds in names of plaintiff and his sons/defendants in above suit had got a power of attorney from Aijaz Hussain in the name of his son Sani Hussain, defendant No,3. The plaintiff then got transferred the above land to his sons/defendants and himself on the power of attorney in name of defendant No,3 vide sale deed dated 20-4-1980.
9. ' In the sale-deed dated 20-4-1980 the value land was shown Rs,4,685.76 per acre making it total of Rs,99,675 the amount already paid by the plaintiff as per actual measuring, entered in Ghatwadh Form.
10. ' No payment was made by Sani Hussain, defendant No,3 or brother defendants to Aijaz Hussain, as payment had already been made to Aijaz Hussain and settled in 1972 as stated above. Later on the plaintiff gifted one-third share of his own to the defendant No,3 Sani Hussain vide Gift Deed No,6 dated 3-1-1981.
11. ' The suit land detailed in para. 7 above was originally purchased by plaintiff in 1972 and possessed since 1969 from Aijaz Hussain continuously till this day. Although registered sale-deeds and gift deeds for the land were executed in favour of defendants yet the physical possession/ownership of land remained with plaintiff. "
12. "12. That on 24-12-1985 plaintiff raised agricultural loan from National Bank of Pakistan, Phuleli Branch, Hyderabad against the mortgage of the abovesaid suit land in name of his sons, defendants Nos.1 to 4 amounting to Rs,3,00,000 (Rupees three lacs) i,e, Rs,75,000 (Rupees seventy- five thousand) in name of each defendant. The loan was received and utilized by plaintiff although it was raised in name of defendants i,e, sons of plaintiff. The said loan amount was received by plaintiff and repaid by plaintiff to the Bank. The Pass Books in names of defendants were mortgaged with Bank as security for loan funds. The creditor Bank used to issue reminders to plaintiff for payment of the said loan. The Pass Books of defendant No,1 Raft Hussain was released by Bank after clearance of loan by plaintiff in 1987 and is in possession of plaintiff. The other three loans in names of defendants Nos.2 to 4 were also cleared by plaintiff in instalments through cheque and by transfer by him from his account in National Bank of Pakistan, Latifabad, Hyderabad as well as in cash. The loans were fully cleared by plaintiff and he got the statements of clearance of 'loans against defendants from Manager of Bank. The plaintiff insisted upon the Manager of Bank to release the pass books to plaintiff but he made any payment towards loan to Bank."
13. "13. That the registered Gift Deed No,1211 dated 17-5-1977 in favour of defendants Nos. 1 to 3 and registered Sale-Deed No, 1210 dated 17-5-1977 in favour of defendant No,4 and registered Sale- Deed No,1545 dated 21-6-1980 in favour of defendants and Gift Deed No,6, dated 3-1-1981 in favour of defendant No,3 and the entries in the Revenue Record of rights in the names of defendants on the basis of said documents are all fake, Benami and void documents and do not pass any title in favour of the defendants and do not affect the right and title of plaintiff over the land in suit. The plaintiff has actually remained in exclusive possession and enjoyment of land in these documents since 1964 continuously till this day. The documents are liable to be cancelled and the entries in the Revenue Record in names of defendants are also liable to be set aside."
14. ' Prayer clause (amendment sought in italics)
15. "18(a) That this Hon'ble Court may be pleased to declare that the plaintiff is sole and exclusive owner of suit land and the defendants Nos.1 to 4 have got no right, title or interest of any kind over suit land.
(b) That this Hon'ble Court may be pleased to grant permanent injunction against the defendants thereby restraining them from selling, exchanging, leasing, mortgaging and also from dispossessing the plaintiff from suit land illegally and forcibly and also from interfering with the possession of plaintiff over suit land directly or indirectly, personally nor through their agents, servants, or subordinates i,e, in any way and manner.
(c) That this Honourable Court may be pleased to the registered Gift Deed No,1211 dated 17-5-1977 in favour of defendants Nos.1, 2 and 3 and registered Sale-Deeds No,1210 dated 17th May, 1977 in favour of defendant No,4 and registered Sale-Deed No,1545 dated 21-6-1980 by Aijaz Hussain in favour of defendants Nos.1, 2 and 4 and registered Gift Deed No,6, dated 31-1-1981 in favour of defendant No,3 to be taken from the defendants and cancelled and sub-Registrar be informed accordingly. The entries in names of defendants in Revenue Records on the basis of said deeds be ordered to be cancelled.
(d) That the mortgage deeds executed by defendant by the defendants in favour of the National Bank of Pakistan, Phuleli, Hyderabad be ordered to be redeemed and cancelled and the pass books of defendants be ordered to be returned to the plaintiff by Bank.
(e) Entry of suit land in Revenue Records in names of defendants may be changed in the Mukhtiarkar, Hyderabad's Office and made in the name of plaintiff.
(f) That the cost of the suit be borne by the defendants.
(g) That any other relief which this Hon'ble Court deems fit and proper may also be awarded."
16. ' While the amendments, above reproduced, were allowed by the learned Senior Civil Judge, Hyderabd, on 21-7-1996 on the ground that such were necessary for a proper and just adjudication of the dispute the same, upon revision taken to the High Court of Sindh, were declined on 23-10- 1998, inter alia, on the grounds that the plaintiff had attempted to fill in lacunas in the case, alter the character of the suit and in fact had tried to set up new and inconsistent pleas. The High Court order has given rise to the present petition for leave to appeal.
17. ' During the course of hearing the learned counsel for the petitoner plaintiff placed on record a sheaf of papers, totalling sixteen in number, purporting to indicate that during the proceedings following upon the 1972 Land Reforms the disputed lands, or at least a part thereof, were shown by the plaintiff to have been his own. We refrain from saying anything on the subject, particularly when according to the plaintiff's own showing, he obtained some of the lands allegedly in the names of others because the requisite Government sanction, the plaintiff being a civil servant, had not been obtained. However, a copy of the papers, filed as above, would be forwarded to the learned Civil Judge trying the suit for taking the same on his own record. Such being done, notices would be issued by the learned Judge to the parties in the suit as also the Land Commission functionaries, providing the latter of them with copies of the pleadings and of the amendments sought. All concerned would then be heard and the Land Commission /its relevant functionaries would be required to deal with the matter in accordance with law with a report to the Civil Judge within a period of six months, a copy being endorsed by the learned Judge to this Court for further deliberation.
18. ' Coming now to the merits of the controversy, it is obvious that many of the new averments, sought to be incorporated in the plaint, concerned third parties, never arrayed as defendants in the suit. In fact, some of the already existing pleas, on the part of the plaintiff, also concern a few of that number. In specific instances the causes of action may have been as old as dating back to 1964, whereas the current suit was only brought in 1989. Besides, the case being set up, through the proposed amendments, has the potential of converting the character of the suit, virtually substituting the causes of action or at least adding new ones to those already existing and what more the added reliefs fall in a category totally different than those already resorted to.
19. ' Allowing amendments to pleadings of this character is more an exception than the rule and an overriding just and lawful case has to be established before such amendments can even come to be considered. Courts, in particular, have to be extremely cautious in allowing amendments, when the added or substituted causes of action or reliefs may ex facie be barred by time and nothing is brought on record to indicate that the initial omission to timely incorporate the pleas was bona fide. This arises because, except in cases where an additional claim is allowed to be inserted, the pleading, as amended shall be deemed to have been presented at the time when the pleading was originally filed. The cautious approach of the Courts in such matters becomes further fortified in view of section 22 of the Limitation Act where under a suit against an added party is treated to have been instituted only on the date on which such party is impleaded. What cannot be brought within limitation upon addition of a party in the suit cannot be permitted to be so without even impleading the party concerned. Many of the proposed amendments in the instant case, pertain to such parties, against whom ex facie the suit of the plaintiff may have become barred by time, and that benefit apparently injuring to their successors-in-interest, it may have amounted to stretching the provision in Rule 17 of Order VI, C.P.C. Too far when the learned Civil Judge allowed the amendments on the purported plane of such having the potential to serve the interests of justice, a conclusion plainly not borne out from the record. In saying so, we are not unmindful of the fact that the plaintiff, having been a civil servant, appears at least to have acted indiscreetly in the way in which he dealt with the properties involved in these proceedings.
20. ' In these circumstances we found little substance in this leave petition and dismissed it upon due hearing.