' Through the instant revision petition, the petitioner, Zoredast, has assailed the correctness and legality of the judgment and decree, dated 10-9-1998 passed by the learned Additional District Judge, Lakki on Civil Appeal No,82/13 of 1996 and has prayed that the judgment and decree, dated 8-9-1996 of the learned Civil Judge, Lakki be restored.
2. The short background of the instant case is that the present petitioner filed a civil suit seeking a declaration to the effect that he and the pro forma defendant No,2 had become owner of the suit land on the basis of prescriptive rights, as the contesting defendant had failed to redeem the suit land within a period of sixty years. The suit land was mortgaged by way of three Mutation No,1022 attested on 15-12-1915, Mutation No,1116 attested on 30-5-1917 and Mutation No,1028 attested on 15- 12-1920. The period of sixty years regarding each mutation elapsed during the years 1976, 1977 and 1980 respectively. Suit for the declaration was field by the petitioner on 23-4-1994, which was contested by respondent-defendant No,1 by filing a written statement and subsequently both the parties adduced evidence of their choice. On the pleading of the parties, the learned trial Court framed the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit of the plaintiff is within time?
(3) Whether the suit is bad because of non-joinder of necessary parties?
(4) Whether the suit is incompetent in its present form?
(5) Whether the plaintiff and pro forma defendants have matured the title by way of prescription for more than 60 years?
(6) Whether the plaintiff is entitled to the decree for declaration as prayed for?
(7) Relief.
3. A full-dressed trial was conducted which resulted in passing a decree in favour of the petitioner on 8-9-1996. Respondent No,1, being aggrieved of the judgment and decree of the trial Court preferred an appeal before the learned District Judge, Lakki, which was transferred to the diary of the learned Additional District Judge Lakki, who after hearing arguments from both the sides, accepted the appeal, and set aside the judgment and decree of the trial Court on 10-9-1998.
Hence the instant revision petition.
4. The learned counsel appearing for the petitioner has argued that the judgment and decree of the learned appellate Court is illegal and was based on erroneous application of law and was also an outcome of misreading of evidence. He contended that the three mutations mentioned above completed the statutory period of sixty years in the years 1976, 1977 and 1980 and, as such, the petitioner was clothed with the legal right in the above mentioned years, as the respondent had failed to file any suit for the redemption of the mortgaged land. He vociferously contended that the case of the petitioner was not affected by the removal of section 28 of the Limitation Act, 1908, as the right of ownership on prescription had accrued to him long before the coming into existence of the judgment of the august Shariat Appellate Bench of the Supreme Court captioned as Maqbool Ahmad v. Hakumat-e-Pakistan reported in 1991 SCMR at page 2063. He further argued that section 148 of the Limitation Act is still a part of the Statute, which prevents the respondents/mortgagors from bringing a suit for redemption, as the requisite period has already elapsed and since the respondent has been denuded of the right of redemption, therefore, his suit should not have been dismissed by the learned Appellate Court. In support of his contention, the learned counsel has relied on Abdur Rehman v. Muhammad Akram 1999 SCMR 100. While folding up his arguments, he argued that since the respondent had already filed a suit for redemption which finds mention in para.2 of his written statement, therefore, the instant suit should have been consolidated with his other suit filed for the purpose of redeeming the suit land.
5. On the other hand, the learned counsel for the respondent, has advanced his arguments in support of the judgment and decree passed by the learned Appellate Court on the same grounds which are incorporated in the judgment itself with the added point that even if the contention of the learned counsel for the petitioner, assuming for the sake of arguments, are admitted that the period of sixty years elapsed in 1976, 1977 and 1980, even then suit of the petitioner was time- barred, as a declaratory suit could be brought within a period of six years after accrual of the cause of action, regarding which the petitioner has miserably failed to bring a suit within the said period.
6. I have heard the rival arguments from both the sides and have carefully gone through the record. The fact that section 28 of the Limitation Act ceases to have its effect from 31-8-1991 is not controverted and thus, it is an admitted position and there is no cavil with the proposition that the Shariat Appellate Bench of the august Supreme Court has unanimously held in the said judgment that section 28 of the Limitation Act is repugnant to the injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period prescribed for institution of the suit for possession of the suit property. The petitioner had filed the suit on 23-4- 1994 basing his claim on the question of law that as more than sixty years have passed and the mortgaged land, subject-matter of the suit, was not redeemed by the respondent, therefore, the petitioner had acquired the right of ownership. Obviously, the basis of the right of the petitioner was section 28 of the Limitation Act and long before the institution of the suit by the plaintiff, this section was no more a part of the Statute, as the same ceased to exist after 31-8-1991. I may also observe that the judgment of the august Supreme Court relied upon by the learned counsel for the petitioner is of no help to him, as in the cited case, the suit was instituted by the plaintiff on 27-4- 1976 and decree was passed on 9-4-1986 i,e, much before the law laid down in 1991 SCMR page 2063. But conversely, in the instant case, the petitioner had filed suit on 23-4-1994 when the law regarding the removal of section 28 of the Limitation Act through the aforesaid judgment of Shariat Appellate Bench of the august Supreme Court of Pakistan had come into existence much earlier. As such, the case of the petitioner is totally different than the cited case. I am, therefore, clear in my mind that the petitioner had no case at the time of filing the suit.
7. Regarding the contention of the learned counsel for the petitioner that the instant suit should have been consolidated with the suit of the respondent, I may observe that this is a very belated stage and cannot be considered for the reason that the instant case has not only been decided by the trial Court, but also by the appellate forum, and at this stage, the question of consolidation of two cases does not arise. I may also observe that no efforts were made by the petitioner before the trial Court for the consolidation of the two cases. The learned counsel for the petitioner was asked whether any application for the purpose of consolidation of the two suits was made by the petitioner, he replied in the negative. Thus, the conduct of the petitioner also makes it clear that he was not serious in consolidation of the two cases at the trial stage. Had he any such mind, he could very conveniently file an application for the same purpose and in case of denial, he could agitate the matter by approaching the higher forums, which he has not done. No other point was agitated before me by the learned counsel for the petitioner.
8. Thus, in view of the foregoing discussion, the revision petition has no force, which is hereby dismissed.