This judgment shall decide the Writ Petitions Nos,3124 and 3125 of 1996, as common questions are involved.
1. Land measuring 484 Kanals, 15 Marlas in Chak No,22/UCC and 392 Kanals, 11 Marlas in Chak No,16/UCC, Tehsil Ferozewala, District Sheikhupura, was allotted to Bahadar Khan in the year 1925 as Dakheel Kar. On his death his estate devolved upon three sons, namely, Hayat Khan, Inayat Khan and Noor Muhammad. He had also another son, namely Sardar Khan but he predeceased Bahadar Khan. However, in the mutation of inheritance the name of Noor Muhammad was not mentioned rather Sardar Khan came to be mentioned. The said Hayat Khan and Inayat Khan are stated to be dead. On 30-9-1984 the present petitioners who are the said Noor Muhammad and successors of the other two sons of Bahadar filed a suit in respect of the land in Chak No,22/UCC, while on 30-10- 1984 the petitioners filed a suit in respect of land in Chak No,16/UCC. In the plaint it was alleged that the private respondents have got prepared a forged general power of attorney on behalf of the said three sons of Bahadar Khan on 6-12-1962 and got it registered and on the basis of the said power of attorney got sale-deed registered on 2'-2-1963. (This in respect of land in Chak No,22/UCC). Regarding the land in other Chak No,16/UCC sale-deed was got registered on 8-10- 1962 and on the basis of the said sale-deed Mutation No,94 was attested on 20-10-1962. In para.5 of the plaint it was stated that the, petitioners came to know about the said documents some time after 4-4-1984 and 21-8-1984 respectively. The said documents were challenged on the grounds that these had not been executed by the said owners in favour of the respondents. In the written statements, inter alia, it was objected that the suits were time-barred. The form of the said first suit was also questioned and it was stated that suit is not maintainable. Preliminary issue as to whether the suits are within time was framed in both the cases while in the said first suit an issue as to the maintainability of suit in its present form was also framed. Evidence of the parties was recorded' on the said preliminary issues. The learned trial Court found all the said issues in favour of the petitioners vide judgments 8-7-1993. in the first case and 31-5-1993 in the 2nd case. The revision petitions were filed by the respondents which were heard by a learned Additional District Judge, Ferozewala. He proceeded to allow the revision petition inasmuch as he reversed the finding of the learned trial Court on the said issue of limitation in both the cases while in the said first case finding on the question of maintainability was also reversed. Consequently the suits tiled by the petitioners were dismissed vide judgment dated 10-1-1996.
2. Learned counsel for the petitioners argues that the preliminary issues were decided on the basis of evidence and the learned AdditionalDistrict Judge transgressed his jurisdiction by interfering with the same in exercise of revisional jurisdiction when the suit was yet to be finally decided and the findings on all the issues could have been questioned by the aggrieved party in regular appeal against the judgment and decree. Further contends that the learned Addl. District Judge has misread the evidence on record while holding that the petitioners had the knowledge of the documents on the basis of judgment Exh.D.1. Learned counsel for the respondents on the other hand states that the said judgment was conclusive evidence of the fact that the petitioners were aware of the documents and as such the suit was barred by time. On the question of maintainability learned counsel for the petitioners argues that admittedly land is in possession of the tenants and as such the petitioners would not be required to sue for possession. Learned counsel for the respondents on the other hand insists that the suit was not maintainable in its present form.
3. I have examined the copies of the records appended with these writ petitions, with the assistance of the learned counsel for the parties. The implicit reliance of the learned Addl. District Judge as also of the respondents in the matter of decision of the said issues pertaining to limitation is on contents of judgment Exh.D.l. This judgment is dated 7-2-1966 'passed by Mr. Muhammad Asad Ullah, learned Senior Civil Judge, Sheikhupura. According to the decision the suit had been filed by Muhammad Shati and 14 others against Hayat, Inayat, and Noor Muhammad sons of Bahadar Khan and the present respondents as well as Province of West Pakistan: The judgment records the contents of the plaint whereby the said plaintiffs claimed themselves to be beneficial owners and Bahadar as a Benami. In the alternative they claimed to have become owners of tenancy right by adverse possession. It is then stated that the Province of West Pakistan had been proceeded against ex parte as it does not wish to contest the suit. Thereafter, it is stated that the said private defendants have resisted the suit on merits and have objected that the Court has no jurisdiction to try the suit. Thereafter, the preliminary issue regarding jurisdiction was framed and it was held that the Court had no jurisdiction and the suit was dismissed. This judgment was upheld by the Court of first appeal on 14-3-1966 while R.S.A. No,349 of 1966 -was dismissed on 30- 5-1978 and C.P.L.A. No,490 of 1978 was dismissed on 15-12-1980. The learned counsel for the respondents particularly refers to the reproduction of claim of the plaintiffs in judgment Exh.D.1, whereby they attacked the sale by the defendants Nos,1 to 3 (present respondents) in favour of defendants No,4 and 5 (present respondents). Now according to the learned counsel the said judgment by itself would be sufficient evidence of the fact that petitioners were aware of the sale of the land in favour of the respondents. I am afraid, evidence on record does not support the said proposition. P.W.3 is Noor Muhammad petitioner No, 1 who was party to the said suit according to the said judgment. The witness was confronted and he has expressed igntatance regarding the said suit or that any of the three brothers were party to the same or that the matter had gone up to the Supreme Court of Pakistan. I find that neither certified copy of the written statement, if any, filed by the said three brothers including petitioner No,1, was produced and there is no question of confronting Noor Muhammad P.W.1 with the same. More akin to the point is statement of Karamat Ali respondent as D.W.1. In his ekaminationin-chief he generally referred to the said suit having been filed by the tenants against the said three brothers and the respondents and that the matter went upto the Supreme Court. In his cross-examination he states that they have been appearing through Advocates. He does not know as to who was counsel for the respondents and who was representing the said three brothers. He does not remember as to whether the said three brothers got their statement recorded or not. He' then states that in Supreme Court only the respondents and the said tenants contested the matter whereas the said three brothers were also summoned.
4. In the light of said evidence on record it cannot be said on the basis of said judgment alone that the petitioners were aware of the impugned transaction at the said time. Needless to state that under Qanun-e-Shahadat Order, 1984, previous judgment is relevant only for the limited purposes stated in Articles 54 to 57 thereof it will be interesting to note' here that one of the preliminary issues framed was as to whether the said judgment is res judicta and, both the 'learned Courts below have concurred that it is not.
5. Assuming that the petitioners were aware of the said documents at the point of time stated by the learned Additional District Judge, I find nothing in his impugned judgment as to how he held the suit to be barred by time. I have examined the impugned judgment of the learned Addl. District Judge with the assistance of the learned counsel for the parties. He states that somewhere in 1963, 1965 the petitioners came to know of the said documents. Thereafter, he proceeded to hold that the suit is barred by time. I do not find any finding recorded by the learned Additional District Judge as to which is that provision of law which prescribes limitation for a suit of instant nature, when said period of limitation is to commence and when is it to end and as to whether the suit has been filed beyond the said period so prescribed. To my mind, the suit could not have been held to be barred by time by the learned Additional District Judge in vacuum without stating as to which Article of Schedule to the Limitation Act would be applicable. Reference be made to the case of Ghafoor Bukhsh v. Haji Muhammad Sultan and others (2001 SCM R 398). Since there is nothing in the impugned judgment of the learned Additional- District Judge I called upon the learned counsel for the respondents to demonstrate as to which is relevant Article of Schedule to the Limitation Act, 1908 which would govern the suit. After some deliberation the learned counsel states that it would be Article 120 of the said Schedule which shall govern the suit. To my mind, learned counsel is right.
However, it is to be seen as to what would be the starting point of the limitation period of six' years provided in the said Article 120. It is certainly not the date of knowledge. On the other hand the period of commencement is when right to sue accrues. It has come on record- in the very statement of Karamat respondent D.W.1 that they had not been able to take the possession of suitland. On the other hand he states that they had not been able to receive even single penny by way of share produce in the suitland from the tenants. Thus nothing happened to the detriment of the petitioners by virtue of the said sale deeds and other documents which could have compelled them to file a suit. To my mind, the statement contained in the plaint and as made by Noor Muhammad P.W.1 carries as ring of truth when he states that need to file suit arose when tenants informed them that the respondents are taking steps to dispossess the tenants. Needless to state that in their plaint the stated case of the petitioners is that the said documents were never executed by them in favour of the respondents. They cannot as such be stated at this point of time to be parties to the documents in legal terms. They need not to get the documents cancelled because if it is proved that the documents were not executed then they shall be void and declared as such. Thus even if the conclusion of the learned Additional District Judge that the petitioners were aware of the sales in the year 1965 is deemed to be correct even then the suit cannot be said to be barred by time' and having been brought at a point of time beyond were prescribed by law for filing of such suit. The findings of the learned Addl. District Judge on the said issue being against the law and weight of the evidence on record is accordingly reversed.
6. As to the maintainability of the first' suit I am in agreement with the learned counsel for the petitioners when he states that land being admittedly in possession of tenants and declaration would suffice and there is no need to sue for actual possession. The first suit is, therefore, maintainable in the present form.
7. Before parting with this judgment I may state here that as would be apparent from the evidence led by parties available on record the said so-called preliminary issues could not have been decided without recording the evidence on the very merits 'of the case set up by the parties as to the existence validity of the documents impugned in the suit. The learned Additional District Judge in the process has almost decided the said question of fact involving the merits of the case while proceeding to pass the impugned order. This is classic case where the evidence as to the execution or non-execution of the documents, their validity and existence over-laps with the evidence required to decide the said preliminary issues. In this case learned trial Court ought not to have undertaken exercise of running of piecemeal trial.
8. For all that has been discussed above, these writ petitions are allowed. The impugned judgments and decrees of the learned Additional District Judge is set aside. The result would be that the suit shall be deemed to be pending in the Court of learned Administrative Civil Judge, Ferozewala, where the parties shall appear on 29-11-2001. The learned trial Court shall frame the remaining issues arising out of the pleadings of the parties and decide the same in accordance with law after taking such further evidence as parties desire to produce. I may note here that nothing observed in this judgment shall be taken to influence the findings to be recorded by the learned trial Court on the issues to be drawn on merits of the case. No order as to costs.
Copy of this order be immediately remitted to learned Administrative Civil Judge Ferozewala, who shall take all steps to decide this old case the year 2001 is out.