This revision petition is directed against the decree and judgment of learned Additional District Judge, Swabi, in Civil Appeal No.81/13 dated 20-11-1998, whereby on acceptance of the appeal of respondents 1 to 4 the decree and judgment of the trial Court dated 25-10-1997 in Suit No.155/1 dismissing the suit was set aside and suit of the plaintiffs/respondents 1 to 4 was decreed with costs.
2. Plaintiffs/respondents 1 to 4 brought a declaratory suit against the petitioners and respondents 5 to 12 in respect of the land fully described in the heading of the plaint. It was alleged that they are owners in possession of the suit-land and the surrender deed dated 7-10-1945 duly registered on 24-10-1945 in favour of Wasil Khan respondent No.5 in illegal, fraudulent, void and without any consideration, thus ineffective upon their rights. Also contended that the said registered surrender deed be cancelled and the Mutation No.328 attested on 26-11-1948 in favour of Wasil Khan based on the said surrender deed and the subsequent sale-deed dated 7-7-1993 by Wail Khan in favour of respondents 9 to 12 through Mutation No. 492 attested on 26-1-1994 and all subsequent mutations respecting the disputed land have no binding effect on the plaintiffs and liable to cancellation.
3. The suit was contested by the petitioners and the trial Court framed the following issues:-- (1)Have the plaintiffs got a cause of action?
(2)Is the suit within time?
(3)Are the plaintiffs estopped to sue?
(4)Is the suit bad in its present form?
(5)Is the suit bad for non-joinder of necessary parties?
(6)Have the defendants made improvements on the suit-land if so, to what extent?
(7)Is the suit res judicata?
(8)Have the rights of defendants Nos.5 to 17 are protected under section 41 of T.P. Act?
(9)Are the plaintiffs entitled to the decree as prayed for?
(10)Relief.
4. Both the parties led their evidence as they wished to produce. In the conclusion the trial Court decreed the suit vide judgment dated 13-11-1994. The petitioners preferred an appeal which was accepted by the learned Additional District Judge vide judgment dated 11-12-1995 and the matter was remanded back to the trial Court after framing additional issues which reads as follows:-- (1)Whether plaintiffs are owners in possession of the suit-land on the basis of inheritance?
(2)Whether relinquishment deed dated 24-10-1945 is forged and fictitious and on the basis of same Mutation No.328 dated 26-11-1948 and subsequent sale-- deed dated 7-7-1953 and Mutation No.492 dated 26-1-1954 is wrong, ineffective qua the rights of plaintiffs?
(3)Whether plaintiffs Nos. 1 to 3 and mother of plaintiff No.4 have validly effected impugned relinquishment deed in favour of Wasil Khan defendant No. 1, and on the basis of were Mutation No.328 was rightly attested on 26-11-1948 in favour of defendant No. 1?
5. After remand the trial Court dismissed the suit with costs vide decree and judgment dated 25-7- 1997. On appeal by the plaintiffs/respondents the learned Additional District Judge reversed the findings of the trial Court and decreed the suit vide impugned judgment dated 20-11-1998. Hence this revision petition.
6. I heard the learned counsel for the parties at length and perused the record minutely, also, gone though the case-law cited at the bar.
7. Case of the plaintiffs/respondents as appearing from the plaint is that plaintiffs and Wasil Khan defendant No. 1 are the legal heirs of Rehman's-ud-Din. Wasil Khan defendant No. 1 was the only son while the plaintiffs/respondents were daughters of Rehman's-ud-Din, who died in the year 1945. Wasil Khan the solitary son of Rehman's-ud--Din allegedly managed to prepare a fictitious surrender deed which was registered fraudulently and Mutation No.328 was entered in his name as sole owner and the same was attested on 26-11-1948.
8. The registered surrender deed was in respect of legacy of Rehman's-ud-Din situated in Revenue Estate Jungra in Tehsil and District Mardan and land situated in Revenue Estate Ghazi Kot falling within the limits of Swabi Tehsil. The surrender deed was produced for entry in the Revenue Record respecting land situated in Tehsil Swabi in the year 1948 and got it mutated in the name of Wasil Khan defendant No.1 while for transfer of the land situated in Revenue Estate Jungra on the basis of surrender deed a Mutation was entered and attested bearing No.2033 on 16-2-1983 in favour of Wasil Khan defendant No. 1, the real brother of plaintiffs. This mutation was challenged in Civil Court of Tehsil and District Mardan which was decreed after contest vide judgment dated 12-6-1991 and the same was also upheld in appeal vide judgment dated 13-1-1992. The present suit respecting the land situated in Revenue Estate Ghazi Kot falling within the territorial jurisdiction of Civil Court, Swabi was filed on 18-10-1992 after the decision of Appellate Court noted above.
9. Before the institution of the present suit Wasil Khan, real brother of the plaintiffs who was recorded owner of the suit-land, alienated the suit-land by way of sale in favour of Aurang Shah defendant No.5 in the suit through registered deed dated 7-7-1953 which was incorporated in Mutation No.452 attested on 26-1-1954. This sale was pre--empted by Shamroz the predecessor of defendants 9 to 17. The pre-emption suit bearing No.209/1 was decreed on 3-7-1957 and the same was given effect in the Revenue Record through Mutation No.612 attested on 13-4-1958.
10. In the proceedings before remand when the suit was decreed in favour of the plaintiffs/respondents under Issue No.8 it was held that the subsequent vendees (defendants 5 to 17 in the plaint) are bona fide purchasers; that their rights are protected under section 41 of the Transfer of Property Act and they were held entitled for compensation from respondents 1 to 4. The registered surrender deed and all the subsequent mutations were declared null and void and the plaintiffs were granted decree for. Declaration with possession. Appeal was preferred by the petitioners who are heirs of Shamfoz, who had obtained title over the suit-land through a pre- emption decree dated 3-7-1957. No cross-objection was filed by the plaintiffs on findings of the trial Court against them. Their appeal was accepted and the matter was remanded back after framing additional issues. In the post-remand proceedings no evidence was led by the plaintiffs while the petitioners produced additional evidence and the suit was dismissed by the trial Court.
11. The learned counsel for the petitioners forcefully contended that the suit of the plaintiffs was hit by Order 2, rule 2 read with section 17 of the C.P.C. He submitted that cause of action against the disputed registered surrender/relinquishment deed arose in the year 1945 and the plaintiffs could competently brought a joint suit against the property situated within the territorial jurisdiction of Mardan Tehsil and Swabi Tehsil and envisaged in section 17 of the C.P.C. Failing to challenge the surrender deed in respect of property situated in Revenue Estate Ghazi Kot falling within the territorial jurisdiction of Swabi Tehsil would amount to abandoning their claim in this respect and the plaintiffs were debarred to bring afresh suit in respect of the claim abandoned/relinquished in the earlier suit as envisaged in Order 2, rule 2 of the C.P.C. He further contended that suit of the plaintiffs was hit by Article 120 of the Limitation Act which provides a period of 6 years for filing a suit for declaration to any right or title. The plaintiffs could competently bring a suit against the registered relinquishment deed registered in 1945 till 1951. If it is presumed that plaintiffs had no knowledge of the sale, they got its knowledge in the year 1983 when they filed a civil suit in the Civil Court, Mardan in the year 1983 and if limitation is considered. From the date of institution of their suit in Mardan it comes to an end in the year 1989 and thus the instant suit filed in the year 1992 was miserably barred by time. Also contended that there were proceedings, regarding the suit- land in the shape of pre--emption suit instituted by predecessor of the petitioners but the plaintiffs did not, join those proceedings despite the fact that they were present in the village and were in the knowledge of that litigation. Further contended that no decree could be passed in plaintiffs' favour as they did not produce any evidence after remand. At least the plaintiffs have failed to discharge their burden under the additional issues. The rights of petitioners are protected under section 41 of the T. P. Act and the Appellate Court while decreeing the suit of the plaintiffs/respondents has neither properly appreciated the evidence on record nor the legal provisions were interpreted properly. In support of his contention he relied on Imam Bakhsh and others v. Ghulam Nabi and others (1999 SCM R 34), Sindh Flour Milling Corporation v. M/s. Punjab Roller Mills (1995 CLC 433), National Bank of Pakistan v. Hashim Khan (1995 CLC 88), Miskeen and others v. Mst. Khudeja (2001 M LD 1790) and Muhammad Nawaz v. Additional District Judge and others (2002 M LD 507).
12. The learned counsel for the respondents supported the impugned judgment of the District Judge and relied upon Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Janat Bibi v.
Sikandar Ali (PLD 1990 SC 642), Muhammad Sharif v. Sharifan (1997 SCM R 50), Chaudhary Muhammad Saleem v. Fazal Ahmad (1997 SCM R 315), Hafiz Noor Muhammad v. Ghulam Rasul (1999 SCM R 705), Amirzada Khan v. Itbar Khan (2001 SCM R 609), Ahmad Khan v. Rasul Shah (PLD 1975 SC 311), Muhammad Yamin v. Hajran Bibi (1987 CLC 653), Province of Punjab v. Malik Ibrahim (2000 SCM R 1172), Bashir ud Din v. The Government of N.-W.F.P. (1995 CLC 1394), Dr. Muhammad Ehtesham v. Sajid Lateef Sethi and others (2002 M LD 205). And Abdul Majeed and others v.
Muhammad Subhan and others (1999 SCM R 1245).
13. Undisputed facts of the present litigation are that respondents 1 to 5 are real sisters and bother.
They are the legal heirs of their father who died in the year 1945. Respondent No.5 obtained title of the suit--land and the land owned by their father in village Jungra situated in Mardan Tehsil on the strength of registered surrender deed dated 24-10-1945 executed by respondents 1 to 4 in his favour. The suit-land situated in village Ghazi Kot falling within the limits of Tehsil Swabi was mutated in the name of respondent No.5 on the basis of the said registered surrender deed vide Mutation No.728 dated 26-11-1948. However, the surrender deed was either not produced for giving effect in the Revenue Record till 1983 or it was produced but not accepted by the Revenue Authorities. However, in 1983 the land situated in village Jungra was transferred in favour of respondent No. 5 in the Revenue Record through Mutation No.2033 dated 16-2-1983 on the strength of aforesaid surrender deed. This mutation was questioned through Suit No. 1151 / 1 instituted on 16- 2-1983. This fact could not be rebutted at the bar that the plaintiffs/respondents herein were not aware of the surrender deed in favour of respondent No.5 which was made subject-matter of dispute in the aforesaid suit filed in the Court of Senior Civil Judge, Mardan. This is an admitted fact that despite the knowledge that the surrender deed also relates to the land situated in Ghazi Kot Tehsil Swabi but the transfer of said land in favour of respondent No.5 was not challenged in the said suit. The suit respecting land situated in Jungra was decreed on 1-11-1992 which was also upheld in appeal decided on 13-1-1992. The present suit was brought on 17-10-1992 after about 47 years of the registered surrender deed and after about more than 9 years of the institution of suit in the Civil Court, Mardan against the surrender deed in question.
14. The learned counsel for the respondents made an attempt to justify his suit after the prescribed period of limitation on the ground that Civil Court, Mardan had no jurisdiction to entertain the suit respecting the land situated outside its territorial jurisdiction. Section 17 of the C.P.C. Can be referred to in the present circumstances which reads as follows:-- "17. Suits for immovable property situate within jurisdiction of different Courts.---Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: Provided that, in respect of the value of the subject-matter of the suit, the entire claim is congnizable by such Court. "
15. The aforesaid provision has unambiguously empowered an aggrieved person to file a suit in either of the Courts where any portion of the subject-matter of dispute (immovable property) is situated subject to the value of the subject-matter. The plaintiffs/respondents could competently agitate in Civil Court, Mardan in Civil Suit No.155/1 of 1983 regarding the subject --matter of the present suit. Failing to include the whole claim subject-matter of the suit would amount to abandoning/relinquishing the claim which was not agitated in that suit. Order 2, rule 2 of the C.P.C.
Lays down as follows:-- "(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make-in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. "
16. In identical circumstances a matter was dealt with by the Lahore High Court in case Muhammad Nawaz v. Additional District Judge and others (2002 M LD 507) and it was observed as follows:-- "7. It is also observed that the subsequent suit was filed by the respondents in a mala fide manner.
The first suit was filed as far back as 4-4-1996 when an application for the grant of temporary injunction was also filed. The said application remained pending uptil 14-4-2000 when it was dismissed by the learned trial Court. In the second suit which was filed on 6-5-2000, the respondent was able to obtain a temporary injunction and it was in this view of the matter that the petitioner had moved the application under Order VII, rule 11, C.P.C. On 30-5-2000 for rejection of the plaint in the second suit. In order to render this application as ineffective, the respondent withdrew the first suit on 13-6-2000."
17. Another legal aspect of this case is that the suit was brought much later than the prescribed period of limitation under Article 120 of the Limitation Act. Article 120 of the Limitation Act is a residuary Article where under a suit could be brought within a period of 6 years from the date of accrual o cause of action if the Limitation Act is not provided any where else. A suit was brought after 45 years of the attestation of mutation which was held barred by time being hit by Article 120 of the Limitation Act in Miskeen and others v. Khudeja and others reported in 2001 M LD 1790. Even if the document or order subject-matter of dispute is otherwise E not valid could not be struck down if challenged after the prescribed period of limitation. In Mirza Hilal Hassan v. Custodian, Evacuee Property, The Supreme Court of Azad Jammu and Kashmir in case reported as 1992 M LD 1280 has observed as follows:-- "If a person comes to know of a void order which adversely affects him but still he does not challenge it within a reasonable time the Courts may validly refuse to ignore it on the ground of laches, acquiescence or estoppel."
By holding so the following passage from 1982 SCMR page 1125 was quoted:-- "This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order I.
This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation.
(See this Court's judgment in Civil Appeals Nac.150 and 166 of 1970 Jalal ud Din and others v. Mst.
Noor Sain and others and Jalal ud Din and others v. Shams ud Din and others respectively).
Similarly in Ghulam Mohi ud Din v. Chief Settlement Commissioner (PLD 1964 SC 829) a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed, if the petitioner is estopped by his conduct from challenging it, or if he has been guilty of laches."
18. The limitation runs from the date of accrual of cause of action. In the instant case cause of action, if any, had accrued to the plaintiff in 1945. However; in a time-barred suit the plaintiff may agitate want of knowledge to escape from the operation of limitation Act but in the instant case if the plaintiffs had no knowledge soon after 1945 but they got the knowledge in 1983 when suit against the aforesaid surrender deed of 1945 was challenged in Civil Suit No. 155/1 of 1983. Even thereafter for more than 9 years the plaintiffs failed to bring the suit probably they were waiting for the final result of their suit filed in the Civil Court, Mardan, and it was against the final decree of the Appellate Court in that suit till 13-1-1992 and the present suit was filed on 17-10-1992. The present suit filed by respondents 1 to 4 was not only' hit by Order 2, rule 2 of the C.P.C. But also by Article 120 of the Limitation Act.
19. The suit-land was sold by respondent No.5, who was recorded owner in the Revenue Record, to one Aurang Shah, which was successfully pre-empted by Shamroz Khan. Plaintiff No. l while appearing in the witness-box has admitted the knowledge of sale in favour of Aurang Shah and the subsequent pre-emption suit by Shamroz but neither she and her sisters (plaintiffs) joined those proceedings nor filed any separate suit for declaration of their title. Shamroz after obtaining the suit-land through a pre-emption decree further transferred half of the land to h his brother Shahzad vide Mutation No.235 attested on 6-3-1968. The silence of plaintiffs/respondents for a considerable long time regarding their interest in the suit-land amounts to waiver on their part and they were estopped by their conduct to bring the present suit.
20. After going through the impugned judgment and the judgment of the trial Court I found that the impugned judgment is not based on proper appreciation of evidence and peculiar circumstances of the case. The law point involved in the case was also not properly interpreted in the light of the dictum laid down by the superior Courts while the decree and judgment of the trial Court dated 25-10-1997 is well-reasoned and suffers from no legal or factual infirmity.
21. Consequently while accepting this revision petition I set aside the impugned decree and judgment of Additional District Judge, Lahore (Swabi District) in Civil Appeal No.81/13 of 1997 dated 20-11-1998 J and restore the decree and judgment of l, the trial Court in Civil Suit No.155/1 of! 1995 dated 25-10-1997 with costs; throughout.
S.A.K./687/P