2. Some of the respondents `have left behind the legal heirs who have been brought on the file. My learned brother Muhammad Sair Ali, J., who was hearing this case earlier, had passed the following order on 20-2-2003:-- "As recorded in order dated 29-11-2002, all respondents except respondents Nos. 3, 7, 9 and 11 had been served. Respondents Nos.3, 7, 9 and 11 were ordered to be served through proclamation in Daily 'Jung'. Requisite proclamation has been issued in Daily 'Jang' dated 3-2-2003. As such; all the respondents have been served. ,
(2) Despite repeated calls, no-one has appeared on their behalf. They are thus proceeded against ex-pane. "
3. The brief facts of the case are as follows: The respondent No.1/plaintiff on 3-9-1992 tiled suit for declaration challenging Mutations Nos.518 to 525, attested on 29-11-1965, through which defendant No.1 by oral sale, transferred pieces of land totally measuring 2 Kanals and 10 Marlas for construction purpose, to petitioners and respondent Nos.2 to 20 the declaration sought for was that the said mutation were false and Benami and that the petitioners and respondents Nos.2 to 20 had acquired no ht through these mutations which were liable to be cancelled. Decree for permanent injunction restraining the petitioners and respondents Nos.2 to 20 from interfering in any manner in the ownership and possession of respondent No.1 and from alienating the suit-land, was also sought.
3. According to the averments in the plaint, there was a proposal for laying bye---pass road around Sialkot in 1964-65, for which land was to be acquired. To fetch bigger amount of compensation for his acquired land, compensation whereof was to be assessed on basis of sales of land in the vicinity, respondent No.1 got attested the above-mentioned mutations of oral sale without receiving any consideration from petitioners and respondents Nos.2 to 20 and the possession was still with him.
4. Respondents Nos.4, 16, 17, 19 and 20 did not contest the suit. Petitioner and rest of respondents in their written statements denied the allegations of respondent No.1. They asserted that respondent No.1 had willingly sold the suit-land to them and had got attested the mutations himself after receiving full consideration. They further stated that they were in possession of the suit land and had raised Pakka boundary walls around the land purchased by each respondent and that one of them had already completed the construction on it. The suit, according to them was motivated by greed and that respondent No. 1 after getting due compensation for his acquired land on basis of such sales, was out to extract further benefit.
5. The following issues were framed on the pleadings of the parties:
(1) Whether the plaintiff has no cause of action to file this suit? (OPD)
(2) Whether the suit is not maintainable in its present form? (OPD)
(3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? (OPD)
(4) Whether the suit is time-barred? (OPD)
(5) Whether the suit is not maintainable for non-joinder and mis-joinder of necessary parties?
(OPD)
(6) Whether the plaintiff is estopped by his words and conduct to file this suit? (OPD)
(7) Whether the suit is false, frivolous and vexatious and is in situated just to harass the defendants Nos.20 and 24 and therefore, the defendants Nos.20 and 24 are entitled to special costs under section 35-A of C.P.C.? (OPD)
(7) Whether Mutations Nos.518, 519, 520, and 522 dated 29-11-1965, executed in favour of defendants Nos.23 and 24, predecessor of defendants Nos.20 and 25 are Benami transactions and the plaintiff is real owner in possession of the suit-land and, therefore, he is entitled to decree for declaration as prayed for in the plaint? (OPP)
(9) Relief.
Respondent No.1 produced three witnesses in his oral evidence. The documentary evidence produced by him consisted of copies of Register Haqdaran for the year 1988-89 (Exh. P.1) and copies of Mutations bearing Nos.518 to 525 (Exh.P.2 to Exh.P.9). The petitioners produced one of them namely Intekhab Alam as D. W 1.
7. Issues Nos.4 and 8 have assumed more importance in view of the findings of the Courts below.
Relevant excerpt from the findings of the trial Court against issue No.8, is re-produced below:-- "On the other hand the learned counsel for the defendants argued that documentary evidence such as Register of Haqdaran Zamin for the year 1988-89 as Exh.P.1 and copies of the Mutation Nos.518, 519 and 522 as Exh.P.2, Exh.P.3 and Exh.P.6 is on the record which shows that the defendants Nos.23, 24 and 25 are owners in possession of the suit-land for consideration they have paid. By perusing the mutation produced as Exh. P.2 and Exh. P.3, Exh. P.6 it is clear that these mutations were made in favour of the defendant Nos.23 to 25 for consideration they have paid.
The copy of the Register Haqdaran Zamin for the year 1988-89 is also on the record. From the perusal of it, defendants Nos.23, 24 and 25 appear to be owners in possession of the portion of the suit-land transferred to them by these mutations. The plaintiff produced no cogent evidence to show that these mutations are Benami transaction. Hence issue is decided against the plaintiff in favour of the defendants Nos.23, 24 and 25."
While the findings on issue No.4 were as follows:-- "The onus to prove this issue was on the defendants. The learned counsel for the defendants argued that the suit is apparently time-barred under Article 120 as suit mutations were attested on 29-11-1965 and the period for limitation to tile the suit to challenged these mutations is fixed as six years and that plaintiff has got present suit after lapse of 30 years. The plaintiff produced no cogent evidence or arguments in its rebuttal. Under these circumstances the suit is apparently badly time-barred. This issue is decided in favour of the defendants against the plaintiff."
8. The First Appellate Court while recording his observations on issue No.8, had said:-- "Mutations Nos.518 to 525, Exh.P.2 to Exh.P.9 clearly go to show that disputed land was transferred for the purpose of construction. Five Marlas of land was transferred in favour of Aftab Khan. Five Marlas were transferred in favour of Nemat Ali 6 Marlas were transferred in favour of Abdul Khaliq vide Mutation No.521. 6 Marlas of land was transferred in favour Mehtab Ahmad vide mutation No.522. 6 Marlas were transferred vide Mutation No.523, in favour of Abdul Salam. 12 Marlas of land was transferred in favour of Abdul Hayee and Abdul Wahid vide Mutation Nos.524 and 525. It is also proved that plaintiff was owner of 25 acres of land in the village. From the Mutations it is nowhere established that the sale price was paid in presence of Revenue Officer at the time of attestation of mutations."
"No sale receipt whatsoever has been produced by D. W.1, to prove that sale price was given to the plaintiff. Nobody has been produced from the locality who could have stated that firstly bargaining took place and thereafter sale price was paid to the plaintiff."
And while recording its findings on issue No.4, the learned First Appellate Court had said:- "As concern the findings of learned trial Court upon issue No.4, I find that learned trial Court has not properly taken into consideration the contents of paras. Nos.9 and 10 of plaint. Case .Of plaintiff is that the moment defendants started asserting rights relating to the suit-land he has the cause of action and he preferred the suit. In the case in hand we shall have to reckoned the period of limitation from the date of cause of action and not prior to that. Cause of action accrued in the month of September, 1992, and within a short-while suit was preferred.
Findings of learned trial Court upon issue No.4, are not in accordance with law and the same are accordingly reversed. This issue is also decided in favour of the plaintiff. "
9. The controversy inter se the parties who are closely related, the plaintiff being the maternal uncle of the respondents, was whether the mutations were a sham transaction Benami in nature meant for purposes of showing a higher price of the land of the plaintiff for purposes of tabulating a higher market value of land for purposes of the Land Acquisition Act as the land of the plaintiff was being acquired for purposes of a bye-pass.
10. The mutations have been duly entered and attested and the plaintiff had no objection on to that. These were attested in 1965, whereas he had brought a suit for declaration and consequential relief through cancellation of the mutations after about 27 years i.e. In the year 1992. Being they author of the mutations, he had knowledge about their attestation since the date they were attested and therefore any excuse of knowledge is not available to him. The matter attracts Article 120 of the Limitation Act.
11. There is also a controversy inter se the parties with respect to the aspect of possession and the plaintiff has made out a cause of action by stating that the petitioners started exerting their rights in the year 1992 and hence the necessity arose for getting the mutations cancelled.
12. However, the petitioners' side denied the statement that the property was in possession of the plaintiff.
13. Muhammad Rafique, the plaintiff in this case, appeared as his own witness and during his cross- examination he said:-
14. Ghulam Rasool, his witness, in his statement stated that he was not present at the time when payments were made but was present when the mutations were being sanctioned. But his such a statement could not be taken as an evidence in favour of the plaintiff regarding non---receipt of the compensation amount. He was also not able to tell whether any construction had been effected at the site. His only explanation was that he had not been there since about 3 months.
Muhammad Iqbal, the other witness of the plaintiff, admitted the factum of the mutations, but stated that in his presence no money was exchanged.
15. The case of the petitioners through the testimony of Intekhab Ahmad, one of the defendants, was that this land had been actually purchased by them from their Mamoo, the plaintiff, who later got the mutations sanctioned in their favour. He went on to say:-
16. The findings of the learned Additional District Judge, therefore, on the questions of limitation and payment of consideration are not acceptable. These observations were presumptuous and out of record.
17. This Court, therefore, sets aside the judgment of the learned Additional District Judge and upholds the judgment of the learned Civil Judge while accepting this civil revision.