PLJ 2006
Present: Mian Saqib Nisar, J.
MIAN MUHAMMAD AMIN and
another--Petitioners
versus
Mst. KHURSHEED BEGUM alias NASEEM BEGUM
(deceased) through her LEGAL HEIRS and others--Respondents
C.R. No. 575 of 1999, decided on
14.3.2006.
(i)
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code (V of
1908), S. 115--Suit for declaration--Possession admittedly was not with
plaintiff--Plaintiff even did not seek possession in terms of proviso to S. 42,
Specific Relief Act--Plaintiff deliberately omitted to produce Revenue record
to establish either her physical or possession through tenants--No proof of
payment of land revenue was produced by plaintiff--Defendants have tendered in
evidence entire revenue record pertaining to land in-question which proves that
sale-deed in favour of defendants had been given due effect and they have been
recorded as owners in possession of land in-question--Plaintiff's suit for
declaration of title was thus, not competent in as much as neither she was in
possession of land nor she had sought possession thereof in terms of proviso to
S. 42, Specific Relief Act. [Pp.
915, 916, 918 & 919] A, B & E
(ii)
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Plaintiff's claim of fraud in
sale transaction--Initial onus was on plaintiff to prove fraud and non-payment
of consideration--No evidence in proof of such proposition was produced by
plaintiff--Even if beneficiary of document was required to prove valid
execution for consideration defendants have led ample evidence to
establish/prove sale transaction including registered sale transaction to sell
as also sale-deed and "tamleeknama" and thus have proved their title
through best evidence available to them. [P.
917] C & D
(iii)
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Qanun-e-Shahadat Order, (10 of
1984), Art. 129--Withholding of best evidence by plaintiff--Effect--Plaintiff
in her suit for declaration of title failed to appear personally in Court--Presumption
could rightly be drawn against plaintiff was withholding best evidence. [P. 919] F
(iv)
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code (V of
1908), S. 115--Transaction of sale--Validity--Evidence on record amply proved
that sale-deed in favour of defendants was not result of fraud and
misrepresentation, rather the same was genuine transaction for due
consideration--Findings of Court of appeal decreeing plaintiffs suit was thus,
set aside while that of trial Court dismissing plaintiff's suit was maintained. [P. 919] G
(v)
Parda Nashin Lady--
----Transaction of sale by plaintiff in
favour of defendant--Plea of plaintiff being "pardanashin lady" was
although taken in plaint yet the same was not proved in evidence--Plaintiff had
been identified by her husband with whom she has been living through
out--Plaintiff's husband was the best person to advise and identify plaintiff
at all levels and stages and no fraud has been proved against him--Even if
plaintiff was "pardanashin" yet she had independent advise of her
husband, therefore, transaction in question could not be declared void on that
account. [Pp. 919 & 920] H
(vi)
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 39--Limitation Act (IX
of 1908), Arts, 91, 120 & S. 18--Civil Procedure Code (V of 1908), S.
115--Suit for declaration to title filed after more than 12 years of sale
transaction--Suit for declaration being composite under Sections 42 and 39 of
Specific Relief Act 1877, Art. 91 of Limitation would be applicable for which
limitation prescribed is three years--However, if suit was considered to be
mainly for declaration and relief of cancellation of document as ancillary or
incidental thereto, Art. 120, Limitation Act 1908; would be applicable under
which limitation is six years from date when right to sue accrues--Right to sue
accrued to plaintiff on 10.4.1973 when sale-deed was executed/registered,
therefore suit brought after more than 12 years was out of limitation--Plea to
attain benefit of S. 18, Limitation Act, 1908 was however, not
taken--Plaintiffs suit was thus, barred by limitation--Judgment and decree of
trial Court dismissing plaintiff's suit was maintained, while that of Appellate
Court decreeing plaintiff's suit was set aside. [Pp.
920 & 921] I & J
PLD 1972 SC 25; PLD 2003 SC 594; PLD 1995
Karachi 388; 2004 MLD 341; PLD 1988 Karachi 460; PLD 1997 Lahore 153; PLD 1976
SC 767; 2002 CLC 1956; 1987 SCMR 1647; 1996 SCMR 137; PLD 1979 SC 890; PLD 1976
SC 761; 2002 SCMR 235; PLD 1977 SC 109; AIR 1937 PC 152; 2002 SCMR 1317; 1994
SCMR 1937; 2002 CLC 909, ref.
Mr. Aamar Raza A. Khan, Advocate for
Petitioner.
Mr. Muhammad Ahmad Qayyum, Advocate for
Respondents.
Date of hearing : 14.3.2006.
Judgment
Suit for the declaration filed by the
predecessor-in-interest of Respondents Nos. 1-A to 1-C, seeking the declaration
of being the owner in possession of the suit property measuring 844 Kanals and
17 Marlas situated in Mauza Dab Kalan, Shorkot, (described in more detail in
the plaint) and also challenging the sale of the said land through the
registered sale-deed dated 10.4.1973 (Ex. D-5), in favour of the petitioners,
was dismissed by the learned trial Court vide judgment and decree dated
24.10.1992. But respondent/plaintiff's appeal has been accepted vide judgment
and decree dated 17.4.1999 and the suit has been decreed by setting aside the
judgment and the decree of the learned trial Court; hence this revision.
2.
Briefly stated the facts of the case are that on 21.7.1985, Mst. Kurshid
Begum, the predecessor-in-interest of Respondents Nos. 1-A to 1-C brought a
suit for the declaration against the petitioners as also respondent No. 3, her
husband, stating in the plaint that on account of the estate left by her
deceased father, she inherited the suit property; on account of the education
of her children, most of the time, she was residing at Lahore, but the suit
property remained in her possession brought tenants. It is alleged that a month
before the institution of the suit, petitioners/defendants attempted to
illegally take the share of the produce from the tenants, upon which, the
plaintiff got examined the revenue record, when it transpired that the
petitioners in collusion with her husband/defendant No. 3, have prepared the
disputed sale-deed dated 10.4.1973 (Ex. D-5), therefore, she challenged the
transaction and the sale instrument, on the basis of the fraud,
misrepresentation in the execution and registration of the sale-deed dated
10.4.1973; she also sought the declaration of being the owner in possessions of
the suit property, her reasons of challenge to the deed are highlighted in
Paragraphs Nos. 6 and 7 of the plaint, which broadly are that the plaintiff is
a pardanashin lady; the transaction is the result of fraud committed by the
petitioners, in collusion with her husband and his manager namely Abbas Hussain
Jaffari, she never appeared before the Sub registrar; never thumb marked the
sale-deed or any other agreement; the entire transaction was kept secret from
her, which she discovered recently; that the transaction is hit by the MLR
64/115.
3.
Respondent No. 3 her husband, despite service did not appear and has
been proceeded ex-parte; whereas the present petitioners contested the matter
and in their written statement, they have explained, how the final transaction
was arrived at, as the plaintiff earlier had agreed to sell to them the suit
land in two parts, firstly she agree for the sale of the land measuring 586
Kanals and 12 Marlas for a total consideration of Rs. 2,10,000/- and had
executed the registered agreement to sell dated 1.3.1973, in favour of the
vendees/defendants; she at that time, received an amount of Rs. 1,50,000/- as a
part of the consideration, before the local commission appointed by the Sub
Registrar for the purpose of registration of the above agreement, while the
balance amount was payable at the time of the registration of the sale-deed for
which the parties had agreed 28.3.1973 as the target date; thereafter, the
plaintiff had further agreed to sell the land measuring 258 Kanals and 5 Marlas
in favour of the defendants for an amount of Rs. 92,456/- and another agreement
dated 21.3.1973, was executed; out of the consideration amount, Rs. 72,000/-
was received by the plaintiff, whereas, the balance amount of Rs. 20,456/- was
to be paid to her at the time of the registration of the sale-deed and she
subsequently, received the total consideration and thus executed the sale-deed
for whole of the suit land measuring 844 Kanals and 17 Marlas within the
extended period, as agreed between the parties through Ex. D-4. The
petitioners/defendants denied of any collusion between them and the plaintiff's
husband or any element of fraud, etc in achieving the transaction, and/or any
violation of MLR. Out of the pleadings of the parties, learned Civil Judge
framed the following important issues:--
2. Whether
the suit is within time ? OPP
3. Whether
the plaintiff is estopped by her act a and conduct from filing this suit? OPD
8. Whether
the sale-deed registered dated 10.4.1973 deed No. 381 is illegal, against
facts, based on fraud, forged, collusive, void, without consideration and
ineffective against the rights of the plaintiff.
9. Whether
the plaintiff is owner in possession of the land in dispute ? OPP
The plaintiff Mst. Khurshid Begum, examined
one Rustam PW-1, who is her cousin and deposed that no sale was made by her in
favour of the petitioners. PW-2, Salehon has also deposed to the same effect;
PW-3 is Khadim Hussain, who has appeared as an attorney of the plaintiff on the
strength of power of attorney dated 6.2.1988 and his statement was recorded by
the trial Court on 29.3.1988; besides the oral evidence, four documents were
tendered in evidence by the respondents/plaintiff i.e. power of attorney Ex.
P-1; Mutation No. 486 pertaining to some other land Ex. P-2; two Jamabandi for
the year 1973-74 and 1969-70 Ex. P-3 and Ex. P-4 respectively.
4.
As against the above, the petitioners examined ten witnesses, the
important are DW-2 Muhammad Iqbal, Senior Clerk Naib Zarri Engineer, who stated
that two tube-wells were got installed by the petitioners at the site. Muhammad
Jamil Hashmi (DW-3), is the official from the Registration Office, who has
deposed about the registration of the sale-deed Nos. 381 and 382. DW-4, Haji
Muhammad Islam Patwari, stated about the possession of the petitioners over he
suit property since the time of the sale-deed and the mutation; Bashir Ahmad
(DW-6) is the scribe of the agreements to sell Ex. D-1 to Ex. D-5, which
includes the extension of the agreement and the impugned sale-deed. Noor
Muhammad, Advocate, was examined as DW-7, he is the local commission, who was
appointed by the Sub Registrar for the purpose of the completion of the
formalities for the registration of the documents/agreements. Faiz Bakhsh,
(DW-8) is the marginal witness of Ex. D-2 to Ex. D-5, whereas, the other
marginal witnesses of Ex. D-5 namely Ghulam Sarwar and Abbas Hussain Jaffari,
had died by that time. DW-9 is Muhammad Amin, one of the petitioners/defendants
and DW-10 is Ashiq Hussain, who at the relevant time asserts to be the
"Kardar" of the plaintiff. Besides the above oral evidence, the
important documents adduced by the petitioners are Ex. D-1, the Tamleeqnama
made by the plaintiff in favour of his son namely Fazal Abbas Haider; this
transaction was purportedly made to avoid the violation of the MLRs; Ex. D-2 to
Ex. D-3 are the agreements to sell executed between the petitioners and the
plaintiff, which are prior to the sale-deed; Ex. D-4 is the agreement about the
extension of time and Ex. D-5 is the sale-deed. Ex. D-14 and Ex. D-16 are the
three judgments in the suits filed by a third party Ghulam Abbas, against the
petitioners, challenging the above sale through the pre-emption cause Ex. D-17
is the ex-parte decree, which was passed in a suit filed by the plaintiff lady
against her son Fazal Abbas Haider Shah, challenging the Tamleeqnama Ex. D-1,
which was allowed and the decree was passed by setting aside the said
documents; Ex. D-20, is the mutation of sale in favour of the petitioners. whereas
Ex. D-21 is the judgment in the declaratory suit filed by Muhammad Nawaz, etc,
regarding the portion of the suit land; Ex. D-22 to Ex. D-24 are the jamabandi
for the year 1970-171, 1973-1974, 1977-1978, 1985-1986 and Ex.D-25 is the
Girdawari for the years 1985 to 1990.
5.
As mentioned earlier, the suit of the plaintiff/respondent was dismissed
by the learned trial Court, vide judgment and decree dated 24.10.1992, but on
her appeal which was allowed on 17.4.1999, this judgment and decree has been set
aside. Hence this revision.
6.
For the purpose of brevity, the pleas raised by the learned counsel for
the parties, are not being distinctly and specifically recorded; but the
arguments shall duty reflect in the course of discussion made in this decision.
7.
First of all, I shall dilate upon Issues Nos. 3, 8 and 9; as these
issues are inter-linked and thus should be decided together. According to the
clear averments made in the plaint, the plaintiff claims to be the owner in
possession of the suit property; she has challenged the sale-deed Ex. D-5 in
favour of the petitioners, primarily on the ground of fraud between the
petitioners, her husband and Abbas Hussain Jhafari, the Manager of her husband.
But through her evidence, she has badly failed to prove her possession over the
suit property; only oral, unsubstantiated and uncorroborated statements have
been made by PW-1, who is her cousin; PW-2 her tenant in the same mouza, but
not the cultivator of the suit land and PW-3 her attorney in this behalf. These
witnesses have made very brief and sketchy depositions about the plaintiff's
possession. For example, PW-1, in the examination-in-chief stated that:--
PW-2 deposed that:--
PW-3 her attorney stated:--
From the above, it is clear that no
details or the particulars about the possession have been given though PW-3
states that the plaintiff's possession is through the tenants, but without
specifying their names and the terms of lease/tenancy. Anyhow, These witnesses,
when subjected to the cross-examination by the petitioners, have not been able
to sustain their above bald assertions. Besides, the plaintiff has deliberately
omitted to produce any revenue record i.e the jamabandis for the relevant
period or the Khasra girdawari to establish either her physical or the
possession through the tenants. No proof of the payment of the land revenue was
given by her. It is also not established, as to who were the tenants of the
plaintiff cultivating the land; from whom the petitioners demanded the share of
produce, as is alleged in Para
No. 6 of the plaint. Neither any tenant, who was cultivating the land
under the plaintiff has been examined nor any lease/tenancy agreement in this
regards has been produced by her.
As against the above, the petitioners
have tendered in evidence the jamabandi for the years 1970-71, 1973-74,
1977-78, 1985-86 (Ex. D-22 to Ex. D-24), as also the khasra girdawari for the
entire period from 1985 to 1990, Ex. D-25, which proves that the sale-deed has
been given due effect in the record of rights and it is the petitioners, who
are recorded as the owners in possession of the property; besides, DW-2, who is
the Senior Clerk Naib Zarri Engineer Well-drilling Jhang, deposed that it is
the petitioners, who on 16.5.1982 had applied for the subsidy grant on
tube-well to his department, which was allowed and as per the record, the tube
well was purchased through the department and was installed at Square No. 48,
Killa No. 2, i.e. part of the suit land. DW-4 is the Patwari of the mouza,
whereas, DW-10 is the ex-Kardar of the plaintiff-respondent; both of them in
their examinations-in-chief clearly and categorically stated about the
possession of the petitioners over the suit property, particularly, DW-10,
deposed that it was so delivered on the day of the registration of the
sale-deed, but these statements have not been subjected to the
cross-examination. Moreover, the sale in favour of the petitioners, was
challenged by Ghulam Akbar and Muhammad Nawaz, through pre-emption action
initiated on 8.4.1974, which was contested by the petitioners and through the
judgment Ex. D-14 dated 25.1.1981, the suit was dismissed. Ghulam Akbar Khan,
etc. filed an appeal, which met the same fate and was dismissed on 27.4.1987
(Ex. D-15); both the judgments were challenged before this Court in RSA No. 122
of 1987, which was disallowed on 1.11.1988. From the perusal of these
judgments, which are hotly contested matters, it stands satisfactorily proved
that the possession of the suit property was with the petitioners. Their
possession is also confirmed through the judgment dated 28.10.1987 Ex. D-21,
passed in the suit for declaration, filed by Muhammad Nawaz, etc, who have
challenged the sale in favour of the petitioners, in which the plaintiff was a
party and this suit as ultimately dismissed. But as mentioned earlier, against
this overwhelming evidence, the plaintiff has only led oral evidence, which is
inadequate and dearthy to prove her possession. Therefore, it stands
convincingly established on the record that the plaintiff was not in possession
of the property and her assertion in this behalf, made in the plaint remains
unsubstantiated. Therefore, the findings of the appellate Court in this behalf,
which are contrary to the above aspects and are the result of misreading and
non reading of the evidence, cannot sustain and are hereby set aside. It may be
pertinent to state here that despite the above, the plaintiff did not seek the
relief of possession and resultantly, her suit was also bad on account of the
proviso to Section 42, which was an essential consequential relief, but was not
claimed for.
8.
The other main proposition of the case are:--if the plaintiff has been
defrauded in the sale transaction, no consideration was received by her;
the transaction was hit by
MLR 64/115; therefore,
the sale-deed Ex. D-5 should be annulled. The initial onus of this
issue/proposition, was upon the plaintiff; her evidence has been scanned; PW-1
and PW-2 have not contributed much to the case of the plaintiff in this behalf,
because they have not stated anything about the fraud, etc, which is the main
stay of the plaintiff's case as set out in the plaint. This also is a very
critical deficiency in the statement of PW-3, Khadim Hussain, who has appeared
as the attorney for the plaintiff. The obvious legal consequence of such lapse
is, that though the plaintiff has structured her case on the foundation of
fraud, but without proving the same and it is settled law that the pleading is
not the proof of any assertion. Reliance in this regard, can be placed upon the
judgments reported as Mst. Khair-ul-Nisa, etc. vs. Malik Muhammad Ishaque, etc.
(1972 SC 25 @ 31), Faqir Muhammad, etc. vs. Abdul Momin etc. (PLD 2003 SCMR 594
@ 601), Mst. Zareena and 5 others vs. Syeda Fatima Bi (PLD 1995 Karachi 388 @
391), Bakht Baider, etc. vs. Naik Muhammad and another (2004 MLD 341 @ 351),
K.A. H. Ghori vs. Khan Zafar Masood, etc. (PLD 1988 Karachi 460 @ 463),
Anjuman-e-Islamia, Sialkot, vs. Haji Muhammad Younas (PLD 1997 Lahore 153 @
157).
11.
Despite and without prejudiced to the above, even if going by the rule
that it is the beneficiary of a document, who has to prove its valid execution
for consideration by the executant; in my considered view, the petitioners have
led ample evidence to establish/prove the sale transaction; the two registered
sale agreements to sell Ex. D-2 and Ex. D-3 and the extension Ex. D-4; as also
the sale-deed Ex. D-5 and the tamleeqnama in favour of the plaintiff's son Ex.
D-1, have been proved through the best evidence available to the petitioners;
DW-3, Head Clerk, Registration Office Jhang, has brought the record/register of
the Documents Nos. 381 (Ex. D-5) and 382 (Ex. D-1), upon which the signatures
and the thumb impressions of the plaintiff have been affixed and she was
identified by Ghulam Haider Shah Girdazi, her husband, who in my view was the
best and most close and qualified person to identify and advise the plaintiff.
Haji Muhammad Aslam Patwari has appeared as DW-4, who states that on the basis
of the document No. 381 (Ex. D-5) Mutation No. 493, with regard to the land
measuring 844 Kanals and 16 Marlas was sanctioned in favour of the petitioners,
whereas, on account of the other Bearing No. 382 (Ex. D-1), Mutation No. 492
was attested in favour of the plaintiff's son. DW-6, is the scribe of documents
Ex. D-1 to Ex. D-5, who has testified about the execution of all these
instruments, which according to him were explained to the parties, who
thereafter executed the same in his presence, after understanding; these
documents are also duly incorporated in the registers maintained by him; he
categorically stated that the plaintiff was identified by her husband Syed
Ghulam Haider Shah, whom he know personally. About the sale-deed Ex.D-5, he has
particularly stated DW-7, Malik Noor Muhammad is the local commission, who was
appointed by the Sub-Registrar for the purpose of the registration of the Ex.
D-4, he also stated that the document was explained to the plaintiff and after
understanding and accepting the correctness of the document, she had executed
the same; he further deposed that the plaintiff was identified by Syed Ghulam
Haider Shah, the husband of the plaintiff, whom he personally knew. DW-8, Faiz
Bakhsh, is a stamp vendor, who states to have sold the stamp papers of Ex. D-2
to Ex. D-5, he also is the marginal witness of these documents and deposed that
the husband of the plaintiff is his neighbour; the above documents were
executed by the plaintiff in his presence, which were read over and explained
to her. It may be pertinent to state here that the other two marginal witnesses
of these documents, admittedly had died by that time; Ashiq Hussain (DW-10) has
stated in his examination-in-chief that he was the Kardar of the plaintiff at
the relevant time; she has entered into the sale agreement with the
petitioners; she received the consideration; details whereof are given by him
his statement. He categorically mentioned that:--
Interestingly, these material depositions
made by him, have not been subjected to cross-examination. It has not been
suggested to him that in the year 1973, he was not the Kardar of the plaintiff,
and that plaintiff personally had not gone to the office of the Sub Registrar
for the purpose of registration of Ex. D-5 and the witness as stated by was not
accompanying her.
12.
From the above quality and preponderance of evidence, led by both the
sides, coupled with the attending circumstances of the case such as lack of
plaintiff's possession over the suit property, since the time of its sale; the
incorporation of the sale in the revenue record and the name of the purchasers
appearing in the subsequent jamabandis, khasra girdawaris in the name of the petitioners, since the date of the
transaction; delay in filing of the suit, for such a considerable period of
time; pre-emption and other litigation about the same property and its outcome;
the presence of the plaintiff's husband on each and every occasion as deposed
by all the concerned witnesses and there being no denial in this behalf; no allegation
made against the husband of being a party to the fraud, as alleged in the
plaint, goes to prove that the sale was made by the plaintiff for valid
consideration.
13.
It may also be added that according to PW-2, the plaintiff used to come
to the village/mauze after very year/six month; it is most improbable that she
would not know about the sale of the property, especially in the situation,
when it has not been proved by her that she was in possession and was receiving
any yeild/income from the property.
14.
It may also be significant to mention here that the plaintiff has failed
to appear personally before the Court and therefore, the presumption can
rightly be drawn against here for withholding the best evidence. Reliance in
this behalf, can be placed upon the judgments reported as Shah Nawaz, etc. vs.
Naab Khan (PLD 1976 SC 767 @ 780 & 781), Mst. Farhat Begum and others vs.
Said Ahmed Shah, etc. (2002 CLC 1956 @ 1969), Feroz Khan, etc. vs. Mst. Waziran
Bibi (1987 SCMR 1647 @ 1648). Shahnawaz and another vs. Nawab Khan (1976 SC 767
@ 781), Sughran Bibi, vs. Mst. Aziz Begum, etc. (1996 SCMR 137 @ 144), Abdul
Ahad, etc. vs. Ropshan Din etc. (1979 SC 890 @ 904), Muhammad Mal Khan, vs.
Allah Yar Khan (2002 SCMR 235), Malik Muhammad Ishaque vs. Messrs Crose
Theatre, etc. (1977 SC 109 @ 133) and Surat Cotton Spinning and Weaving Mills,
Ltd. vs. Secretary of State (AIR 1937 PC 152 @ 157). Therefore, I am of the
considered view, that the sale-deed, Ex. D-5 in favour of the petitioners dated
10.4.1973, is not the result of any fraud and misrepresentation, rather is a
genuine transaction for due consideration and the plaintiff has failed to prove
the transaction void/voidable. Therefore, on account of the above, the findings
of the Court of appeal on Issue Nos. 3 and 8 are also set aside.
15.
As regards the challenge to the sale on the basis of being violative of
the MLR 64/115, Mr. Aamar Raza A. Khan, has rightly argued that the Civil Court
has no jurisdiction in this behalf, which can only be exercised by a forum
constituted under the relevant law. Reliance can be placed upon the cases
reported as Ismail and others vs. Muhammad Khan (2002 SCMR 1317), Mst. Aisha
Bibi vs. Nazir Ahmad, etc. (1994 SCMR 1937) and Muhammad Ashraf vs. Abdul Aziz,
etc. (2002 CLC 909). Besides, it may also be mentioned that in order to avoid
the violation of the MLR, the plaintiff had executed the gift Tamleeqnama Ex.
D-1 of 16 Kanals in favour of her son, but subsequently, on account of the
collusive suit and a decree, this tamleeq Ex. D-1 was got set aside by her,
this was perhaps done with an object to make a cause to challenge the sale of
the petitioners.
16.
I am not much convinced by the argument of Mr. Muhammad Ahmed
Qayyum, that the
plaintiff was a
pardanashin lady and
that the transaction in question
on her behalf should be adjudged to be void by applying the rule of pardanashin
and illiteracy, suffice to to say that the plea of pardanashin lady though has
been raised in the plaint, but this has not been so proved through the evidence
of the plaintiff; she has been identified by her husband with whom, she has
been living throughout; he was the best person to advise and identify the
plaintiff at all the levels and the stages; no fraud has been proved against
him. It is not established on the record, if the relationship between the
husband and wife were sour before or after the transaction, therefore, even if
the plaintiff was a pardanashin lady, yet she had independent advise of her
husband resultantly, the transaction in question, could not be declared void on
that account. It may be reiterated even at the cost of repetition that the
fraud pleaded against the husband has not been proved by the plaintiff in her
evidence.
17.
As regards the issue of limitation is considered, the suit has been
filed after more than a period of 12 years and three months; it is a composite
suit for the declaration u/S. 42 and 39 of the Specific Relief Act. For the
suit falling under Section 39 of the Act ibid, Article 91 of the Limitation Act,
is applicable for which, limitation prescribed is three years. However, if
considered that the suit mainly is for the declaration and the relief of
cancellation is only an ancillary or incidental thereto, at the most, Article
120 shall be applicable, under which, the limitation is six years from the
date, when the right to sue accrues. In the instant case, such right accrued to
the petitioner on 10.4.1973, when the sale-deed Ex. D-5 was executed/
registered, therefore, such suit brought after more than 12 years was out of
limitation. But, if the plaintiff wanted to attain the benefits of Section 18
of the Limitation Act, she should have taken such plea in the plaint, which
should have been drafted conforming to the provisions of Order VII, Rule 6, however,
not only the plaint is lacking in this behalf but also the fraud has not been
proved by the plaintiff as held above, thus necessarily the plaintiff's suit
was barred by limitation and has been rightly so held by the learned trial
Court. The view taken by the Court of appeal that "The appellant/plaintiff
is a Parda Nasheen lady, therefore, this is accepted that she
(appellant/plaintiff) came to know about this fraud when her tenants were
removed and she filed the suit for declaration. This issue is decided against
the respondents in favour of the appellant" is absolutely misconceived and
has been made beyond the case of the plaintiff, firstly, she has not proved to
be a pardanashin lady; she has failed to prove the fraud and it is neither her
case, nor proved that her tenants were ever in possession of the property, who
were ousted by the petitioners, which event could give her a cause of action to
sue for the declaration; this issue thus has been again wrongly decided by the
Court of appeal.
For what has been stated above, the
judgment and decree of the learned Court of appeal is not only based upon
misreading and non reading of the record, but also by misapplication of the
law, resultantly, same cannot be sustained, which is hereby set aside, with the
result that by upholding the judgment and decree of the learned trial Court,
the suit of the plaintiff remains dismissed. This revision is accordingly
allowed.
(Aziz
Ahmad Tarar) Revision accepted.