PLJ 2009 SC 356
[Appellate Jurisdiction]
Present: M. Javed Buttar & Nasir-Ul-Mulk, JJ.
WAZIR KHAN and others--Appellants
versus
QUTAB DIN and others--Respondents
Civil Appeal No. 1876 of 2001, decided on 15.10.2008.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 19-07-2001 passed in RSA No. 66 of 1985).
Limitation Act, 1908 (IX of 1908)--
----Arts. 142 & 144--Suit for declaration and possession--Applicability and distinction--Burden of proof--Forcibly dispossession by defendant after restoration of mutations by Commissioner--Mutations were fraudulently entered and attested--Validity of mutations--Suit for barred by time--Suit for possession could have been competently brought within twelve years from the date on which order of restoration was passed--First Appeal was dismissed while second appeal was allowed--Questions for determining before the Courts that of limitation and genuiness of the sale of land through mutations--A suit for possession of immovable property when the plaintiff has been dispossessed is covered by Art. 142 and the time is to be reckoned from the date of the plaintiffs dispossession--Art. 144 of Limitation Act, is a residuary article for the class of suits or possession, as it is applicable when special provisions for such a suit is otherwise not provided--Period of twelve years for a suit under Art. 144 of Limitation Act, is reckoned from the date when the defendant's possession becomes adverse to the plaintiff--Burden of proving dispossession within twelve years of filing of the suit under Art. 142 of Limitation Act, lies on the plaintiff whereas the onus under Art 144 lies on the defendant to establish that he remained in adverse possession for more than twelve years--Appeal was dismissed. [P. 360] A
Limitation Act, 1908 (IX of 1908)--
----Art. 42--Dispossessed within twelve years of the filing of suit--Onus to prove--Inconsistency regarding dispossession and documentary evidence--Appellant had failed to discharge the burden that he had been dispossessed within the period of 12 years from date of filing the suit is liable to be dismissed on such score alone. [P. 361] C
Limitation--
----Question of--Whether suit was time barred--Suit would be within time if it was filed within twelve years of the plaintiff's forcible dispossession had gone on to examine the date of dispossession.
[P. 360] B
1995 SCMR 522, ref.
Mian Allah Nawaz, ASC for Appellants.
Mr. Muhammad Anwar Bhaur, ASC and Mr. Shaukat Ali Mehr, ASC for Respondents.
Respondents No. 7, 19, 24 & 25, Exparte.
Date of hearing: 15.10.2008.
Judgment
Nasir-ul-Mulk, J.--The dispute between the parties is over a piece of land measuring 178 kanals situated in Mauza Adlana Dhuddi, Tehsil Minchinabad, District Bahawalnagar, originally owned by Wazir Khan and ostensibly transferred by him in favour of one, Qutab Din, through a Mutation No. 293 attested on 21.9.1959. By another Mutation No. 296, attested on 23.2.1960, the entire land was sold by the said, Qutab Din to Sardar Ali, Aswar Khan and Zulfiqar Khan, sons of Luqman. Subsequently the later effected two exchange Mutations No. 463 and 464. It was in the year 1971 that, Wazir Khan, applied to the District Collector for cancellation of the Mutations No. 293 and 296. The application was allowed and the said mutations were set aside by order of 12.5.1971. However, the said order was reversed by the Additional Commissioner on 30.6.1971 and the mutations in question were restored. A review petition filed by Wazir Khan, before the Additional Commissioner, failed on 22.3.1972. He then filed a civil suit on 28.10.1978 in the Court of Civil Judge, Bahawalnagar, alleging forcible dispossession by the defendants after restoration of the mutations by the Additional Commissioner on 30.6.1971. Wazir Khan averred that he had never sold the land, nor did he receive any sale consideration and that the mutations in question were fraudulently entered and attested. Qutab Din, Sardar Ali and others as well as the subsequent transferees through exchange mutations, were arrayed as defendants, all of whom contested the suit. Apart from defending the validity of the mutations, the defendants pleaded that the suit was barred by time. The Civil Judge held the suit to be within time on the ground that since it was suit for possession, the same could have been competently brought within twelve years from the date on which the Additional Commissioner passed the order of restoration which, according to the plaintiff, was followed by forcibly dispossession by the defendants. On merits, the trial Court held that the sale of the land by Wazir Khan, in favour of Qutab Din, defendant was not proved. The defendants' appealed against the judgment and decree which was dismissed on 8.6.1985 by the Additional District Judge wherefrom they filed a second appeal before the High Court. The appeal was allowed on 19.7.2001, the Court holding the suit to be barred by time in that the sale mutations, dated 21.9.1959 and 23.2.1960, were sought to be challenged by the plaintiff on 28.10.1978. Even on merits, the learned Judge-in-Chambers was of the opinion that the plaintiff had failed to substantiate the allegation of fraud by the defendants. Resultantly, the judgments and decrees of the two Courts were set aside and the suit of the plaintiff dismissed on 4.7.2001. Leave to appeal against the said judgment and decree was granted to the legal heirs of Wazir Khan, who by then had passed-away, on 28.8.2001 to consider the following contentions :--
"(a) Whether in view of the judgment of this Court reported as Abdul Majeed and 6 others versus Muhammad Subhan and 2 others (1999 SCMR 1245), the learned High Court has wrongly applied Article 120 of the Limitation Act instead of applying Article 142 thereof?
(b) Whether the learned High Court has disturbed the concurrent findings recorded by the trial Court and the First Appellate Court on Issues Nos. 6 and 7 without any material available on record to reverse these findings?
(c) Whether the learned High Court has accepted the evidence produced by the respondents illegally and without assigning any reason?"
2. Mr. Mian Allah Nawaz ASC appeared for the legal heirs of Wazir Khan, appellant, and Mr. Muhammad Anwar Bhaur, ASC represented the respondents.
3. The learned counsel for the appellants addressed arguments on the findings of the Courts on Issue Nos. 1, 6 and 7 being crucial for determination of the lis. On Issue No. 1, pertaining to the question of limitation, the learned counsel referred to the impugned judgment to point out that the learned Judge-in-Chamber without discussing the relevancy of Article 120 of the Limitation Act, which contains residuary provision, concluded that the said and not Article 142 of the Limitation Act was applicable to the case. Further that the impugned judgment on the issue of limitation is self contradictory in that the discussion on the issue proceeded on the premises that the time would run against the plaintiff from the order of the Additional Commissioner restoring the mutations, whereas in the conclusion, the time has been reckoned from the date of sale mutations of the years 1959 and 1960. The learned counsel further argued that the learned Judge-in-Chamber had erred in not following the principle laid down by this Court in the case of "Ali Muhammad v. Qaisar Mehmood Shah (1991 SCMR 1114), where it was held that in a suit for recovery of possession the relief regarding setting aside of mutation should be treated ancillary and thus, such a suit for the purpose of limitation would be considered as one for possession and thus fall under Article 144 of the Limitation Act.
4. On merits, the learned counsel argued that the learned Judge in the High Court reversed the concurrent findings of facts of the two Court without discussing the evidence on record. It was maintained that the defendants had failed to produce the original vendee, Qutab Din, from whom they drive title, in support of the Sale Mutation No. 293. That even otherwise, the defendants had not been able to produce sufficient evidence in support of the sale of land by Wazir Khan. The learned counsel placed further reliance upon "Noor Muhammad v Abdul Qadeem (1995 SCMR 522) and Muhammad Ali v Hassan Muhammad (PLD 1994 SC 245)".
5. For the respondents, the learned counsel referred to the Jammabandi and the Khasra Girdawari as well as the statement of DW3 Aswar Khan, defendant, in order to establish that the possession of the suit land was delivered to the defendants soon after the attestation of the mutations in the year 1959 and 1960, contrary to the allegation of dispossession of the plaintiff in the year 1971. The learned counsel pointed out that the trial as well as the First Appellate Court did not discuss the facts on record relevant to the issue of limitation, thus, warranting interference by the High Court.
6. The two questions for determination before the Courts below as well as before us are that of limitation and the genuiness of the sale of the land through Mutations No. 293 and 296. The first question being crucial and much discussed by the Courts as well at the bar before us, we would like to straightaway advert to the same.
7. The trial as well as the appellate Court had proceeded on the premises that since the suit was one for possession, the same could have been instituted within twelve years of the plaintiffs dispossession. On the other hand, the learned Judge in the High Court did not go into the question as to whether the time limitation prescribed for declaratory suit (Article 120 of the Limitation Act) or suit for possession (Article 142 of the Limitation Act) was applicable to the facts of the case but declared the suit time barred on the ground that the cause of action had accrued to the plaintiff from the dates of the Sale Mutations No. 293 dated 21.9.1959 and 296 dated 23.2.1960.
8. A controversy was raised at the bar, arising from the impugned judgment, as regards the nature of the suit. We perused the contents of the plaint and found that though the suit is titled simply as one for possession, however, in the relief sought at the end of the plaint in addition to prayer for possession, declaration for setting aside the two mutations has also been sought. Having said that, this controversy, as will be seen, is not relevant for the purpose of determining the issue of limitation. We intend to examine the question on the premises that it was a suit for possession and, therefore, could have been brought within twelve years of the plaintiff dispossession, which is also the case of the plaintiff/appellant.
9. The two relevant provisions in the Limitation Act for filing suit for possession are, Articles 142 and 144. The learned counsel for the appellant has pressed into service the later. A suit for possession of immovable property when the plaintiff has been dispossessed is covered by Article 142 and the time is to be reckoned from the date of the plaintiff's dispossession. Article 144 is a residuary article for the class of suits for possession, as it is applicable when special provision for such a suit is otherwise not provided. The period of twelve years for a suit under Article 144 of the Limitation Act is to be reckoned from the date when the defendants' possession becomes adverse to the plaintiff. The burden of proving dispossession within twelve years of filing of the suit under Article 142 lies on the plaintiff whereas the onus under Article 144 is on the defendant to establish that he remained in adverse possession for more than twelve years, (see "Noor Muhammad v Abdul Qadeem (1995 SCMR 522)" ibid.
10. The appellants had alleged dispossession by the respondents and had consequently prayed for possession of the suit land. Their case was therefore, squarely covered by Article 142 of the Limitation Act. In that view of the matter, the onus lay on the appellants to establish that they were dispossessed within twelve years of the filing of the suit.
11. The trial Court has while discussing Issue No. 1 as to whether the suit was time barred, after holding that the suit would be within time if it was filed within twelve years of the plaintiff's forcible dispossession, had gone on to examine the date of dispossession. However, the Court misdirected itself by examining the question on the premise that the burden was on the defendant to establish that possession was delivered to him at the time of Mutation No. 293. The Court then simply referred to the statements of PW1 and PW2 who had alleged forcible dispossession 9/10 years preceding the date of making their testimony. From this, it was concluded that the defendants had dispossessed the plaintiff from the suit property soon after 22.3.1972 when the mutations were restored by the Additional Commissioner. The Additional District Judge, in appeal, had hardly discussed this important question of the date of dispossession and assumed that dispossession had taken place after the order of the Additional Commissioner as is evident from the following remarks :--
"He, (the plaintiff) was actually dispossessed after
the appeal of the defendants/appellants was accepted by the learned Additional
Commissioner,
Thus, it will be seen that the trial Court had wrongfully placed the burden on the defendants as to the date of dispossession and the Appellate Court simply proceeded on unfounded assumption. Interestingly, the High Court also did not give much thought to this aspect and computed the time limitation from the date of attestation of the two mutations of 1959 and 1960.
12. Thus, we need to examine whether the plaintiff has discharged the burden of establishing that he was forcibly dispossessed from the suit property within twelve years of the filing of the suit as required by Article 142 of the Limitation Act. In his plaint, the plaintiff had alleged forcible dispossession of the suit land by the defendants upon restoration of the mutations in favour of the defendants by the Additional Commissioner on 30.6.1971. He has not given the exact date of dispossession. However, in his testimony on 30.1.1983 recorded as PW3 before the trial Court, the plaintiff, Wazir Khan, after stating that the defendants had forcibly dispossessed him 10/11 years earlier, averred that it was only after forcible dispossession that he learnt about the disputed mutations and, therefore, applied to the Additional Deputy Commissioner for their cancellation. This statement is in conflict with the averment in the plaint that the plaintiff was dispossessed after the restoration of the mutations by the Additional Commissioner, whose order was obviously made after the decision of the Additional Deputy Commissioner. Be that as it may, the plaintiff had not given any specific date either in the plaint or in evidence of his dispossession. One also fails to understand as to how the plaintiff could not give the exact date of such an eventful day of dislodging of the plaintiff by the defendants of a huge chunk of 178 kanals of land by force, which obviously would have required tremendous effort backed by considerable manpower. No details have been provided of the event resulting in loss of possession by the plaintiff.
13. Although, the burden was on the plaintiff to prove the date of his dispossession, the defendants had produced sufficient evidence in the shape of Khasra girdawari as well as jamabandi relating to the period prior to 1971, showing that the defendants and not the plaintiff remained in possession much before that year. In view of the inconsistency in the plaintiff's case regarding his dispossession and the documentary evidence produced by the defendants, we are constrained to hold that the plaintiff/appellant had failed to discharge the burden that he had been dispossessed within the period of 12 years from the date of filing the suit in the year 1978. The appellants' suit is, therefore, liable to be dismissed on this score alone.
14. True that the High Court did not comprehensively examine the findings of the two Courts on merits as to whether, Wazir Khan, plaintiff, had sold the property to the defendants but it will not be necessary for us to go into this question as we have already found that the plaintiff's suit was barred by time under Article 142 of the Limitation Act.
15. For the foregoing reasons, the appeal is dismissed with no order as to cost.
(W.I.B.) Appeal dismissed.