PLJ 2010
Presaent: Mushir Alam and Aqeel Ahmed Abbasi, JJ
NAZIMUDDIN AHMED--Appellant
versus
AINUDDIN AHMED and 2 others--Respondents
High Court Appeal No. 403 of 2008, decided
on 29.1.2010.
Limitation Act, 1908 (IX of 1908)--
----Art. 91--Limitation--Cancellation of
document--No claim in suit--Art. 91 of Limitation Act, provides three years
would not govern the suit--Limitation in the instant case would be governed
under Art. 210 of Limitation Act, which provide six years
from the date when the right to sue accrued. [P. 137] A
Limitation Act, 1908 (IX of 1908)--
----Arts. 91 & 120--Specific Relief
Act, (I of 1877), Ss. 39 & 42--Law Reforms Ordinance (XII of 1972), S.
3--Intra-Court Appeal--Declaration of title and cancellation of document--Benamidar, suit against--Limitation--Suit was dismissed by
Single Judge on the ground that it was barred under Art.91 of Limitation Act,
1908--Validity--First application was filed by plaintiff on 15-12-1996, to
authorities requesting not to issue any duplicate document to defendant--Sale
agreement was executed by defendant on 30-1-1997, representing himself as
owner, which document had come to the notice of plaintiff much later--Reckoning
six years limitation from application dated 15-12-1996, cut off date for suit
of such nature would be expiring on 13-12-2002--Limitation for cancellation of
transfer in favour of buyer was to be reckoned within
six years from the date of knowledge of disputed entry in the record of rights
as maintained by authorities--As the disputed entry in record of rights was
26-5-1997, therefore, under Art. 120 of Limitation Act, 1908, time would run
out on 26-5-2003 for declaration of title--Suit was filed on 28-11-2002 and it
was well within the period of limitation--Right to sue accrued to real owner
against Benamidar, when hostile claim of ownership by
Benamidar/ostensible owner had come to the knowledge
of real owner--Single Judge of High Court did not properly consider factual
position narrated in plaint in the context of cause of action and evidence
available on record, thus judgment was on wrong assumption in its entirety,
therefore, the same was set aside and suit was decreed in favour
of plaintiff--Division Bench of High Court directed the authorities to mutate
plot in-question in favour of plaintiff--Intra-Court
Appeal was allowed. [P. 137] B
& C
PLD 1957
Mr. I.H. Zaidi,
Advocate for Appellant.
Nemo for Respondents Nos. 1
and 2.
Mr. Manzoor
Ahmad, Advocate for Respondent No. 3.
Date of hearing: 12.11.2009.
Judgment
Mushir Alam,
J.--Appellant above-named has impugned the judgment dated 3-11-2008 handed down
by learned Single Judge of this Court in Suit No. 1220/2002 whereby the said
suit was dismissed being hit by Article 91 of the Limitation Act.
2.
Facts as may be necessary to attend the controversy in the instant
appeal, appears to be that in the year 1983 the
plaintiff applied for allotment of plot in the name of his brother the
Defendant No. 1 himself, however, ballot was drawn only in favour
of the brother, the Defendant No. 1. Plot No. 39, Block-I, Scheme-36, Gulistan-e-Johar,
3.
It is the case of plaintiff that the CDGK the Defendant No. 3 on the
ill-advise of its law officer again restored the
property in favour of Defendant No. 1 on 28-10-2000
Exh.P.50. Several protests yielded no result and the plaintiff was advised to
approach the
4.
From the record, it appears that Defendants Nos. 1 and 2 were served in
suit and declared ex parte on 12-1-2004. The
Defendant No. 3 contested the suit, filed the written statement and did not
raise any question of limitation. Only defence raised
was that the property was transferred in favour of
Ahmed Yar Khan, the Defendant No. 2, on the basis of
legal opinion from the law department. The evidence of plaintiff was recorded
on commission. The defendants chose not to appear or lead any evidence. The
case came up for final arguments when the learned Judge in Chamber heard the
plaintiff and dismissed the suit on the ground of limitation through impugned
judgment dated 3-11-2008.
5.
Mr. I.H. Zaidi, learned counsel for appellant,
contended that the Issues were struck down on 7-3-2005. Since no issue of
limitation was raised, therefore none was framed nor there was
any occasion to lead any evidence on such issue. It was argued that the
Court misdirected itself on the basis of wrong assumption and decided the suit
being barred by limitation. According to the learned counsel, the Court has
erred in computing the limitation from 15-8-1996 on the assumption that such
fact has been narrated in
6.
It was argued that the suit is not hit by Article 91 of the Limitation
Act, which provides three years limitation to seek cancellation of document.
Mr. Manzoor learned counsel for the CDGK; the
Respondent No. 3 supported the impugned judgment of the trial Court. He
however, stated that any order passed by this Court will be followed. We have
heard the arguments and perused the record.
7.
From record it appeared that notice through courier was served at the
address of Respondents Nos. 1 and 2 on 23-2-2009 and 27.2.2009 respectively,
again it was delivered through courier at Respondents Nos. 2 and 3 on
29-4-2009. Notice was pasted on 7-5-2009 several attempts by the bailiff shows
that family members of the respondents refused to receive the notices. In this
view of the matter and in consideration of the sub-rule (3) to Rule 14 of the
Order XLI, C.P.C. (Sindh Amendment), where the
respondent who have made no appearance before the trial Court at hearing, whose
decree is assailed before the appellate Court, the appellate Court may dispense
with service on such absenting respondents. In instant matter since the
Defendants Nos. 1 and 2 (Respondent Nos. 1 and 2 herein) were ordered to proceed ex-parte on 12-1-2004 by
the trial Court. Therefore, on 1-10-2009 were deemed expedient to dispense with
any further service on said Respondents Nos. 1 and 2 and directed to proceed
with the matter in their absence.
8.
The reliefs claimed by the plaintiff are
couched in the following terms:--
"(a) Declare
that the plaintiff is the real owner of the said plot and direct cancellation
of the transfer in favour of Defendant No. 2;
(b) Permanently
restrain the Defendants 1 and 2 from claiming any right title or interest in
the said plot;
(c) Judgment
and decree for a sum of US$ 8100 against Defendant No. 1 as recovery of amount
received as loan;
(d) Award
compensation against the defendants jointly and severally to the tune of Rs.5
million for causing mental torture and financial expenses;
(e) Any
other relief(s) which this Honourable Court may deem
fit and proper in the circumstances of the case; and
(f) Cost
of the suit."
9.
From the perusal of the prayer clauses, it is clear that the plaintiff
in addition to declaration as to title has also sought cancellation of transfer
in favour of Defendant No. 2 as notified on
26-5-1997. Plaintiff has sought declaration of his title as actual owner
against the Defendant No. 1 being ostensible owner, no period of limitation is
provided in the Limitation Act for a suit of the nature. Suit to seek
declaration of title against a benamidar is governed
under Article 120 read with Section 18 of the Limitation Act, right to sue
would accrue and six year limitation in such case would commence from the time
hostile or fraudulent assertion of the benamidar
first became known to the person injuriously affected. Right to sue for
declaration of title would accrue to the affected person within six years of
knowledge of the such entry in the record of title by
the authority under law enjoined to maintain and keep such record under Article
120 of the Limitation Act.
10.
Article 120 of the Limitation Act, 1908 reads as follows:
Description of suit Period of limitation Time
from which
period
begins to run
120. Suit for which no Six years When the right to
period of limitation is sue
accrues.
provided elsewhere in
this schedule.
From the material on record, Exhibit P/31
dated 15-12-1996, available
at Page 189
of the Court
file, it transpires that the
plaintiff notified the defendant not to issue the duplicate documents to the
Defendant No. 1 as all the original documents pertaining to the plot are with
him. The plaintiff requested the Defendant No. 3 on 23-5-97 to keep the matter
pending till end of May 1997 (Exh.P/33) as he is posted to
11.
Upshot of above discussion is that the learned Single Judge had not
properly considered the factual position narrated in the plaint in the context
of cause of action and evidence available on record as discussed above.
Impugned judgment is on wrong assumption in its entirety. Since there is no
material in support of prayer clauses (c) and (d), appeal is allowed, suit is decreed
in terms of prayer clauses (a), (b), (e) and (f) only. Consequently Respondent
No. 3 is directed to mutate the Plot No. 39 Block-1 Scheme-36, Gulistan-e-Johar,
(R.A.) Appeal
allowed.