PLJ 2010
[
Present: Abdul Shakoor Paracha, J.
KARIM BAKHSH--Petitioner
versus
MUHAMMAD YUSUF and others--Respondents
Civil Revision No. 245-D of 1993, heard on 19.5.2009.
Limitation Act, 1908 (IX of 1908)--
----Art. 120--No title document available in favour of plaintiff-respondent--When right to sue accrued--Question of--Limitation period for filing the suit for declaration of ownership would be governed by Art. 120 of Limitation Act, 1908 providing 6 years from the date when right to sue accrued. [P. 343] A
2003 CLC 1521 & 1998 CLC 2006, rel.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O.XXXIX, Rr. 2 & 3--Limitation Act, (IX of 1908), Ss. 6 & 8--Limitation--Civil revision--Name of minor was not entered in the mutation--Suit for declaration--Entries in revenue record to that extent are liable to be corrected--Suit for permanent injunction which was dismissed as withdrawn after report of the local commission--Suit was resisted by defendant as being time-barred and non-maintainable--At the time of purchase of land his age was 9/10 years--Effect of Ss. 6 & 8 of Limitation Act, would be to enable a person, like the plaintiff, who has been allegedly deprived from his ownership in the land during his majority, to file a suit within six years of his attaining majority or within the usual period of time ordinarily allowable to a major which ever is longer--Held: No limitation runs regarding the assertion of title of the property which belongs to the minor during the continuance of the majority--Suit was barred by time. [P. 344] B
Mutation--
----Payment of the price--Plaintiff was minor at the time of attestation of mutation--Defendant purchased the suit property from his own pocket and paid the amount--Discharge the onus of proving the fact--At the time of attestation of mutation, plaintiff was minor and the father had already expired--Question of determination--Plaintiff failed to discharge the onus of proving the fact that he had paid the price to extent of half share with petitioner and therefore, is owner to extent of « share in the suit property. [P. 345] C
Tenant--
----Possession was as a tenant--Validity--It is established principle of law that once a tenant is always a tenant. [P. 346] D
Suit for Declaration--
----Possession of the land as tenant on the basis of khasra girdawari--Maintainability of suit--Defendant had filed a suit in 1985, he cannot be declared entitled for the land and the decree for declaration would have not been granted without challenging the mutation in the Court--Trial Court illegality recorded the finding that the suit was maintainable in the present form--Suit of the plaintiff was neither maintainable nor was within time and, therefore, the plaintiff was not entitled for decree--Revision was allowed. [P. 346] E
Mr. Tariq Mehmood Khan, Advocate for Petitioner.
Mr. Bilal Ahmed Qazi, Advocate for Respondents.
Date of hearing: 19.5.2009.
Judgment
Karim Bakhsh son of Ahmad Bakhsh through this Civil
Revision Petition under Section 115, CPC, impugns the judgment and decree dated
03.03.1993, passed by the Additional District Judge,
2. Ashiq Muhammad son of Muhammad Bakhsh filed a suit for declaration against his step-brother Karim Bakhsh (petitioner herein) to the extent that he (plaintiff) is owner in possession of 33 kanals 9 marlas which is one half (1/2) of the one third (1/3) of Khewet No. 39/310 Khatooni Nos. 153 to 160 measuring 200 kanals 16 marlas as per jamabandi for the year 1981-82 situated in Chak No. 31/BC, Tehsil and District Bahawalpur and the entries in the Revenue Record to that extent are liable to be corrected. Permanent injunction was also sought to the effect that the defendant be restrained to interfere in the suit land owned and possessed by the plaintiff; the plaintiff averred in the plaint that defendant is his step-brother. The land measuring 66 kanals 18 marlas was purchased by them from one Muhammad Khan son of Shah Muhammad caste Joya vide Mutation No. 10 dated 24.6.1943. As the plaintiff was minor, his name was not entered in the mutation. Anyhow, the parties are in possession of their respective shares since then and getting the produce of the land. Specific Khasra Numbers have been mentioned in the plaint. Barren land was also developed by the plaintiff. Afterwards defendant (petitioner) filed a suit for permanent injunction against the present plaintiff which was dismissed as withdrawn after report of the local commission. The suit was resisted by the defendant as being time-barred and non-maintainable in its present form. On facts, defendant also controverted the plaintiff. He admitted the report of the local commission of the previous suit and asserted that the plaintiff had forcibly got the possession.
3. The learned trial Court framed necessary issues. The parties led their evidence. In documentary evidence, plaintiff produced Khasra Girdawari Exh.P.1, copy of Mutation No. 10 Exh.P.2 and copy of report of the Commission Exh.P.3. The petitioner-defendant produced Khadim Hussain as DW-1 and he himself appeared as DW-2. The trial Court proceeded to decree the suit vide judgment dated 29.9.1990 by recording the finding on Issues Nos. 2 and 3 in favour of the plaintiff and against the petitioner-defendant. The Court observed that the suit was within time and the plaintiff was entitled for the decree prayed for. The appeal of the petitioner filed against the said judgment and decree was dismissed on 03.03.1993 by the learned Additional District Judge, hence this revision petition.
4. The learned counsel for the petitioner contends that the land measuring about 200 kanals 16 marlas was owned by Muhammad Khan son of Shah Muhammad, which was transferred in favour of Karim Bakhsh, Zulfiqar and Abdul Aziz in equal shares. Thus Karim Bakhsh petitioner-defendant became owner of 66 kanals 18 marlas of land through Mutation No. 10 attested on 24.6.1943. There was no title document in favour of the plaintiff Ashiq Muhammad. However, on the basis of his possession as tenant he filed the suit for declaration on 29.7.1985 contending that at the time of attestation of the said Mutation No. 10 dated 24.6.1943 Exh.P.2 he was minor of the age about 8/9 years and paid the half of the amount of sale price to Muhammad Khan son of Shah Muhammad and he is in possession of the land since then, but his name could not be entered the mutation, and he sought declaration for correction of the revenue record. Further contends that the suit filed by the respondent was not maintainable as Mutation No. 10 Exh.P.2 was not questioned in the suit; that the suit was badly time barred and judgments and decrees of both the Courts below were result of misreading and non-reading of evidence on the point.
5. On the other hand, the learned counsel for the respondents contended that the suit of the respondent-plaintiff was within time; that respondent paid the half of the sale price to the vendor; his name being minor was omitted to be mentioned in the Mutation Exh. P.2 attested on 24.6.1943; that the suit for declaration has rightly been decreed and the appeal also has rightly been dismissed and that the concurrent findings on the basis of evidence recorded by the two Courts of competent jurisdiction on the basis of evidence cannot be interfered with by this Court in revisional jurisdiction under Section 115 CPC.
6. I have heard the arguments of the learned counsel for the parties and perused the record. Admittedly there is no title document available in favour of the plaintiff-respondent. The land measuring 200 kanals 16 marlas was owned by Shah Muhammad, the same was transferred in favour of Karim Bakhsh, Zulfiqar and Abdul Aziz. The limitation period for filing the suit for declaration of ownership would be governed by Article 120 of Limitation Act, 1908 providing 6 years from the date when right to sue accused. Reliance is placed on the cases reported as Mrs. Shamim Akhtar and others vs. Mrs Sultana Mazhar Baqai and 5 others (2003 CLC 1521) and Zardad Khan vs. Mst. Safia Begum (1998 CLC 2006). The learned Additional District Judge has held that, ".... title of the respondent-plaintiff was threatened when the suit for permanent injunction was filed by the petitioner in the year 1985 which was dismissed as withdrawn on 14.7.1985.....this was the point from where limitation started to run." To my mind the above finding of the appellate Courts is not sustainable because in the plaint filed by the plaintiff-respondent he stated that he was minor on 24.6.1943 at the time of attestation of the mutation. In Para-7 of the plaint, the respondent-plaintiff had stated that:
In the plaint he did not say that cause of action accrued to him in 1985 when the suit was filed by the defendant against him. Now, the plaintiff appeared as PW-6 in the Court and stated:
According to the plaintiff, his title/ownership was denied by the defendant from the very beginning of attestation of mutation. He further stated in the Court that at the time of purchase of land his age was 9/10 years, meaning thereby that Ashiq Muhammad attained majority under the law i.e 21 years of age, in 1951-52. The combined effect of Sections 6 and 8 of the Limitation Act (IX of 1908) would be to enable a person, like the plaintiff, who has been allegedly deprived from his ownership in the land during his minority, to file a suit within six years of his attaining majority or within the usual period of time ordinarily allowable to a major whichever is longer. It cannot be said as a general proposition that no limitation runs regarding the assertion of title of the property which belongs to the minor during the continuance of the minority. In the case in hand, it is clear that the Mutation No. 10 Exh.P.2 was attested on 24.6.1943. The plaintiff was required by law to have instituted the suit for declaration within six years of attaining majority till 1957-58 and the suit having been instituted on 11.5.1986 was barred by time. In the case of Nannekhan vs. Ganpati and others (AIR 1954 HYD 45) it was held that, "Section 6 of the Limitation Act relates to the period of limitation for filing suits with respect to persons suffering under a legal disability. It lays down that where a person entitled to institute a suit is a minor at the time from which the period of limitation is to be reckoned, he may institute the suit within the same period after disability has ceased as would otherwise have been allowed from the time prescribed therefor. It has to be borne in mind that the provisions of this section are governed and controlled by section 8 of the Limitation Act, which lays down that nothing in Section 6 shall be deemed to extend for more than 3 years from the cessation of the disability the period within which any suit must be instituted." In the case reported as Siraj Din and others vs. Mst. Khurshid Begum and others (2007 SCMR 1992), while interpreting the provisions of Sections 6, 7 and 8 along with Article 113 of the Limitation Act (IX of 1908) relied on the case of Moolchand vs. Muhammad Yousaf (PLD 1994 SC 462), wherein it had been held that, "we are inclined to from view that combined effect of Sections 6 and 8 to enable a person who has been dispossessed during his minority to file a suit within three years of his attaining majority or within usual period of time ordinarily allowable to a major, which is longer. If minor attains majority after three years of cause of action he can sue within nine years from the date of attaining majority if period of limitation is 12 years". The honorable Supreme Court in the said referred case of Siraj Din ruled that, "Where limitation had started running against minor and remainder of limitation was less than three years, then suit could be filed within three years without any further extension of time". Therefore findings of both the Courts below on the issue of limitation are reversed as the suit filed by Ashiq Muhammad was barred by limitation.
7. About payment of the price, the plaintiff in the plaint stated that both the brothers/parties paid the price of the land in equal share. This fact has been denied by the defendant-petitioner. It was asserted that the defendant purchased the suit property from his own pocket and paid the amount. At the time of attestation of mutation the plaintiff was minor and their father had already expired. Zulfiqar, PW.2 and Muhammad Qasim, PW-3 in the witness-box admitted that the amount was paid by the defendant from his own pocket and the plaintiff at the time of attestation of the mutation was minor. Ellahi Bakhsh PW-4 stated that he was not associated at the time of attestation of mutation. He also stated that he was 6/7 years old at the time of mutation. In this view of the matter. I am constrained to hold that the plaintiff failed to discharge the onus of proving the fact that he had paid the price to the extent of half share with the petitioner-defendant and therefore is owner to the extent of 1/2 share in the suit property.
8. Zulfiqar PW-2 is star witness of the case. The land was also purchased by him to the extent of 1/3rd share through the impugned mutation. He stated that the land through impugned mutation was purchased in the name of three persons i.e he himself, Abdul Aziz and Karim Bakhsh. According to him, the plaintiff-respondent was minor at the time of mutation and his share in the land was 1/6. He stated that he had given half of his land to his brother; Abdul Aziz also had given 1/2 share of land to his brother and accordingly the suit land was given in possession of respondent-plaintiff who is in continuous possession of the same. Asghar Ali, Circle Patwari appeared as PW-1 and tendered Khasra Girdawari since 1954 and confirmed the possession of the plaintiff. Now possession of the plaintiff is as a tenant but the respondent-plaintiff cannot take hot and cold in the same breath. It is established principle of law that once a tenant is always a tenant. Now there is no documentary evidence on the record that PW-2 Zulfiqar Ahmad and Abdul Aziz have given 1/2 share of their land to their brother and some sale-deed or mutation has been sanctioned to this effect.
9. Simply because the respondent-plaintiff was in possession of the land as tenant since 1954, on the basis of Khasra Girdawari and he had filed a suit in 1985, he cannot be declared entitled for the land and the decree for declaration would have not been granted without challenging the mutation Exh.P-2, attested on 24.6.1943, in the Court. In this view of the matter, the finding on Issue No. 2 was result of misreading and non-reading of the documents and law. The trial Court, illegally recorded the finding on Issue No. 1 also by holding that the suit was maintainable in the present form. Therefore, I hold that the suit of the plaintiff was neither maintainable nor was within time and, therefore, the plaintiff was not entitled for decree as prayed for.
10. For the reasons discussed above, the Courts below have not only acted with illegality in exercise of their jurisdiction, but also misread the evidence in this case. Therefore, the revision petition is allowed and by setting aside the impugned judgment and decree the suit of the plaintiff-respondent is dismissed. Parties are, however, left to bear their own costs.
(R.A.) Petition allowed.