JUDGMENT SHEET

IN THE LAHORE HIGH COURT MULTAN BENCH,

MULTAN
(JUDICIAL DEPARTMENT)

R.S.A.No.91 of 2005.
Muhammad Siddique, etc
Vs.
Allah Ditta, etc

JUDGMENT

DATE OF HEARING: 16-06-2015.

PETITIONERS BY: Syed Tajammal Hussain
Bukhari, Advocate.
RESPONDENTS BY: M/s Ch. Abdul Ghani, Waqi
Hussain and Muhammad Akmal
Sial, Advocates.

AMIN-UD-DIN KHAN, J. Through this appeal the

appellants have challenged the judgment & decree dated

30.09.2005 passed by the learned Additional District Judge,

Mianchannu District Khanewal, whereby the appeal filed by the

respondents/plaintiffs was accepted, by way of which, the

judgment & decree dated 29.11.1990 passed by the learned Civil

Judge 1st Class, Khanewal dismissing the suit for declaration and

possession filed by the respondents/plaintiffs, were set aside.

2. Briefly, the facts of this case are that on 04.03.1986

the respondents/plaintiffs Mst. Khurshid Bibi etc field a suit for

declaration that the plaintiffs are owner in possession of suit

property mentioned in the head note of the plaint being legal

heirs of deceased Mahi alias Jahangir s/o Farid. They challenged

mutation No.nil dated 09.07.1951, mutations No.52 dated

RSA No.91 of 2005. 2

09.07.1951 and 54 dated 14.05.1969 and all other mutations in

favour of defendants No.1 to 10. The written statement was filed

and suit was contested. Learned trial Court framed the issues and

invited the parties to produce their respective evidence. Both the

parties produced oral as well as documentary evidence in support

of their versions. After the completion of trial vide judgment &

decree dated 29.11.1990 the suit was dismissed by the learned

trial Court. An appeal was preferred before the learned first

appellate Court, which was accepted vide judgment & decree

dated 30.09.2005 and the suit filed by the respondents/plaintiffs

was decreed. Hence, this second appeal.

3. Learned counsel for the appellants/defendants

argues that mutation No.52 was attested on 09.07.1951 of sale of

suit land by Mahi in favour of defendants or their predecessor;

that the suit was clearly barred by time, when it is on the record

that after purchase the defendants/appellants are in possession

since its transfer in their favour; that the property was initially

mortgaged with Yaqoob from 1947 to 1967 for 20 years through

mutation No.52 attested on 09.07.1951 and said Yaqoob through

subsequent mutation No.54 attested on 14.05.1969 transferred

the mortgagee rights in favour of Barkat Ali shah; that Mahi died

in the year 1981; that as the fraud has been alleged in the plaint

but no particulars of fraud required under the law have been

mentioned in the plaint; that the pleading is contradictory one, in

Para 7 of the plaint it is mentioned that the defendants have

RSA No.91 of 2005. 3

refused to give share of produce and in ground “C” of the plaint

it is mentioned that no possession was given to the defendants

and they have not proved the consideration and further that the

mutation does not create or confer a right; that in Para 10 the

cause of action has been mentioned from the date of refusal of

payment of share of produce by defendants No.1 to 10, therefore,

there are contradictory pleadings; that when the plaintiffs

produced evidence, admitted the possession of

appellants/defendants. Further by referring a portion of cross-

examination of PW-3 Noor Ahmad argues that it is his statement

that Mahi in his life time filed various applications even before

the President of Pakistan challenging the said transfer of suit land

in favour of defendants/appellants but has not filed any suit

before any Court of competent jurisdiction, therefore, in

accordance with Article 120 of the Limitation Act, 1908 the suit

was clearly time barred. Learned counsel for the

appellants/defendants while relying upon “PLD 2015 Supreme

Court 212 (Dr. Muhammad Javaid Shafi Vs. Syed Rashid Arshad

and others)” argues that one of the plaintiffs when appeared as

PW-5 has admitted the possession of appellants/defendants; that

none of the witnesses of the plaintiffs have stated in their

statements that the defendants ever paid the share of produce to

the plaintiffs, therefore, states that the findings recorded by the

learned trial Court were in accordance with law, whereas the

RSA No.91 of 2005. 4

findings of learned first appellate Court are absolutely not

sustainable under the law.

4. On the other hand, learned counsel for the

respondents/plaintiffs argues that there are cuttings on Ex.P-2

(mutation No.52), therefore, said mutation cannot be relied by

the defendants for transfer of rights in their favour in the suit

land, therefore, states that the findings recorded by the learned

first appellate Court are absolutely correct and in accordance

with law. Prays for dismissal of the appeal.

5. I have heard the learned counsel for the parties at

full length and also gone through the record minutely with their

able assistance.

6. First I take the point of limitation. The suit was filed

on 04.03.1986 to challenge the attestation of mutation No.52

attested on 09.07.1951, in this way, the suit has been filed after

35 years of the attestation of mutation. The limitation for filing a

suit for declaration provided under Article 120 of the Limitation

Act, 1908 is six years from the date when the right to sue

accrues. If the version of the plaintiffs is admitted, right to sue

accrue to them on 09.07.1951 and as per the statements of

plaintiffs and their witnesses specially PW-3, the transfer was in

the knowledge of Mahi, the predecessor of plaintiffs and it is his

version that Mahi filed various applications before the various

forums including the President of Pakistan but he never filed the

suit before any Court of competent jurisdiction. In this way, in

RSA No.91 of 2005. 5

the light of latest judgment of august Supreme Court of Pakistan

reported as “PLD 2015 Supreme Court 212 (Dr. Muhammad

Javaid Shafi Vs. Syed Rashid Arshad and others)” the suit is

certainly barred by time, when the possession of

appellants/defendants has been admitted over the suit property.

7. So far as the argument of learned counsel for the

respondents that there are cuttings on Ex.P-2. I have minutely

scanned the impugned mutation No.52, which has been produced

as Ex.P-2 by the plaintiffs themselves. No doubt on page No.1

there are cuttings of name of the seller i.e. Mahi s/o Farid and the

vendees but if this mutation is minutely scrutinized, it is clear

that on the basis of Rappat No.396 dated 17.08.1950 the same

has been incorporated, on the extreme left side of this mutation

in column No.15, which is for report and order, there is a noting

of Girdawar dated 19.11.1950, which is reproduced for ready

reference:

This mutation consists upon two pages. On page No.2 the correct

entries of name of seller as well as the correct share and the

correct names of vendees have been mentioned. The statement of

seller was recorded on 03.06.1951, which is available on page

No.2 at column No.15 and it was ordered that the mutation be

placed before the revenue officer in the presence of vendees and

therefore on 09.07.1951 when vendees appeared, the same was

attested, in this way the cutting at Page No.1 of mutation No.52

RSA No.91 of 2005. 6

has no adverse effect upon the rights of vendees. In this view of

the matter, there is no doubt in attestation of mutation, which has

been challenged after 35 years of its attestation and further that

same was incorporated in the Register Haqdaran Zamin and

admittedly the appellants are in possession of the suit property

after its transfer in their favour, therefore, the argument that the

mutation does not create or confer any right in the property, is

not applicable in this case, when the possession was transferred

under the law through impugned mutation and further that the

same was incorporated in due course in the revenue record.

8. The fraud has been alleged in the plaint but no

particulars of fraud required to be mentioned in the plaint in

accordance with Order VI Rule 4 of the CPC has been mentioned

and further the full detail of property is also not mentioned in the

plaint, which were required under Order VII Rule 3 of the CPC.

As I have noted supra in the argument of learned counsel for the

appellants that even the pleadings of plaintiffs/respondents are

self contradictory, as at one place they say that no possession

was delivered and on the other place they say that defendants

No.1 to 10 have refused to give them share of produce, therefore,

they are filing the suit and cause of action has been mentioned

allegedly from the refusal of payment of share of produce to the

plaintiffs, which clearly shows that the pleadings are self

contradictory. In this view of the matter, the findings recorded by

the learned first appellate Court are absolutely against the

 RSA No.91 of 2005. 7

provisions of law as well as settled law on the point, therefore,

not sustainable, the same are reversed and that of the learned trial

Court are maintained, whereby the suit has been declared as

barred by time and the plaintiffs failed to prove their case for

grant of declaration and possession in their favour when their

pleadings are self contradictory.

9. In the light of what has been discussed above, this

appeal is accepted and the impugned judgment & decree dated

30.09.2005 passed by the learned first appellate Court are set

aside. The result would be the judgment & decree passed by the

learned trial Court dated 29.11.1990 dismissing the suit for

declaration and possession filed by the respondents/plaintiffs are

upheld.

(AMIN-UD-DIN KHAN)
JUDGE
Qurban*
Approved for Reporting

Judge