JAMILA KHATOON and others vs AISH MUHAMMAD and others

' KHILJI ARIF HUSSAIN, J.---This appeal under Article 185(2)(d)(e) of the Constitution of the Islamic Republic of Pakistan, 1973, has been filed against the judgment and decree dated 26-10-2005 whereby learned Single Judge in Chambers of the Lahore High Court, Lahore has accepted the Civil Revision No,855 of 2004 filed by the respondents and set aside the judgments and decrees passed by the two Courts below dismissing the suit filed by the appellants.

2. Brief facts of the case necessary for the decision of the listed appeal are that the appellants/plaintiffs filed a suit for declaration with consequential relief of possession alleging therein that their predecessor-in-interest, namely, Alim-ud-Din son of Rehmat Ali Khan, who on migration from India to Pakistan filed his claim Form No,7978 for allotment of land in lieu of the land owned by him in India, whereupon he was allotted land measuring 65 kanals and 12 marlas in Kamoke, Tehsil and District Gujranwala. The said Alim-ud-Din, predecessor-in-interest of the appellants/plaintiffs died on 5-4-1951. The appellants/ plaintiffs approached for the first time on 3- 9-1984 and filed a review petition whereby they called in question the mutation dated 17-12-1956 attested in favour of the respondents alleging therein that the respondent Aish Muhammad with connivance got said land mutated in his favour while showing himself as sole son of late Alim-ud- Din. The appellants filed suit on 20-9-1989 challenging said mutation in the Court of Civil Judge, Gujranwala. The respondents filed written statement controverted each and every allegation made in the plaint including that the land was allotted to Alim-ud-Din son of Rehmat Ali Khan and alleged that the same was allotted to their predecessor-in-interest, namely, Aleem-ud-Din son of Rehrnat Ali Khan against his verified claim.

3. After framing the issues and recording the evidence including the evidence of the Commissioner appointed for the purpose of inspection of record in the Central Record Room, Lahore, learned Civil Judge, Gujranwala, after holding that the suit was bad for non-joinder of party decreed the suit vide his judgment dated 23-12-2000. The respondents filed appeal which was dismissed by learned Additional District Judge, Gujranwala, on 8-1-2004. The respondents called in question both the said judgments by filing a civil revision before the Lahore High Court, Lahore, which was accepted by the impugned judgment.

4. Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court for the appellants, after taking us through the various documents on record vehemently argued that the land in question was allotted to the predecessor-in-interest of the appellants/ plaintiffs, namely, Alim-ud-Din son of Rehmat Ali Khan and respondents taking advantage of the similarity in the name of their predecessor-in-interest, namely, Aleemud-Din son of Rehmat Ali Khan got mutated the said land in his name on 17-12-1956. Learned counsel in support of his contention heavily relied upon the report of the Local Commissioner and also on `Shujra Nasub'. It was argued by the learned counsel that the documents mark 'A', B', `C' and 'D' taken on record with the consent of the parties were not taken into consideration by the learned Single Judge in the Chambers of the Lahore High Court, Lahore as a result of which impugned judgment is to be set aside and the matter may be remanded to the High Court for fresh decision. It was further argued by the learned counsel that there is no time limitation against a title holder to take possession of his property as the concept of adverse possession is no more a part of the statute book being against the injunctions of Islam.

5. On the other hand, Dr. A. Basit, learned Senior Advocate Supreme Court for the respondents vehemently argued that the claim of the respondent's father Aleem-ud-Din, who in Gurmukhi script can be written and pronounced as Alim-ud-Din was allotted the land in question against the claim filed by the respondents through their maternal uncle, namely, Rashid Muhammad and the appellants by taking advantage of the similarity in the name of Aleem-ud-Din and Alim-ud-Din manipulated the record and filed a baseless suit which was beyond the period of limitation. It was argued by the learned counsel that the land in question was allotted against the claim filed by the predecessor-in-interest of the respondents in the year 1956, a considerable portion of which was disposed of much before the filing of the suit by the appellants and more than five hundred houses have been constructed over the land in question by the parties to whom different portions of the land in question were sold and they were not joined as party. It was argued that a specific issue was framed by learned trial Court that the suit was bad for misjoinder of the parties and this issue was decided in favour of the respondents by the trial Court as well as by learned appellate Court.

The suit was rightly dismissed by learned Single Judge in Chambers of the Lahore High Court, Lahore. The suit on the face of it was hopelessly barred by time.

6. We have taken in consideration the respective arguments advanced by learned counsel for both the parties and carefully examined 'the record. From the perusal of the record it appears that the appellants/plaintiffs filed suit on 20-9-1989 for cancellation of allotment of the land in question in favour of the respondents on 17-12-1956. Appellants' predecessor-in-interest, admittedly, expired sometimes in the year 1951 and since 1951 till 1989 when the suit was filed there is nothing on record to show what steps were taken by the appellants for the purpose of protecting their interest, if any, in respect of the land in question. In the memo. Of plaint, the appellants/plaintiff except stating that when the appellants/plaintiffs came to know about the fraud, they immediately contacted the concerned authorities and filed application for review on 3-9-1984 challenging the mutation effected vide No,7384 before the Assistant Commissioner, Sub-Division, Gujranwala, but no order was passed on the said application. Habib-ur-Rehman, predecessor-in-interest of the appellants Nos. 6 to 11, who filed the review petition expired on 9-5-1985, thereafter the appellants filed a suit for declaration that they are legal heirs of deceased Aleem-ud-Din son of Rehmat Ali Khan and for cancellation of mutation effected in favour of the respondent son of Alim-ud-Din in the year 1956.

7. In the memo. Of plaint no averment was made as to how and when the disputed mutation first came to the knowledge of the appellants/ plaintiffs except making a vague averment without any particular when and how the appellants came to know about the mutation of land in question in favour of the respondent and what steps were taken by them to protect their interest nor any particular has been given if the land in question was allotted to them what would they do to take possession of the same and why they kept quiet for a period of 28 years.

8. The appellants might agitate cause for want of knowledge to escape from the operation of Limitation Act 1908, even if it is accepted that they have no knowledge of allotment of disputed land in favour of the respondent in the year 1956, at least they had got such knowledge before 1984 when their predecessor-in-interest approached for review before Deputy Commissioner then instead of pursuing the same, if no order was passed on it, they filed the suit in the year 1989 questioning the mutation effected 28 years ago. Even a void order is an order and needs to be challenged by the aggrieved person within a reasonable time.

9. For the foregoing reasons we are of the view that the appellants not only failed to prove that the respondents have committed fraud in mutation of the land in question in their favour in the year 1956 and that the suit filed by the appellants/plaintiffs was in time. The mutation was effected on 17-12-1956 whereas suit for cancellation was filed on 20-9-1989. The suit on the face of it was hopelessly barred by the time and learned Single Judge in Chambers of the Lahore High Court rightly dismissed the same.

10. As a result, the appeal has no merit. The same is, therefore, dismissed. No orders as to costs.