NOOR DIN and anothers vs ADDITIONAL DISTRICT JUDGE, LAHORE and others

' NASIR-UL-MULK, J.---This petition for leave to appeal arises from the judgment of the Lahore High Court dated 26-6-2013 the subject matter of which is property that was owned by one Mandoo Khan who passed away in the year 1951. He left behind three daughters and a son. The daughters had by a gift through mutation dated 16-11-1971 transferred their share with possession to their brother Dhoop Khan. After the donors and the donee died the legal heirs of Mst. Salooki and Mst.

Shakoori, the two daughters of Mandoo Khan, filed a suit on 15-5-2012 assailing the gift alleging fraud and misrepresentation. The petitioners-defendants, legal heirs of Dhoop Khan filed an application under Order VII, Rule 11, C.P.C. For the dismissal of the suit on the ground of limitation.

The application was dismissed. Their revision also failed and so did their petition before the High Court.

2. Notices were issued to the respondents. The plaintiffs/ respondents were duly represented. The learned counsel for the petitioners submitted that two daughters of Mandoo Khan, Mst. Salooki and Mst. Shakoori, whose legal heirs had filed the suit, had died respectively in the years 1987 and 1988.

That the said two daughters had not in their life time questioned the gift mutation of 1971 in favour of Dhoop Khan. He pointed out that the 3rd daughter of Mandoo Khan had filed a suit in the year 2002 but the same was dismissed for non-prosecution and she never applied for its restoration.

3. Responding to the above contentions the learned counsel for the respondents submitted that it was the case of plaintiffs that they have been receiving share in the produce from the land and that they had challenged the very validity of the gift. That this required recording of evidence and the plaintiffs' suit could not have been dismissed under Order VII, Rule 11, C.P.C. That the question of limitation was one of the facts and law.

4. There is no dispute that Mandoo Khan had passed away in the year 1951. The respondents/plaintiffs have also not controverted that the petitioners are in possession and enjoying the suit, property at least since the year 1971. Admittedly the gift mutation was attested in that year. Nazir Ahmed Patwari and Muhammad Naeem Akhtar, Revenue Officer A who were present in Court along with the record had confirmed that no change had taken place in the revenue record since then and neither the plaintiffs nor their predecessor-in-interest have been recorded as, receiving any share, in the produce of the property. When questioned the learned counsel for the respondents admitted that there is no documentary evidence to establish the receipt by the plaintiffs of any share from the produce.

5. It may be noted that this is not a case of inheritance. According to the revenue record the daughters of Mandoo Khan were recorded as legal heirs upon his death in the year 1951. Twenty years after becoming owners they gifted their shares to their brother, Dhoop Khan. The possession admittedly had remained with Dhoop Khan who died in the year 2002 and thereafter his legal heirs, namely, the petitioners. The present suit was filed in the year 2012, more than forty years after the gift mutation. The object of the powers conferred upon the trial Court under Order VII, Rule 11, C.P.C.

Is that the Courts must put an end to the litigation at the very initial stage when on account of some legal C impediments full fledged trial will be a futile exercise. In view of the above facts the suit of the plaintiffs/respondents challenging the gift mutation was on the face of the record barred by time and there was no need for recording of evidence. Consequently, this petition is converted into appeal and allowed. The impugned judgment and orders are set aside, the application of the petitioners under Order VII, Rule 11, C.P.C. Is allowed and the suit filed by respondents Nos.3-18 is therefore dismissed as barred by time.