Ashiq Muhammad and others vs Mst. Suhagan

ORDER

SAJJAD ALI SHAH, J.---The Appellants have called in question the judgment of the Lahore High Court in Civil Revision No.652 of 2011/BWP whereby the said Court while reversing the concurrent findings of the two Courts below decreed the suit of the respondents.

2. Briefly, the respondent in the year 2010 filed a suit seeking cancellation of mutation entries numbers 442, dated 2.7.1961, 452 dated 10.7.1962, 482 dated 22.2.1966, 507 dated 21.1.1959 and 602 dated 19.8.1966 on the ground that the said mutation entries were result of fraud as neither she (the respondent) nor her father sold the subject lands to the appellants. It was asserted in the plaint that the appellants were requested number of times to get the stated mutation entries cancelled and on their failure to do so, the respondent had no option but to file the suit seeking a declaration to that effect from the Court of law. The appellants, after having been served, filed their written statement and raised a preliminary objection that the suit was barred by time and further that the respondent herself has sold the subject land to the appellants. The trial Court, after framing necessary issues, allowed the parties to adduce their respective evidence and after appreciating the facts and documents on record, dismissed the suit of the respondent vide judgment dated 28.3.2011. The respondents being aggrieved filed an appeal before the District judge, Ahmedpur East which after hearing the parties was also dismissed on 29.9.2011. The respondent thereafter invoked the revisional jurisdiction of the High Court and the High Court while reversing the concurrent findings of dismissal, decreed the suit of the respondent.

3. We have heard the learned counsel for the parties and have minutely scrutinized the record.

4. The respondent had challenged mutation entries of the years 1959 and 1966 through the suit filed in 1996 and admittedly out of possession had to justify such delay. Though in para 4 of the plaint, the respondent had asserted that she had come to know about these entries a year before filing the suit, however, neither the respondent who was examined as PAN-1 nor her witnesses (PW-2 and PW-3) in their depositions uttered a single word to justify this inordinate delay in filing the suit.

Consequently, the suit itself was hopelessly barred by time and the finding of the High Court while reversing such concurrent findings, that limitation does not run against void transaction, was totally against the settled principles of law. Recently this Court in the case of Muhammad Sharif v.

MCB Bank Limited (2021 SCMR 1158), held as under:- "The law is by now settled that limitation against a void order would run from the date of knowledge which has to be explicitly pleaded. In the instant case, in all the objection petitions that were filed, the petitioners did not state the date when they obtained knowledge of the alleged void order. In these circumstances, the petitioners cannot legally take this stance and that too at this belated stage."

5. Additionally, the respondent has set up a case that she had leased out the subject property to the appellant through an oral lease (mustajri) agreement and the lease money was being paid to her regularly. However, she admitted in her cross-examination that she has no proof or receipt to show that any lease (mustajri) money was ever paid by the appellant. Beside, the evidence produced by the respondent to prove that the subject land was given to appellant on lease (mustajri), does not inspire confidence as the respondent in her deposition very categorically asserted that she herself entered into a lease (mustajri) agreement with the respondent and that there were no witnesses of lease whereas PW-2 in his cross-examination stated that the terms of lease (mustajri) agreement were settled in his as well as his brother Ghulam Shah's presence.

Consequently, the findings of the trial Court as well as the appellate Court were dell founded on facts and law and the setting aside of such concurrent findings by the High Court while exercising its revisional jurisdiction could not be sustained.

6. In the circumstances, this appeal is allowed and these are the reasons of our short order of even date announced in Court which reads as under:- "We have heard learned counsel for the parties at length and have perused the available record with their assistance. For the reasons to be recorded later, this appeal is allowed. The impugned order dated 5.4.2018 of the High Court is set aside."