Mst. SHEEDAN BEGUM Versus MUHAMMAD USMAN KHAN

SAFDAR SALEEM SHAHID, J.--- Through instant R.S.A. appellants have challenged the order dated 20.01.2010 passed by learned trial court whereby application under Order VII, Rule 11, C.P.C. filed by respondents was accepted and plaint filed by appellants was rejected. Against the aforesaid order, appellants filed an appeal which was also dismissed by learned Additional District Judge, Kasur, vide judgment dated 16.10.2010.

2. Brief facts of the case are that plaintiffs filed a suit for declaration in respect of land measuring 33-Kanals and 9-Marlas (1/4 share) of property measuring 133-Kanals and 16 Salim Khata, Qatat 13 bearing Khatooni No.289/291, situated in Beroon Kasur, being legal heirs of Muhammad Akram Khan (deceased) and challenged the mutations, gift deeds and Tamleek Namas on the ground of fraud and all the deeds were made just to deprive the plaintiffs/appellants from their share. The mutation No.241 dated 07.07.1949 regarding land measuring 117-Kanals and 11-Marlas, Khewat No.37, Khatooni No.560, Khasra No.1654(0-19), 1656(9-13), 1657(13-17), 1660, 1662(13-7), 1658(10-4),1717(25-16), situated at Qasba Beroon, Kasur and Mutation No.728 oral gift in favour of Nawazish Ali Khan, Muhammad Aslam Khan, Hameed Asghar Khan by Mst. Begum widow of Ummrah and gift deed bearing documents No.1436 book No.1, volume No.1196 dated 26.04.1976, regarding land measuring 17-Kanals and 5-Marlas, Khewat No.109, Khatooni Nos.609-608, Khasra Nos.1713(9-17), 1661(7-8), Qatat 02, situated at Qasba Beroon, Kasur, by Muhammad Akram Khan in favour of Nawazish Ali Khan, Muhammad Aslam Khan, Hameed Asgher Khan and passed a mutation No.1330 dated 30.11.1976, in this regard. The plaintiffs further challenged registered Tamleek Nama dated 04.03.1990, regarding land 44-Kanalas and 18-Marlas by Hameed Asghar Khan mutation No.7313 dated 20.03.1990 and mutation No.6355, oral Tamleek Nama dated 02.10.1988 regarding land measuring 44- Kanalas and 19-Marlas by Nawazish Ali Khan in favour of Waseem Tahir Khan son of Nawazish Ali Khan. Plaintiffs took the plea that they were widow and daughter of Muhammad Akram Khan (deceased) who was Dakhil Kar of land measuring 133-Kanals and 09-Marlas with rights of occupancy.

3. The respondents filed application under Order VII, Rule 11, C.P.C. for rejection of the plaint. The appellants filed the reply. Learned Civil Judge, vide order dated 20.01.2010 accepted the aforesaid application filed by respondents and rejected the plaint. The appellants filed an appeal before learned Additional District Judge, Kasur, against the aforesaid order which was dismissed vide judgment dated 16.10.2010. Being aggrieved from the orders of both the courts below, this appeal has been preferred with the contention that both the courts below have not appreciated the law; both the courts below erroneously held that appellants/plaintiffs have no cause of action; learned Additional District Judge, also on the same pattern dismissed the appeal while holding that learned trial court has rightly concluded that appellants have no cause of action to file the suit; counsel for the appellants argued that legal heirs and specially women/female can file suit to get their right at any time; neither they can be ousted on the basis of limitation nor on the ground of any other technicality. Learned counsel for the appellants has relied on the case law reported as 'Amichand v. Fajroo' (PLD 1991 SC 1001) and argued that there is no bar for the legal heirs to file suit when it comes into knowledge of legal heirs that by way of fraud he/she has been deprived from inheritance.

4. Respondents Nos.1 to 4 and 7 have been served through publication in daily Nawa-i-Waqt but no one has turned up on their behalf, therefore, they are proceeded against ex-parte.

5. Learned counsel for remaining private respondents, referred Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 PSC 439), 'Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others' (PLD 2014 Supreme Court 167), 'Din Muhammad and another v. Subedar Muhammad Zaman' (2001 SCMR 1992), that the suit is time barred as matter was in knowledge of the appellants. Further relied upon case laws reported as Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others (NLR 2008 Civil 578), 'Pitam Singh and another v. Bishun Narain and others' (AIR 1931 Oudh 58) 'Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited' (PLD 2012 Supreme Court 247), 'Ch. Ghulam Nabi v. Mirza Javaid' (1994 SCMR 1893), `Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others' (PLD 2015 Supreme Court 212), 'Islam Din and 7 others v. Naseer ud Din' (1995 SCMR 906) and 'Raja Ai Shan v. M/s. Essem Hotel Limited and others' (PLJ 2007 SC 862) and argued that neither the appellants have challenged the validity of the gift deed nor their suit is within time; the appellants have challenged the mutation No.241 which was attested on 07.07.1949 and the gift deed dated 26.04.1976 in the year 2000, the suit on the face of it is time barred; the mutation No.241 was sanctioned on the order of the Court dated 04.12.1947 and that order has not been challenged by the appellants; furthermore, Muhammad Akram transferred the land during his life time with free will in favour of his sons and in this way Begum widow of Ummrah transferred the property in favour of Nawazish Ali Khan, Muhammad Aslam Khan and Hameed Asghar Khan with free will and no fraud was made during transactions, so, the appellants have no ground to file suit and challenge the transactions; even in the plaint there is no mentioning that these transactions were fraudulently made, therefore, learned Addl. District Judge, was justified to reject the appeal and to hold that the appellants have no cause of action to file the suit.

6. Arguments heard. Record perused.

7. This is not a case of inheritance. The appellants have challenged the mutation, gift deed and Tamleek Nama on the ground of fraud with the contention that those were got sanctioned to deprive the appellants. This is also interesting that the owner Muhammad Akram who transferred the properties through mutations, gift deed and Tamleek Nama all pertains to the years 1949 and 1976. Said Muhammad Akram remained alive till the year 1991 and this factor has not been denied in any way by the appellants. The registered instruments were challenged by the appellants after decays through institution of suit on 10.10.2000. In such like cases, it is sine qua non for the seeker to stand on its own legs, who cannot be benefitted for weaknesses, if any, of the adversary. In this regard, reliance is placed on the case law 'Sudhangshu Bimal Biswas v. MD Mustafa Chowdhary' (1968 SCMR 213) and 'MD. Anwarullah Mazunmdar v. Tamina Bibi and 5 others' (1971 SCMR 94). The registered document attaches sanctity and there is no ground to disbelieve those documents. The other important question in this proposition was the locus standi to the appellants to agitate/challenge those mutations after a period of more than 30/40 years. The owner remained alive for remarkable period and appellants did not challenge anything in his life time. Inheritance opens after death of the owner of the property and not during the life. These mutations were sanctioned during life time of the owner Muhammad Akram. Being descendants definitely appellants have no locus standi to challenge the aforesaid mutations. Reliance is placed on the case laws reported as 'Muhammad Suleman v. Riasat Ali and another' (2002 SCMR 1330), 'Kala Khan and others v. Rab Nawaz and others' (2004 SCMR 517), 'Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299), Ghulam Abbas and others v. Mohammad Shafi through L.Rs. and others (2016 SCMR 1403) and Nasir Fahimuddin and others v. Charles Philips Mills and others (2017 SCMR 468). This is admitted fact that suit was instituted after more than 30/40 years of the transfer of suit property, whereas as per Article 120 of the Limitation Act, 1908, maximum six years are provided to seek such right but appellants remained silent for decays and did not agitate or assailed any mutation, gift deed or Tamleek specially during life time of Muhammad Akram, therefore, wisdom of the statute is that such matters where limitation affects the rights of other person and also where prima facie locus standi of the claimant persons is doubted such matters should be straight way refused to entertain.

8. As per mandate of section 3 of Limitation Act, Court is under obligation to scrutinize the plaint, the application and the appeal on the point of limitation regardless of the fact that the said point has been agitated by either party or not. The relevant provision of law for clarity and reference, is reproduced hereunder:-

"Section 3: Dismissal of suit, etc., instituted, etc.. after period of limitation.

Subject to the provisions contained in Sections 4 to 25(inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed, although limitation has not been set up as a defence."

Moreover, it is an established principle by now that law of limitation is not merely a formality/technicality, rather said statute furnishes certainty and regularity to the human affairs, matters and dealings. It is also well settled principle that law helps the vigilant and not the indolent. Furthermore, delay of each and every day has to be explained satisfactorily, otherwise the delay cannot and should not be condoned. On said settled cannons of law, this Court is fortified by case law reported as 'Messrs Dawood Cotton Mills Ltd. v. Sindh Labout Appellate Tribunal and others (2006 SCMR 630), 'Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446), 'Muhammad Hussain and others v. Dr. Zahoor Alum (2010 SCMR 286), 'Muhammad Islam v. Inspector General of Police Islamabad and others (2011 SCMR 8) and 'State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 SCMR 280). In such facts and circumstances, both the courts below were quite justified to non-suit the appellants on valid reasons. This Court is satisfied regarding the vision of the learned trial court and learned Additional District Judge that appellants was having no cause of action to file the suit.

9. The upshot of above discussion is that appellants have failed to point out any illegality or irregularity in the impugned orders of both the courts below who have rightly decided the matter and non-suited the appellants. Thus, instant R.S.A. being without merits stands dismissed.

SA/S-51/L Appeal dismissed.