AMIR JAN Versus GUL NAWAZ

This petition in revision is directed against the judgment and decree, dated, 5‑1‑1986 of the learned Additional District Judge, Karak, whereby he accepted the appeal of the plaintiffs‑respondents and decreed his suit for declaration of his proprietary title to land measuring 19 Marlas out of Khasra No.5910/1 situate in village Takht Nasrati, Tehsil and District, Karak, which had been dismissed in the first instance by the learned Additional Civil Judge, Karak on 30‑10‑f984.

2.The brief facts giving rise to this petition are that on 13‑1‑1982 the plaintiff‑respondent filed a suit against the defendants‑petitioners Nos.1 to 43 wherein besides seeking a declaration of his title alongwith pro forma defendants to 19 Marlas of land in dispute after separating it from Khasra No.5910/1 now measuring 2 Kanals 4 Marlas and amalgamating it with Khata No.1039 owned by the plaintiff and defendants Nos.44 to 51, sought a decree for possession thereof. Another relief claimed was of perpetual injunction so as to restrain defendants Nos.l to 43 from claiming any rights therein.

3. ‑ It was averred in the plaint that land bearing Khasra No.1645 (old) and measuring 25 Kanals 17 Marlas was jointly owned by the plaintiff and defendants Nos.44 to 51 since the year 1903‑04. The grievance of the plaintiff is that in the Settlement Record of 1974‑75 the Settlement Authorities wrongly enhanced the area of Khasra No.1645 corresponding to Khasra Nos.5907, 5997 and 6083 (new) from 25 Kanals 17 Marlas to 26 Kanals 8 Marlas due perhaps to incorrect measurement whereas land measuring 19 Marlas forming part of Khasra No.1645 (old) should have been assigned a new field number and allotted to the plaintiff and respondents Nos.44 to 51 but instead it has been wrongly amalgamated in Khasra No.5910/1 and entered as the ownership of defendants Nos.1 to 43 which entries were sought to be annulled and corrected.

4. The suit was resisted by defendants Nos.1 to 10 who traversed the averments made in the plaint denying, inter alia, the plaintiff's assertion qua the alleged wrong measurement of the disputed land by the Settlement Authorities for the year 1974‑75. It was specifically urged that the suit for all the three reliefs claimed in the plaint was hopelessly barred by time.

5. The pleadings of the parties gave rise to as many as seven issues including the relief. The learned counsel for the parties, however, confined their submissions to the findings of the two Courts below on the following three issues:‑‑

(2) Whether the suit is within time?

(5) Whether wrong entries have been made in the revenue record?

(6) Whether the plaintiff is entitled' to the decree as prayed for?

The learned trial Judge after appraisal of evidence and while discussing the plea of lack of cause of action affirmed the claim of the plaintiff that 19 Marlas of land in dispute has been wrongly dissected from plaintiffs Khasra No.1645 (old) and allegedly amalgamated into Khasra No.5910/1 of the answering defendants Nos.1 to 43. The suit was, however, held as barred by time. In consequence, the suit was dismissed.

6. The plaintiff filed an appeal to challenge the dismissal of his suit on the ground of limitation. The learned Additional District Judge noted the fact that the answering defendants had not filed cross‑objections, nonetheless he had affirmed the findings of the learned trial Court on factual controversy reflected in Issues Nos.1, 5 and 6 holding that `the suit land was in fact the constituent portion of Khasra No.1645 (old) which was owned and possessed by the plaintiff and defendants Nos.44 to 51 prior to the Settlement of 1974‑75 and it was wrongly included in Khasra No.5910/1' and that this conclusion arrived at by the learned trial Court `was fully supported by the evidence of the revenue officials corroboration to which is forthcoming from the revenue. papers filed during the trial'. He did not, however, affirm the finding of the learned trial Judge on Issue No.2 that the suit was barred by time, `firstly, because there is no solid evidence to indicate that the settlement record was complete by October, 1975 and, secondly, the case being of date of knowledge of wrong entry by the person affected by it which is to be taken as point of commencement of limitation' and `also the recurrence of wrong entry gives rise to fresh cause of action'. According to the learned appellate Court the wrong entry having been repeated in the Register Haqdaran‑e‑Zamin 1973‑79 the period of limitation had to be computed from the completion thereof. As for possessory relief it was noticed by the learned Additional District Judge that alongwith the declaration the‑ plaintiff also solicited the relief of perpetual injunction and being mutually exclusive reliefs (viz. of injunction and possession) the defendants‑respondents were not considered to be in possession of the suit land. Nonetheless, according to the learned Appellate Court `this would in turn remove the impression that the defendants respondents had taken possession of the land to the knowledge of the plaintiff appellant'. The relief of possession was found within 12 years under Article 144 of the Limitation Act; 1908. As a result, the finding of the trial Judge that the suit was barred by time was set aside and it was held that `on all the scores the suit of the plaintiff is well within time.'

7. The answering defendants‑petitioners aggrieved of the appellate judgment and decree dated 5‑1‑1986 have come up in revision to this Court.

8. Mr. Abdul Qadir Khattak, learned counsel for the petitioners, assailed the judgment and decree of the appellate Court on the ground that it has unjustifiably reversed the findings of the trial Court to the effect that the suit was barred by time or wrong application of Article 1.14 of the Limitation Act, 1908. The findings of the learned Courts below on Issues Nos.5 and 6 were half‑heartedly challenged before me but when he was confronted with the voluminous documentary evidence in the shape of extracts from the pre -settlement revenue record and that of the Settlement Record of the year 1974‑75, he did not press it any further. Even otherwise in the judgments of the two Courts below the factual controversy over 19 Marlas of the disputed land which has been wrongly extracted from Khasra No.1645 (old) belonging to the plaintiff and defendants Nos.44 to 51 and illegally amalgamated with Khasra No.5910/1 (new) and recorded in the names of the petitioners has been elaborately dealt with. The views expressed by them are based on sound reasons and happened to be unexceptionable. The mere fact that the view of the lower Court may by any stretch of imagination capably be called in question does not give rise to a case for exercise of revisional jurisdiction which is limited to correcting errors of jurisdiction of the Courts below or misreading or non‑reading of evidence. No such errors have been pointed out by the learned counsel for the petitioners. The concurrent findings of fact recorded by the two Courts below in favour of the respondents are correct and remain sacrosanct for the purpose hereof.

8. The main contention of the learned counsel for the petitioners was that the suit was barred by time. His argument is that the period of limitation provided for the grant of all the three reliefs was different but the two Courts below utterly failed to cite any provision of the Limitation Act, 1908 under which the reliefs claimed were within time. I find myself in agreement with the learned counsel for the petitioners to the extent of the findings of the trial Judge. But so far as the Appellate Court is concerned, it had tackled the proposition validly. The main prayer in the plaint is for declaration of title to the disputed land and also for annulment and correction of the revenue record which is covered by Article 120 which provides six years period and the time runs when the right to sue first accrues. Generally `the right to sue accrues' when the cause of action arises and it largely depends upon the facts and circumstances ',of each case. In consequence, this suit being primarily for declaration of the to land cannot be time‑barred so long as plaintiffs right to such property is subsisting right and (for the purpose of limitation) such a right is a continuing right so long as the right to the property (in respect of which declaration is sought) is not extinguished. So long as the right to the land in dispute for declaration subsists every invasion of that right gives rise to a fresh cause of action. I must, therefore, hold that in the case in hand for declaratory relief the cause of action being continuing arose when the Register Haqdaran e‑Zamin of 1979‑80 was prepared. The suit for declaration was, therefore, well Article 120. The next relief claimed is possessory for within six years under which there are two Articles i.e. Articles 142 and 144. Applicability of the appropriate Article depends, in the first instance, on the nature of the suit and the allegations in the plaint but ultimate decision on the point would depend on the facts found by the Court. In the instant case, it is established that plaintiff, while in possession of the disputed land, was dispossessed by the revenue authorities or the petitioners, thus Article 142 would apply. The cause of action accrued to the plaintiff when he was dispossessed. There is no evidence led by the parties on this crucial point. Nonetheless, the plaintiff‑respondent would be deemed to have been dispossessed after preparation of Settlement Record for year 1974‑75. The plaintiff‑respondent and defendants Nos.44 to 51 would be deemed to have been dispossessed somewhere in the year 1975. The cause of action for possessory relief accrued to them in the year 1975. This suit brought on 13‑1‑1982 being within 12 years is well within time.

9. As a sequel to what has been observed, I find no substance in the instant revision petition and dismiss it with costs.

AA./1401/P Petition dismissed.