Syed GHULAM MUSTAFA Versus Syed TANVEER ABBAS
MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through the instant civil revision under section 115 of the Code of Civil Procedure (Act V of 1908), the petitioners have attacked the validity and legality of the judgment and decree dated 28.1.2010 whereby the appeal filed by the petitioners against the order dated 20.6.2009 of learned Civil Judge, Bahawalpur, rejecting their plaint under Order VII, rule 11 of the C.P.C. has been dismissed by the learned Additional District Judge, Bahawalpur.
2. Brief facts of the case are that the present petitioners filed a suit for declaration and permanent injunction against the respondents contending therein that they were owners in possession of land measuring 16 kanals which is part of khata consisting of 71 kanals, falling in khata No.5/4, Khatauni Nos.8 to 14, situated in Mauza Hoot Wala, Tehsil and District Bahawalpur. The suit was contested by the respondents/defendants. They filed their written statement in which they denied the claim of the petitioners/plaintiffs. They also sought rejection of the plaint by filing application under Order VII, rule 11 of the C.P.C. which was accepted, vide order dated 20.6.2009 and the appeal filed thereagainst was dismissed as stated above. Hence, the instant civil revision.
3. The learned counsel for the petitioners contended that the petitioners/plaintiffs have been non-suited merely on technical ground of limitation whereas the law favours decision on merits; that the plaint has been rejected on such grounds which are alien to law; that judgment of the Hon'ble Supreme Court of Pakistan has been misinterpreted as the matter before the Supreme Court was only with regard to confiscation of the property of the predecessor -in-interest of the respondents and the august Supreme Court did not determine any rights in the said property; and that the suit could not be decided without framing of issues and recording evidence of both the parties; that rejection of plaint by both the courts below has resulted in great miscarriage of justice. He lastly, contended that findings of both the courts below that the petitioners/plaintiffs did not agitate confiscation before any forum is against the record. In this regard he submitted that on the application of the petitioners/plaintiffs order of auction of the house situated at BVI-1159 was set-aside by the Chief Martial Law Administrator.
4. Learned counsel for respondent No.3 and respondent No.1, in person, addressed their arguments to oppose the instant civil revision. It is contended that the plaint on the face of it was hopelessly barred by limitation and as such was rightly rejected by the learned trial Court. It is further contended that the claim made in the plaint was not supported by any documentary proof of ownership over the land in dispute and even from the conduct of the plaintiffs/petitioners it is crystal clear that after the confiscation of whole of the immovable property of the deceased Syed Altaf Hussain Shah/predecessor-in-interest of the respondents, including the land in dispute, they did not make effort for release of the land in dispute on the basis of the alleged gift Tamleek'. It is also contended that both the courts below have thus rightly rejected the plaint applying the provisions of sections 17 and 3 of the Limitation Act, 1908 and pronouncements of both the courts below being in accordance with law do not require any interference by this Court in exercise of revisional jurisdiction.
5. Arguments heard. Record perused.
6. The instant revision petition has arisen out of an order of rejection of the plaint under Order VII, rule 11 of the C.P.C. in a suit for declaration and permanent injunction, on the ground of limitation. Admittedly, the suit was filed on 15.4.1997, on the basis of oral gift/'Tamleek' made in favour of their predecessor-in-interest, namely, Mst. Soorat in the year 1965, who died in life time of the donor i.e. Syed Altaf Hussain. Thereafter the donor also died on 2.2.1988. During his life time the donor was tried by the Summary Military Court No.75, Rawalpindi and vide order dated 12.4.1984 he was convicted and sentenced to imprisonment for one year, fine of Rs.12,00,000/- along with confiscation of all movable and immovable property, including the property in dispute. The present petitioners/plaintiffs did not object to the confiscation of the land in dispute and failed to approach any forum for exclusion of the said land from the execution of the sentence imposed upon the convict/Syed Altaf Hussain. On the other hand, the legal heirs of the said alleged donor challenged the conviction and confiscation of the property of their predecessor-in-interest by way of filing Writ Petition No.380/89 before this Court. During the pendency of the writ petition, the present suit was filed in which the fact of confiscation of the land in dispute was not disclosed and on being pointed out by the defendants that the matter is sub judice before the High Court, the learned trial Court sine die adjourned the suit on 23.10.1997. This order was challenged in revision, which was also dismissed. From the above facts it is established that the petitioners/plaintiffs were very much in the knowledge that the land in dispute had been confiscated by the Government. Non-action on the part of the petitioners/plaintiffs against confiscation of the land in dispute and absence of any effort on their behalf for release of the said land leads to a strong inference that they had least concern with the said property. If they had any right or title in the land in dispute they could have filed a suit within six years of death of the donor, who admittedly died on 2.2.1988 whereas the suit as aforementioned was filed on 15.4.1997 i.e. after more than nine years. The learned trial Court has rightly rejected the plaint under the provisions of section 17 of the Limitation Act, 1908, which provide a period of six years for filing such a suit against the legal representative of the deceased. Reliance in this regard is placed on the case of Abdul Rashid Velmi v. Habib-ur-Rehman and 4 others (1995 MLD 397). Even otherwise for filing a suit for declaration limitation of six years is provided under residuary Article 120 of the Limitation Act, 1908.
7. As per stance of the petitioners the alleged oral gift was made in the year 1965 but astonishingly it was neither reduced into writing nor incorporated in the revenue record and this fact is admitted even by the petitioners/plaintiffs themselves. In this way the suit was filed by the plaintiffs/petitioners after 32 years of the alleged oral gift. So much so the suit of the plaintiffs was sine die adjourned on 23.10.1997 but restoration of the same was applied on 30.4.2008, after more than seven years of dismissal of the writ petition by the High Court and one year after acceptance of the Review Petition by the Hon'ble Supreme Court of Pakistan. The petitioners/plaintiffs kept on watching as silent spectators for a pretty long time and when the respondents/defendants succeeded in getting the confiscated land released from the Government, they came forward to take away the fruit of the long standing litigation from them through a suit which was hopelessly barred by time as such the plaint was liable to be rejected under section 3 of the Limitation Act, 1908.
8. There is no strength in the argument of the learned counsel for the petitioners that the Court while rejecting the plaint could only take into consideration the averments made therein and was not justified to go into the defence taken by the respondents/defendants along with the documents produced on their behalf. In the case of S. M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan (Moin) (2002 SCMR 338) the Hon'ble Supreme Court of Pakistan has observed as under:
"Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint."
9. For the foregoing reasons this Court is of the opinion that the learned trial Court had rightly rejected the plaint under Order VII, rule 11 of the C.P.C. and the learned lower appellate Court has rightly upheld the findings of the trial Court. Having found no illegality or irregularity in the impugned judgment and decrees, the instant revision petition is dismissed with no order as to the costs.
KMZ/G-17/L Revision dismissed.
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