BAGH ALI Versus AHMAD YAR
AMIN-UD-DIN KHAN, J.--- Through this single judgment I intend to decide the above captioned civil revision as well as Civil Revisions Nos.78, 79 and 80 of 1999, as common question of law and fact is involved in all these revision petitions.
2. The petitioner/plairitiff has challenged the judgment and decree dated 14.09.1998 passed by the learned Additional District Judge, Kot Addu, whereby the appeal filed by him was dismissed, and the judgment dated 25.06.1997 (which is a decree in accordance with section 2(2) of the C.P.C.) passed by the learned Civil Judge 1st Class, Kot Addu, whereby the plaint of suit filed by the petitioner/plaintiff was rejected under Order VII, Rule 11(d) of the C.P.C.
3. Briefly, the facts of this case are that petitioner-plaintiff on 10.03.1992 filed four suits for declaration, which are subject matter of each civil revision, as allegedly the property of propositus of plaintiff as claimed by him was situated in four revenue estates (which is subject matter of each suit), therefore, four suits were filed. In all the suits a declaration was sought that the plaintiff being collateral of one Bagh Ali son of Chohatta caste Jat Kalasra is entitled to inherit. Mst. Allah Wasai widow of Bagh Ali was limited owner of the estate of said Bagh Ali under the custom. She was entitled to retain the property till her death or till her second marriage. Mst. Allah Wasai was having no right to sell or transfer the suit property. All the transfers by Mst. Allah Wasai are illegal and her second husband was not entitled to inherit Mst. Allah Wasai on her death. The mutations of inheritance of Mst. Allah Wasai, Nos.902 to 905 attested on 23.04.1939 in favour of Fateh Muhammad have been challenged and subsequent transfers by Fateh Muhammad have also been challenged. It is stated in the plaint that Bagh Ali died in the year 1885 issueless. The suit properties were transferred in favour of Mst. Allah Wasai, his widow under the custom through mutation No.301 of the year 1885. Para 3 of the plaint is reproduced as under:
It is the case of plaintiff that under the custom property was to remain with widow till her death or her second marriage for livelihood and in case of death or second marriage the property was to be reverted to the collaterals of Bagh Ali. It is stated that defendants Nos.71 to 100 are also collaterals of the propositus with the plaintiff, therefore, they have been made party as defendants. It is pleaded that few years after the death of propositus Bagh Ali, his widow entered into second marriage with Fateh Muhammad, therefore, the predecessor of plaintiff namely Nooran became entitled to the property left by Bagh Ali. It is pleaded that some property was transferred by Mst. Allah Wasai in favour of Fateh Muhammad her second husband and some to her mother and other relatives. It is pleaded that Mst. Allah Wasai died issueless on 12.12.1938 and mutations of her inheritance bearing Nos.902 to 905 were attested on 23.04.1939. Basically through the suit the case of plaintiff that when after few years of death of Bagh Ali, his widow entered into second marriage, therefore, under the custom she was not entitled to retain the property anymore and the property was to be reverted to the collaterals of deceased Bagh Ali.
4. The written statements were filed by various sets of defendants separately and on moving an application under Order VII, Rule 11 of the C.P.C. Learned trial Court vide judgment and decree dated 25.06.1997 rejected the plaint of suit under Order VII, Rule 11(d) of the C.P.C. on the basis that suit is barred by law. The appeals were preferred before the learned lower appellate Court, which were dismissed vide separate judgments and decrees dated 14.09.1998. Hence, these civil revisions.
5. The main stress of learned counsel for the petitioner is that if principle of res-judicata was to be applied, it was necessary that an issue should have been framed and at least documentary evidence to prove res judicata should have been recorded. Learned counsel for the petitioner has advanced lengthy arguments to argue that even the limitation is a mixed question of law and fact, on the basis of limitation the plaint could not have been rejected and further that if the matter was compromised in previous litigation between the predecessor of plaintiff and respondent, Order XXIII, Rule 3 of the C.P.C. applies and not Order XXIII, Rule 1 of the C.P.C., therefore, on this score suit in hand was not bad. Prays for acceptance of civil revisions and sending the matter back to the learned trial Court for decision afresh after framing at least preliminary issue and recording of evidence.
6. On the other hand, learned counsels for the respondents argue that when it is the case of plaintiff that Bagh Ali died in the year 1885 and his widow Mst. Allah Wasai contracted second marriage few years after his death with Fateh Muhammad, state that few years can be termed as 4/5 years only and the cause of action to the plaintiff, if his plaint is admitted to be true, accrued at the most in the year 1889/90, therefore, the suit is not maintainable. Argue that grandfather of the plaintiff Mehr Noor son of Ali Muhammad also filed a suit, which was compromised on 25.10.1893, therefore, under Order XXIII, Rule 1 of the C.P.C. suit was not maintainable and as such the plaint has rightly been rejected. Further argued that Mst. Allah Wasai expired on 12.12.1938 and her inheritance mutations Nos.902 to 905 were attested in favour of Fateh Muhammad on 23.04.1938, second cause of action accrued to the so-called collaterals of Bagh Ali in the year 1938 and the suit has been filed in the year 1992. Learned counsel for the respondents argued that if res judicata is not applied, then estoppel applies because the suit No.36 filed in the year 1896 by Mehr Noor son of Ali Muhammad the grandfather of plaintiff against Mst. Allah Wasai was dismissed. Learned counsel relies upon "AIR 1956 SC 346 (Sailendra Narayan Bhanja Deo v. The State of Orissa) and 1991 CLC 1526 (Ghulam Dastagir and others v. Mst. Mariam and others)". Learned Counsel for the respondents argue that dishonestly the previous litigation has not been mentioned in the plaint, therefore, states that the plaintiff has come to the Court with unclean hands; that a declaratory suit can be filed within six years from accrual of cause of action, whereas the present suit has been filed after more than 100 years of the alleged accrual of cause of action, therefore, suit was, clearly time barred and barred by law and as such the plaint has rightly been rejected.
7. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
8. For the sake of argument if both the judgments passed by learned courts below are kept aside and the facts narrated in the plaint are considered to be true, even then the first alleged cause of action accrued and right to sue accrued to the collaterals of Bagh Ali the alleged propositus in the year 1889/90 when Mst. Allah Wasai widow of Bagh Ali contracted second marriage as per the plaint and after that in the year 1938 when she died and property was transferred in favour of Fateh Muhammad her second husband. If the previous litigation between the predecessors of plaintiff and contesting defendants/respondents be ignored, then on the basis of limitation suit is clearly time barred. In the circumstances of this case question of limitation is not a mixed question of law and fact. It is a clear cut case when according to the plaint cause of action accrued to the collaterals of Bagh Ali in the year 1889/90 and lastly on the death of Mst. Allah Wasai widow of Bagh Ali the propositus in the year 1938, filing of suit in the year 1992 is clearly barred by time. The limitation for filing a suit for declaration under Article 120 of the Limitation Act, 1908 is 6 years when the right to sue accrues. When accrual of cause of action has been asserted in the plaint. The argument of learned counsel for the petitioner/plaintiff that in case of inheritance limitation can be ignored straightaway and limitation cannot be a hurdle in the way of any party coming to the Court for redressal of grievance. I am unable to agree with the learned counsel in the light of law annunciated by the august Supreme Court of Pakistan in the judgments reported as "2011 SCMR 8 (Muhammad Islam v. Inspector General of Police, Islamabad and others) and PLD 2013 Supreme Court 392 (Farman Ali v. Muhammad Ishaq and others)". In the matter of inheritance a suit must be filed within the prescribed period of limitation and only on the basis that matter relates to the inheritance the limitation be ignored is not a valid stance or ground. The suit has been filed long after the prescribed period of limitation, therefore, it is barred by time.
9. While going through the findings recorded by two courts below it is true that before applying the principle of res judicata learned trial Court was required to frame an issue and after taking documentary evidence to decide the matter but in the peculiar circumstances of the case non-framing of issue has not caused prejudice to the plaintiffs case, he has not denied the previous litigation and when the defendants-respondents produced certified copies of previous litigation, the plaintiff has not denied those judgments passed by the Court of competent jurisdiction in the lis started by the predecessor of plaintiff and even before this Court the effect of those judgments has been argued and existence of the same has not been denied. In the circumstances of this case non-framing of a preliminary issue with regard to res judicata was a formality and even otherwise on the basis of limitation and under Order XXIII, Rule 1 of the C.P.C. on the basis of estoppel the present suit was not maintainable, as through the previous compromise part of claim was abundant.
10. The petitioner/plaintiff has not produced the certified copies of previous orders/judgments between the parties, which have been produced by the respondents/defendants before the trial Court. The petitioner has placed on file the original application "Form" for issuance of certified copy, from the file of instant case, of the judgment dated 25.10.1899 case titled "Mehr Noor son of Ali Muhammad v. Mst. Allah Wasai widow of Bagh Ali and Fateh Muhammad" whereupon the Copying Agency reported that the said copy of the judgment is not exhibited in this case, therefore, certified copy cannot be issued. The petitioner was to apply for issuance of certified copy from the original file. He has not bothered to apply the same and produce the said copy as well as copy of the judgment passed by the Chief Court of Punjab referred in the judgment of learned trial Court. On this score also the revision petition is defective one.
11. It is clear from the statement in the plaint, if the same is admitted to be true, the suit is barred by law. I have reproduced Para No.3 of the plaint, which shows that a person can go to what extent for getting the property. The plaintiff has not only dishonored/assassinated the character of Mst. Allah Wasai but also dishonored his own predecessor only to get the property owned by him. It is a clear instance of greed. Bagh Ali the claimed propositus has left this temporary world more than 100 years ago and laid to rest in his grave but his character assassination is still going on just to get the property.
12. In the above circumstances, no case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. has been made out. Resultantly, all the above noted civil revisions stand dismissed with costs throughout. The pending applications also stand disposed of.
ZC/B-24/L Petitions dismissed.