MUHAMMAD YAR Versus MUHAMMAD BUKHSH

ORDER

AMIN-UD-DIN KHAN, J.--- Through this civil revision the petitioner-plaintiff has challenged the judgment and decree dated 02.05.2001 passed by the learned Additional District Judge, D.G. Khan, whereby the appeal filed by the petitioner was dismissed, and the judgment and decree dated 01.05.1999 passed by the learned Civil Judge, D. G. Khan, whereby the suit for declaration filed by the petitioner/plaintiff was dismissed.

2. This civil revision was filed on 12.07.2001, which was dismissed for non-prosecution twice and then restored but the learned counsel for the petitioner never argued the matter for admission of the same. It is one of the oldest cases.

3. Briefly, the facts of this case are that on 28.09.1995 the petitioner/plaintiff filed a suit for declaration that he is owner in possession of suit property fully described in the head note of plaint and the sale deed No.2406 dated 24.08.1981 and on the basis of said sale deed mutation No.48985 attested on 26.09.1981 and mutation No.51720 attested on 15.03.1984 are absolutely against the law and not binding upon the plaintiff. In consequential relief permanent injunction has been prayed that the defendant be restrained from interfering into the possession of plaintiff. The case of plaintiff is that he never transferred the suit property to anyone. On threats of interference into his possession by checking record, he came to know that in the year 1981 through sale deed the property has been transferred in favour of defendant. It is the case of plaintiff that his date of birth is 14.02.1966 and in the year 1981 he was of 15 years. The written statement was filed and suit was contested raising the objections that suit is not maintainable, it is beyond the period of limitation. It was pleaded that the defendant is owner in possession of suit property. Issues were framed and the parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial learned trial Court dismissed the suit vide judgment and decree dated 01.05.1999. An appeal was preferred before the learned first appellate Court, which also met with the same fate vide judgment and decree dated 02.05.2001. Hence, this civil revision.

4. Learned counsel for the petitioner/plaintiff argues that one of the grounds for dismissal of suit for declaration filed by the petitioner/plaintiff was that he has not prayed for possession of suit property and suit under section 42 of the Specific Relief Act for simple declaration was not competent, therefore, the findings recorded by both the courts below are not sustainable under the law. Learned counsel has relied upon the judgments reported as "2003 SCMR 318 (Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others), 2010 CLC 1646 (Altaf Hussain alias Mushtaq Ahmed v. Muhammad Din and others), PLD 1971 Supreme Court 762 (Ahmad Din v. Muhammad Shafi and others), PLD 2008 Supreme Court 663 (Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others) and 1998 CLC 1439 (Darey Khan v. Muhammad Hussain and others)".

5. I have heard the learned counsel for the petitioner at length and gone through the record, concurrent findings of two courts below as well as the case law referred supra.

6. Learned trial Court while recording the findings on issues Nos.2, 3 and 7 dismissed the suit of petitioner/plaintiff and the learned first appellate Court reversed the findings on issue No.1. The argument of learned counsel that without cross objections learned first appellate Court wrongly reversed the findings on issue No.1. As per plaintiff's own case he attained the age of majority in the year 1984 and his disability ended, he was required to file the suit for declaration within three years from attaining the age of majority and when his disability ended as per his version but the present suit has been filed on 28.09.1995, which is barred by 8 years. The plaintiff when appeared as his own witness as PW-1, admitted in cross-examination that the shop in dispute is in the name of defendant since the year 1981 and possession of defendant since then reconstruction of shop has also not been denied by the plaintiff. Further that previous to filing this suit, a suit for recovery was filed against the defendant by the petitioner/plaintiff, which has been admitted by him.

7. So far as the point of learned counsel for the petitioner on the basis of judgments of august Supreme Court as well as this Court i.e. "2003 SCMR 318, PLD 1971 Supreme Court 762, PLD 2008 Supreme Court 663, 2010 CLC 1646 and 1998 CLC 1439", there is no cavil to the rule that when the suit for declaration is filed and consequential relief could have been sought by the plaintiff and his omission cannot disentitle him, rather the august Supreme Court in the above judgments has laid down that opportunity can be granted to the plaintiff for prayer of relief of possession and on the basis of technicality the suit cannot be dismissed. I agree to that extent with the findings of two courts below, otherwise the sale by the plaintiff in favour of defendant has been proved, as per plaintiff's own version his age was near about 15 years plus at the time of sale. In these circumstances, on the basis of point of limitation the findings recorded by the learned first appellate Court are absolutely correct and sustainable under the law laid down in the judgment of august Supreme Court reported as "PLD 1997 Supreme Court 397 (Muhammad Raz Khan v. Government of N.-W.F.P. and another)", as it is the responsibility of the Court under section 3 of the Limitation Act to apply the correct period of limitation in accordance with Limitation Act on every lis. I do not agree with the argument of learned counsel for the petitioner that without filing cross objections learned first appellate Court was not competent to reverse the findings on issue of limitation. I would like to quote a Paragraph from the judgment referred supra, which is as follows:

"It is undoubtedly imperative for aggrieved party to pursue legal remedies with utmost diligence and satisfy conscious of the Court or quasi-judicial authority for approaching respective forums beyond prescribed limitation, even if objections to that effect were not raised."

I am clear in my mind that if a part of decree is against a party, without filing cross objections that part of decree cannot be reversed. When there are findings on any issue against any party, even without filing cross-objections or cross-appeal the appellate Court has full powers and jurisdiction under Order XLI, Rule 33 of the C.P.C. to scrutinize such findings. In this view of the matter, when the suit filed by the petitioner/plaintiff was clearly time barred and conduct of the plaintiff does not entitle him, for granting a decree and there are concurrent findings of two courts below recorded against the petitioner/plaintiff and conduct of the petitioner/plaintiff during the pendency of this revision petition, when preliminary arguments could be heard today, therefore, this civil revision stands dismissed in limine.

RR/M-228/L Revision dismissed.