GHULAM RASOOL Versus GHULAM QADIR
AMIN-UD-DIN KHAN, J.--- Through this civil revision the petitioners have challenged the judgment and decree dated 10.04.2004 passed by the learned Additional District Judge, Muzaffargarh, whereby the appeal filed by the respondents-plaintiffs was accepted, by way of which, the judgment and decree dated 26.09.2001 passed by the learned Senior Civil Judge, Muzaffargarh dismissing the suit for declaration, were reversed.
2. The brief facts of this case are that the respondents-plaintiffs on 22.11.1995 filed a suit for declaration that they are owner in possession on the basis of mutations Nos.141 and 143 Mouza Tibbi Nizam attested on 16.06.1982 and right of defendants to get the suit property redeemed has seized and they have challenged the order passed by the Additional Commissioner, Dera Ghazi Khan and Member Board of Revenue, Punjab Lahore dated 24.09.1995 which were against the rights of plaintiffs. The written statement was filed and suit was contested. It was pleaded that previously the suit filed by the plaintiffs was dismissed on 28.01.1981 and appeal there against was also dismissed on 22.02.1983, therefore, on the basis of principle of res-judicata the suit is not competent. It is further pleaded that the appeals filed by the respondents/plaintiffs to challenge the matter of mortgage have been dismissed up to the Board of Revenue, therefore, suit is not competent. It is pleaded that the impugned mutations were got sanctioned with the connivance of revenue staff by ignoring and removing the fact of mortgage from the revenue record without any valid order from the competent authority and after passing of the order by the Member Board of Revenue dated 24.09.1995 with regard to entry of mortgage mutations Nos.338, 339 and 340 have been attested on 28.12.1995. Learned trial court on 11.11.1997 framed the issues and invited the parties 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 vide judgment and decree dated 26.09.2001 the suit was dismissed by the learned trial court. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate court, which was accepted vide judgment and decree dated 10.04.2004. Hence, this civil revision.
3. Learned counsel for the petitioners at the very outset has argued that the findings recorded by the learned first appellate court are not only against the evidence available on the file but also are result of misreading and non-reading of evidence and are result of ignorance of law declared by the august Supreme Court of Pakistan. Prays for acceptance of the civil revision.
4. On the other hand, learned counsel for the respondents argues that the orders passed by the revenue hierarchy up to the Board of Revenue are not sustainable under the law. Learned counsel tried to argue the matter with regard to section 19 of the Limitation Act, 1908 and with regard to acknowledgement to state that if after the prescribed period of limitation the matter has been transacted, that does not constitute acknowledgement stricto sensu in the light of Limitation Act. Prays for dismissal of the revision petition.
5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
6. The stance of the respondents/plaintiffs is on the basis of section 28 of the Limitation Act, 1908 that after the expiry of period of limitation the plaintiffs/respondents become the owner of suit property. I am unable to agree with the plaintiffs in the light of case law "2007 SCMR 480 (Durranai and 35 others v. Hamidullah Khan and 15 others)". For taking the benefit of section 28 of the Limitation Act the plaintiffs were required to have a decree in their favour before 31.08.1991. Admittedly no decree with regard to the prescription of title is available in favour of plaintiffs/respondents before 31.08.1991. The stance of plaintiffs that they be declared owner of suit property, which admittedly was initially mortgaged by the predecessors of petitioners/defendants with non-Muslim evacuee, is not in accordance with law. Therefore, filing of instant suit on 22.11.1995 was not liable to be decreed by the learned appellate court. Reliance can be placed upon "PLD 1994 Supreme Court 331 (Malik Aman and 3 others v. Fida Muhammad and 5 others), 2010 MLD 1605 (Najeeb Ullah Khan v. Badshah Khan and 28 others), 2012 MLD 1025 (Muhammad Abbas and others v. Muhammad Munir and others), 2010 YLR 2503 (Zwahir Jan v. Lal Rehman and others), 2011 YLR 2773 (Ali Shan and others v. Fazal Din and others), 1991 SCMR 2063 (Maqbool Ahmad v. Central Government), 1999 YLR 2706 (Mst. Said Bibi and 12 others v. Abdul Ghani) and PLD 2003 Supreme Court 425 (Nawaz Ali Khan and another v. Nawabzada and others)".
7. It is not in dispute that the property was mortgaged with the non-Muslim evacuees in the year 1897. As the original mortgage was with non-Muslim evacuees who migrated to India in the year 1947 and it is not the claim of plaintiffs/respondents that the period of limitation for prescription i.e. 60 years had already expired before the year 1947, therefore, in the light of law laid down by the august Supreme Court of Pakistan in the judgments referred supra, the fresh period of limitation starts from the year 1947 when the property transferred to the Central Government. Reliance can be placed upon "PLD 1986 Supreme Court 35 (Samar Gul v. Central Government and others) and 2006 YLR 1268 (Abdul Aziz and 7 others v. Province of Punjab through D.C.O., Dera Ghazi Khan and 2 others)". The case law referred to by the learned counsel for the respondents with regard to section 19 of the Limitation Act, 1908 i.e. "PLD 1991 Supreme Court 524 (Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others)" is not applicable to the facts of this case. Even the copy of mutation No.141 which has been challenged in the suit has not been produced by the respondents-plaintiffs.
8. In this view of the matter, the impugned judgment and decree dated 10.04.2004 passed by the learned Additional District Judge, Muzaffargarh are absolutely against the law, therefore, not sustainable. Consequently, this civil revision is allowed and the judgment and decree passed by the learned appellate court are set aside. The result is that the suit filed by the respondent-plaintiffs shall stand dismissed with costs throughout.
ZC/G-25/L Revision allowed.