ABDUL RAUF Versus Haji KHUDA-E-DAD

MUHAMMAD AAMIR NAWAZ RANA, J.--- The petitioners have called in question the concurrent findings of the fora below, whereby the suit filed by them for declaration, cancellation of mutation entries, possession and permanent injunction was dismissed by the trial Court and the Appellate Court maintained the said judgment.

2. The petitioners averred in their suit that they as well as the legal heirs of late Haji Shin Khan are joint owners to the extent of their Sharai share in the properties left by late Haji Shin Khan (detail of the properties is provided in Para No.1 of the suit, which hereinafter shall be referred to as “the suit property” ). It is the case of the petitioners that after the demise of late Haji Shin Khan, the respondents Nos.1 to 6 fraudulently mutated the suit property, initially in their names and subsequently same was sold out to the different persons. The petitioners have alleged that approximately two years ago, before filing of the suit, the petitioners came to know regarding the illegal mutation entries, and when they contacted the respondents Nos.1 to 6, they could not get any satisfactorily explanation, therefore, they obtained mutation entries of the suit property and came to know about selling of their legacy to different purchasers, who were also arrayed as respondents.

3. The suit was contested by the respondents Nos.1 to 6, who mainly took plea that in fact late Haji Shin Khan, in his lifetime, had sold out the suit property to Muhammad Qasim through the sale agreement and had received the sale consideration amount of rupees two Million, and possession of the suit property was also handed over to the purchasers but due to death of late Haji Shin Khan, the mutation entries had not been carried out, therefore, they mutated the suit property in their names with the intention to further mutate the same to the purchasers.

The remaining respondents, who had purchased the suit property, in their written statement took the plea of bona fide purchasers without notice.

4. The trial Court, out of the pleadings of the parties, framed the following issues:

“1). Whether the plaintiffs being legal heirs of Mst. Khotara daughter of Late Haji Shin Khan predecessor of the parties are entitled for her share in properties i.e (i). Mutation entry No.375, Khewat/Khatooni No.32/65, Khasra Nos. 982/127, 984/414, 433, 495, 496, 497 measuring 58-Rod, 13-Pole (ii). Mutation entry No.375 total assess 13, Khewat/Khatooni Nos. 2/3 to 6 Khasra No.68 Qitas, measuring 409-Rod, 11-Pole, (iii). Mutation entry No.375, Khewat/Khatooni No.37/35 total assess 626, bearing Nos. 395, 396, 389, 388, 576, 575, 385, 580, 583 measuring 91-Rod, 1-Pole owned by her father late Shin Khan in his life time?

2). Whether late Haji Shin Khan had sold out the suit property in his life time while the defendants Nos. 1 to 6 have only transferred mutations to the vendees?

3). Whether mutation No.375 regarding transfer of properties of Late Haji Shin Khan in Mohal Viyala Mehtarzai Mouza Mehtarzai Tappa Baleli Tehsil and District Quetta was result of fraud, misrepresentation and concealments of facts therefore, was illegal and was liable to be cancelled? if yes whether its subsequent mutations Nos. 381/1 and 486/1 in favour of defendants Nos. 10 to 12 are also illegal and liable to be cancelled?

4). Relief?

ADDITIONAL ISSUES:-

1). Whether plaintiffs are sons and daughters of Bibi Kotara? If so whether she was daughter of late Shin Khan ?

2). Whether suit of plaintiffs is barred by limitation?

3). Whether valuation clause of the suit is incorrect?

4). Whether plaintiffs have not affixed requisite court fee to their suit?

5). Whether defendants Nos. 27 and 28 are bona fide transferee of land bearing Khasra No.147 vide exchange mutation No.402 dated 29-06-1995 in consideration of that of their land measuring 10,000 Sq:ft bearing Khasra Nos. 1535/641/416 Mohal Chashma Baleli vide exchange mutation No.250 of the same date in the name of Transferor Jan Muhammad son of Nazar Muhammad?”

5. Thereafter, the trial Court directed the parties to produce evidence in support of their respective contentions. At the conclusion of the trial, the trial Court, vide impugned judgment and decree dated 07.07.2018 dismissed the suit, which judgment and decree was maintained by the Appellate Court vide impugned judgment and decree dated 22.12.2018.

I have heard arguments of learned counsel for the parties and have perused the record with their able assistance.

6. The petitioners have based their claim on the edifice that they, being the legal heirs of Bibi Khotara (late) who was daughter of late Haji Shin Khan, are entitled for their legal/Sharai share in the legacy left by late Haji Shin Khan. Record transpires that late Haji Shin Khan had died in the year 1990 and the mother of petitioners i.e. Bibi Khotara (late) died approximately after three or four years of death of her father i.e. late Haji Shin Khan. Record further transpires that Bibi Khotara (late), in her lifetime, had never demanded her share in the suit property nor challenged the disputed mutation entries, but approximately after eighteen (18) years of her death, the petitioners field the civil suit.

7. It is an admitted feature of the case that the suit property was sold out to number of parties who further created interest in the same through subsequent transfers. It has come on record that possession was ostensibly enjoyed by the subsequent purchasers in this whole period without any objection from the petitioners’ side till filing of the suit. The respondents Nos. 1 to 6 i.e. sons of late Haji Shin Khan, in their written statement, had taken the specific plea that in fact the suit property had been sold out by their predecessor-in-interest in his lifetime through sale deed i.e. ExD/1 at the consideration of rupees two Million. The said respondents, in order to prove the agreement, produced Syed Abdul Ahad and Naseebullah Khan as DW-1 and DW-3, who identified their signatures over ExD/1 as witnesses and further verified the contents of the sale deed. In such circumstances, the plea of respondents Nos.1 to 6 has substance in it that at the time of death of late Haji Shin Khan, there was no property which could have devolved upon the legal heirs of late Haji Shin Khan as his Tarka (legacy).

8. It is also an admitted feature of the case that at the time of “Intiqal-e-Wirsat”, the daughters of late Haji Shin Khan were not mentioned in the “Intiqal-e-Wirsat”. The respondents Nos. 1 to 6 have taken the plea that since the suit property had already been sold out by the late Haji Shin Khan in his lifetime, therefore, just for the purpose of mutation entries in the revenue record disputed mutation entry had been effected. The petitioners have pleaded that they had absolutely no knowledge of disputed transactions and further disposal of suit property to subsequent purchasers. Considering the plea taken by the respondents Nos.1 to 6, coupled with the fact that subsequent transfer of the suit property was made and the purchasers not only got mutations of the suit property but also enjoyed its ostensible possession without any objection for approximately 20 years from the petitioners’ side, raise serious aspersions upon the claim of the petitioners regarding lack of knowledge of disputed mutation entries. This aspect has also been admitted by the witness produced by the petitioners e.g. PW-1 during cross-examination admitted as under:

9. In the same manner, PW-3, in his cross-examination admitted that:

10. The analysis of the witnesses produced by the petitioners reflects that in fact the petitioners had the knowledge that the suit property had been sold out approximately 20 years back and the subsequent purchasers had not only got mutation entries in their favour in the revenue record but also got possession of the suit property.

11. The right accrues to the sisters to sue for declaration of their rights, but if they by means of fraud are kept from the knowledge of those overt acts, the time limit of six years is provided in Article 120 of the Limitation Act, 1908 ( ‘Limitation Act’ ) for instituting the suit for declaration against brothers or any person claiming through them otherwise than in good faith and for a valuable consideration, is to be computed from the time when the fraud of the brothers first became known to the sisters, by virtue of the provisions of section 18 of the Limitation Act. The “fraud” means suppression of those acts or transactions that give rise to the cause of action from coming into the knowledge of the plaintiff. A deliberate concealment of facts intended to prevent discovery of the right to sue is also a “fraud” within the meaning of the term used in section 18 of the Limitation Act, but an open act of a party cannot be said to be a fraudulent act of concealment and it is therefore not covered by the definition of “fraud” provided in section 18 of the Limitation Act. In the same manner, the benefit of section 18 is not available against any person who though claims through the defrauding party but is a transferee in good faith and for valuable consideration. This issue was exhaustively dilated upon by the Honourable Supreme Court in the case titled as Saadat Khan v. Shahid-u-Rehman 1 , relevant excerpt whereof is reproduced:

“13. We have gone through the facts of the present case in light of the above principles regarding the calculation of the period of limitation. We find that the acts of acquisition of a part of the suit property by the Small Industries Estate and receiving of the compensation therefor by Abdur Rehman, the predecessor of respondents Nos. 1 to 6, in the year 1960-61 were open acts and were also in the knowledge of Mst. Mehro and Mst. Afsro, the predecessor of the petitioners. This fact has been admitted by petitioner No. 1, Saadat Khan, when he appeared in the witness box as PW-5. He further said that they had demanded their share in the compensation amount from Abdur Rehman but he had refused to pay. The act of receiving compensation for the acquired portion of the suit property by Abdur Rehman was equal to selling that portion of the suit property by claiming him to be the exclusive owner thereof. It was his express overt act whereby he repudiated the rights of his sisters, Mst. Mehro and Mst. Afsro, in the suit property and ousted them from the ownership thereof. By the said act of Abdur Rehman, the right accrued to his sisters to sue for declaration of their rights, and the six-year limitation period provided in Article 120 started to run from the date of knowledge of Mst. Mehro and Mst. Afsro, of that act of Abdur Rehman and expired in the year 1967-68. For when once limitation time had begun to run, no subsequent disability or inability to sue could stop it as per Section 9 of the Limitation Act. Similar was the effect of the acts of selling out the remaining portion of the suit property by respondents Nos. 1 to 6 to respondents Nos. 12 to 74 and others. The limitation period having thus expired in the lifetime of Mst. Mehro and Mst. Afsro, it cannot start over again for their successors, the present petitioners, in view of the definition of the term "plaintiff" provided in Section 2(8) of the Limitation Act, which provides that "plaintiff" includes any person from or through whom a plaintiff derives his right to sue. Because of the said definition of "plaintiff", it was the knowledge of Mst. Mehro and Mst. Afsro that had triggered the period of limitation to run not only against them but also against their successors, i.e., the petitioners who derive their right to sue from them. The appellate court and the High Court have, thus, correctly decided the issue of limitation against the petitioners”.

12. In view of the dictum laid down by the Honourable Supreme Court in the supra case and after detail scrutiny of the concurrent findings of the fora below, it could safely be concluded that in fact the petitioners had the knowledge about different transactions with regard to the suit property and possession of subsequent purchasers who were enjoying the possession of the suit property with full impunity without any objection from the petitioners. These overt acts on the part of respondents Nos.1 to 6 and by the subsequent purchasers have nullified the stance taken by the petitioners vis-à-vis lack of knowledge regarding the disputed mutation entries.

For the foregoing reasons, no case for interference in the concurrent findings of the trial Court as well as Appellate Court is made out; therefore, the petition, being meritless, is dismissed.

MQ/111/Bal Revision dismissed.

1 PLD 2023 SC 362.