WALI and 10 others vs AKBAR and 5 others

' MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal which is directed against the judgment dated 28-2-1993 of the Lahore High Court, Lahore, arises from the facts that on 12-2-1977, Akbar and five others (respondents) filed a suit for declaration to the effect that they were owners in occupation of the suit land and prayed for permanent injunction as a consequential relief restraining the respondents/defendants from interfering with their possession and proprietary rights, against Wali and ten others (petitioners), in the Court of Civil Judge, Mandi Bahauddin. The suit was resisted. As many as eight issues were framed.' Parties led their evidence. The trial Court decreed the suit on 10-11-1979. The appeal filed by the petitioners/defendants was accepted and the suit was dismissed by the learned Additional District Judge, Gujrat on 1-10-1981. Feeling aggrieved thereby, the plaintiffs/respondents filed Regular Second Appeal in the Lahore High Court, which was accepted and the judgment and decree passed by the trial Court was restored on 28- 2-1993.

2. Challenging the findings of the High Court on issues Nos.1, 2 and 7, the learned counsel for the petitioners has raised the following points:--

(i) That the plaintiffs have failed to prove the commission of any fraud relatable to Mutation No,149 dated 5-2-1922 by the predecessor-ininterest of the defendants;

(ii) that the disputed mutation was sanctioned on 5-2-1922. So, the suit for declaration in respect of this mutation, filed by the plaintiffs/respondents in 1977 was hopelessly barred by time;

(iii) that Article 120 of the Schedule to the Limitation Act applied by the High Court is not a relevant Article; and

(iv) that after the attestation of mutation in the year 1922, new Jamabandis were prepared after every four years. It is not believable that the respondents/plaintiffs were not aware of Mutation No,149 till the consolidation of the holdings, and as such, the limitation would begin to run from 5-2- 1922.

3. We have considered the arguments addressed by the learned counsel with care. We do not agree with him. Issues Nos.1, 2 and 7 may be reproduced advantageously:-- "(1) Was Mutation No, 149 dated 5-2-1922 based on fraud hence void? OPP

(2) Are the plaintiffs owners in possession of the land measuring 55 Kanals 6 Marlas obtained by them in exchange vide Mutation No,34/1918? OPP."

7. Is the suit barred by time? OPD."

Issues Nos.1 and 2 are issues of facts. The trial Court and the High Court both have concurrently found the issues in favour of the respondents /plaintiffs and have given sound and cogent reasons in support of their conclusions. The learned counsel has failed to show any misreading or nonreading of evidence relevant to these issues, by the High Court. We do not see any legal infirmity in the findings of the trial Court and the High Court on these issues.

4. As regards issue No,7, we find that the High Court while dealing with this issue has stated that "in view of the concurrent findings of the learned Courts below that the plaintiffs have, despite the entries to the contrary in the record-of-rights, been in physical possession of the land in suit and that the parties were co-sharers, the question of limitation was also in my view rightly decided by the learned Civil Judge in favour of the plaintiffs. In such cases Article 120 of the Schedule to the Limitation Act applies and time runs from the date when the plaintiff feels aggrieved. The plaintiffs here felt aggrieved when in the consolidation of holdings they were not given any land in lieu of the land which they had obtained by means of Mutation No,34 dated 11-3-1918. The learned Additional District Judge was also wrong in his view that as fraud had not proved, and the Jamabandi entries were notice to the public, the suit was out of time. The fraud alleged by the plaintiffs was that the Mutation No,149 was sanctioned behind the back of the petitioners and there was collusion between the predecessors of the defendants and the revenue officials." There can be no two opinions that a suit for declaration with prayer for the consequential relief will be governed by Article 120 of the Schedule to the Limitation Act. Under this Article, the starting point of limitation is the date when the right to sue accrues. The question, when a right to sue will accrue in a suit for declaration will, to a certain extent, depend upon the facts and circumstances of each case. A suit for declaration of title of the plaintiffs to a particular property is a subsisting right and the right to bring a declaratory suit is a continuing right, so long as the right to the property itself is subsisting.

' The right to sue accrues when the right in respect of which the declaration is denied or challenged by the defendants. The time starts running only when the rights are actually interfered with. In such cases, a fresh cause of action would arise from the date of the last attack on the plaintiffs' right or denial thereof. Where the plaintiff is in possession, more particularly as a co-sharer in the joint Khata, he is not bound to sue on every denial of his right. He can file a declaratory suit at his option, because every denial or invasion of his right will furnish him a fresh cause of action. In the instant case, the two Courts below have concurrently found that despite entries to the contrary in the Record-of-Rights, the plaintiffs/respondents remained in physical possession of the suit land and that the parties were the co-sharers. We do not see any reason to disagree with the conclusions arrived at by the Courts below.

5. In the instant case, the plaintiffs felt aggrieved when in the consolidation of holdings, they were not given any land in lieu of the land which they had obtained by means of Mutation No,

34. The trial Court and the High Court both were of the view that the fraud was really committed and the Mutation No, 149 was sanctioned as a result of collusion between the predecessor-in-interest of the defendants and the revenue officials. The learned counsel for the petitioners has failed to point out any misreading/non-reading of the evidence by the High Court. The submissions made by the learned counsel are devoid of force. No case for interference with the well-reasoned judgment of the High Court is made out.

6. Accordingly, leave to appeal is refused.