LALOO and anothers vs GHULAMAN

ORDER

' SH. RIAZ AHMED, J.---Leave to appeal is sought against the judgment and order dated 1-10-1999 whereby a revision petition filed by the petitioners under section 115, C.P.C. Against the judgment and decree passed by the learned Civil Judge in favour of the respondent and affirmed in appeal, was dismissed.

2. The relevant facts giving rise to the institution of this petition are that the respondent instituted a suit for declaration to the effect that mutation of sale No.745, dated 22-2-1966 attested in favour of the petitioner was result of fraud and misrepresentation and that the respondent had never sold the land in favour of the petitioners nor had she appeared before the attesting authority. The suit was resisted and it was pleaded by the petitioners-defendants that in the year 1963 Mst. Ghulaman respondent-plaintiff had orally sold the suit land in favour of Habibulah son of Laloo and Muhammad Bakhsh and with a view to avoiding any attempt for pre-empting the said sale, the mutation of mortgage bearing No.712, dated 22-11-1963 was attested in favour of the aforesaid vendees. It was further averred in the written statement that in fact Mutation No.712 was a sale although it was represented as mortgage and since then sons of the petitioners were in possession of the same. Plea of limitation was also raised by the petitioners. On the pleadings of the parties, issues were framed and the evidence was recorded and vide judgment dated 26-6-1994 the suit was decreed. An appeal was taken against the said judgment and decree, but the same was dismissed by the learned Additional District Judge vide judgment and order dated 14-3-1998.

3. The learned counsel for the petitioners appearing before us argued that issue of limitation had not been framed. The evidence had been misread and admittedly the respondent-plaintiff was not in possession of the suit land and the relief of possession not having been claimed, the suit was not maintainable under section 42 of the Specific Relief Act. It was also contended at the bar that the petitioners had purchased the land, but the evidence on that issue was not attended to.

4. The record of the case reveals that the respondent had not in fact sold the land in favour of the petitioners, but she had only mortgaged the property in favour of the sons of the petitioners vide Mutation No.712, dated 22-11-1963 for the release of this land. The respondent had sought redemption of the mortgage and had applied to the Assistant Commissioner and the area under the West Pakistan Redemption and Restitution of Land Act. There are concurrent findings of both the Courts below that in fact the respondent being lady had not sold the land and had in fact mortgaged the same. The evidence also reveals that no relative of the respondent was present at the time of the attestation of the mutation and no consideration had passed. Her statement to that effect stood corroborated by the statements of P. Ws. 2 and 3. As against such affirmative evidence, no negative evidence to rebut the same was led by the petitioner. P.W.2 Patwari appeared and stated that he had only brought register of mutations and Jamabandi, but not depose even a word about the nature of transaction and as to what transpired at the time of the attestation of the mutation. Similarly, the other witness Ghulam Rasool Lamberdar stated that he was not a witness to the transaction, but he was present at the time of mutation. In fact, niece of this witness is married to one of the petitioners; therefore, he is an interested witness as well. Laloo appeared in the witness-box, but as already observed by us, the moment an oral sale and that, too, executed by an old lady is denied, the onus shifts upon the other side and in this case the petitioners failed to discharge the said onus.

5. As far as the plea of limitation is concerned, the same is devoid of force. Under Article 120 of the Limitation Act, one can challenge the transaction of sale within six years of the sale of the land, which of course is the date of knowledge thereof. In this case, the suit was instituted within six years of the knowledge acquired by the lady. This fact coupled with the absence of the respondent at the time of the attestation of mutation takes bottom out of the plea of limitation. Nothing turns upon the failure to frame an issue on the question of limitation. If throughout the proceedings, no request is made for the framing of an additional issue, then in view of the judgment reported as Mehr Din v.

Dr. Bashir Ahmed Khan and 2 others (1995 SCM R 1) the judgment cannot be challenged on the said score. Thus, the plea of limitation raised is untenable.

6. As to the maintainability of the suit for not having claimed possession as consequential relief, we have already observed that the steps shall be taken by the respondent for redemption of the mortgage by invoking the jurisdiction of the Assistant Commissioner under the West Pakistan Redemption and Restitution of Mortgaged Land Act.

7. For the foregoing reasons, we do not find any merit in this petition. The same is hereby dismissed and leave to appeal is refused.