Muhammad Rafiq Vs Sultan Mahmood

JUDGMENT SHEET

IN THE PESHAWAR HIGH COI]RT PESHAWAR

JI,DICIAL DEPARTMENT

Civil Revision o.345-P/2019

JUDGMENT

Date of hearing 14.01.2025.

Petitioners (Muhamnad Rrfiq & othenr) By Mr. Mustafa Kamal, Advocate.

Respondents (Sdtrn Muhmood & oth€rs) By I\OS Haji Zahir Shah and; Maqsood Khan Khattak, Advocates.

*'t*****:***

S. M. ATTIOUE SHAH, J.- Throu gh present petition, petitioners have called in question the judgment and; decree of the leamed Appeal Court dated 04.01.2019, whereby, while accepting the appeal of respondents, set aside the judgment and; decree of the learned Trial Court dated 03.12.2013 and; consequently, the declaratory suit of the petitioners has been dismissed.

2.Learned counsel representing the petitioners argued that the impugned findings of the learned Appeal Court are illegal; being against the evidence and; material available on record of the case and; are the result of misreading and; non-reading of evidence. He further argued that the learned Appeal Court has illegally reversed the findings of the leamed Trial Court, which were the result of proper appreciation of the material available on

record of the case, as such, the same are not sustainable in the eye of law, because no time of limitation is run in the matter of inheritance as well as upon the alleged question of estoppel and; acquiescence, as such, the impugned findings are liable to be reserved upon the acceptance of the instant revision petition. In support ofhis contentions, he placed reliance on 2017 SCMR 1476, 2014 SCMR 801, PLD 1991 Supreme Courl93, PLD 1984 Supreme Court 394, 2021 M L D 1146 [Lahore Multan BenchJ, 2019 CLC 2067 [Peshawar Mingora BenchJ, 2018 CLC 254 [PeshawarJ,2017 CLC 436 [Peshawar D.I. Khan BenchJ, 2017 CLC 1601 [LahoreJ and;2015 CLC 1127 [LahoreJ

3.Conversely, learned counsel for the

respondents seriously resisted the arguments, so advanced by the leamed counsel for the respondents and; while arguing the matter contended that the suit of the petitioners was badly time barred, as they have challenged the validity of inheritance mutation attested way back in the year 1925, after lapse of long 83 years and; that too, in a declaratory suit filed on 23.04.2007. Further argued that the predecessor of the petitioners was also estopped by her conduct to file the ibid suit and; that the suit of petitioners was also hit by the principle of acquiescence. Further argued that the aforesaid facts were not properly appreciated by the learned trial court while initially decreeing the suit of the petitioners, which has rightly been rectified by the leamed Appeal Court through impugned

(SB)Juthce S- M- A Shoh.

'q,e

J

findings. Lastly, he solicited for dismissal of instant revision petition with costs

4 Arguments heard and record perused

5 Record reflects that Mst. Sahib Nisa,

(predecessor of the petitioners) brought a suit for declaration-cum-permanent injunction to the effect that she being the legal heir of late Muhammad Hassan, who was survived by three sons namely; Muhammad Azeem, Khadim Muhammad and; Muhammad Jan besides a daughter i.e. the present petitioner (Mst. Sahib Nisa) and; a widow Mst. Qadar Mana. After the death of Muhammad Hassan, his inheritance mutation No.869 was attested on 22.10.1925 in the names of his three sons and; the present petitioner and; her mother were deprived of their shari shares in the suit property left by late Muhammad Hassan.

Upon notice, respondents contested the suit by filing their written statement, wherein they raised various legal and;

factual objections. Learned trial court, after framing the desired issues, recording pro and; contra evidence and;

hearing leamed counsel for the parties, decreed the suit vide judgment and decree dated 03.12.2013. Being aggrieved, respondents filed an appeal, which was accepted by the leamed Appeal Court and; resultantly, petitioners' suit was dismissed through impugned judgment and; decree

6 During the pendency of lis, petitioner Mst.

Sahib Nisa, passed away and; her legal heirs were 6U JBne S. M. lttiqle

l, impleaded in the suit and; since then, they are pursuing the matter. Record suggests that the predecessor of the petitioners was well aware of the attestation of impugned inheritance mutation way back in the year 1925, however, she kept mum for long 83 years and; then, filed the instant suit in the year 2007, though in support ofher stance, she also appeared before the court and; recorded her statement as PW-3, however, during cross examination, she has categorically admitted that the suit has been filed as the respondents are not paying due respect to her. It is worth mentioning that initially the suit was decreed, however, upon the appeal of the respondents, the matter was remanded to the leamed Trial Court, where Muhammad Rafique, attomey of the petitioners appeared before the court as ARPW-I, who has clearly admitted during cross examination that the disputed property was privately partitioned amongst their matemal uncles, which clearly shows that they were not only in knowledge of the attestation of impugned mutation of the year 1925, but they were also aware of private partition between their maternal uncles, however, despite that their predecessor did not approach the court of competent jurisdiction for her rights in the disputed property within the prescribed period of limitation

7 The question of limitation in the inheritance matter came up for hearing before the august Apex Court in Ms1. Grana's case reported as PLD 2014 Supreme s,t4

Court 167, wherein, the ibid question was comprehensively discussed. Paras 3 to 7 of the ibid judgment are relevant, which are reproduced below for ready reference :-

3.Mr. Abdul Sattar Khan, learned Advocate Supreme Court appearing for the appellants, elaborating the points formulated in the leave granting order focused on the proposition that a plaintiff who enforces his or her right of inheritance cannot be non-suited on the ground of limitation, more so when the plaintiff is pardanashin lady. On the question of limitation, the learned counsel referred to the oft cited judgment of this Court in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC l). On protection of the interest of pardanashin ladies the learned counsel relied upon Arshad Khan v. Mst. Resham Jan (2005 SCMR 1859) and contended that it was duty of all beneficiaries of a deed to prove that pardanashih lady was in the knowledge of the transaction. On facts it was argued that Mst. Bibi was a limited owner and thus had no right to gift away the property to her mother, Mst. Habib Khanum and that latter also was therefore not entitled to make a gift in favour of Habib Muhammad. Similarly the registered deed of 8-6- 1916 by Umar Khan when Mst. Grana was a child was also fraudulent and void. That limitation could not operate as a bar against void order or transaction.

4.Since much reliance has been placed on behalf of the appellants on Ghulam Ali's case the principle laid down therein and the facts thereof need to be stated in some details. In that case the sisters had sued their brothers for their share in the legacy of their father Ghulam Ahmed Shah, who had died in the year 1963 and challenging his inheritance mutation that sanctioned the entire estate in the names of defendants/brothers. The defendants relied upon the relinquishment deed in their favour executed by the plaintiffs and pleaded inter alia that the suit was barred by time. Apart from holding that the relinquishment deed was invalid under the law of contract this Court declared, inter alia, that an heir who came into possession of the entire estate of the propositus holds the same as a co-sharer and remains in constructive possession thereof on behalf of the other heirs notwithstanding his exclusive possession. Based on this principle it was held that such an heir cannot plead adverse possession as against the other heirs and thus no time limitation would run against an heir claiming shari share in the estate. Refening to Haji v. Khuda Yar (PLD 1987 SC 453) and Aswar Muhammad v.

Sharif Din (1983 SCMR 626) the Court further

held that adverse entry in the revenue record and non-participation in the profits of the estate by an heir does not amount to ouster of his shari share. The Court cited with approval a passage from a judgment from the Indian Jurisdiction Haidar Khan v. Chand Khan (AIR l9l9 Allahabad202) that:- "In a Mahomedan family the possession of a brother should be deemed to be the possession of his sisters also unless the brother repudiates the claim of the sisters and asserts a right in himself. Apart from Mahomedan law however the posse ssion of one co-sharer would be regarded on behalf of all the other co-sharers, unless there is any act on the part of the co-sharer in possession which amounts to the ouster of the other co- sharers. "

In the above case the Allahabad High Court while laying down the above principle referred the case to the Appellate Court for recording findings on the following additional issues:--

'(l) Were the daughters of Jamiat Khan and after them the plaintiffs in receipt ofthe profits of the property owned by Jamiat Khan?

(2)Did Chand Khan ever deny the title of his sisters and set up in himself a right adverse to them? If so when and in what manner and were the sisters aware of his act?

(3)Did the mortgagee Mohan Lal make any inquiry as to the title of Chand Khan and did he act in good faith?"

The High Court had thus considered the conduct of the plaintiffs relevant for the purpose of time limitation and that of the transferee under a mortgage whether the mortgagee had acted in good faith. In Ghulam Ali's case an argument was raised on behalf of the petitioners that they had subsequently alienated a part of the property and thus third party interest was created. This argument was not addressed and it was held that "they (alienees) have not come before this Court nor they have been impleaded as respondents by the petitioners. It appears only the kith and kin; namely the brothers want to fight against the sister-respondent." The Court thus left open the issue of the effect of time limitation when the legal heirs in possession had alienated the property.

5.From the forgoing discussion three material facts distinguishes the present case from that of Ghulam Ali. The dispute in the present case is not between brothers and sisters but the plaintiff had questioned alienation of property by her sister and mother. The defendants are not legal heirs of Mahmood, father of the plaintiff, but were transferees of the property. Finally the plaintiff had not challenged any inheritance but gifts and

(SB)Jutti@ S. M Atttqu.

sale mutations. It is not the case of plaintiffs that the defendants were holding the property as co- sharers.

6.It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali's case the Court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant. This Court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintiff material in suits of inheritance. In Mst. Phaphan v. Muhammad Bakhsh (2005 SCMR 1278) a suit for declaration and possession was filed in the year 1983 by the plaintiff/petitioner claiming to be the owner of the inherited property. The suit was held to be barred by time wherein mutations of the year 1959 and 1967 were challenged in the year 1983 when the plea of the defendants was that the plaintiffs had alienated the property of her own free-will. The plaintiffs plea of being pardanashin lady and reliance on the case of Ghulam Ali was not accepted as the plaintiff was found to have remained in deep slumber for 24 years despite the fact that the physical possession of the land was passed on to the defendant. Recently in the case of Lal Khan v Muhammad Yousaf (PLD 201I SC 657) this Court had set aside the concurrent findings of the three Courts and dismissed the suit filed on 13-5-1970, where the plaintiff had challenged inheritance mutation of 13-2-1947: the Court held it to be barred by time. The rationale of the law of limitation has been reiterated in Atta Muhammad v. Maula Bakhsh (2007 SCMR 1446) where the concurrent findings of the three Courts were set aside and the suit filed by the respondents/plaintiffs in the year 1988 questioning the inheritance mutation of 1942 was declared to be barred by time. The Court held:- "The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. There have been cases where even to claim inheritance law of limitation was applied."

The Court found that the real dispute was whether a particular person was or not a legal heir of one, Mst. Khairan, whose inheritance mutation was attested in favour of appellant, Atta Muhammad.

7.It emerges from the afore discussed case- law that the law of limitation is not entirely to be ignored or brushed aside whenever property is claimed on the basis of inheritance. The conduct of such claimant may become relevant and material when the bar of time limitation is pleaded by the adversary. A defendant may show that the plaintiff by her or his acts, overt or implicit, had demonstrated acquiescence in the defendant's title to the suit properly thereby allowing him to deal with it as exclusive owner, for instance regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff. When in such circumstances the defendant/heirs transfers the property for valuable consideration the transferee is entitled to believe that the transferor had a valid title to transfer. It may be reiterated that in Ghulam Ali's case the question of interest protection of transferees from a legal heir in a suit of inheritance was left open as the transferees were not impleaded as defendants. That is not the case here. The very facts of this case would demonstrate that the plaintiffhad acquiesced in the various transfers made of the suit property from time to time.

7-A. The plaintiff had assailed the registered sale-deed dated 8-6-1916 and the sale mutation No. I 273 dated, 23-12-l9l 7. She had also questioned inheritance Mutations No.28l dated 5- 12-1930,2089 dated l-9-1949 and gift mutations of ll-ll-1959 and further mutations madefrom time to time attested on 18-1-1956,9- 12-1964, 12-12-1981, 3l-l-1984 and 30-7-1987 and further all subsequent sale and gift mutations. The challenge was thrown in the year l99l when she was more than 80 years old; as according to the evidence she was 617 years old when her father had died somewhere in the year l9ll/12. Upon her father's death the entire property was inherited by her as limited owner, which, upon her marriage in the year 1930, she had to give up in favour ofher step-sister, Mst. Bibi, born out of her mother's wedlock with one, Rasool. Since then she had remained out of possession. It cannot be said that she was unaware as to how the property was handled there-after and of her rights therein. Rather her awareness is demonstrated by the order of the Collector, Mardan, dated 15-4-1942 where she was marked personally present. In the appeal before the Collector she had questioned the permanent transfer by Mst. Bibi of certain property alleging that the respondent was a limited owner. However, she had neither then or ever questioned the sale deed of the year 1916 till filing of the suit in the year, 199 I , being well aware of such

(SB)hsne S M Aniqt.

transfer. Again, as the above order ofthe Collector shows that the plaintiff was conscious and aware that a limited owner was not empowered to transfer permanently property inherited by him or her, she did not question the gift mutation by Mst.Bibi in favour of the latter's mother, Mst. Habib Khanum, also the plaintiffs mother, in the year 1945. It may also be noted that by then the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 had come into force and the plaintiff could have asserted her right of inheritance. While the property was further sold and resold, constructed and reconstructed, the plaintiff took no action to annul or prevent such transfers. When she filed the suit there were as many as 251 transferees of the property. The conduct of the plaintiff clearly demonstrated acquiescence in all the impugned transfers of the property which amounting to waiver of her right. The transferees were, on account of the plaintiffs inaction, led to believe that the transferors had valid title in the suit property. The plaintiff had died during early stages of the litigation and has now represented by her legal heirs. The impugned concurrent findings of the two Courts on the above questions therefore do not call for any interference."

8 The said proposition of law has also been elaborately discussed by the august Supreme Court of Pakistan in Salamat Ali's case reported as PLD 2022 Supreme Court 353. Again, the principle of time limitation and acquiescence of the plaintiff in the matters of inheritance has exhaustively been discussed by the august Apex Court in Akhtar Nasir Ahmed's case reported as PLD 2024 Supreme Court 1268. Paras 7 to 15 of the said judgment are relevant which are reproduced below ltl stricto sensu:-

7.Perusal of the record demonstrates that mutation entries in respect of the land measuring 7172 it favor of respondent No.l were sanctioned in 1982. However, the petitioner instituted the suit for the first time in 2009 after a lapse of more than 27 years. No explanation whatsoever has been provided by the petitioner for the delay in filing the suit before the trial court.

8.Leamed counsel for the petitioner's contention that petitioner was residing in Canada therefore

(SB)Juttt@ S. M. Afiqt

was not aware of the alleged mutation of inheritance has been elaborately considered by the learned High Court as reproduced below:- "6. I have gone through the plaint in the suit for declaration filed by the petitioner- plaintiff. According to the contents of the plaint, not a single word regarding residence of the petitioner-plaintiff in Canada was mentioned. Even the address of petitioner- plaintiff was mentioned as "Khanwali, Tehsil and District Gujrat, presently residing at Chanab Nagar, District Chiniot." In the body of plaint, there is no mentioning about the residence of petitioner-plaintiff abroad (Canada).

7.In these circumstances, the argument advanced by the learned counsel for the petitioner is absolutely worthless and cannot be given weight as if the plaintiff was out of country at the time of filing of suit; he was required to specifically plead this fact in the plaint.

Furthermore, with regard to filing of the suit, he was required under Rule 6 of Order VII of the C.P.C. to seek exemption from Limitation Law. Not a single word has been pleaded in this regard therefore the argument advanced before this court seems to be of no value and as such not considerable."

9.The learned counsel for the petitioner has relied on the case of Ghulam Ali (PLD 1990 SC l) to argue that law of limitation does not attract in inheritance cases. However, this contention holds no merit, as this court has clarified in the case of "Mst. Grana through LRs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167) that:- "6. It appears that in a suit which involves some elements of inheritance, the courts are generally quick to declare that law of limitation could not be attracted. It is not in all cases of inheritance that question of limitation become irrelevant. Even in Ghulam Ali's case, the court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant. This court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintiff material in suits of inheritance. In Mst. Phaphan v. Muhammad Bakhsh (2005 SCMR 1278) a suit for declaration and possession was filed in the year, 1983 by plaintiff/ petitioner claiming to be the owner of inherited property. The suit was held to be barred by time wherein mutations of the year, 1959 and 1967 were challenged in the year, 1983 when the plea of defendant was that the plaintiff had alienated the property of her

own free will. The plaintiff plea of being pardha nasheen lady and reliance of Ghulam Ali's case was not accepted as the plaintiff was found in deep slumber for 24 years despite the fact that physical possession of the land was passed to the defendants. Recently in the case of Lal Khan v. Muhammad Yousaf (PLD 20ll SC 657) this court had set-aside the concurrent findings of three courts and dismissed the suit filed on 13.5.1970, where the plaintiffhad challenged the inheritance mutation of 13.02.1947; the court held it to be barred by time. [Emphasis added]

10.The rationale of the law of limitation has been reiterated in Atta Muhammad v. Maula Bakhsh (2007 SCMR 1446) where the concurrent findings of the three Courts were set aside and the suit filed by the plaintiffs in the year 1988 questioning the inheritance mutation of 1942 was declared to be barred by time. The Court held:-

"The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. There have been cases where even to claim inheritance law of limitation was applied."

I l. The law of limitation is founded on the principle of "Vigilantibus non dormientibus jura subveniunt, " meaning "the law assists the vigilant, not those who sleep on their rights." This principle forms a cornerstone ofjustice, reinforcing that the law favors those who act promptly and diligently. It emphasizes that individuals must be active in asserting their rights and those who fail to do so within a reasonable time should not expect the courts to intervene in their favor.

12.Law of limitation is not just a technical formality but a crucial component of a well- functioning legal system. It provides a framework that ensures legal matters are addressed promptly, preventing evidence from being lost, memories from fading, and facts from becoming distorted over time. Furthermore, it protects potential defendants from being subjected to claims long after they could reasonably expect such challenges,

t2

fostering certainty and finality in legal matters. By requiring claimants to act within a specific period, the law promotes diligence and responsibility in the pursuit of legal remedies. Those who neglect to assert their rights, as in this case, effectively forfeit their ability to challenge matters that could have been addressed much earlier.

13.In the present case, the petitioner's inaction for over 27 years clearly demonstrates a failure to uphold this principle. The law of limitation exists to prevent precisely this kind of neglect, ensuring that claims are brought forth when evidence is fresh and facts are clear. To allow this claim after such an extraordinary delay would not only undermine the integrity of the legal system but would also set a dangerous precedent, suggesting that legal rights can be asserted at any time, regardless of the passage of decades.

14.At this juncture, it is important to note that none of the legal heirs of Ch. Akbar Ali have ever challenged the validity of the mutation No.2l65 dated22.ll.l982 in the name of Respondent No.4. Even the legal heirs of Ch. Akbar Ali arrayed as defendants/Respondents in the suiUpetition have not contested legal proceedings in any manner before any court/forum.

15.Since the petitioner has not been able to overcome the hurdle of limitation, therefore, it would be inappropriate to address the substantive merits of the case. The learned High Court has rightly considered all aspects of the matter, and there are concurrent findings by the three fora below. Generally, this Court does not interfere with concurrent findings unless they are perverse, arbitrary, fanciful, or capricious, which, in our view, is not the case here."

9.When seen the instant matter in the light of above referred pronouncement of the august Apex Court, this court has no doubt in its mind that the suit of the petitioners was not only barred by limitation but the same was also hit by the principle of estoppel and; acquiescence.

Such legal and; factual aspect of the case was not properly appreciated by the learned trial court while initially decreeing the suit of the petitioners and; thus, committed gross illegality and; material irregularity, which has rightly been rectified by learned Appeal Court while

(SB)Jadc. S-

t3

allowing the appeal of the respondents through impugned findings warranting no interference by this court in its revisional jurisdiction, which is otherwise, very nilrow and; limited in its scope

10.So far as the case law relied upon by the learned counsel for the petitioners is concemed, the same being distinguishable is not applicable to the instant case in view of the peculiar facts and; circumstances of the case in hand

11.Consequently, this petition stands dismissed being meritless

Announced.

Dated: l+.0i.202S.

JUDGE ..-...\t

(SB)Jtsnce S. M. hnque Shah-