Maroof etc Vs Daud etc

PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

FORM'A'

FORM OF ORDER SI{EET

Date of Order ORDER OR PROCEEDINGS WITH SIGNATURE OF or Proceed

JUDGE/JUDGES

19.11.2018 CR No. 232-N2018

Present:- Mr. Muhammad Rafique Yousaf, Advocate for the petitioners.

SYED MUHAMMAD ATTIOUE SHAH, J.- Petitioner through the instant Civil Revision has challenged the validity ofjudgment and order dated 14.02.2018 passed by leamed Additoinal District Judge-II, Mansehra, whereby the appeal filed by the petitioner against the judgment and order of leamed Civil Judge-VII, Mansehra dated 30.06.2014, was dismissed.

2.Brief facts of the case are that the petitioner/ plaintiffearlier filed a suit for declaration to the effect that the suit property bearing Khasra No. 6970 and 6963 to the extent of half portion i.e. 1 1 Kanals and 09 Marlas is in their possession under a mortgage which has not been redeemed for more than 60 years, thus the same has become their ownership. Later, during pendency of suit, they applied for withdrawal of suit with permission to file fresh one, I however, their request was tumed down by the leamed trial

court. Their suit was also dismissed by the leamed trial Court, however, in appeal they succeeded and resultantly, the respondents filed Civil Revision No. 3212003 which was withdrawn, however, the petitioner was allowed to file fresh suit. Resultantly, the petitioner filed suit in hand on 19.05.2009 claiming that half portion in the suit property was purchased by their predecessor from respondent Daud and in this respect mutation No. 6110 was also entered, however, since the mutation bearing No. 6065 on the basis whereof the defendant No. I was alienating the suit property to the predecessor of plaintiffs, was cancelled, therefore, mutation in favour of predecessor of plaintiffs bearing No.

6110 was also cancelled by the revenue officer on 20.10.1972. Thereafter, the defendant No.1 agreed to transfer the suit property to the predecessor of plaintiffs, as and when he would get ownership rights in the suit property, however, he failed to honour his promise during the life time of predecessor of plaintiffs. Subsequently, through mutations No. 1484 attested on 18.11.1979 and mutation No. 7629 attested on 04'01.1981, the defendant No' I got the ownership in the suit property, however, he refused to transfer the same to the plaintiffs/petitioners, hence they filed suit. The suit was contested by the defendant/respondent by filing written statement' After I recording pro and contra evidence, the learned trial court

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dismissed the suit vide judgment and order dated 30.06.2014. Appeal of the petitioners against the said judgment and order of the leamed trial court also failed, hence the present petition.

J Arguments in motion heard and record gone through.

4 Perusal of available record suggests that essentially the claim of the petitioners is that their predecessor had purchased half share in the suit property through mutation No. 6l l0 Ex PW-2/13. The defendant No.

t had alienated the said property on the basis ofhis rights therein through mutation No. 6065 Ex PW-2/14, however, the said mutation Ex PW-2114 was cancelled since the donor ofthe said mutation was not present and the donee failed to produce any proofofthe same. Thereafter, as per stance of the petitioners, the defendant/respondent Daud promised to transfer the suit property to their predecessor, whenever he would be in position to do so, however, after having purchased the share of Ali Haider through mutation No. 1484 dated 18.11.1979 as well as mutation No' 7629 dated 04.01 . 198 1 , he refused to transfer the same in favour of the predecessor of the petitioners.

5.The claim ofthe petitioners is thus based on mutation No. 6110 Ex PW-2/13 which admittedly was I cancelled on 20.10.1972 and the predecessor of the

petitioners was in knowledge of said cancellation of mutation. Petitioner Maroof while appearing as pW-I, stated that after cancellation of the mutation in favour of their father, they approached defendant Daud, who asked them to file a suit as there was a dispute between Daud and his brothers. He during course of his cross examination, admitted that they were in knowledge of the cancellation of mutation which was cancelled in the year 1972. He also admitted that they filed suit in the year 2009, however, he stated that respondent had promised that he would transfer the property in their favour after attestation of mutation in his favour. He also admitted it correct that the mutations of the property in question were attested in favour of the respondent in the year 1981 of which they were very much in knowledge. Moreover, the predecessor of the petitioners never brought any claim against the respondents during his life time and after his death, instant suit was filed by the petitioners.

6.The most crucial aspect of the case is that the cause of action accrued to the predecessor of petitioners upon cancellation of mutation No. 6110 on 20.10-1972.

Thus, admittedly their father was alive and was required under the law to have approached the court of competent t jurisdiction. However, he failed to bring suit in this respect, whereas the petitioners for the very first time approached

the court with civil suit be ari ng No. 39911 on26.06.1991 and in that suit, no such plea was taken, rather when they withdrew their civil revision bearing No. 3212003 on 08.05.2009, taking shelter thereof, they have filed instart suit on 19.05.2009, which was hopelessly time barred.

7.For what has been discussed above, this Court reached at the conclusion that the petitioners/ plaintiffs could not establish their claim through cogent, reliable and confidence inspiring evidence, thus on merits as well as on limitation, the suit was rightly dismissed by the learned courts below. Both the Courts below have rightly appreciated the evidence produced by the parties. Leamed counsel appearing on behalfofthe petitioners failed to point out any illegality, irregularity or jurisdictional error, warranting interference by this Court in its Revisional Jurisdiction under Section 115 CPC, which otherwise has a limited scope in the light ofjudgments of apex Court.

8.Resultantly, this revision petition fails, which is dismissed in limine.

Anno ced.

19. I I .2018

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