Mehboob Khan etc vs Collector Revenue

Judgment Sheet

IN THE PESHAWAR HIGH COURT, BANNU BENCH

JUDICIAL DEPARTMENT

CR No.127-B/2010

Date of hearing... ................01.07.2015 Mehboob Khan and others

Versus

Collector Revenue Karak and others.

Petitioner (s): By Waseem Ullah Khan Khattak Advocate.

Respondent (s): By Mr. Baghdad Khan, Advocate. Govt. of KPK by Saif-ur-Rehman Khattak,

AAG.

MUHAMMAD YOUNIS THAHEEM , J:- This single

judgment is directed to dispose of three civil revision petitions bearing No.127, 128 and 129-B of 2010, because all these petitions are the outcome of one and same judgment and decree dated 14/5/2009 passed by the learned Civil Judge-III Karak, whereby suits of the petitioners were dismissed under Order 7 Rule 11 CPC which was maintained in appeals by the learned District Judge Karak, vide judgment and decree dated 28/4/2010 involving common question of law.

2.Briefly stated facts of the cases giving rise to filing of these three revision petitions are that Mehboob Khan etc; filed three suits against the Collector etc; for declaration to the effect that sale mutation No.19684 dated 28/11/1969, sale mutation No. 20539 dated 15/2/1974 and sale mutation No.277 dated 20/7/1977, are the result of fraud and were attested with the collusion of revenue hierarchy which are thus ineffective upon their rights and are accordingly liable to be cancelled.

3.The defendants were summoned who put appearance and the contesting/private defendants submitted applications in all the three suits under Order VII Rule 11 CPC for its dismissal on the grounds mentioned therein. The plaintiffs/petitioners submitted replication thereto but the learned trial Judge after hearing arguments rejected the plaint vide Order dated 14.05.2009 and against the same order dated 14.05.2009 the plaintiff/ petitioner filed appeal before the learned District Judge Karak, where against their appeals before the appellate forum also proved abortive vide judgments and decrees mentioned above, hence these revision petitions.

4.I have carefully gone through the entire record of the cases and anxiously considered the valuable arguments of learned counsels for the parties.

5.Perusal of record depicts that the plaintiffs/petitioners have challenged the validity and legality of mutations referred to above on the basis of fraud and collusion. Record further shows that the said mutations were attested by the ancestors of the plaintiffs/petitioners in favour of the private defendants and after the lapse of about 36/37 years, the legal heirs of the plaintiffs have challenged the legality and validity of the mutations in question. It is astonishing to note that if the said mutations were based on fraud and collusion, why the ancestors of the plaintiffs had not challenged the same in their life time. Moreover, the suits are hopelessly barred by time as envisage under section 3 of the Limitation Act. Reliance is placed on case titled “Hakeem Muhammad Boa Vs Habib Ahmad”, (PLD 1985 SC 153), the relevant Para is as under:

“The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up

as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, C. P. C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (I L R 38 Mad. 374), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it". The same Court in a subsequent case, Ramamurthy v. Gopayya (I L R 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm

Daulat Ram (A I R 1940 Lah. 75), and held that "there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves".

6.Barred by law also includes barred by time and this view was expressed in the Judgment of hon’ble supreme Court n case “Malana Nur-ul-haq Vs Ibrahim Khalil” (2000 SCMR 1305), relevant portion of the same is reproduced as:

“The first point for determination is whether the plaint can be rejected under Order VII, rule 11(d), C.P.C if the suit is time-barred. The answer is in the affirmative. The contention raised by the learned counsel for the petitioner is too naive to prevail. The bar of limitation is traceable to the Limitation Act, therefore, it goes without saying that the expression 'barred by any law' includes the law of limitation. However, there is no need to discuss this point any further as it stands resolved by the judgment of this Court reported as Mumtaz Khan v. Nawab Khan and 5 others 2000 SCMR 33, wherein it has been held that clause (d) of Order VII, rule f 1, C.P.C. is applicable where the suit is time-barred, and Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) wherein it has been observed that if from the statement in the plaint the suit appears

to be barred by limitation the plaint shall have to be rejected under Order VII, rule 11, C. P. C.”

7.The mutation in question was attested some 36/37 years back and plaintiff had to challenge the same within prescribed period of limitation under article 120 of the Limitation Act. The vendor himself during his life time have not challenged it, therefore, presumption of truth is attached to this past and closed transaction and the plaintiffs/petitioners have miserably failed to show any prima-facie case against the defendants. Reliance is placed on case titled Malka through “Legal Heirs and others Vs Allah Diwaya through General Attorney and others” (2005 YLR “ I have also taken notice of the fact that if the plaintiff Allah Diwaya was the great grandson of Sohanra whose estate was involved who was survived by his son Hayat and Hayat had a son namely Samundar, neither the grandfather of the plaintiff nor his father even asserted any right in the estate of Sohanra. The dates of death of Sumander and Hayat are not on the record but the Jamabandi, Exh.P.11 for 1921-22 shows Hayat as tenant in village Mudhi and was, thus, alive. The suit filed by Chamman Ram was decided on 3-10-1'933 (Exh.P.8) which shows that Hayat was alive even on the said date. The

mutations which were attested in the year 1905 were successively incorporated in the Jambandis and no reason is forthcoming on the record as to why Sumandar and Hayat did not assert any right in the estate of the three deceased persons. Their silence/inaction on the one hand operates as relinquishment of their right, if any, at all the pedigree being claimed by the plaintiff was correct, while on the other it casts serious doubts about the veracity of the claim of the plaintiff Allah Diwaya.”

8.For the reasons discussed above, both the Courts below have rightly appreciated the record while invoking the provisions of Order VII Rule II CPC and had rejected the plaint of plaintiffs through the impugned order which being based on correct legal footings need no interference by this Court in exercise of its revisional jurisdictional under section 115 CPC.

9.Furthermore, the concurrent findings of the Courts below being based on law cannot be set at naught by the Court under section 115 CPC in exercise of its revisional jurisdiction unless it is established through record available on file that the same are patently illegal, erroneous, fanciful, or are the result of mis-reading/non-reading of record in view of the case law of the

Honourable Supreme Court of Pakistan reported as 2002 SCMR 1114 and 2007 SCMR 368.

10.Learned counsel for the petitioner failed to point out any legal infirmity or jurisdictional defect in the impugned concurrent findings of the Courts below.

11.Resultantly, all the three revision petitions being bereft of any meritable consideration are accordingly dismissed with no order as to costs.

Announced JUDGE

*Azam/P.S*