2014 C L C 426
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
MRDUMAN -E-MALLE ZAI NIDA KAHOL through Haji Saleh Muhammad and others --
--Appellants
Versus
MARDUMAN -E-KILLI KHUDAI -E-RAHIM SADEZAI (SHAI) through their Elders and
others ----Respondents
Regular First Appeal No.19 of 2006, decided on 18th July, 2013.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 8 ---Limitation Act (IX of 1908), Arts. 120 & 142 ---Civil Procedure Code (V of
1908), O. VII, R. 3 ---Suit for declaration and possession ---Limitation ---Suit where besides
declaration, possession had also been sought should be filed within 12 years from the date of
dispossession ---Plaintiffs were bound to prove their earlier possession and subsequent
dispossession within 12 years but in the present case, they had failed to do so ---Suit of the
plaintiffs was barred by time ---Suit/appeal/application or any proceeding brought beyond
limitation should be dismissed irrespective of the fact the limitation had no t been pleaded as
defence ---Incompetent suit must be buried at its very inception ---Claim of plaintiffs was based
on a decision passed in a previous suit ---Such judgment did not mention the boundaries of
disputed property and the fact that property in ques tion was the same which was now subject -
matter between the parties ---Said judgment had not established whether possession was
delivered to the plaintiffs or not and defendants were in possession ---Plaintiffs were bound to
specify the date of their disposse ssion by showing their earlier occupation but they had failed ---
Evidence available on record was contrary and conflicting with the statement recorded by the
plaintiffs ---Plaint did not contain boundaries of suit property nor any survey number had been
ment ioned ---Statements of witnesses produced by the plaintiffs were divergent, conflicting and
contradictory with each other qua the measurement, period of occupation of land by the
defendants ---Trial Court was left with no other option except to dismiss the s uit---No
misreading, non -reading or misappreciation of evidence was available on record ---No illegality
or irregularity could be pointed out by the plaintiffs ---Appeal was dismissed in circumstances.
Hakim Muhammad Buta and another v. Habib Ahmed and ot hers PLD 1985 SC 153 and
S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal
Heirs 2002 SCMR 338 rel.
Mujeeb Ahmed Hashmi for Appellants.
Syed Ayaz Zahoor and Abdul Aziz Khilji, A.A. -G. for Respondents.
Date of hearing: 18th March, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant appeal is directed against the
judgment and decree dated 14th April, 2006 passed by the learned Civil Judge, Chaman whereby
the suit filed by the appellants for Declaration, Injunction, Possession and Correction of Entries
was dismissed.
2 Facts relevant for the disposal of the instant appeal are that the appellants instituted a suit
in representative capacity for declaration, Injunction, Possession and Correction of Entries in the
Court of Civil Judge, Chaman. It was averred in the plaint that t he plaintiffs are elders of Malezai
Nida Kahool, whereas the respondents are elders of Gadezai, Killi Khuda -e-Rahim, Shai. There
are lands of Gadezai tribes and Nida Kahol and a way/point known as `Mazdoor Nawar' in
Mouza Khushkaba Daman, Chaman. There are only lands of Nida Kahool and Ahmed Kahool.
The lands of parties were duly partitioned before the independence and each party is in
possession of their respective shares. It was further averred in the plaint that there is a portion of
land between the lan ds of the appellants' tribe and Ahmed Kahool, which is bone of contention
between the parties. In the year 1944, the respondents' tribe started raising construction over the
land in dispute which was resisted by elders of the appellants by way of filing su it for possession
which suit was decreed vide judgment/decree dated 18th April, 1945 by the Additional District
Magistrate, Chaman. In execution proceedings the respondents vacated the land in dispute.
Thereafter, the respondents' tribe started encroaching upon the land in dispute by raising
construction, in absence of the appellants who due to tense situation at border had migrated to
Chaman. On coming to know, the appellants' tribe constituted a 'Jirgas' to settle the matter with
the respondents. Initiall y the respondents assured the appellants that they will vacate the land in
dispute but later on they flatly refused to do so, hence the suit.
3. The suit was contested by the defendants by way of filing written statement wherein
besides raising certain p reliminary legal objections the claim of the plaintiffs was repudiated on
merits as well.
4. The learned trial Court, out of the pleadings of parties framed following issues for
determination: ---
(i) Whether the suit is not maintainable in view of lega l objections "A" to "E" of the written
statement?
(ii) Whether the plaintiff's tribes are the legal owners of the suit -land, situated in between the
lands of Nida Kahool (plaintiffs) and Ahmed Kahool in Khushkaba, Daman Chaman?
(iii) Whether the plaint iffs are entitled to the relief claimed for?
(iv) Relief.
5. Thereafter, the parties were directed to adduce evidence in support of their respective
claims; whereupon the plaintiffs examined nine P.Ws., besides, got recorded their statements
through At torney Juma Khan; whereas in rebuttal, the defendants/respondents produced three
D.Ws. and their Attorney Fida Muhammad also entered the witness -box. The trial Court after
hearing the parties and evaluating the evidence vide judgment/decree dated 14th Apri l, 2006
dismissed the suit, hence instant appeal.
6. The learned counsel for the appellant submitted that the trial Court dismissed the suit
filed by the appellant on the ground that Article 120 of the Limitation Act, applies in the instant
case, but it failed to take into consideration that major portion of the property is in the names and
possession of appellants and a small portion of the disputed property has been encroached upon
by the respondents. Learned counsel further argued that the trial court while delivering the
judgment impugned failed to take into consideration the bulk of documentary evidence, and
proved legal status and entitlement of the appellants. So much so, the trial Court failed to take
into notice the previous litigation between the same parties wherein judgment was passed in
favour of predecessor of appellants. Learned counsel emphatically argued that the
judgment/decree impugned herein is result of non -reading, misreading and misappreciation of
evidence available on record. The pla intiffs/ petitioners proved their claim by producing
trustworthy, straight -forward and tangible evidence but the learned trial Court illegally,
unlawfully and without any rhyme or reason dismissed the suit. Learned counsel canvassed that
the appellants pro ved all the issues but even then the trial Court dismissed the suit filed by the
appellants.
On the other hand, learned counsel for the respondents strenuously opposed the appeal
and argued that neither there is misreading or non -reading nor misapprecia tion of evidence. The
learned counsel for the appellants could not point out any illegality or irregularity rendering the
judgment impugned herein liable to be interfered with by way of setting aside the same. Learned
counsel maintained that the plaintiffs /appellants badly failed to prove their case and there was no
other option for the trial Court but to dismiss the suit. The trial Court after proper appraisal of
evidence and taking into consideration the entire material available on record rightly dismiss ed
the suit.
We have considered the arguments advanced by both the parties' learned counsel and
perused record of the case. It may be observed that while dealing with issue No. 1, the trial Court
dismissed the suit by holding it barred by Article 120 of the Limitation Act, which provides for
filing of a suit within 6 years, whereas the instant suit has been filed after 8 to 10 years. Looking
the instant case within the perspective of Article 120, in our opinion, a slight ambiguity is there
which requires clarification. The plaintiffs/appellants besides seeking declaration have also
prayed for possession and correction of entries, so the suit for possession is required to be filed
within 12 years as contemplated by Article 142 of the Limitation Act. In a c ase like the one in
hand where besides declaration, possession has also been sought the suit should be filed within
12 years from the date of dispossession. The plaintiffs in their plaint have stated that 8 to 10
years back the respondents encroached upon the property and occupied the same. The P.Ws.
following the same line made vague statements, whereas the plaintiffs were bound to have
proved their earlier possession and subsequent dispossession within 12 years but the
plaintiffs/appellants have utterly f ailed to achieve this goal. For the sake of convenience some
portion of the statements of P.Ws. are hereby reproduced. P.W.1 states as under: --
8. It may be noted that the suit was filed in the year 1998, the plaintiffs have stated that 10
years ago the land was encroached upon whereas the statement of P.W.1 which was recorded in
the year 2001 he stated that 7/8 years ago the land was encroached upon. P.W.5 stated as under: --
-
The said P.W. in reply to q uestion No. 16 states as under: ---
9. The ocular account furnished by P.Ws. does not make out a case that the plaintiffs were
dispossessed within twelve years from the date of filing of the suit. In the plaint it has been
specifically stated that pursuan t to execution of order passed by the E.A.C. the possession was
delivered to plaintiffs. No documentary evidence was produced to substantiate this version.
Besides, the plaintiffs neither claimed that they or their ancestors have ever constructed house on
the land in question, irrigated or cultivated the same, therefore, the earlier possession of the
plaintiffs pursuant to decree could not be established.
9-A. It may further be observed that the claim of the appellants is based mainly on a decision
render ed as for back in the year 1945. This documentary evidence was disbelieved by the trial
Court for valid reasons. We have also given our anxious thought but have not been able to find
force in the document qua the creation of title in favour of the appellan ts/plaintiffs for a couple
of reasons. Firstly because the judgment does not find mention the boundaries of disputed
property. Secondly, there is no revenue entries showing or confirming the fact that the property
in question was the same which is now subj ect-matter between the parties and thirdly it has not
been established on record that following the said judgment whether possession was delivered to
plaintiffs or otherwise? Fourthly, admittedly, the respondents are in possession. Under such
circumstances , the plaintiffs were bound to have specified the date of their dispossession by
showing their earlier occupation which the plaintiffs have badly failed. Astonishingly plaintiffs
through attorney recorded an additional statement on 15th March, 2005 stating therein that they
have re -occupied the property in question meaning thereby the plaintiffs pulled -out their case
from the ambit of Article 142 of the Limitation Act. Again, the evidence available on record is
contrary and conflicting with the statement re corded by the plaintiffs. So applying Article 142 of
the Limitation Act, the suit is hopelessly barred by time. The law on the subject stands clear that
a suit/appeal/application or any proceeding brought beyond the limitation shall have to be
dismissed ir respective of the fact that the limitation has not been pleaded as defence; whereas in
this case specific objection has been raised and the material available on record justify the fact
that the suit is hopelessly barred by time even if Article 142 is held to be applied in the case of
the appellants. Reliance is placed on the judgment (titled as Hakim Muhammad Buta and another
v. Habib Ahmed and others), reported in PLD 1985 SC 153. Relevant observations therefrom is
reproduced herein below: ---
"The word s 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 impose s 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 ILR 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 "th e 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,
Remamurthy v. Gopayya ILR 40 Mad. 701, reiterated that the parties cannot estop themselves
from pleading the provisions of the statute of limitation. The Lahore High Court als o took a
similar view in Kundo Mal v. Firm Daulat Ram AIR 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 aga in by the parties waiving them
or by the Courts themselves."
Besides, the law also requires that an incompetent suit must be buried at its very
inception. By holding the view we are fortified by the judgment titled as (S.M. Shafi Ahmad
Zaidi through Leg al Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at
page 342), reported in 2002 SCMR Page -338 wherein it has been held as under: ---
"Provisional transfer order does not, ipso facto, confer absolute title over the property.
Admittedl y, this case is not governed by section 9 of the Special Relief Act. Without clear title
the suit for possession could not be filed. The Government gave the land to the Society and the
latter surrendered it back to the former. The predecessor -in-interest o f the petitioners had no
independent right. His right, if any, was through the Society, and it ceased to exist before it
became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be
buried at its inception. It is in th e interest of the litigating parties and the judicial institution itself.
The parties are saved with their time and unnecessary expenses and the Courts get more time to
devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are
based upon material available on record and no legal infirmity has been pointed out. Under the
circumstances, the plaint was rightly rejected."
10. Similarly, the findings with regard to rest of the legal objections i.e. "C & D" being legal,
valid and justified are also maintained.
11. Prior to embarking upon Issue No. 2, it is pertinent to note that the plaint does not
correspond to the mandatory prerequisite of Order VII, Rule 3, C.P.C. Admittedly, the plaint
does not contain boundaries of t he disputed property nor any survey number has been mentioned.
Though the learned trial Court has observed that the P.Ws. have mentioned the boundaries so he
ignored the non -compliance of Order VII, Rule 3, C.P.C., yet, there are substantial
contradiction s and discrepancies available in the statements of P.Ws. which cannot be ignored.
With this inherent defect, let analyze findings on issues No. 2.
12. As far as issue No.2 is concerned, the plaintiffs were have proved this issue by producing
straight fo rward, coherent and confidence -inspiring evidence. The perusal of record reflects that
the plaintiffs have failed to successfully discharge the burden of this issue and the evidence
available on record produced by the plaintiffs is quite poor, scanty, cont radictory and conflicting.
Neither the ocular nor documentary evidence is sufficient to prove the issue. As observed earlier,
the plaintiffs have not mentioned the boundaries of the disputed property in the plaint, nor the
property in question stand specif ied through revenue entries and measurement. Though the P.Ws.
have mentioned boundaries of the disputed property and despite similarity of the boundaries the
statements are irreconcilable on two counts i.e. (i) the date of occupation by respondents (ii)
measurement of the property. The former has been discussed in Para Nos.7 and 8 whereas the
latter is considered herein below: ---
P.W.1 admits that mosque and school do exist on the disputed property. P.W.2 states that
the property in question is in posses sion of plaintiff and the defendants are occupying the same.
Regarding the measurement P.W.2 states as under: ---
P.W.2 negates the statement of P.W.1 to the extent of existence of school on the disputed
property. In the same breath he states that the de fendants have occupied the property after
migration of plaintiffs.
P.W.3 qua the measurement states as under: ---
Similarly P.W.3 states that the disputed property is situated at a distance of five miles
away from the houses of plaintiffs. P.W.5 says that the defendants have occupied 3 acres of land.
The relevant portion is reproduced: ---
Attorney for the plaintiffs qua the measurement of the disputed property stated as under: -
--
Similarly regarding the distance of disputed property from the resi dents of the plaintiffs
he states: ---
13. A meaningful appreciation and deep analysis of the entire evidence available on record
leave no room for doubt that the statements of all the witnesses produced by the plaintiffs are
divergent, conflicting and co ntradictory with each other qua the measurement, period of
occupation of land by the defendants and the existence of school and mosque and the distance
between the residents of plaintiffs and the disputed property. Same is the position of the
statement of attorney for plaintiffs which too is at variance with the statement of P.Ws. The
correctness of boundaries given by the P.Ws. and that of mentioned by the plaintiffs in his court
statement become doubtful and the specification thereof stands ambiguous, vag ue and
unspecified in view of contradictory statements qua the measurement, location of the property as
well as the installations thereon. Under such circumstances we are of the considered opinion that
the trial Court was left with no other option but to d ismiss the suit which option was rightly
exercised. As far as correction of revenue entries are concerned, since the disputed property is
not settled nor at any point of time the same has ever been recorded in the name of any of the
parties, therefore, no question of mutation of property in the name of either of the parties does
arise. Since the material issues were rightly resolved against the plaintiffs, therefore, rest of the
issues i.e. Issues Nos.3 and 4 have become redundant.
In the given circumsta nces of the case, we are of the considered opinion, that there is no
misreading, non -reading or misappreciation of evidence by the trial Court. No illegality or
irregularity could be pointed out by the counsel for the appellants in the judgments impugned.
Appeal has no force which is dismissed. Decree sheet be drawn.
AG/77/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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