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Petitioner: Agha Syed MUSHTAQUE ALL SHAH VS Respondent: Mst. BIBI GUL JAN and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Gulzar Ahmed, Maqbool Baqar Title: Agha Syed MUSHTAQUE ALL SHAH vs Mst. BIBI GUL JAN and others Case No.: Civil Appeal No, 13-K of 2015 Date of Judgment:2016-03-07 Reported As: 2016 SCMR 910 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' MAQBOOL BAQAR, J.---Assailed through the instant appeal is a judgment of a learned Single Judge of the High Court of Sindh, whereby a Revision Application filed by the appellant against an order rejecting his plaint in a suit has been dismissed. 2. The afore-said suit was filed by the appellant against the respondents for a declaration that land bearing Nos. 280A, 280/B, 281, 282, 283, 288, 273, 274/A, 274/B, 275 and 295, measuring 49-27 acres, situated in Deh Gujo Tapo, Hyderabad City Taluka and District Hyderabad has been gifted to the appellant by Syed Agha Zulfiqar Ali Shah, and Mst. Bibi Shakar Bano, and that the appellant, since the day the land was so gifted, has been in cultivating possession thereof, and for a further declaration that he is the owner of the said land on the basis of the above gift. An order directing the concerned Mukhtiarkar to cancel the entry dated 11.04.1990, effected in respect of the said land in favour of respondents Nos. 1 and 2, was also sought. 3. The appellant claimed that his father, Agha Zulfiqar Ali Shah, owned 58 paisa share, being 49-27 acres, in the above land, whereas the appellant's grandmother owned 12 paisa share therein, and that through gift deed dated 10.04.1971, Agha Zulfiqar Ali Shah gifted his entire share in the above land to the appellant. The gift was accepted by the appellant and possession of the land was delivered to him. Whereas a house bearing CS No, 1230, Ward "G", Tando Agha Hyderabad was gifted by Syed Agha Zulfiqar Ali Shah to his daughter, the respondent No, 1, through another gift deed. 4. It is further alleged that both the above gift deeds were handed over by the Donor to respondent No,3, for necessary mutation in the record of rights. Though the respondent No,3 got mutation regarding the above house in favour of respondent No,1, he, however, avoided the required
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mutation in favour of the appellant, despite repeated requests, and kept the appellant on false hopes. 5. The appellant further claimed that his grandmother Mst. Bibi Shakar Bano also gifted her entire share of 12 paisa in the aforesaid land to the appellant, and mutation in respect of such land was accordingly effected. 6. It was further averred that Agha Zulfiqar Ali Shah passed away in the year 1989, and when after his chehlum the appellant requested respondent No,3 for the mutation of the land gifted by the deceased to the appellant, the said respondent informed the appellant that the gift deed has been misplaced, and told him not to worry as he (respondent No,3) shall soon locate the deed and get the necessary mutation effected. 7. It was also stated that in March 1990, respondent No, 3 informed the appellant that some notorious persons are trying to get the record pertaining to the subject land mutated in their favour on the basis of some forged and fabricated documents and, suggested that to secure the land it may be transferred in favour of all the legal heirs of the deceased, so that as and when the lost deed is found the land may then be accordingly transferred in favour of the appellant exclusively. The respondents Nos.1 and 2, agreed with the proposal, and thus on 11.4.1990 the record of the subject land was mutated in favour of the appellant and respondents Nos.1 and 2, being the legal heirs of the deceased. 8. It was further claimed that on 02.09.2009 respondent No 3 informed the appellant that he has found the lost gift deed. The appellant thus, approached respondents Nos. 1 and 2 for their consent for mutation in his favour, the said respondents however, refused to comply. 9. On 14.09.2009, the appellant approached the revenue authorities for the required mutation which issued notices to respondents Nos.1 and 2. The said respondents challenged the issuance of notices through a Constitution Petition before the learned High Court of Sindh. The learned High Court, through order dated 07.07.2010, held that the notices were issued without jurisdiction and dismissed the petition with an observation that the appellant may approach a Court of competent jurisdiction in the matter. The appellant thus, filed the above suit on 24th August 2010. 10. However, upon an application filed by respondents Nos. 1 and 2 for rejection of the plaint under Order VII, Rule 11, C.P.C., the learned Civil Judge, through order dated 10.01.2011, rejected the plaint on the ground that the suit was barred by limitation and that no cause of action has accrued to the appellant for the suit. The order was upheld by the two fora below. 11. The respondents Nos. 1 and 2 who appeared in person, in support of the impugned judgment, they relied upon the contents thereof. Whereas Mr. Aqil Awan, learned Senior ASC, who appeared for the appellant, submitted that neither was the appellant's suit barred by limitation nor was it filed without any cause of action. The learned counsel contended that the appellant, since the day the subject land was gifted to him by his father, is in possession thereof as its owner, and therefore, provisions of section 42 of Specific Relief Act, 1877 were applicable to the appellant's suit whereby the appellant sought declaration as to his rights and interest in the subject land. He further submitted that in terms of Article 120 of the Limitation Act, 1908, the suit could have been filed within six years from the date on which right to sue accrued to the appellant, which right so accrued in September 2009, when respondents Nos. 1 and 2 refused to consent to the transfer of the entire subject land in favour of the appellant to their exclusion. Mr. Awan further submitted that the mutation by way of gift in favour of the appellant could not be effected earlier as the relevant gift deed was misplaced by respondent No, 3, who was entrusted with the same by the donor, and it was under compelling circumstances, as explained above, that the mutation in favour of all the legal heirs was effected on 11.04.1990, by way of inheritance, and such was done with a clear understanding between the parties that, so soon the lost gift deed is found, the entire land shall be transferred in favour of the appellant. According to the learned counsel, the question of limitation
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being a mixed question of law and facts which could not have been lawfully determined without recording evidence. In support of his contentions Mr. Awan relied upon the under noted judgments, which shall be discussed and analyzed in the later part of this judgment: (1) Mst. Izzat v. Allah Ditta (PLD 1981 SC 165) (2) Rehman v. Yara (2004 SCM R 1502) (3) Fatima Moeen v. Additional District Judge, Sheikhupura (1992 SCM R 1199) (4) Wall v. Akbar (1995 SCM R 284) (5) Mst. Gul Nisa v. Muhammad Aril (1996 SCM R 1239) (6) Haji Abdul Sattar v. Farooq Inayat (2013 SCM R 1493) (7) Irshad Ali v. Sajjad Ali (PLD 1995 SC 629) (8) Muhammad Afzal v. Muhammad Hayat (1994 SCM R 12) 12. The story that emerges from the plaint in this case is that the appellant's father, through a gift deed dated 10.04.1971, gifted to the appellant his entire share in the land detailed hereinbefore. However, the said deed was handed over to respondent No, 3 for seeking necessary mutation accordingly. Though according to respondent No,3, there was no difficulty in his way in getting the necessary mutation affected, and has in fact got such mutation in respect of the house gifted to respondent No, 1, in favour of the said respondent, he however, avoided to do the needful and kept the appellant on false hopes through a long period of about 18 years, from April 1971 up to April 1989, when Agha Zulfiqar Ali Shah, the donor passed away. But when after the chehlum of the deceased donor the appellant requested respondent No, 3 to do the needful, he disclosed to the appellant that the gift deed has been misplaced, but told him not to worry, as so soon the lost deed is found he shall have the mutation effected. In the month of March 1990, respondent No, 3 informed the appellant that some notorious persons, on the basis of some forged and fabricated documents, are trying to seek mutation with regard to the subject land in their favour and therefore, in order to secure the land, and by way of an interim measure only, he will have the mutation effected in favour of all the legal heirs of the deceased donor by way of inheritance, and that as soon as the lost gift deed is found the entire land shall be transferred in favour of the appellant by way of gift accordingly. The respondents Nos. 1 and 2 agreed to the proposal and thus, mutation in favour of all the three legal heirs was effected in the revenue record on 11.04.1990. It was on 02.09.2009 that respondent No, 3 informed the appellant that he has found the lost gift deed. However, when the appellant requested the respondents Nos. 1 and 2 to consent to the mutation as was agreed, they refused and therefore, the appellant filed the above suit. 13. As can be seen from the prayer clause in the plaint, the main relief sought thereby was for a declaration that Syed Agha Zulfiqar Ali Shah and Mst. Bibi Shakar Bano, the father and grandmother of the appellant and the respondents Nos. 1 and 2, have gifted their entire land to the appellant, and that in pursuance of the above gifts he is in cultivating possession of the subject land, as owner thereof. Whereas order for cancellation of the existing revenue entry pertaining to the subject land and for an injunction were merely ancillary and consequential to and dependent upon the main relief. 14. The relief of cancellation of mutation and of the impugned injunction were solely dependent upon the determination of ownership by way of gift, and of the question as to whether the subject mutation was affected with an understanding and agreement between the parties that the same shall be altered in favour of the appellant exclusively, as and when the alleged gift deed is found. However, certain facts pleaded by the appellant for seeking the above relief are really intriguing. In the first place, there seems no logic and reason behind handing over the gift deed to respondent No, 3 instead of the appellant as alleged or otherwise, it is also not explained as to why and for what reason the deed was not handed over to the appellant. There is no explanation as to who prevented the donor and the appellant, the done, to, within three months of the gift, appear before
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the Revenue Official as essentially required in terms of section 42 of the Land Revenue Act 1967, so that factum of the alleged gift could have been recorded in the Roznamcha and the register of mutation under subsection (1) of the said Provision, and attested by the Revenue Officer as prescribed by subsection (7) thereof, and, as laid down by this Court in Muhammad Zaman Khan v. The Additional Chief Land Commissioner (1986 SCM R 1121), would have served as a proof of A the alleged gift. It also seems rather strange as to why respondent No, 3 kept avoiding to proceed to have the necessary mutation effected, and/or hand over the gift deed to the appellant over a long period of about eighteen years, though he has throughout this period claimed that it was in his power to have the mutation effected and never expressed any difficulty or handicap in that regard, and had in fact got the mutation with respect to the house gifted to respondent No, 1, in favour of the said respondent accordingly, and then as to why the appellant remained unmoved and failed to take any steps to ensure that either the respondent No, 3 do the needful or return the gift deed to him. He has not even claimed to have informed the donor, who was his father, about the reluctance of the respondent No, 3 in that regard. It is also not explained as to how, where, under what circumstances and when the deed was lost/misplaced. No such explanation is given in respect of its recovery also. From the order/letter dated 25.1.2010 (annexure F to the plaint), in terms whereof the District Officer Revenue, Hyderabad forwarded the appellant case for cancellation of the revenue entries/mutation dated 11.4.1990, it seems that in his application to the said District Officer for cancellation of the said entry and for transfer of the entire land exclusively in his name by way of gift, the reason given for the delay of 38 years in seeking mutation by way of gift simply was that the gift deed was lying with respondent No, 3, it was not claimed before the revenue authorities that the deed was ever lost and/or that the inheritance mutation/entry sought to be cancelled was affected as an interim measure only. Similarly in their detailed statements recorded by respondent No, 3, and by Bibi Shakar Bano, the grandmother of the appellant, in support of the appellant's claim before the Mukhtiarkar, City Hyderabad, (annexure G/1 and H/1 to the plaint) none claimed that the gift deed was either kept with the respondent No, 3, and/or that the same was ever lost. The two also did not allege that the entry dated 11.04.1990 was by way of an interim measure only and was so affected with an understanding as claimed in the plaint. The reason for transferring the subject land in favour of all the legal heirs as explained in the plaint is equally unconvincing, as in the first place it is difficult to see how such transfer would have better secured the land from being transferred to anyone through unscrupulous means. Secondly, it is not even explained as to how, when, through what means, respondent No, 3 came to know that some unscrupulous persons were trying to have the land transferred in their favour on the basis of some forged documents, and as to what was the nature of those forged documents. It is not even claimed that the appellant sought any of the above information from respondent No, 3. The story thus, on the face of it appears to be wholly absurd. 15. The mutation entry sought to be cancelled is an entry whereby the property has been transferred in favour of the legal heirs of the deceased, being the appellant and respondents Nos. 1 and 2, by way of inheritance. The same has been affected with the knowledge, rather active participation of the appellant, the transfer is unconditional. No fraud, misrepresentation, coercion and/or intimidation in relation to the recording of the said entry has been alleged. No error or mistake in the entry has been pointed out. Absolutely no document has been referred to in support of the claim that the said transfer of land in favour of respondents Nos. 1 and 2, effected twenty years before the filing of the suit, was by way of an interim arrangement only, and was so affected with an understanding and agreement with the said respondents that the same shall be cancelled, and the entire land shall be transferred exclusively in favour of the appellant so soon the lost gift deed is found. Had there been any such understanding/agreement, the appellant would have had the same recorded in writing, he could have obtained affidavits from respondents Nos. 1 and 2 to
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the above effect, or at least would have had his statement recorded before the revenue authorities to such effect, and got the same incorporated in the relevant revenue record, but none of the above was done. It hardly need any mention that nothing more can be read into, added or deleted to/from what is mentioned in a document, and more so when it is an entry in the record of rights, without their being an overriding, or a supplementary document, justifying such reading/interpretation. However, in the instant case there is not a single document/material, or circumstance in support of the contention that the mutation in question was merely a temporary device meant to be altered in favour of the appellant upon a contingency. The appellant thus having agreed to the transfer of the land by way of inheritance, without incorporating any conditionality and/or having even recorded the consent of the respondents Nos. 1 and 2 for subsequent amendment in his favour, had in fact waived his purported right under the purported gift deed. 16. From the foregoing it is palpably evident that there was/is absolutely no basis and/or justification for seeking cancellation of the revenue entry as was sought by the appellant. Merely the alleged refusal of respondents Nos. 1 and 2 to accede to the appellant's request for consenting to the transfer of the entire land in his favour did not provide any cause of action to the appellant for the above suit, as neither the said respondents were under law obliged to accede to such request, nor their denial to oblige could be deemed to be a denial/infringement of any legal or contractual right to the appellant, to entitle him to the relief sought. 17. The suit was also rightly found to be patently barred by limitation. The declaration sought was with regard to a purported gift, allegedly made on 10.4.1971. The suit, in terms of Article 120 of the Limitation Act, under which Article a suit for a declaration of the nature sought, falls, ought to have been filed within six years of the said gift deed, but was filed on 24.08.2010, after a lapse of more than, thirty eight years. Whereas the mutation sought to be cancelled has been effected on 11.04.1990, twenty years prior to the filing of the suit, although limitation for such relief also was/is six years from the date of the cause of action. 18. The principle of law, enunciated by this Court, that the date of accrual of the cause of action for a suit for a declaration and injunction in respect of an immoveable property, is not necessarily relatable to the date of the offending deed and/or the adverse entry, (as will be seen from the analysis of the judgments relied upon by Mr. Aqil Awan to press the above principle, contained in paragraph 20 herein), is not of universal application, and can be pressed into service only in such cases where the plaintiff remains in possession of the property as its owner, and the document, (either it be a sale deed or a gift deed, or an adverse entry in the record of rights), on the basis whereof the defendant is threatening, and seeking to dispossess the plaintiff from the property, is ineffective on the rights of the plaintiff, and does not bind him in relation to the subject property, for such document being void ab initio, and thus a nullity, either for want of consideration, or on account of fraud and/or for lack of free, conscious and informed consent, and/or on account of the fact that the plaintiff was a minor, when the purported document, infringing his rights, was allegedly, prepared, or the adverse mutation effected. And thus when the plaintiff's main grievance is that his possession is being threatened by the defendants, and the essential claim be that he be accepted in possession, and the effective relief prayed for is an injunction restraining the defendants from dispossessing him, and such relief is neither under or dependent on the deed/instrument, or the entry in question, and the declaration sought in relation thereto is merely of an ancillary nature, the plaintiff may seek protection of the Court whenever threat to his possession occurs, and the time in such circumstances, shall be computed from the date the possession is threatened. The plaintiff may in such a case seek protection of his right to continue to possess the property so long his such right is subsisting, as there is no compulsion to approach the Court with regard to the instrument which is void ab initio and a nullity.
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19. Certainly where the plaintiff is not bound by the document or if he is not claiming under, or on the basis thereof, the date of accrual of his right to sue shall not be relatable to the date of the document, or to J the date when the existence and/or the nature of the document came to the knowledge of the plaintiff. 20. To fully comprehend the above principle it would be beneficial to analyze the judgments referred by Mr. Aqil Awan on the point of limitation. Thus: (i) In Mst. Izzat v. Allah Ditta (PLD 1981 SC 165) the appellant/plaintiff, on 09.06.1969, filed a suit against her husband the respondent/defendant, for a declaration that she was owner in possession of the suit land, that the registered sale deed dated 11.02.1958, purported to be by the appellant in favour of the respondent, was void and unlawful on account of fraud and lack of consideration, and thus was without any effect on her rights, and the mutation dated 19.05.1969, sanctioned on the basis of the said registered deed was illegal. Her case was that the respondent defrauded her into execution of the sale deed by misrepresenting to her that it was a special power of attorney. The respondent contradicted these allegations and also raised a plea of bar of limitation. The learned Trial Court held that the appellant continued to be in possession of the land. It was also held that notwithstanding the respondent's plea that limitation was governed under Article 120 of Limitation Act and would commence from the date of registration of the sale deed (11.05.1958), the suit was within time, because the time would run against the plaintiff from 19.05.1969 when the defendant got sanctioned a mutation with the object of denial of possession and ownership to the plaintiff. On merits the learned Judge found it a case of clear fraud by a husband with his wife for which there was ample evidence. Accordingly, the decree was passed declaring the deed as void, and granting all the reliefs claimed by the plaintiff. The matter was ultimately brought before this Court. Leave to appeal was granted to consider that "the foundation of the petitioner's suit was fraud, and since fraud vitiates the most solemn transaction the petitioner was entitled to ignore the sale deed altogether, and rest contents with her title in the land particularly when she had remained in possession of the land throughout, notwithstanding the purported execution of the sale deed in favour of the respondent". ' It was observed that the plaint very clearly highlights the main grievance namely that the possession of the appellant was being threatened by the respondents and she wanted to protect it. So her essential claim was that she was to be accepted in possession, her main grievance was the unlawful design of the respondents, and the effective relief prayed for was permanent injunction and restraint against this design. In connection with all this she sought ancillary declaration that she was the real owner and that being so the mutation dated 19.05.1969, and the deed dated 11.02.1958 on which the mutation was based, were void and ineffective on account of fraud. Relying upon the case of Hamida Begum v. Murad Begum (PLD 1975 SC 624) it was held that there was however, no such compulsion to approach the Court with regard instruments which are void ab initio and thus nullity. In the light of this basic rule, it was further held that Article 91 would not be attracted if the substantial relief claimed by the plaint is not the cancellation of the instrument. And it is merely ancillary to some other substantial claim, for example, recovery of possession, or a declaration that the instrument is ineffective as against the plaintiffs right as "the principle is that if the plaintiff is not bound by the document, or if he is not claiming under the same, and the substantial relief prayed for by him is not the cancellation or setting aside of the instrument, then the suit is not governed by Article 91". It was found that the defendant had made her believe that she was executing a power of attorney, but in reality, on account of fraud practiced on her she had signed a sale deed and that the relief with respect to the registered deed, that it may be declared void, was only ancillary and that if the deed, as a matter of fact never affected her rights, the need for its being set aside would never arise. Thus, the date of the accrual of the cause of action would not be necessarily relatable to the date of the registered deed, or the
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knowledge of the plaintiff with regard to the fact that she has been defrauded. It was held that the cause of action in this behalf, in the case, accrued to the plaintiff- appellant, firstly on account of the effort made by the defendant to disturb the then existing status quo through the sanction of the mutation. The mutation was sanctioned on 19.05.1969. Therefore, this would be one relevant date of accrual of the cause of action and thereafter on every date when the respondent continued making claim against the plaintiffs right to possess the suit land, this Court thus set aside the impugned judgment,…
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