اس کیس کا منفرد نقطہ یہ تھا کہ:
**سپریم کورٹ نے "bonafide purchaser" کے تصور کو نئے انداز میں وضاحت کی، خاص طور پر ایسے معاملات میں جہاں ٹائم بارڈ (ختم شدہ مدت) اور پتہ چلنے کی تاریخ کا معاملہ شامل ہو۔**
عدالت نے واضح کیا کہ اگر کوئی خریدار جائیداد کی خریداری کرتے وقت اس کی قانونی حیثیت کے بارے میں کوئی علم نہیں رکھتا اور اس نے بددیانتی کا مظاہرہ نہیں کیا، تو اس کو قانونی تحفظ فراہم کیا جا سکتا ہے۔ اس فیصلے میں سپریم کورٹ نے ٹائم بارڈ کی تشریح کرتے ہوئے کہا کہ دعویٰ کے دائر ہونے کے وقت کی حدود کو مدنظر رکھتے ہوئے "bonafide purchaser" کو تحفظ دیا جائے گا، خاص طور پر اگر خریداری کے بعد کافی وقت گزر چکا ہو۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Ijaz ul Ahsan
Mr. Justice Yahya Afridi
Mr. Justice Jamal Khan Mandokhail
Civil Appeal No. 849 of 2015
(Against the
judgment
dated
20.05.2015 of the Lahore High
Court, Rawalpindi Bench, passed in
Civil Revision No. 232 of 2007)
Salamat Ali and others
…Appellant(s)
Versus
Muhammad Din and others
…Respondent(s)
For the Appellants:
Mr. Muhammad Munir Paracha, ASC
For Respondents No. 1-4:
Sh. Zamir Hussain, ASC
Syed Rifaqat Hussain Shah, AOR
For Respondents No. 5-21:
Ex-parte.
Date of Hearing:
20.01.2022
JUDGMENT
Yahya Afridi, J.- This appeal challenges the judgment dated
20.05.2015 passed by the Lahore High Court in its revisional jurisdiction
under Section 115 of the Code of Civil Procedure, 1908 (“CPC”), whereby
the concurrent judgments of the trial and appellate courts have been set
aside and the suit of the appellants has been dismissed.
2.
The matter in hand relates to the estate of one Nasir-ud-Din,
who passed away in the year 1959, and his estate comprising land
measuring 22-Kanals situated in village Jalalpur Sharif, Pind Dadan
Khan (“suit land”) devolved upon his nephew, Karam Elahi, as his sole
legal heir vide inheritance mutations No. 1433 and 1435, both dated
Civil Appeal No. 849 of 2015
2
14.10.1959 (“inheritance mutations”). Karam Elahi sold the suit land, as
well as the land that he jointly owned with his deceased paternal uncle
having inherited the same from his father, Shams-ud-Din brother of
Nasir-ud-Din, to several persons vide different sale deeds and mutations
(“further alienations”), and those persons further sold it to, or made
exchange with, other persons.
3.
Salamat Ali and his siblings, children of Lal Din, and their
three paternal aunts and two daughters of the fourth paternal aunt
(“appellants”) challenged the said inheritance mutations and further
alienations, by filing a civil suit in the year 1982. Salamat Ali and his
siblings asserted that their father, Lal Din, was the predeceased son of
Nasir-ud-Din, while their paternal aunts and cousins asserted that they
were the daughters and granddaughters of Nasir-ud-Din, respectively.
The appellants claimed that they had been deprived of their legal share
in the legacy of their predecessor-in-interest, Nasir-ud-Din, by Karam
Elahi fraudulently vide the inheritance mutations and further
alienations, and prayed for declaring those mutations and alienations
void and ineffective against their rights.
4.
Karam Elahi, the beneficiary of the inheritance mutations,
did not appear before the trial court and was thus proceeded ex-parte;
while the further transferees including Khushi Muhammad, the father of
Muhammad Din and three others, respondents No. 1 to 4 (“respondents”)
contested the suit of the appellants, denying the status of the appellants
as legal heirs of Nasir-ud-Din, and claimed themselves to be the bona
fide purchasers of the suit land, besides raising objection to the
maintainability of the suit on the ground of limitation.
Civil Appeal No. 849 of 2015
3
5.
The trial court decreed the suit of the appellants. The
appellate court accepted the appeal of the respondents, set aside the
judgment of the trial court and dismissed the suit. The High Court
(“revisional court”), on revision petition of the appellants, set aside the
judgment of the appellate court, and remanded the appeal to the
appellate court, for afresh decision. On remand, the appellate court
dismissed the appeal and maintained the judgment of the trial court.
6.
On a revision petition filed by the respondents, the revisional
court set aside the concurrent judgments of the trial and appellate courts
that had been rendered in favour of the appellants, and dismissed the
suit of the appellants on the grounds that the appellants had failed to
prove their assertion that they were legal heirs of Nasir-ud-Din and that
the suit filed by them challenging the inheritance mutations of the year
1959 in the year 1982, was time barred. Hence, the present appeal by
the appellants.
7.
The learned counsel for the appellant vehemently contended:
that when there was positive evidence of witnesses who had “special
knowledge” about the relationship between the parties as per Article 64
of the Qanun-e-Shahadat 1984, there was no reason to disbelieve them,
especially when the respondents’ witnesses did not specifically negate
their statements; that the preponderance of probability was in favour of
the assertion of the appellants and that there was no “misreading of
evidence” leading to an “illegality or material irregularity” within the
scope of Section 115 of the CPC, justifying interference by the revisional
court in the judgments of the trial and appellate courts.
Civil Appeal No. 849 of 2015
4
8.
The learned counsel for the respondents contended in
rebuttal; that the appellants had produced no cogent, reliable evidence in
support of their assertion; that the oral testimony of some of the
appellants would not legally suffice to substantiate their assertion; that
no documentary evidence, such as the appellants’ birth certificates,
National Identity Cards and marriage certificates, was produced; and
that the revisional court had the jurisdiction to correct the material
irregularities in the judgments of the trial and appellate courts, which
the revisional court has legally and correctly exercised.
9.
Valuable arguments of the learned counsel for the parties
have been heard, and with their able assistance, record of the case was
examined.
10.
As the present case revolves around the legacy of Nasir-udDin and the claim made by the appellants is based on their asserted
relationship with Nasir-ud-Din, it would be appropriate to commence our
discussion with the same. The appellants have asserted that Nasir-udDin had four daughters, namely, Baigmaan, Fatima, Rasoolaan and
Ayesha, and one son, namely, Lal Din, who pre-deceased Nasir-ud-Din in
the year 1956, and he was survived by one daughter, Barkatay, and four
sons, Salamat Ali, Muhammad Ramzan, Barkat Ali and Niamat Ali. On
the other hand, the respondents claim Nasir-ud-Din to have died
issueless, and his nephew, Karam Elahi son of Shamas-ud-Din, the
brother of Nasir-ud-Din, had thus validly inherited the estate of Nasirud-Din, as his sole legal heir.
11.
The parties produced their evidence in support of their
respective assertions, and on appraising the same, the trial and appellate
courts concurrently found that the appellants had proved their assertion
Civil Appeal No. 849 of 2015
5
of being legal heirs of Nasir-ud-Din, while the revisional court, on
reappraising the same evidence, has come to a contrary finding. It would,
thus, be appropriate to first state on what standard of proof, the courts
were to appraise the evidence produced by the parties, and render its
finding thereon.
Evidential standards of proof applicable in civil cases
12.
As to proof of a fact, clause (4) of Article 2 of the Qanun-eShahadat, 1984 provides:
“(4) A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or considers its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition
that it exists.”
The conceptual analysis of this clause shows that in order to prove a fact
asserted by a party, it does not require a perfect proof of facts, as it is
very rare to have an absolute certainty on facts. This provision sets the
standard of a ‘prudent man’ for determining the probative effect of
evidence under the ‘circumstances of the particular case’. The judicial
consensus that has evolved over time is that the standard of
‘preponderance of probability’ is applicable in civil cases,1 the standard of
‘proof beyond reasonable doubt’ in criminal cases,2 and the in-between
standard of ‘clear and convincing proof’ in civil cases involving
allegations of a criminal nature.3 All these three standards are, in fact,
three different degrees of probability, which cannot be expressed in
mathematical terms, and are to be evaluated ‘under the circumstances of
the particular case’, as provided in clause (4) of Article 2 of the Qanun-eShahadat, 1984
Civil Appeal No. 849 of 2015
6
13.
In the present case, the evidence produced by the parties on
the disputed fact of the appellants’ relationship with Nasir-ud-Din, is to
be examined on the touchstone of the evidential standard of
“preponderance of probability”.
Evidence produced by the parties in support of their respective assertions
14.
We note that appellants, Fatima Bibi (PW2) and Salamat Ali
(PW4), the co-plaintiffs in the suit, appeared in the witness-box and
testified in support of their assertion of being legal heirs of Nasir-ud-Din.
The appellants examined Allah Ditta (PW-1), the grandson (daughter’s
son) of Qutab Din father of Nasir-ud-Din, and Bashir Ahmad (PW-3), a
resident of the locality where Nasir-ud-Din died. They both testified that
Nasir-ud-Din had four daughters and one son, Lal Din, and Lal Din had
four sons and one daughter. All the witnesses produced by the plaintiffs
stood firm to the test of cross-examination, and their testimony of the
deposed fact could not be shaken. The appellants also produced
documentary evidence, such as the birth certificate of Lal Din (Ex-P1) and
his death certificate (Ex-P2), wherein he has been recorded as son of
Nasir-ud-Din, to prove their assertion. The quantum of evidence
produced by the appellants was sufficient to create a high degree of
probability of the relationship of the appellants with Nasir-ud-din to
exist. Accordingly,
the
evidential burden
shifted
to
the
respondents/defendants
to rebut
the facts
asserted by the
appellants/plaintiff.
15.
In rebuttal, the respondents/defendants produced Khuda
Bakhsh (DW2) and Muhammad Din (DW3), who did not deny the asserted
relationship of the appellants with Nasir-ud-Din, rather only expressed
their ignorance about Nasir-ud-Din having four daughters and one son,
Civil Appeal No. 849 of 2015
7
Lal Din, and Lal Din having four sons and one daughter. Karam Elahi,
the beneficiary of the inheritance mutations, as aforementioned did not
appear to contest the suit and dispute the asserted relationship of the
appellants with Nasir-ud-Din, nor did the respondents call him as a
witness, to rebut the assertion of the appellants.
16.
In view of the above evidence produced by the parties, we
find that the appellants/plaintiffs proved their assertion with high degree
of probability and the preponderance of probability was clear and evident
in favour of their stance regarding their relationship with Nasir-ud-din,
while the respondents/defendants failed to rebut the same through any
cogent evidence.
Jurisdiction of revisional court – interference of the concurrent findings of fact
17.
The trial and appellate courts had rightly found the
preponderance of probability in favour of the appellants in accepting
their assertion of their relationship with Nasir-ud-din, whereas the
revisional court appears to have exceeded its jurisdiction by setting aside
their findings. We note that the concurrent findings on the crucial issue
of relationship recorded by the two courts was set aside by re-appraising
the evidence, without pointing out, what material evidence was misread
or non-read by the courts below or how their appraisal of evidence was
perverse or absurd. Needless to mention that a revisional court cannot
upset a finding of fact of the court(s) below unless that finding is the
result of misreading, non-reading, or perverse or absurd appraisal of
some material evidence. The revisional court cannot substitute the
finding of the court(s) below with its own merely for the reason that it
finds its own finding more plausible than that of the court(s) below.
Hence, the positive concurrent finding in favour of the appellants
Civil Appeal No. 849 of 2015
8
regarding their asserted relationship with Nasir-ud-din would legally
stand.
Application of limitation to inheritance cases
18.
So far as the finding of the revisional court on the issue of
limitation is concerned, we find the same is in accord with the law
declared by this Court in Mst. Gharana v. Sahib Kamal Bibi4 and Atta
Muhammad v. Maula Bakhsh5, as well as in the recent case of Ghulam Qasim
v. Mst. Razia Begum6 wherein after referring to some of the leading
judgments
on the issue,
this Court opined
that
the
law
of limitation would be relevant in inheritance cases, where third party
interest has been created in the property, as is in the present case.
19.
In the present case, the trial court found the suit to be
within time by holding that limitation would run from the date the
appellants got knowledge about the fraudulent transaction. The appellate
court upheld the finding of the trial court observing that no limitation
runs against a fraudulent act. The revisional court set aside the findings
of the trial and appellate courts with the observation that the appellants
had failed to disclose the date of their knowledge, therefore, the suit
instituted by them in the year 1982 questioning the validity of
inheritance mutations of 1959 was hopelessly time-barred.
20.
We find that all the three courts have failed to notice the
exception provided in section 18 of the Limitation Act 1908 (“Limitation
Act”), according to which the benefit of postponing the commencement of
the period of limitation provided to an injuriously affected person is not
applicable against a bona fide purchaser. The section reads:
4
PLD 2014 SC 167.
5
2007 SCMR 1446.
6
PLD 2021 SC 812.
Civil Appeal No. 849 of 2015
9
18. Effect of fraud. Where any person having a right to institute a suit
or make an application has, by means of fraud, been kept from the
knowledge of such right or of the title on which it is founded, or where
any document necessary to establish such right has been fraudulently
concealed from him, the time limited for instituting a suit or making an
application---
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming through him otherwise than in
good faith and for a valuable consideration,
shall be computed from the time when the fraud first became known to
the person injuriously affected thereby, or, in the case of the concealed
document, when he first had the means of producing it or compelling its
production.
(Emphasis added)
Before we consider and explain the exception provided in the above
provision, it would be pertinent to understand the true purport of the
general rule encompassed in the section. In essence, this provision is a
safeguard against fraud committed to conceal from a person his right to
sue. It postpones the commencement of the period of limitation to the
date when the fraud first became known to the “person injuriously
affected”. Such injuriously affected person can, therefore, institute a suit
within the limitation period specified for such suit in the First Schedule
(“Schedule”) to the Limitation Act, but computing it from the date when he
first had knowledge of the fraud, whereby he was kept from knowledge of
his right to institute the suit.
21.
We, however, must appreciate that the “fraud” envisaged in
this provision of the law only relates to concealing, not creating, the right
to sue and thus, affects only the limitation period and has nothing to do
with the cause of action and the relief prayed.7 It is also needless to
mention that, a plaintiff who wants to avail the benefit of section 18 of
the Limitation Act, must assert the commission of such fraud by the
defendant in the plaint, and should also give the particulars thereof, and
the date of knowledge as required under Rule 4 of Order VI of the CPC,
and then prove the same through positive evidence.8
7 In Re: Marappa Goundar AIR 1959 Mad 26; Yeswant Deorao v. Walchand Ramchand AIR 1951 SC 16.
8 Naeem Finance Ltd v. Bashir Ahmad PLD 1971 SC 8; Izzat Bakhsh v. Nazir Ahmad 1976 SCMR 508; Faizum v. Nander Khan
2006 SCMR 1931; Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504.
Civil Appeal No. 849 of 2015
10
22.
The umbrella concession qua the commencement of period of
limitation, under section 18 of the Limitation Act, has an express
exception, that is, when the disputed property is purchased by a third
person in good faith and for valuable consideration (bone fide purchaser),
the benefit of section 18 to the owner would then not be available against
such third person.
23.
In the present case, Ghulam Hussain and Abdul Aziz sons of
Ahmad Din, the predecessors of respondents No.8 to 18, had purchased
and taken over possession of the major part of the suit land from Karam
Elahi, vide sale deed dated 12.05.1960 (Ex-D1). The record of the case is
silent on which dates, Karam Elahi, sold the remaining part of the suit
land to other respondents, as the appellants have not mentioned the
mutation numbers, in their plaint as well as in their evidence, whereby
the remaining part of the suit land was sold by Karam Elahi,. What is
important is that, the appellants have neither asserted in their plaint,
nor have discharged their initial legal burden to prove the same by
making statement on oath to that effect while appearing in the witness
box, that the respondents (further transferees) had not purchased the
suit land in good faith and for a valuable consideration or that they were
accessory to the fraud committed by Karam Elahi. Most importantly,
their possession over the suit land has not been disputed by the
appellants. For these reasons, the benefit of section 18 of the Limitation
Act is not available to the appellants against the respondents, and the
limitation period for the suit instituted by the appellants was to be
adjudged as per the regular limitation period provided in the applicable
Article of the Schedule to the Limitation Act.
Civil Appeal No. 849 of 2015
11
24.
The suit instituted by the appellants was for declaration of
their proprietary rights in the suit land, which is covered by the
provisions of Article 120 of the Schedule to the Limitation Act - the
residuary provision that caters for cases not expressly provided under
the Limitation Act. This Article prescribes six years period of limitation
for instituting the suit to be computed from the time when the right to
sue accrues. It reads:
Description of suit.
Period of
limitation.
Time from which
period begins to run.
120. Suit for which no period
of limitation
is provided
elsewhere in this schedule.
Six years.
When the right to
sue accrues.
The above provision only provides that the period of six years is to
commence, when the right to sue accrues. However, it does not state
when such right accrues.
25.
A suit for declaration of any right as to any property is filed
under section 42 of the Specific Relief Act 1877 (“Specific Relief Act”).
Therefore, to ascertain when the right to sue accrues to a legal heir to
seek a declaration of his ownership right over the property inherited by
him and of his such right not to be affected by the further transfer of
such property, we need to consider section 42 of the Specific Relief Act,
which reads:
42. Discretion of Court as to declaration of status or right-- Any
person entitled to any legal character, or to any right as to any property,
may institute a suit against any person denying, or interested to deny,
his title to such character or right, and the Court may in its discretion
make therein a declaration that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title,
omits to do so.
(Emphasis added)
It becomes evident by reading the above provisions that the right to sue
accrues to a person against the other for declaration of his right, as to
Civil Appeal No. 849 of 2015
12
any property, when the latter denies or is interested to deny his such
right. It thus postulates two actions that cause the accrual of right to
sue, to an aggrieved person: (i) actual denial of his right or (ii)
apprehended or threatened denial of his right.
26.
What “actions” can be termed as an “actual denial of right”,
and what a mere “apprehended or threatened denial of right”, in the
context of adverse entries recorded in the revenue record, is a question
that requires consideration. Admittedly, entries in the revenue record do
not create or extinguish proprietary rights. Such an entry may at most be
termed as a mere “apprehended or threatened denial” of right, and not
an “actual denial” of right. Accordingly, every new adverse entry in the
revenue record relating to proprietary rights of a person in possession
(actual or constructive) of the land regarding which the wrong entry is
made, gives to such person, a fresh cause of action to institute the suit
for declaration. The situation is, however, different in a case where the
person in possession (actual or constructive) of the land regarding which
the wrong entry is made, is ousted from such possession, besides a
wrong entry in the revenue record. In such a case, the act of ousting him
from the actual or constructive possession of the land, constitutes an
“actual denial” of his rights, and does not remain a mere “apprehended
or threatened denial”. Therefore, in such a case, if the person injuriously
affected by such an act of “actual denial” of his rights does not challenge
the same within the prescribed limitation period, despite having
knowledge thereof, then his right to do so becomes barred by law of
limitation.
27.
In an inheritance case, like the present one, a wrong
mutation in the revenue record, as to inheritance rights does not affect
Civil Appeal No. 849 of 2015
13
the proprietary rights of a legal heir in the property, as the devolution of
the ownership of the property on legal heirs takes place under the
Islamic law, through inheritance immediately, without any formality
including sanction of inheritance mutation. Therefore, a wrong mutation
is a mere “apprehended or threatened denial” of right, not necessitating
for the person aggrieved thereby to institute the suit. The position is,
however, different when the co-sharer in possession of the joint property,
on the basis of a wrong inheritance mutation, sells the joint property, or
any part thereof exceeding his share, claiming him to be the exclusive
owner thereof and transfers possession of the sold land to a third person,
the purchaser. In such a circumstance, the co-sharer by his said act
“actually denies” the rights of the other co-sharer, who is only in
constructive possession of the same, and ousts him from such
constructive possession also by transferring the possession of the sold
land to a third person, the purchaser. In such circumstances, the right
to sue accrues to the aggrieved co-sharer from the date of such sale, and
transfer of actual possession of the sold land to the third person, the
purchaser.
28.
Therefore, in the present case, the right to sue accrued to the
appellants on 12.05.1960 when Karam Elahi, their co-sharer, claiming
him to be the exclusive owner, sold and transferred possession of the
major part of the suit land exceeding his share therein, which he had
inherited from his own father, Shams-ud-Din brother of Nasir-ud-Din,
vide sale deed dated 12.05.1960 (Ex-D1), to Ghulam Hussain and Abdul
Aziz sons of Ahmad Din, the predecessors of respondents No.8 to 18. The
limitation period of six years provided in Article 120 of the Limitation Act
was, therefore, to be counted for the suit of the appellants from the said
date, i.e., 12.05.1960, when the benefit of section 18 of the Limitation
Civil Appeal No. 849 of 2015
14
Act was not available to them, as discussed above. The suit instituted by
the appellants on 15.04.1982 was thus hopelessly time barred, as
correctly held by the revisional court.
29.
The issue of limitation is one of law, or at-least mixed one of
law and facts; therefore, the re-examination of findings of the court(s)
below on this issue by the revisional court falls within the scope of the
revisional jurisdiction. The trial and appellate courts had acted in the
exercise of their jurisdiction illegally by wrongly deciding the issue of
limitation, and the revisional court has rightly interfered with, and
overturned their findings on this issue.
30.
For the above reasons, we find that the decision of the
revisional court, non-suiting the appellants on the ground of limitation,
is legally correct and made well within the scope of the revisional
jurisdiction. This appeal, therefore, fails and is dismissed, accordingly.
Judge
Judge
Judge
Islamabad,
20th January, 2022
Approved for reporting.
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