Hiba|not me but my father was also had not knowledge of fraud hiba.

یہاں پر مختصراً دعویٰ، جواب، اور فیصلہ کی تفصیلات دی گئی ہیں:

1. **دعویٰ**:

- مدعی (محمد جانان) نے 12 جنوری 2009 کو ایک مقدمہ دائر کیا، جس میں انہوں نے دعویٰ کیا کہ وہ اپنے والد، معواز خان کی جائیداد کا قانونی وارث ہے اور تحفے کی تبدیلی (پراپرٹی نمبر 1) اور فروخت کی تبدیلی (پراپرٹی نمبر 2) کو فراڈ کے نتیجے میں نامعتبر قرار دینے کا مطالبہ کیا۔ انہوں نے بتایا کہ انہیں ان تبدیلیوں کی معلومات مقدمہ دائر کرنے سے کچھ دن پہلے ہی ملی تھیں۔

2. **جواب**:

- مدعا علیہ (مست ربیعہ گلا اور اس کی پوتیاں) نے اس دعویٰ کا جواب دیا اور تحفے کی تبدیلی کے درست ہونے کا دفاع کیا۔ انہوں نے کہا کہ تحفے کی تبدیلی قانون کے مطابق تھی اور ان کا دعویٰ وقت گزر جانے کی وجہ سے ناقابل قبول ہے۔

- فروخت کی تبدیلی کے سلسلے میں، مست خدیجہ بیگم (مدعا علیہ) نے کہا کہ فروخت مکمل طور پر قانونی تھی اور اس کے لئے مناسب ثبوت فراہم کیے۔

3. **فیصلہ**:

- **پہلا حصہ**: سپریم کورٹ نے تحفے کی تبدیلی (پراپرٹی نمبر 1) کے چیلنج کو محدود مدت کے گزر جانے کی بنیاد پر مسترد کر دیا۔ عدالت نے قرار دیا کہ مدعی نے اپنی زندگی میں والد (معواز خان) کے ذریعہ تحفے کی تبدیلی کو چیلنج کرنے کا حق کھو دیا تھا، لہٰذا مدعی کا دعویٰ مدت گزر جانے کی بنیاد پر مسترد کر دیا گیا۔

- **دوسرا حصہ**: فروخت کی تبدیلی (پراپرٹی نمبر 2) کے معاملے میں، سپریم کورٹ نے ہائی کورٹ کے فیصلے کو برقرار رکھا اور مست خدیجہ بیگم کو اس بات کا ثبوت فراہم نہ کرنے پر غیر مؤثر قرار دیا۔

یہ فیصلہ قانونی مدت کی پابندی اور ثبوت فراہم کرنے کی اہمیت پر زور دیتا ہے۔

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Mr. Justice Qazi Faez Isa

Mr. Justice Yahya Afridi

Civil Appeal No. 139-P of 2013

(Against the judgment dated

17.05.2013 of the Peshawar High

Court, Peshawar in Civil Revision No.

68 of 2012)

Mst. Rabia Gula, etc.

…Appellant(s)

Versus

Muhammad Janan, etc.

…Respondent(s)

For the Appellants:

Mr. Amin Khattak Lachi, ASC

For the Respondents:

Nemo.

Date of Hearing:

26.01.2022

Judgment

Yahya Afridi, J.- This appeal challenges the judgment dated

17.05.2013 passed by the Peshawar High Court, whereby the concurrent

judgments of the trial and appellate courts have been set aside, and the

suit of the respondent has been decreed.

The present case relates to the contested claims of the

parties over part of the estate of Mawaz Khan, relating to his two

properties, the particulars whereof are: 98-Kanals of land in Mauza

Chorlaki, Tehsil & District Kohat (“Suit Property No.1”), which was

purportedly gifted by him to his daughter-in-law, namely, Mst. Rabia Gul

and four granddaughters, namely, Mst. Khan Khela, Mst.Khurseed

Begum, Mst. Badshah Zareena and Mst. Bibi Ghufran (“appellants”), vide

mutation No. 167 dated 29.04.1977 (“gift mutation”); and 36-Kanals of

Civil Appeal No. 139-P of 2013

land in Mauza Chorlaki, Tehsil & District Kohat (“Suit Property No. 2”),

which was inherited, by his son, Muhmmad Janan (“respondent”), and

then purportedly sold, by him to his daughter, namely, Mst. Khursheed

Begum (appellant No.3) vide mutation No. 1224 dated 24.02.2004 (“sale

mutation”).

As for clarity of relationship of the parties, the admitted

position is that: Mawaz Khan, the original owner of the Suit Properties,

passed away in the year 2000; the respondent being Mawaz Khan’s son,

was entitled to inherit his share in the estate of Mawaz Khan; the

respondent, had two wives: the first was Mst. Rabia Gula (appellant No.1),

and from this wedlock, he had four daughters, namely, Mst. Khan Khela,

Mst.Khurseed Begum, Mst.Badshah Zareena and Mst.Bibi Ghufran

(appellants No.2 to 5); while from his second wife, he had one son,

Muhammad Ibrar, and one daughter, Mst. Amir Khela.

The respondent instituted a suit, on 12.01.2009, seeking

declaration of his ownership of the Suit Properties No.1 and 2, based on

his claim to have inherited the same from his father, Mawaz Khan, and

challenged the gift mutation and the sale mutation, asserting the same to

be the result of fraud, and claiming that he came to know about them

some days before the institution of the suit.

The suit was dismissed by the trial court vide judgment

dated 13.07.2011, which was maintained by the appellate court vide

judgment dated 04.10.2011. However, the High Court, while exercising

its revisional jurisdiction, set aside the concurrent judgments of the two

courts and decreed the suit of the respondent vide the judgment dated

17.05.2013 (“impugned judgment”). Hence, the present appeal.

Civil Appeal No. 139-P of 2013

It would be pertinent to note that the respondent, passed

away during pendency of this appeal, and his son and daughter from his

second wife, namely, Muhammad Ibrar and Mst. Amir Khela, were

impleaded, as respondents in the appeal. Today, despite service of notice

of fixation of this appeal for hearing, no one has appeared before us on

behalf of Muhammad Ibrar and Mst. Amir Khela, hence, they are

proceeded ex-parte.

We have heard the learned counsel for the appellants in

detail, and carefully perused the record of the case.

Challenge made to gift mutation - Suit Property No.1

So far as the challenge made by the respondent to the gift

mutation, which was statedly made by his father, Mawaz Khan, in favour

of the respondent’s wife, Mst. Rabia Gula (appellant No.1), and his four

daughters, namely, Mst. Khan Khela, Khurseed Begum, Badshah

Zareena and Bibi Ghufran (appellants No.2 to 5), we note that the same has

not been correctly appreciated by the High Court in the impugned

judgment for reasons discussed hereinunder.

Bar of limitation

8.1

First and foremost, the bar of limitation applies to the

challenge made by the respondent to the gift mutation of 1977 after a

period of 32 years, as concurrently held by the trial and appellate courts.

The said findings of the two courts have not been addressed by the

Revisional Court in the impugned judgment.

8.2

The respondent was claiming his right over the Suit Property

No.1 based on his inheritance from the estate of his father, and

challenged the gift mutation, essentially on the ground that the same

Civil Appeal No. 139-P of 2013

was the result of fraud, and asserted that he gained knowledge thereof

some days before the institution of the suit. However, neither in the

plaint nor in the evidence, did the respondent assert that his father, the

purported donor, who remained alive for about 23 years after sanction of

the gift mutation, was not aware of the gift mutation and thus could not

challenge the same during his lifetime. This omission on the part of the

respondent, to our mind, was crucial and in fact, defeats the very legal

basis upon which he could have saved his claim from the bar of

limitation.

8.3

Section 18 of the Limitation Act, 1908 (“Limitation Act”) is the

most pivotal provision providing relief in computing the limitation period,

applicable to a person who claims to be deprived of the knowledge of his

right to sue based on the fraud of the other party. That section is

reproduced for ease of reference:

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.

In essence, this provision postpones the commencement of the limitation

period in cases where a person is by means of fraud kept from the

knowledge of his right to institute a suit. In such circumstances, the

period of limitation commences from 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

Civil Appeal No. 139-P of 2013

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. Thus, section 18 of Limitation Act is an umbrella

provision that makes the limitation period mentioned in the Articles of

the Schedule, begin to run from the time different from that specified

therein.1

8.4

It is but fundamental to appreciate that the “fraud” stated in

section 18 of the Limitation Act must not be confused with the fraud that

constitutes cause of action, and creates a right to institute the suit for

the relief prayed therein. The “fraud” envisaged in section 18 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.2

8.5

It would, thus, be safe to hold that, when despite obtaining

knowledge of such fraud and his right to sue, as mentioned in section

18, the injuriously affected person does not institute the suit within the

prescribed limitation period, no fresh period of limitation can be available

to his legal heir(s) or any other person who derives his right to sue from

or through him (the injuriously affected person);3 for once the limitation

period begins to run, it does not stop as per section 9 of the Limitation

Act.

8.6

Further, the definition of the term “plaintiff”, as given in

section 2(8) of the Limitation Act also has the effect of barring the fresh

start of the limitation period for the legal heir(s) or any other person, who

derives his right to sue from or through such injuriously affected person,

1 Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504.

In Re: Marappa Goundar AIR 1959 Mad 26; Yeswant Deorao v. Walchand Ramchand AIR 1951 SC 16.

3 Noor Muhammad v. Muhammad Miskeen 2009 SCMR 731.

Civil Appeal No. 139-P of 2013

as it provides that “plaintiff” includes any person from or through whom

a plaintiff derives his right to sue.

8.7

Therefore, it is the date of knowledge of the “person

injuriously affected” of the fraud mentioned in section 18, and of his

right to sue that is relevant for computing the limitation period, not of his

legal heir(s), unless he asserts and prove that his predecessor (the person

injuriously affected) never came to know of the fraud, whereby his right

to institute the suit was concealed, in his lifetime; in the latter

eventuality, it is, of course, the knowledge of the present plaintiff (his

successor) that would be the starting point for the limitation to run.

8.8

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 Code of Civil Procedure 1908, and then prove the same

through positive evidence.4

8.9

In the present case, the “person injuriously affected” by the

alleged fraud (if it were committed) in getting the gift mutation

sanctioned was the respondent’s father, Mawaz Khan (the purported

donor). The respondent derived his right to institute the suit to challenge

the gift mutation from his father, being his legal heir. It is, therefore, the

date of the knowledge of his father, not of the respondent that is the

starting point for computing the limitation period of six years provided in

Article 120 of the Schedule to the Limitation Act - the residuary Article

4 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 5

Civil Appeal No. 139-P of 2013

applicable to suits instituted, under section 42 of the Specific Relief Act

1877 (“Specific Relief Act”), for declaration of any right as to any property.

8.10

In this regard, we note that the respondent (plaintiff) did not

assert in the plaint that the appellants (defendants), by means of fraud,

kept Mawaz Khan, his father (the person injuriously affected) from the

knowledge of his right to institute the suit to challenge the gift mutation,

during his life, nor did he give the particulars thereof; what to say of

proving the same. Furthermore, we note that the respondent (plaintiff)

did not assert any such fraud of the appellants even against himself, and

give any date of his attaining knowledge of such fraud and his right to

institute the suit. Therefore, the benefit of section 18 of the Limitation

Act for computing the limitation period for instituting the suit to

challenge the gift mutation cannot be extended to the respondent

(plaintiff).

8.11

Thus, the limitation period of six years provided in Article

120 of the Limitation Act is to be computed from the time mentioned in

the said Article, that is, when the right to sue accrued. 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 provision clearly declares that for computing the limitation, the

period of six years would commence from the date of accrual of right to

sue, but it does not state when such right accrues. To ascertain, when

does the right to sue accrue to a donor, to seek a declaration of his

ownership right over the property shown to have been gifted and of his

Civil Appeal No. 139-P of 2013

such right not to be affected by the gift mutation, we have to consider

another provision of law, that is, section 42 of the Specific Relief Act.

8.12

A suit for declaration of any right, as to any property is filed

under 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

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.

8.13

Now, 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. It is

important to note that a person may ignore an “apprehended or

threatened denial” of his right taking it not too serious to dispel that by

seeking a declaration of his right through instituting a suit, and may

exercise his option to institute the suit, when he feels it necessary to do

so, to protect his right. For this reason, every “apprehended or

threatened denial” of right gives a fresh cause of action and right to sue

to the person aggrieved of such apprehension or threat. However, this

option to delay the filing of the suit is not available to him in case of

“actual denial” of his right; where if he does not challenge the action of

Civil Appeal No. 139-P of 2013

actual denial of his right, despite having knowledge thereof, by seeking

declaration of his right within the limitation period provided in the

Limitation Act, then his right to do so becomes barred by law of

limitation.

8.14

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.

8.15

The situation is, however, different in a case where the

beneficiary of an entry in the revenue record also takes over the

possession of the land on the basis of sale or gift transaction, as the case

may be, recorded in that entry. His action of taking over possession of

the land in pursuance of the purported sale or gift is certainly an “actual

denial” of the proprietary rights of the purported seller or donor.

Therefore, in such a case, if the purported seller or donor does not

challenge that action of “actual denial” of his right, within the prescribed

limitation period, despite having knowledge thereof, then his right to do

so becomes barred by law of limitation.

8.16

In the present case, as per the revenue record and other

evidence, the appellants, the purported donees, took over possession of

the Suit Property No.1 on the basis of gift transaction recorded in the gift

mutation since the date of sanction of the gift mutation, that is,

29.04.1977. Their act of taking over possession was an “actual denial” of

Civil Appeal No. 139-P of 2013

the proprietary rights of the purported donor, therefore, it was necessary

for the purported donor to challenge the gift mutation (if it had been got

sanctioned fraudulently) within the limitation period of six years provided

in Article 120 or to seek recovery of the possession of the Suit Property

No.1 within the limitation period of twelve years as provided in Article

142 of the Schedule to the Limitation Act, from that date. Mawaz Khan,

the donor, did not opt for any of the two, and allowed both possibly

applicable periods of limitation to lapse during his lifetime, since he died

in the year 2000 after about 23 years of the said act of taking over

possession of the Property No.1 by the appellants. Therefore, no fresh

limitation period could be made available to his legal heir, the

respondent. Thus, the challenge made by the respondent in 2009 to the

gift mutation of 1977, based on his inheritance rights from Mawaz Khan,

was clearly barred by time, as concurrently held by the trial and

appellate courts, especially when the respondent is not found entitled to

the benefit of section 18 of the Limitation Act. This crucial issue was not

addressed by the Revisional Court in the impugned judgment, hence, it

warrants interference by this Court in its appellate jurisdiction, in the

interest of justice.

A reasonable and natural gift

8.17

Although we need not look into the merits of the gift

transaction and gift mutation that followed, as the very suit to their

extent has been held to be barred by law of limitation, yet we, in the

peculiar circumstances of the case, are constrained to note that the gift

transaction recorded in the impugned gift mutation, as appropriately

held by the appellate court, appears to be reasonable and natural in the

facts and circumstances of the case; where a father, whose son had

Civil Appeal No. 139-P of 2013

contracted a second marriage, transferred some of his property to his

first daughter-in-law, who also happened to be his niece, and to his

granddaughters to ensure their financial security, out of his love and

affection for them.

Challenge made to sale mutation - Suit Property No.2

As far the challenge made by the respondent, the purported

seller of Suit Property No. 2, to the sale transaction and sale mutation

that followed, we note that once Muhammad Ibrar, his son and special

attorney, appeared in the witness box as PW-3 and denied the making of

the sale transaction recorded in the sale mutation on his behalf, the

evidential burden to prove the same by adducing affirmative evidence

shifted on Mst. Khursheed Begum (appellant No.3), the beneficiary thereof.

Carefully reviewing the evidence on the record, it is but clear that Mst.

Khursheed Begum was unable to prove the essential ingredients of the

sale transaction and the due sanction of the sale mutation that recorded

it. Accordingly, we find the High Court is correct in its findings as to the

inconsistencies and clear contradictions in the testimony of her two

witnesses, namely, Sultan-ul-Mulk (DW-1) and Wali-ur-Rehman (DW-2) on

material particulars of the sale transaction and of the sale mutation

recording the same in the revenue record. No independent witnesses, in

particular, the patwari who entered, and the revenue officer who

sanctioned the sale mutation were examined in evidence. In fact, no

cogent, reliable evidence was produced by Mst. Khursheed Begum

(appellant No.3) to prove payment of the sale-consideration, the most

essential ingredient of a valid sale, to the respondent. This being so, the

High Court has correctly recorded its finding in the impugned judgment,

Civil Appeal No. 139-P of 2013

as to invalidity of the alleged sale of the Suit Property No. 2 and also of

the sale mutation.

10.

For the above reasons, we partially allow the appeal to the

extent of gift mutation regarding Suit Property No.1, and dismiss it to the

extent of the sale mutation regarding Suit Property No.2. The impugned

judgment and decree are modified, accordingly. The suit of the

respondent to the extent of gift mutation regarding Suit Property No.1

stands dismissed, and to the extent of the sale mutation regarding Suit

Property No. 2, decreed.

Judge

Announced in open Court

On 25th February, 2022 at Islamabad

Judge

Approved for reporting

2022 SCMR 1009

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