2024 C L C 333
[Peshawar (D.I. Khan Bench)]
Before Muhammad Faheem Wali, J
ABID SHERANI----Petitioner
Versus
TAHIR SHERANI through Legal Heirs and others----Respondents
Civil Revision No.36-D of 2016, decided on 21st June, 2022.
(a) Specific Relief Act (I of 1877)---
----Ss. 39 & 42---Suit for declaration and cancellation of mutation entries---Gift mutations---Proof---Plaintiff filed a declaratory suit seeking therein cancellation of gift mutations of land described in the head-note of plaint, executed in favour of respondent No. 1 by the father of the parties on the ground that said transactions were based on fraud and therefore, revenue record to that extent was liable for correction---Suit was dismissed by the Trial Court, while appeal was dismissed by the appellate Court---Validity---In this case, though the beneficiary was respondent No. 1, he was under the legal obligation to prove the execution of both the gift mutations dated 13.05.1978, but as the petitioner alleged fraud, therefore initial burden laid upon the petitioner to prove that how, when and who committed the fraud and under what mode and manner---Donor of the impugned gift mutations was a literate person and remained alive till the year 2003---Donor was a man of prudent mind and he, during his life time, did not raise objection over the alienation of suit property by respondent No.1 through the mutations during the period between 1999 to 2000 and even mortgage of some of the land in favour of two banks by the respondent No.1---Silence of father over sale and mortgage of property by the son (respondent No.1) amounted to recognition of the fact that father deliberately transferred the property in favour of his elder son and therefore, the petitioner being another son could not challenge the impugned mutations---If a transaction was not challenged by the father, then his son, after his death, would lack locus standi to challenge the same---Evident from the record that after attestation of impugned mutation dated 13.05.1978, the respondent No.1 transferred an area measuring 10 Kanals in favour of the petitioner through a mutation dated 13.05.1978---Petitioner thereafter had himself sold the said landed property through various mutations and out of these mutations, vide a mutation dated 27.03.1990 petitioner sold an area measuring 01 Kanal to the respondent No.1---Said documentary evidence not only portrayed the knowledge of petitioner about the suit transactions but also that he remained silent, and after the death of his father, he filed present suit on 29.03.2011---Said fact not only constituted estoppels and waiver on the part of petitioner but also exposed him before law of limitation---Thus, both courts below had rightly non-suited the petitioner---Revision petition was dismissed.
Bal Gangadhar Tilk and others v. Shrinivas Pandi and others AIR 1915 Privy Council 7; Messrs SAZCO (Pvt.) Ltd. v. Askari Commercial Bank Limited 2021 SCMR 558; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.
(b) Specific Relief Act (I of 1877)---
----Ss. 39 & 42---Limitation Act (IX of 1908), S. 3---Suit for declaration and cancellation of mutation entries---Limitation---Respondent/plaintiff challenging mutation entries of the years 1974 and 1978 through a suit filed in 2011, had to justify such delay---Plaintiff filed a declaratory suit seeking therein cancellation of gift mutation---In the present case, two aspects which constituted knowledge of petitioner were, first, the date of attestation of mutation in favour of petitioner on 13.05.1978, and second, the date of attestation of another mutation by petitioner in favour of respondent No.1 on 27.03.1990; whereas, the suit in hand was instituted before the Civil Court on 29.03.2011, and as such, the suit was badly and hopelessly time-barred---Thus, a stale claim under the law of limitation could not be enforced legally as the passage of time sets the law of limitation in operation and there could be no exception unless the relaxation was granted by the Limitation Act, 1908, by itself---Thus, both courts below had rightly non-suited the petitioner---Revision petition was dismissed, in circumstances.
Umer Baz Khan through L.Hrs v. Syed Jehanzeb and others PLD 2013 SC 268 and Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 rel.
(c) Specific Relief Act (I of 1877)---
----Ss. 39 & 42---Suit for declaration and cancellation of mutation entries---Gift mutation, execution of---Proof---Plaintiff filed a declaratory suit seeking therein cancellation of gift mutations of land described in the head-note of plaint, executed in favour of respondent No. 1 by the father of the parties on the ground that said transactions were based on fraud, and therefore, revenue record to that extent was liable for correction---Petitioner, during his evidence, categorically admitted the execution of gift mutation---Plaintiff's witness admitted that father/deceased had given his property to respondent No.1---Likewise, petitioner in his cross examination affirmed that he was in the knowledge of gift mutations---Respondent No. 1 produced and examined the alive witnesses of the suit mutations, whereas, some of the witnesses were dead, whose testimony went in line with the claim of respondent No.1---In the attending circumstances, petitioner/plaintiff failed to prove his initial burden and his claim too was hit by the law of limitation, whereas, respondent/beneficiary produced all the alive witnesses who supported the suit mutations coupled with the fact that conduct of petitioner by itself went in line with the proof of execution of mutations in question---Thus, both courts below had rightly non-suited the petitioner---Revision petition was dismissed, in circumstances.
Ahmad Ali for Appellant.
Arif Raheem Ustarana for Respondent.
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