2009 S C M R 731

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Actg. C.J. and Ch. Ejaz Yousaf, JJ

NOOR MUHAMMAD and 5 others—-Appellants

Versus

MUHAMMAD MISKEEN and others—-Respondents

Civil Appeal No.847 of 2005, decided on 26th September, 2008.

(On appeal from the judgment, dated 29-4-2005 of the Peshawar High Court, Abbottabad Bench Abbottabad passed in Civil Revision No.170 of 2002).

Limitation Act (IX of 1908)—

—-S. 18—Specific Relief Act (I of 1877), S.42—Suit for declaration and possession—Limitation—Exchange transaction of land—Allegation of fraud—Provisions of S.18, Limitation Act, 1908 were not beneficially available to the legal heirs of the original transferor when he himself lived for as many as 53 years after the transaction and continuously seeing the transferee from a different village to be in possession of his property in the village; had there been any fraud, the original transferor would not have remained silent for more than half a century.

Muhammad Ali and others v. Hassan Muhammad and others PLD 1994 SC 245; Noor Bibi and others v. Fazal Hussain and others 1998 SCMR 230; Nazar Gul v. Islam and others 1998 SCMR 1223; Mansoor Afzal pasha and another v. D.H.A. Karachi and another 2008 SCMR 877 and Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 ref.

Gulzarin Kiani, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent No.1.

Other respondents: Ex parte.

Date of hearing: 26th September, 2008.

JUDGMENT

SARDAR MUHAMMAD RAZA KHAN, ACTG. C.J.— Noor Muhammad etc., the legal heirs of one Fateh of Village Sirikot, Haripur have filed this appeal against the judgment, dated 29-4-2005 of a learned Judge in Chambers of Peshawar High Court, whereby the civil revision of Muhammad Miskeen etc., the legal heirs of one Miandad of Village Sari Haripur was accepted and their suit, in concurrence with the trial Court, was decreed.

2. One Miandad owned occupancy rights in 25 Kanals, 4 Marlas situated in village Sari, Haripur. On the other hand, one Fateh owned property in village Sirikot, Haripur. The entered into an exchange transaction, whereby, Miandad transferred his rights in Khasra Nos.465 and 502 (new) measuring 25 Kanals, 4 Marlas in village Sari in favour of Fateh. A Mutation No.2767 was entered to such effect which ultimately was attested in village Sari on 8-6-1939. In exchange thereof Mutation No.5527 in Village Sirikot was entered on behalf of Fateh and in favour of Miandad but was never attested. So far as the property aforesaid of Miandad was concerned, its possession changed on the spot, remained with Fateh and thereafter his legal heirs.

3. The legal heirs of Miandad namely Miskeen etc. on 26-3-1994 filed a suit for declaration-cum-possession against the legal heirs of Fateh. The suit was decreed by the learned trial Court on 2-5-2001 but was dismissed on appeal by the learned District Judge on 4-10-2002 on grounds of limitation. The learned Judge in Chambers of Peshawar High Court exercising revisional jurisdiction held the view that the transaction aforesaid through Mutation No.2767 of 8-6-1939 was one without consideration and hence void. That no limitation could run against a void transaction and hence the suit being within limitation was rightly decreed by the learned trial Court.

4. Certain admitted and proved facts on record in the instant case are totally unavoidable. It is proved that Miandad, the transferor in village Sari was consciously aware of the transaction of exchange. He himself got Mutation No.2767 entered on 3-7-1937. The Revenue Officer had fixed the date for attestation as 27-9-1938 when Miandad was present but he declined to give statement due to the absence of Fateh of Village Sirikot. The date was adjourned to 8-6-1939, when in the presence of both aforesaid, the mutation was attested.

5. Miandad remained alive till 1990 but never brought any suit to challenge the validity of his unilateral transfer in favour of Fateh, who in turn remained alive till 1949. He even did not disturb the legal heirs of Fateh after 1949. It is proved on record that physical possession of the property had stood delivered in the year 1939. The plaintiffs happen to, admit the same in the evidence. They are only the legal heirs of Miandad who after a long passage of 57 years filed the present suit on 26-3-1994 despite the fact that their father Miandad had remained satisfied and silent for 53 years in spite of the fact that a person from village Sirikot had throughout remained in physical possession of the property in village Sari within his view. The plaintiffs, therefore, cannot avoid the clutches of limitation.

6. In a similar case reported as Muhammad Ali and others v. Hassan Muhammad and others PLD 1994 SC 245, the original owner had remained alive for 40 years while his legal heirs had brought the suit after 45 years. This Court held it to be hopelessly time-barred. Similar view was maintained by this Court in the cases of Noor Bibi and others v. Fazal Hussain and others 1998 SCMR 230, Nazar Gul v. Islam and others 1998 SCMR 1223 and Mansoor Afzal Pasha and another v. D.H.A. Karachi and another 2008 SCMR 877. Such bar of limitation was even not ignored by Shariat Appellate Bench of this Court in Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063(c), where an old maxim of law that limitation bars the remedy and may be, not the right. The remedy in time-barred matters cannot be granted. The learned District Judge was rightly of the view that the plaintiff’s claim was hopelessly barred by time.

7. Mr. Zulfiqar Khalid Maluka, learned counsel for respondent No.1 was of the view that the instant one was a fraudulent transaction and hence, under section 18 of the Limitation Act, the plaintiffs could have brought the suit only after when fraud had come to their knowledge. We have given our considered thought to the notion and are of the firm view that section 18 of the Limitation Act is not beneficially available to the legal heirs of Miandad when Miandad himself lived for as many as 53 years after the transaction and continuously seeing Fateh of village Sirikot to be in possession of his property in village Sari. Had there been any fraud, the original transferor would not have remained silent for more than half a century.

8. Whatever might have been the merits of original transaction, shall remain besides the point when the bar of limitation goes hopelessly against the plaintiffs/respondents.

9. Consequently, the appeal is accepted, the impugned judgment and decree, dated 29-4-2005 of the learned High Court is set aside and that dated 4-10-2002 of the learned District Judge is restored. The plaintiffs/respondents’ suit is dismissed as hopelessly barred by time.

M.B.A./N-14/SC Appeal accepted.

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