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Civil Petition for Special Leave to Appeal No. 371 of 1979, decided on 22nd June, 1981.

(On appeal from the judgment and order, dated 17th April 1979, passed by the Lahore High Court, Lahore, in R. S. A. No. 747-65/ B W P).

---Art. 120--Limitation-Starting point of-Contention that suit having not been filed within six years of alleged fraudulent gift barred by time under Art. 120-Real owners of land being kept in dark about attempts of other party to effect transfer of land in his own Dame through gift, being pardanashin ladies not aware of mechinations of other party and becoming aware of threat to their rights when their possession threatened, reliance on Art. 120, held, of no assistance to other party and real owners could wait till threat to their possession not only became visible but more real.--[Limitation].

Mst. Izzat v. Allah Ditta P L D 1981 S C 165 ref.

Kh. Muhammad Tufail, Advocate and S. Wajid Hussain, Advocate-on Record for Petitioners.

Ch. A. Waheed Salim, Advocate and M. A. Qureshi, Advocate-on Record for Respondents Nos. 1 to 10.

Date of hearing : 15th June, 1981.

-Leave to appeal has been sought from judgment, dated 17th April 1979 of the Lahore High Court; whereby second appeal of the petitioners' side (defendants) arising out of a land dispute case was dismissed.

The case has a chequered history which need not be recapitulated in this order. It would suffice to mention that Imam Din, predecessor-interest of the petitioners was maternal-uncle of Mst. Zainab respondent and Mst. Aimna Bibi predecessor-in-interest of some of the other respondents. Taleh Muhammad, the father of Mst. Zainab and Mst. Aimna, died when they were still minors. During their days of orphanhood, they were looked after by Imam Din their real maternal uncle. He betraying the confidence reposed in him with regard to the orphan and made several attempts to grab their property. Some of the attempts were frustrated by the village punchayat. However ad held by the learned court below he by fraudulent means got prepared some documents in 1956 and therefore so as to deprive his nieces of their land. It may be mentioned that although imam Din made an indirect attempt to pacify the ladies byu marrying Mst. Aimna to his son but it appears that he land in disputes proved a hurdle in the complete fulfillment of this design. ultimately a suit was filed in 1964 fir declaration and injunction regarding interference with possession of the owners. The plaints has not been filed with this petition. However it appears form the heading of the judgment of the learned trial judge that the suit was filed for declaration to the effect that the plaintiff and defendants No2 are owners in possession of the 2616/6322 share, of the land detailed in the plaint comprised in Khata No1 situated in the area of village Hakeem Ameeruddin Tehsil and District Bsahawalnagar. And as such the Mutation No.133 dated 28^th October 1956 in respect of gift from Mst. Amina Babi (the respondents/ Predecessor of the plaintiff Nos 2 to 9 and defendants No.2) in favour of the defendants No.1 Imam Din of 230 kanals and 1 Marla, is illegal, fictitious, void and inoperative over the rights of the plaintiffs and defendant No. 2. Further prayer by way of consequential relief, for issuance of perpetual injunction to the effect that the defen dant No. 1 be restrained from interfering with the possession of plain tiffs and defendants No. 2, over the suit land." One of the objections raised by Imam Din in his defence was that the suit was time barred.

The learned Courts below held that the ladies remained in posses sion of the property in their own right till the institution of the suit this was also shown in the records of right till the jamabandi of 1961-62. It was also found as a fact that Imam Din had produced someone else to impersonate for the person on whose behalf he made an attempt to show a purported gift in his favour. In other words, Imam Din was found to have committed acts of fraud and misrepresentation. The suit was decreed by the learned trial Court. The first and second appeals having been dismissed, the legal representatives of so-called donee Imam Din have now sought leave to appeal.

Learned counsel raised a legal plea, namely, that even if all the fin dings of fact are accepted as correct, the suit not having been filed within six years of the alleged fraudulent gift, was time barred. Accor ding to him, Article 120 of the Limitation Act was applicable.

As would be presently shown, the question of possession in this case is highly relevant in order to determine whether the relief sought by the respondents (plaintiffs) regarding their possession would not affect the question of limitation raised by the learned counsel.

A clear finding rendered by the first Appellate Court in this behalf which has not been disturbed by the High Court is reproduced below.-

"The most important question, however, is of possession which would decide most of the issues in the suit. That the possession was never delivered to the appellant and he remained in joint possession with Mst. Zenib and Mst. Amino Bibi is shown by the copies of jamabandi for the period from 1942 to 1962 Exhs. P. 4 to P. 10. These documents reveal that the land in suit was being jointly owned by Mst. Zenib, Mst. Amino and the appel lant till 1961. The appellant failed to rebut this evidence by any documentary evidence. Consequently no valid gift was made in favour of the appellant since delivery of possession was never made to him. Besides this, the contention of the appellant that he had become the owner by virtue of joint possession was also disproved since it is settled principle of law 'that - possession of one co-sharer is the possession of all the co-sharers and as such the common title of one co-owner will not be presumed to be adverse to ..the other. The appellant had pleaded that the suit of the respondents was not maintainable because they had not prayed for possession. But, since the respon dents had proved that they were in joint possession of the property, the question of praying for possession does not arise."

The facts and circumstances emerging from the record filed with the petition show that the real owners of the land (the two ladies) were kept it dark about the attempt of Imam Din to effect the transfer of land in his own name through gift. They were Pardahnashin ladies and thus were not aware of all the mechinations of Imam Din. It further appears that they became aware of the threat to their rights in the land when their possession was threatened. That being so, the reliance on Article 120 of the Limitation Act by itself would not be of any assistance to the petitioners. The rule laid down by this Court in Mst. Izzat v. Allah Ditta P L D1981 S C 165 would also be attracted. It was held therein that in the circumstances as in the present case the plaintiff was not bound to seek cancellation of the transfer deed through a suit and could wait till threat to her possession became not only visible but more real. It was further held that the right to seek relief against the defendant accrued to the plaintiff at the aforementioned stage and thus the starting point of limitation remained the date of sanction of mutation and thereafter on every day when the defendant continued making claim against the plaintiff's right to possess the suit land.

In view of the latest pronouncement of this Court on the question raised by the learned counsel, we do not consider it necessary to examine the case-law cited at the bar. The argument raised by the learned counsel for the petitioners has no force. This petition accordingly is dismissed.

Petition dismissed.

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