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Civil Revision No.166-D of 1981, decided on 9th April, 1984.

--S.7--Wet Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.7--Limitation Act (IX of 1908), Arts. 140 & 141--Suit for declaration and possession-- Law of limitation governing suits would apply which was in force at time of institution of suit and not from accrual of cause of action--Suit filed, after repeal of Punjab Limitation (Custom) Act, 1920 by West Pakistan Muslim Personal Law (Sharist) Application Act, 1962, would be governed by provisions of Act, 1962 and fell under Art.141 and not 140--Article 141 providing period of 12 years for suits seeking possession from date of death of female land owners - Such owner, being alive, contention that suit seeking declaration was not necessary and suit for possession of disputed land, premature, held, had substance.

Pearey Lal and others v. Solu Gir A I R 1946 All. 58 and Mst. Fattan Bi and 2 others v. Fateh Muhammad and others P L D 1974 Lah. 458 ref.

Mian Nisar Ahmad for Petitioner.

Muhammad Anwar Bhaur for Respondents.

Date of hearing: 9th April, 1984.

This petition under section 115, C.P.C. is directed against judgment dated 23-11-1980 of the learned Additional District Judge, Sheikhupura whereby he allowed the appeal filed by the respondents and dismissed petitioner's suit.

2. The facts in brief giving rise to this petition are that on 4-4-1977 Mst. Iqbal Begum petitioner, herein, instituted a suit for declaration, that she was owner, to the extent of one-half share of the suit property and claimed as a consequential relief possession thereof. It was averred in the plaint that she was daughter of Nathey Khan: On his death, land in dispute devolved upon his son Sultan Khan under custom. On latter's death it was inherited by Mst. Zainab Bibi, his widow. On her re-marriage the land devolved upon Mst. Jueni his daughter as limited owner. She alienated the land in favour of respondents vide Mutation No.271 dated 19-2-1958. It was pleaded that she being the sister of Sultan Khan deceased was entitled to one-half share of last male holder under Muslim law of inheritance.

The suit was contested by the respondents on various grounds including the plea that the same was barred by time. The learned trial Court recorded evidence of the parties and decreed the suit on 22-3-1980. On appeal filed by the respondents the learned Additional District Judge, Sheikhupura dismissed the same on the ground that the same was barred by time. Hence this petition.

3. Learned counsel for the petitioner contended that the learned lower appellate Court acted illegally in holding petitioner's suit being barred by limitation. It was submitted that Punjab Limitation (Custom) Act I of 1920 was repealed on 31-12-1962 by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and right to sue was available to the petitioner. It was stated that on repeal of Act I of 1920, Article 141 of the Limitation Act, 1908 would apply. Mst. Jueni, being alive the cause of action in favour of the petitioner would arise on her death. It was submitted that it was not necessary to institute suit for declaration in this case which according to him was premature. In support of his submissions learned counsel relied on Pearey Lal and others v. Solu Gir A I R 1946 All. 58 and Mst. Fattan Bi and 2 others v. Fateh Muhammad and others P L D 1974 Lah. 458.

4. Learned counsel for the respondents, on the other hand, submitted that the right to sue had accrued in favour of the petitioner in the year 1958 when the land in dispute was alienated by Mst. Jeuni in favour of respondents Nos. 1 and 2. The suit as framed by the petitioner was barred under Article 120 of the Limitation Act, 1908 which prescribes period of six years. He, however, could not controvert the submission of learned counsel for the petitioner that after the repeal of Act I of 1920 the law of limitation in force at the time of institution of suits and not from the accrual of cause of action, would govern the suits for the purpose of limitation. The learned Additional District Judge, obviously applied section 7 of Act I of 1920 for calculating the period of limitation which was not attracted after the repeal of the aforesaid Act.

5. Undoubtedly the provisions of Article 141 of the Limitation Act provide period of 12 years for suits seeking possession; from the date of death of female landowner's. Mst. Jueni being alive the contention of learned counsel for the petitioner has substance that the present suit seeking declaration was not necessary and suit for possession of the disputed land, premature.

6. In the result, the impugned judgment of the learned Additional District Judge being illegal is set aside. The suit filed by the petitioner being premature would remain dismissed.

7. There shall be no order as to costs.

Petition accepted.

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