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P L D 2015 Supreme Court 212

 

Present: Mian Saqib Nisar, Amir Hani Muslim and Ejaz Afzal Khan, JJ

 

Dr. MUHAMMAD JAVAID SHAFI—Appellant

 

Versus

 

Syed RASHID ARSHAD and others—Respondents

 

Civil Appeal No.413 of 2012, decided on 24th November, 2014.

 

(Against the judgment dated 25-1-2012 of the Lahore High Court, Lahore passed in Civil Revision No.1639-D of 1992)

 

Per Mian Saqib Nisar, J; Amir Hani Muslim, J, agreeing; Ejaz Afzal Khan, J, dissenting. [Majority view]

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329; Mst. Hameeda Begum v. Mst. Murad Begum PLD 1975 SC 624 and Abdul Rehman and others v. Ghulam Muhammad through L.Rs and others 2010 SCMR 978 ref.

 

Gulzarin Kyanai, Senior Advocate Supreme Court, Atiq-ur-Rehman Kiyani, Advocate Supreme Court and Ch. Akthar Ali, Advocate-on-Record for Appellant.

 

Ahmed Awais, Advocate Supreme Court and Muhammad Akram Javed, Advocate Supreme Court for Respondent No.1.

 

Ex parte for Respondents Nos.2 to 4.

 

Date of hearing: 24th November, 2014.

 

JUDGMENT

 

MIAN SAQIB NISAR, J.—This appeal under the provisions of Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973 entails the facts, in that, respondent No.1 (the respondent) was the owner of the land measuring 10 Kanals, 12 marlas, 184 sq. feet bearing khasra No. 5146 situated in lchhra, Lahore. Such land was acquired by Lahore Improvement Trust (LIT) for the purposes of one of its residential schemes, known as Garden Town Lahore, and in lieu thereof as a compensation for the noted acquisition, plot bearing No.197 measuring 3 kanals, 16 marlas, 192 sq. feet was exempted in favour of the respondent. The other relevant facts of the case, brought to notice of the Court by the learned counsel for the appellants are:- that the respondent executed and got registered an irrevocable general power of attorney (GPA) dated 27-5-1971 (registered on 28-5-1971) in favour of Fazal-e-Azeem, respondent No.2 (note:- this GPA subsequently but long after was challenged by the plaintiff/respondent No.1 in the suit on grounds that it is a forged and fabricated document) and on account of such authority an agreement to sell the exempted plot (suit plot) was executed by the attorney in favour of respondent No.3/defendant Manzoor Ahmed which was registered on 27-5-1971. On the basis of the GPA, respondent No.2 (the attorney) pursued for the exemption of the suit plot on behalf of the respondent with the LIT and entered into an agreement dated 6-7-1971 with the LIT (note: the predecessor body of LDA). Later on the said attorney sold out the suit plot to Manzoor Ahmed through a registered sale deed dated 8-4-1972, who was also delivered the possession of the plot. However, in the sale deed, the area of the plot mentioned was 2 kanals, 16 marlas and 192 sq. feet (which was less than the exempted plot), thus a ratification deed was executed by the attorney on 7-7-1972 to provide for the deficient area. Manzoor Ahmed vide registered sale deed dated 9-1-1973 sold the suit plot with possession to the appellant, who after seeking sanction of the building plan from the concerned authorities raised a bungalow during the period 1973-1974. The plot was also transferred in the name of the appellant by LIT vide letter dated 3-4-1973 (Mark A – Page 152 of C.A. No.413 of 2012). Be that as it may, on 14-6-1987 the respondent filed a suit i.e. around 16 years after the date of execution/registration of the GPA for declaration, cancellation of the same (GPA) and the sale deed(s) mentioned above and obviously sought the possession of the plot as a consequential relief; the challenge to the document(s) was that those are the result of fraud, forgery, misrepresentation and manipulation. In the above context, following paragraphs of the plaint are relevant and thus reproduced below:–

 

“(3) That in the meanwhile, when the application filed by the plaintiff asking for exemption of a plot was pending before the defendant No.4 and necessary proceedings were afoot, the defendants Nos.1 and 2 collusion with each other and with the active connivance and support of one Muhammad Sharif, the then Qanungo, posted in the land acquisition collector’s office i.e., office of the defendant No.4, forged a deed of General Power of Attorney purporting to have been executed by the plaintiff in favour of defendant No.1, conferring authority upon the latter to sell the above said plot preferably in favour of the defendant No.2 and got the said Deed registered by impersonation with the Sub-Registrar Lahore on 28-5- 1971 vide Deed No. 1036, Behi No.4, Volume No. 340 Pages 42 – 45. It is submitted that simultaneously another deed namely, an agreement to sell the plot in dispute was also forged, purporting to have been executed by the plaintiff in favour of defendant No.2 and the same was got registered on 27-5-1971 vide Deed No.7326, Behi No.1 Volume No.5242.

 

(4) That on the strength of the said forged General Power of Attorney, the defendant No.1 started pursuing the matter regarding exemption of plot with the LIT (L.D.A.) authorities without the knowledge of the plaintiff consequently an agreement dated 6th of July, 1971 came into being vis-a-vis the plot in dispute by virtue of which the defunct LIT agreed to sell to the plaintiff the plot in dispute under the terms and conditions incorporated in the said Deed. The defendant No.1 signed the said Deed in his alleged capacity of being the general attorney of the plaintiff.

 

(5) That the defendants Nos.1 and 2, in connivance with each other and in furtherance of the forgery and fraud committed by them, got a Sale Deed registered as Deed No.3241, Behi No.1, Volume 5332 pages 350 to 353 dated 8-4-1972 evidencing the plot in dispute to have been alienated by the defendant No.1 in his capacity as the alleged general attorney of the plaintiff in favour of the defendant No.2. Since in the said Deed, an area of 2 Kanals 16 Marlas, 192 sq. ft. out of the plot in dispute was described being the subject matter of the sale deed, the defendant No.1 through another deed No.7406 Behi No.1 Volume No.5374 registered on 7-7-1972 got the said area ratified as 3 Kanals, 16 Marks and 192 sq. ft.

 

(6) That the General Power of Attorney dated 28-5-1971 as well as the Agreement to sell dated 27-5-1971 were forged by the defendants Nos.1 and 2 and got the same registered fraudulently through another person falsely personating as the plaintiff. The plaintiff never executed the said documents in favour of the defendants Nos.1 and 2. The said instruments, being a forgery, are void ab initio and ineffectual against the right and title of the plaintiff to the plot in dispute. Consequently the Sale Deed executed by the defendant No.1 in favour of the defendant No.2 being a nullity in the eye of law is of no legal consequence and does not operate against the right and interest of the plaintiff.

 

(7) That the plaintiff, after coming to know of the forgeries and false personations resorted to by the defendants Nos.1 and 2, approached the defendant No.4 and apprised the authorities concerned of the fraud and mis representation committed by the defendants Nos.1 and 2. The L.D.A. authorities took up the proceedings to investigate matter and being convinced of the fraud perpetrated by the defendants Nos.1 and 2 reported the matter to the police recommending that a case be registered, but for ostensible reasons the police remained unmoved. Ultimately it was conveyed to the plaintiff by L.D.A. that in the circumstances of the case, the defendant No.4 was not legally competent to cancel the forged documents and that the plaintiff may have a resort to a competent forum to get the same adjudged as a forgery.

 

(8) That the plaintiff is the owner of the plot in dispute. The general power of attorney, the agreement to sell and the Sale Deed dated 28-5-1971 and 8-4-1972 respectively are of no legal effect against the rights of the plaintiff qua the plot in dispute. The further alienation of the plot in dispute by the defendant No.2 in favour so the defendant No.3 is also void, being a superstructure which must fall to the ground (emphasis supplied).

 

(a) That the documents, namely, the general power of attorney dated 28-5-1971 (2) the agreement to sell dated 27-5-1971 (3) the Sale Deed dated 8-4-1972 and (4) the rectification deed dated 7-7-1992 as described in paras 3 and 5 of the plaint having been brought into existence by forgeries and false personation are void ab initio and of no legal effect against the interest, right and title of the plaintiff to the plot in dispute.

 

(b) That the alienation of the plot in dispute in any manner made by the defendant No.2 in favour of the defendant No.3 is a nullity in the eye of the law;

 

(c) That the plaintiff is the owner of the plot in dispute and the defendant No.4 is bound under the law to treat him as such;

 

(d) May kindly grant by way of consequential relief a decree of possession of the plot in dispute directing the defendants Nos.2 and 3 to hand over vacant possession for the same by removing all superstructure if any, existing thereon.”

 

From the contents of the plaint (reproduced above) it is unmistakably clear that the main attack of the respondent is upon the validity of the GPA and as a consequence thereof, the sale agreement, the sale deed in favour of Manzoor Ahmed, the ratification instrument in his favour; and the onward transfer to the appellant is dependent upon the outcome thereof. It is not the case of the respondent that the appellant in any way or manner is responsible for and is involved in any forgery or fraud as alleged by him in his plaint. Anyhow Fazal-e-Azeem and Manzoor Ahmed were arrayed as defendants Nos.1 and 2. Manzoor Ahmed abstained from contesting the matter; Fazal-e-Azeem filed his written statement and denied the allegations made in the plaint. However the appellant was the real contestant of the suit. And out of the pleadings of the parties, following issues, which are relevant for the purposes of our opinion were framed:–

 

“(1) Whether the suit is barred by limitation? OPD

 

(5) Whether the plaintiff is estoppel to file the suit? OPD

 

(8) Whether the general power of attorney dated 28-5-1971, agreement to sell dated 27-5-1971, sale deed dated 8-4-1972 and rectification deed dated 7-7-1972 are the results of forgery and mis-representation, void ab initio and ineffective over the rights of the plaintiff,’ OPP

 

(10) Relief”

 

While giving its findings upon issues Nos.1 and 5 in favour of the appellant and issue No. 8 against the respondent, the learned trial court was pleased to dismiss the suit vide judgment and decree dated 20-12-1990. The respondent filed an appeal against the aforesaid verdict which was disallowed. However, in the revisional jurisdiction invoked by the said respondent, the learned High Court has set aside the two judgments and decrees of the courts below and decreed the suit filed by the respondent. Primary reason in this regard is that the appellant being the beneficiary has failed to prove the documents impugned in the suit, particularly the GPA. The learned High Court, also held that the suit being for possession of immovable property was filed within twelve years and was thus within time.

 

2. Learned counsel for the appellant has argued that, neither from the oral nor from the documentary evidence was it proved by the plaintiff-respondent that the GPA was invalid and was the result of fraud, forgery and fabrication etc.; in his cross-examination, the respondent in specific terms has admitted that in the year 1971 he had come to know about the disputed GPA; and also unequivocally in his examination-in-chief stated that in the year 19741 he attained the knowledge of the sale of the suit property, yet he did not file any suit challenging the transaction(s), thus the suit was hopelessly barred by time; the property in question was exempted in favour of the respondent through Fazal-e-Azeem as the former never pursued the exemption matter with LIT, whereas the attorney actively followed/pursued on the basis of the said GPA, to which the respondent never objected, rather in the situation. he allowed the attorney to act upon the GPA, which reflects the consent of the respondent, thus he would be estopped by his own conduct from challenging the same (i.e. GPA) and the transaction(s) made by the attorney in favour of Manzoor Ahmed and the following sale in favour of the appellant; the superstructure over the property which was constructed by the appellant after obtaining the necessary sanctioned plan from the Lahore Improvement Trust has existed since 1973-74, but the respondent still did not file any suit either challenging the sale transaction(s) (particularly of the appellant) or sought the possession of the plot by seeking removal of the superstructure within the prescribed period of three years; rather kept silent throughout till the filing of the suit by which time the limitation for seeking annulment of the GPA and sale deeds in favour of Manzoor Ahmed and the appellant, had expired; besides, this silence on part of the respondent is relevant for attracting rule of estoppel against the respondent. In this context extensive reference to various portions of the statement of the respondent has been made. It is argued that neither a case was made out in terms of section 18 of the Limitation Act, 1908 (the Act) by the respondent nor was any ground for exemption from the limitation period specifically and precisely set out in the plaint per the mandate of Order VII, Rule 6, C.P.C.; the respondent also did not file any separate application for seeking exemption of limitation under section 14 of the Act. Along with the present appeal, the appellant has also filed a C.M.A. No.2009 of 2012 asking permission of the court to place on record the attested copies of the registered power of attorney (GPA), copy of the registered sale deed of Manzoor Ahmed, copy of registered sale deed of the appellant and also the sanctioned site plan of the property in his favour. It has been urged by the appellant that in the interest of justice, the court should allow such additional evidence and/or look into these documents, because those have been assailed by the respondent himself, but no evidence was led by him to discharge the initial onus of proving those to be invalid on any account. For the above plea(s) reliance has been placed upon Syed Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 SC 1051) and Zar Wali Shah v. Yousaf Ali Shah etc. (1992 SCMR 1778). By relying upon Maharaja of Faridkot State v. Anant Ram and others (AIR 1929 Lah 1) without being prejudicial to his own case it was also urged that even if the GPA and the sale of Manzoor turns out to be fraudulent etc., the protection of bona fide purchaser shall be available to the appellant. The learned counsel further submits that the learned High Court in the impugned judgment has itself concluded that the power of attorney in favour of Fazal-e-Azeem is a valid document, but despite the above, the revision petition has been allowed. The learned High Court has reversed the concurrent findings of the two courts below without taking into account evidence of the parties on the record or meeting the reasoning assigned by the said courts on the question of estoppels and/or limitation and has totally ignored that in the facts and circumstances of the case the respondent was not entitled to the relief of possession of the suit plot.

 

3. Contrarily, learned counsel for the respondent has argued that the original power of attorney as well as the sale deeds have not been brought on the record, therefore, such documents cannot be taken into account; the respondent per the cross-examination had come to know of the transfer of the suit property in the year 1978 (per examination in chief it was 1974) in favour of Manzoor Ahmed and calculating the period of 12 years under Article 142 of the Limitation Act, 1908, the limitation would expire in the year 1990 and resultantly, the suit brought in the year 1987 was well within time; that the date of the starting of the limitation shall be from the date of knowledge of the respondent. In the instant case, the respondent clearly has mentioned that he learnt about the transaction in 1978. It is vehemently pleaded that as the appellant has failed to prove the execution of the power of attorney, the transaction of sale in favour of Manzoor Ahmed and his own sale shall have no legal sanctity. Lastly it is submitted that in the facts and circumstances of the case, the rule of estoppel shall not operate against the respondent. As regards the proof of the execution of the document impugned in the suit, it is argued that the appellant being the beneficiary thereof had to prove the same. Reliance on this issue has been placed on Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245).

 

4. Heard. On the basis of the record, the reasoning given in the impugned judgment, the judgments and decrees of the courts below and submissions made by the learned counsel for the parties, we are of the view that four important propositions for resolution have emerged in this case: (1) whether the suit filed by respondent against the appellant etc. was within time; (2) whether the respondent in the facts and circumstances of the case is estopped by his own conduct from filing the suit; (3) whether the general power of attorney in favour of Fazal-e-Azeem which is the basic document in this case is forged and fabricated and, therefore, the two transactions of sale i.e. one made by Fazal-e-Azeem in favour of Manzoor Ahmed and the second by Manzoor in favour of the present appellant cannot be sustained; (4) whether the non-production of the original power of attorney, the sale deed/ratification deed in favour of Manzoor and the sale deed of the present appellant shall in the facts and circumstances of the case adversely affect the rights of the appellant and shall be fatal to his pleas raised in defence.

 

PROPOSITION NO. 1

 

5. On the question of limitation, the learned High Court has concluded that according to the case of the respondent, he came to know of the sale deed in the year 1978 and as the suit was filed on 4-6-1987, the same is within time. Obviously the suit has been treated by the Court to be the one for possession and Article 142 of the Limitation Act, 1908 has been resorted to, besides some benefit of section 14 of the Act is seemingly also given to the respondent. But the learned court unfortunately has failed to consider and appreciate the foundational facts of the case as put forth by the respondent in the plaint and those emerging on the record, i.e. as from the pleadings of the parties, and the evidence produced by them; the reasoning assigned by the two courts on this point has been ignored; it has also eluded the attention of the learned High Court that basically the suit filed by the respondent was for cancellation of the documents on the allegations of fraud, forgery and misrepresentation, which (suit) shall squarely fall within the purview of section 39 of the Specific Relief Act and per Article 91 of the Act, the prescribed period of limitation shall be three years. Anyhow before proceeding further qua this proposition, we find it expedient to briefly touch upon the nature, the object and the significance of the law of limitation. From the various dicta/pronouncements of the superior court, it can be deduced without any fear of contradiction that such law is founded upon public policy and State interest. This law is vital for an orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious object of the law is that if no time constraints and limits are prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law. The object of the law of limitation and the law itself, prescribing time constraints for each cause or case or for seeking any relief or remedy has been examined by the courts in many a cases, and it has been held to be a valid piece of legislation, and law of the land. It is ‘THE LAW” which should be strictly construed and applied in its letter and spirit; and by no stretch of legal interpretation it can be held that such law (i.e. limitation law) is merely a technicality and that too of procedural in nature. Rather from the mandate of section 3 of the Limitation Act, it is obligatory upon the court to dismiss a cause/lis which is barred by time even though limitation has not been set out as a defence. And this shows the imperative adherence to and the mandatory application of such law by the courts. The said law is considered prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society. The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. And it may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationally of the “LAW” itself. In the above context, a judgment of this Court reported as Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) has thrown considerable light on the subject and has provided guidance, in the following words:–

 

“We may add that public interest require that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affair. Statutes of limitation and prescription are, thus, statues of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence.”

 

The question which further arises for determination in this case on the point of limitation is whether in all those cases, like the one in hand, where a plaintiff has joined several causes of action and has sought multiple remedies, the cause of action/remedy entailing the maximum period of limitation should necessarily and mandatorily be resorted to and should cover the question of limitation for the purposes of the whole suit, regardless of whether the suit is barred by time for other cause(s) of action or relief. Suffice it to say that this is not the absolute rule of law, rather legal aspect should be examined by taking into consideration the facts of each case and particularly the frame and object of the suit, taking inter alia further into account the contents of the plaint itself. And thus it should be determined what main relief is being sought by the plaintiff and whether the other remedies asked for (may be carrying larger period of limitation) are ancillary, dependent and consequential to the main relief. The ratio of catena of judgments of the superior courts are to the effect, that in order to ascertain the application of correct Article of limitation to a particular suit, the frame of the suit should be considered, adverted and adhered to (as mentioned above). The true test for determining the period of limitation is to see the true effect of the suit and not its formal or verbal description(1). The Privy Council in a matter reported as Janki Kunwar v. Ajit Singh (15 Cal. 58), in which the basic and frontal attack was to the validity of certain documents, but the relief of possession was also claimed by the plaintiff, while resolving the question of limitation, opined as follows:–

 

“Then the Judicial Commissioner deals with the case in a different way. He says the suit is essentially a suit for the possession of immovable property, and as such falls within the 12 years’ limitation. Now he is clearly wrong there. It was not a suit for the possession of immovable property in the sense to which this limitation of 12 years is applicable. The immovable property could not have been recovered until the deed of sale had been set aside, and it was necessary to bring a suit to set aside the deed upon payment of what had been advanced, namely, the Rs.1,25000. Therefore there has been on the part of the lower Courts a misapprehension of the law of limitation in this case. Their Lordships are clearly of opinion that the suit falls within Article 91 of the Act XV of 1877, and is therefore barred”.

 

In another case reported as Bashir Ahmad v. Partab (1989 MLD 4314) it was held:–

 

“The next question which falls for consideration is whether suit filed by the appellant was barred by time. In the suit the appellant challenged the validity of sale-deed allegedly executed by Arjan deceased in favour of respondent on the ground of fraud and misrepresentation. Article 144 of the Limitation Act was not attracted to the suit merely because a prayer for possession of land was made. Since the appellant could not be granted relief regarding possession of land unless he had crossed the hurdle of sale-deed in favour of respondent therefore the provision of Limitation Act prescribing limitation for getting a document on the basis of fraud declared as void would be applicable. In the facts and circumstances as pleaded in the plaint the suit is mainly for a declaration that the said sale-deed was void having been procured through fraud and relief of possession is in the nature of consequential relief therefore Article 91 of the Limitation Act is applicable. This Article prescribed a period of three years from the date when the alleged fraud came to the knowledge of the plaintiff”.

 

In our candid view if an instrument is alleged to have been obtained by fraud, undue influence, coercion or misrepresentation, it is not a document which can be held to be void ab initio or on the face of it void, but it requires to be determined and adjudged by the court of law as voidable or void as the case may be and in such an eventuality, the matter shall squarely be covered by section 39 of the Specific Relief Act, which mandates:–

 

“39. When cancellation may be ordered.– Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or viodable; and the Court, may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

 

If the instrument has been registered under the Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

 

Illustrations

 

(a) ………………………………………

 

(b) A conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation of the forged instrument.

 

(c) ………………………………………

 

(d) ………………………………………

 

And where the case is basically and primarily covered by section 39 ibid, Article 91 of the Limitation Act shall be attracted, which ordains and reads as under:–

 

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