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2007 S C M R 1446

 

[Supreme Court of Pakistan]

 

Present: Faqir Muhammad Khokhar, Syed Jamshed Ali and Ghulam Rabbani, JJ

 

 

ATTA MUHAMMAD—-Appellant

 

Versus

 

MAULA BAKHSH and others—-Respondents

 

Civil Appeal No.874 of 2005, decided on 11th April, 2007.

 

(On appeal from the judgment, dated 14-6-2005 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No.209-D of 1992).

 

S.M. Tayyab, Senior Advocate Supreme Court for Appellant.

 

Abdul Sadiq Chaudhry, Advocate Supreme Court for Respondents.

 

Date of hearing: 11th April, 2007.

 

 

JUDGMENT

 

SYED JAMSHED ALI, J.— This appeal is directed against the judgment dated 14-6-2005 passed by the learned Lahore High Court in Civil Revision No.269/D of 1992 whereby the judgment and decree of the learned two Courts were reversed and the suit filed by respondents,. Maula Bakhsh and five others, was decreed. Their case in the plaint was that they were the off springs from the wedlock of Abdur Rehman and his wife Mst. Khairan and on the death of Mst. Khairan in 1972 they occupied the suit property in accordance with their entitlement. However, meanwhile vide Mutation No.562 attested on 6-1-1942, Atta Muhammad, the appellant, herein had got a mutation of inheritance of the estate of Mst. Khairan sanctioned in his name. It may be noted at the very outset that it was not the case in the plaint that Mst. Khairan was the same lady whose estate was mutated in favour of Atta Muhammad and that she was alive when Mutation No.562 was attested.

 

2. The suit was contested by the appellant. He particularly stated that on 6-1-1942, at the time of attestation of Mutation No.562, he was aged about 7/8 years. Other objections i.e. that pedigreetable claimed in the plaint was erroneous and that the suit was barred by time were also taken.

 

3. The suit was contested and vide judgment, dated 21-12-1988 it was dismissed. The learned trial Court found that the respondents had not placed on record, any title document showing that the property vested in Abdur Rehman or Mst. Khairan. As far as the relationship of Mst. Khairan with the plaintiff is concerned, the only witness examined in support thereof i.e. P.W.1 was disbelieved by the learned trial Court on the ground that there was no independent evidence. Exh.P.7, death entry, in respect of Mst. Khairan was also relied upon according to which she was the wife of Wahid Bakhsh, the plaintiffs-respondents were not able to connect them with Mst. Khairan and that the suit was barred by time as it was filed on 6-3-1988 after 46 years to challenge the mutation which was attested on 6-1-1942. The learned First Appellate Court affirmed these findings. Notice was taken of Mutation No.655 attested on 4-6-1947 and Mutation No.1393 attested on 30-4-1971 according to which Atta Muhammad had got the share of inheritance from the estate of Ghulam Haider (Mutation No.655) and Mst. Bachi (Mutation No.1393) the explanation of D.W.1, the appellant was that after the death of his father Abdur Rehman, Mst. Khairan had married Ghulam Haider, and his step-brothers and sisters were kind enough to give share to him from the estate of Ghulam Haider and Mst. Bachi. The learned First Appellate Court found that it was not established that Mst. Khairan, whose inheritance was claimed by the plaintiffs, was the same lady who had died in 1942. Accordingly, the appeal was dismissed.

 

4. The matter was taken to the learned High Court by the respondents. The learned High Court was of the view that inheritance of Mst. Bachi, and Ghulam Haider clearly established that the appellant was not the son of Abdur Rehman and Mst. Khairan despite concurrent findings of the learned two Courts that plaintiffs respondents had not been able to establish the right to inherit the estate of Mst. Khairan, the revision petition was allowed with a finding that “no question of limitation arises in a case pertaining to inheritance particularly when it has come on record that the land was subject of river action and was reclaimed 10/12 years before 1988″.

 

5. The learned counsel for the appellant vehemently contended that the suit was hopelessly barred by time and was rightly dismissed. The second contention is that the appellants had come up with a totally false plea of being descendants of Abdur Rehman and Mst. Khairan, and therefore, even on this score they were not entitled to be heard in equitable jurisdiction of grant of declaration, the learned two Courts, on consideration of the entire evidence, had come to the conclusion that no case was made out in favour of respondents, the learned High Court could not have interfered by taking a different view of evidence even it was possible, a sweeping statement that no limitation applies to the case of inheritance was not acceptable because it will amount, to rewriting the law, the justification found by the learned High Court that the land was subject to erosion and was reclaimed 10/12 years before 1988 was not even pleaded in the plaint.

 

6. The learned counsel for respondents however, defended the impugned judgment of the learned High Court for the reasons stated therein. His emphasis has been that since Mst. Khairan was alive in 1942 Mutation No.562 attested on 6-1-1942 was the result of fraud and by undoing it the High Court has passed a just and proper order. The documentary evidence produced on the record shows that Atta Muhammad was son of Ghulam Haider and Mst. Bachi and not Abdur Rehman. Since important evidence was ignored by the learned two Courts, the High Court was fully justified to reappraise the evidence and come to just and fair conclusion.

 

7. The submissions have been considered by us. The basis of the suit was a false pedigreetable claimed in the plaint by the plaintiffs-respondents according to which they claimed to be the offsprings of Abdur Rehman and Mst. Khairan. The pedigreetable was not even supported by P.W.1 who stated that Mst. Khairan had married twice. The first marriage was with Abdur. Rehman and this, according to him, continued for about two years and second was with Wahid Bakhsh..The learned High Court relied on the testimony of P.W.1 who had not even supported the pedigree described by the plaintiffs in the plaint. There has been a growing tendency amongst the litigants to approach the Courts by concealing material facts or by misrepresenting them. This is one of the cases where the foundation of the claim was based on falsehood. There is compelling need in the times in which we are living in which the moral and ethical values have been confined to casualty ward to ensure value of truth and one way is that the Courts take a very strong view of any misrepresentation of facts by a party and refuse to exercise discretionary jurisdiction in its favour. Therefore, apart from the fact that the High Court had little justification to interfere in concurrent findings of fact of the learned two Courts, even for this singular reason that the plaintiffs misrepresented fact by claiming wrong pedigree dismissal of their suit was justified. The Courts should also keep in mind that relief of declaration is discretionary and a plaintiff who seeks discretionary relief must come to the Court with clean hands.

 

8. The findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which disentitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, rewritten the law of limitation. It was not a case of inheritance between the co-sharers because the plaintiffs case was that the appellant was a stranger. As the mutation of inheritance of the estate of Mst. Khairan in 1942 is concerned, there was absolutely no justification, factual or legal, to overlook the delay of 46 years in filing the suit. This delay of 46 years adversely reflected on the bona fides of the claim of the respondents. The learned High Court observed that on account of river action the land suffered erosion but was reclaimed 10/12 years preceding 1988 could hardly be accepted in view of the absence of the pleadings. What happened in 1942 when the mutation was attested could hardly be properly and justly inquired into after 46 years. In interfering the learned High Court was more concerned whether Mutation No.562 in favour of the appellant was validly attested, although the plaintiffs-respondents were required to prove their own case but had failed. Perusal of the record shows that in fact Mst. Khairan inherited the estate as widow of Abdur Rehman and in accordance with general customs of the Punjab, women use to inherit life estate only to be terminated on remarriage or death. May be that on remarriage of Mst. Khairan which she did, the estate of Abdur Rehman in her hand or was mutated in favour of Atta Muhammad. In any case we think it to be plainly unfair to call upon a person to defend a 46 years old transaction. As observed above, the law of limitation was applicable with full force.

 

9. We may add that public interest requires 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, statutes 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”. There have been cases where even to claim inheritance law of limitation was applied. In Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 mutation of inheritance sanctioned in 1953 was sought to be challenged in 1962, the suit was held to be barred by time which was maintained by this Court. Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278 also involved a claim based on inheritance the mutations attested in 1959 and 1967 were challenged in 1983, the suit was dismissed as barred by time which was upheld. In Luqman and others v. Gul Muhammad 1984 SCMR 63, mutations of inheritance sanctioned in 1923 and 1936 were challenged in 1978. Dismissal of the suit on the question of limitation was maintained by this Court.

 

10. We may also like to observe that extension of limitation for a suit is provided for under section 18 of the Limitation Act and since the averment in the plaint regarding sharing of produce was found to be false and there was no specific averment to bring the case within section 18 of the Limitation Act, it was hopelessly barred by time. We are of the view that even if law of limitation was not stricto senso applicable, delay and laches being wholly incompatible with exercise of discretion to grant declaration the suit was rightly dismissed.

 

11. For what has been stated above, we allow this appeal, set aside the impugned judgment and decree of the learned High Court and restore the judgments and decrees, passed by the learned trial Court and the learned first Appellate Court.

 

M.H./A-42/SC Appeal allowed.

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