PLJ 2023 SC 8
[Appellate Jurisdiction]
Present: Ijaz-ul-Ahsan,
Yahya Afridi and Jamal Khan Mandokhail, JJ.
SALAMAT ALI and others--Appellants
versus
MUHAMMAD DIN and others--Respondents
C.A. No. 849 of 2015, decided on 20.1.2022.
(Against the judgment dated 20.05.2015 of the Lahore High
Court, Rawalpindi Bench, passed in Civil Revision No. 232 of 2007).
Specific Relief Act, 1877 (I of
1877)--
----S. 42--Limitation
Act, 1908 Ss. 18, 120--Suit for declaration was decreed--Concurrent
findings--Revision petition was allowed--Sale of jointly owned suit
land--Matter was remanded to appellate Court--Appeal was dismissed--Evidential
burden--Preponderance of probability--Benefit of Section 18 of Limitation
Act--Scope of revisional jurisdiction--Challenge to--Quantum of evidence
produced by appellants was sufficient to create a high degree of probability of
relationship of appellants with Nasir-ud-Din to exist--Evidential burden
shifted to respondents to rebut facts asserted by appellants--Trial and
appellate Courts had rightly found preponderance of probability in favour of appellants
in accepting their assertion of their relationship with Nasir-ud-din, whereas revisional
Court appears to have exceeded its jurisdiction by setting aside their findings--Positive
concurrent finding in favour of appellants regarding their asserted
relationship with Nasir-ud-Din would legally stand--Limitation period of six
years provided in Article 120 of Limitation Act was, therefore, to be counted
for the suit of the appellants from the said date, i.e., when the
benefit of Section 18 of the Limitation Act was not available to them, as
discussed above--Suit instituted by appellants was hopelessly time barred, as
correctly held by revisional Court--Issue of limitation is one of law, or
at-least mixed one of law and facts; re-examination of findings of Court(s)
below on this issue by revisional Court falls within scope of revisional
jurisdiction--Trial and appellate Courts had acted in exercise of their
jurisdiction illegally by wrongly deciding issue of limitation, and revisional Court
has rightly interfered with, and overturned their findings on this issue.
[Pp.
13, 14, 18 & 19] A, B, D, G & H
Civil Procedure Code, 1908 (V of
1908)--
----S. 115--Revisional
jurisdiction--A revisional Court cannot upset a finding of fact of Court(s)
below unless that finding is result of misreading, non-reading, or perverse or
absurd appraisal of some material evidence--Revisional Court cannot substitute finding
of Court(s) below with its own merely for reason that it finds its own finding
more plausible than that of Court(s) below. [P.
14] C
Specific Relief Act, 1877 (I of
1877)--
----S. 42--Suit for declaration--Suit
for declaration of any right as to any property is filed under Section 42 of Specific
Relief Act 1877 (“Specific Relief Act”)--To ascertain when right to sue accrues
to a legal heir to seek a declaration of his ownership right over property
inherited by him and of his such right not to be affected by further transfer
of such property. [P.
17] F
Limitation--
----S. 18--Assertion of commission
of fraud-- A plaintiff who wants to avail benefit of Section 18 of Limitation
Act, must assert commission of such fraud by defendant in plaint, and should
also give particulars thereof, and date of knowledge as required under Rule 4
of Order VI of C.P.C., and then prove same through positive evidence. [Pp. 15 & 16] E
Mr. Muhammad Munir Paracha, ASC
for Appellants.
Sh. Zamir Hussain, ASC and Syed
Rifaqat Hussain Shah, AOR for Respondents Nos. 1-4.
Ex parte for Respondents Nos.
5-21.
Date of hearing: 20.1.2022.
Judgment
Yahya Afridi, J.--This appeal challenges the judgment
dated 20.05.2015 passed by the Lahore High Court in its revisional jurisdiction
under Section 115 of the Code of Civil Procedure, 1908 (“C.P.C.”), whereby the
concurrent judgments of the trial and appellate Courts have been set aside and
the suit of the appellants has been dismissed.
2. The matter in hand relates to the estate of one
Nasir-ud-Din, who passed away in the year 1959, and his estate comprising land
measuring 22-Kanals situated in village Jalalpur Sharif, Pind Dadan Khan (“suit
land”) devolved upon his nephew, Karam Elahi, as his sole legal heir vide inheritance
Mutations Nos. 1433 and 1435, both dated 14.10.1959 (“inheritance mutations”).
Karam Elahi sold the suit land, as well as the land that he jointly owned with
his deceased paternal uncle having inherited the same from his father, Shams-ud-Din
brother of Nasir-ud-Din, to several persons vide different sale deeds
and mutations (“further alienations”), and those persons further sold it to, or
made exchange with, other persons.
3. Salamat Ali and his siblings, children of Lal Din, and their
three paternal aunts and two daughters of the fourth paternal aunt (“appellants”)
challenged the said inheritance mutations and further alienations, by filing a
civil suit in the year 1982. Salamat Ali and his siblings asserted that their
father, Lal Din, was the predeceased son of Nasir-ud-Din, while their paternal
aunts and cousins asserted that they were the daughters and granddaughters of
Nasir-ud-Din, respectively. The appellants claimed that they had been deprived
of their legal share in the legacy of their predecessor-in-interest,
Nasir-ud-Din, by Karam Elahi fraudulently vide the inheritance mutations
and further alienations, and prayed for declaring those mutations and
alienations void and ineffective against their rights.
4. Karam Elahi, the beneficiary of the inheritance mutations,
did not appear before the trial Court and was thus proceeded ex-parte; while
the further transferees including Khushi Muhammad, the father of Muhammad Din
and three others, Respondents Nos. 1 to 4 (“respondents”) contested the suit of
the appellants, denying the status of the appellants as legal heirs of
Nasir-ud-Din, and claimed themselves to be the bona fide purchasers of the suit
land, besides raising objection to the maintainability of the suit on the
ground of limitation.
5. The trial Court decreed the suit of the appellants. The
appellate Court accepted the appeal of the respondents, set aside the judgment
of the trial Court and dismissed the suit. The High Court (“revisional Court”),
on revision petition of the appellants, set aside the judgment of the appellate
Court, and remanded the appeal to the appellate Court, for afresh decision. On
remand, the appellate Court dismissed the appeal and maintained the judgment of
the trial Court.
6. On a revision petition filed by the respondents, the
revisional Court set aside the concurrent judgments of the trial and appellate Courts
that had been rendered in favour of the appellants, and dismissed the suit of
the appellants on the grounds that the appellants had failed to prove their
assertion that they were legal heirs of Nasir-ud-Din and that the suit filed by
them challenging the inheritance mutations of the year 1959 in the year 1982,
was time barred. Hence, the present appeal by the appellants.
7. The learned counsel for the appellant vehemently contended:
that when there was positive evidence of witnesses who had “special knowledge”
about the relationship between the parties as per Article 64 of the
Qanun-e-Shahadat 1984, there was no reason to disbelieve them, especially when
the respondents’ witnesses did not specifically negate their statements; that
the preponderance of probability was in favour of the assertion of the
appellants and that there was no “misreading of evidence” leading to an “illegality
or material irregularity” within the scope of Section 115 of the C.P.C.,
justifying interference by the revisional Court in the judgments of the trial
and appellate Courts.
8. The learned counsel for the respondents contended in
rebuttal; that the appellants had produced no cogent, reliable evidence in
support of their assertion; that the oral testimony of some of the appellants
would not legally suffice to substantiate their assertion; that no documentary
evidence, such as the appellants’ birth certificates, National Identity Cards
and marriage certificates, was produced; and that the revisional Court had the
jurisdiction to correct the material irregularities in the judgments of the
trial and appellate Courts, which the revisional Court has legally and
correctly exercised.
9. Valuable arguments of the learned counsel for the parties
have been heard, and with their able assistance, record of the case was
examined.
10. As the present case revolves around the legacy of
Nasir-ud-Din and the claim made by the appellants is based on their asserted
relationship with Nasir-ud-Din, it would be appropriate to commence our
discussion with the same. The appellants have asserted that Nasir-ud-Din had
four daughters, namely, Baigmaan, Fatima, Rasoolaan and Ayesha, and one son,
namely, Lal Din, who pre-deceased Nasir-ud-Din in the year 1956, and he was
survived by one daughter, Barkatay, and four sons, Salamat Ali, Muhammad
Ramzan, Barkat Ali and Niamat Ali. On the other hand, the respondents claim
Nasir-ud-Din to have died issueless, and his nephew, Karam Elahi son of
Shamas-ud-Din, the brother of Nasir-ud-Din, had thus validly inherited the
estate of Nasir-ud-Din, as his sole legal heir.
11. The parties produced their evidence in support of their
respective assertions, and on appraising the same, the trial and appellate Courts
concurrently found that the appellants had proved their assertion of being
legal heirs of Nasir-ud-Din, while the revisional Court, on reappraising the
same evidence, has come to a contrary finding. It would, thus, be appropriate
to first state on what standard of proof, the Courts were to appraise the
evidence produced by the parties, and render its finding thereon.
Evidential standards of proof
applicable in civil cases
12. As to proof of a fact, clause (4) of Article 2 of the
Qanun-e-Shahadat, 1984 provides:
“(4) A fact is said to
be proved when, after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the
supposition that it exists.”
The conceptual analysis of this clause
shows that in order to prove a fact asserted by a party, it does not require a
perfect proof of facts, as it is very rare to have an absolute certainty on
facts. This provision sets the standard of a ‘prudent man’ for determining the
probative effect of evidence under the ‘circumstances of the particular case’.
The judicial consensus that has evolved over time is that the standard of ‘preponderance
of probability’ is applicable in civil cases,[1]
the standard of ‘proof beyond reasonable doubt’ in criminal cases,[2]
and the in-between standard of ‘clear and convincing proof’ in civil cases
involving allegations of a criminal nature.[3]
All these three standards are, in fact, three different degrees of probability,
which cannot be expressed in mathematical terms, and are to be evaluated ‘under
the circumstances of the particular case’, as provided in clause (4) of Article
2 of the Qanun-e-Shahadat, 1984.
13. In the present case, the evidence produced by the parties
on the disputed fact of the appellants’ relationship with Nasir-ud-Din, is to
be examined on the touchstone of the evidential standard of “preponderance of
probability”.
Evidence produced by the parties in
support of their respective assertions
14. We note that appellants, Fatima Bibi (PW2) and Salamat Ali
(PW4), the co-plaintiffs in the suit, appeared in the witness-box and testified
in support of their assertion of being legal heirs of Nasir-ud-Din. The
appellants examined Allah Ditta (PW-1), the grandson (daughter’s son) of Qutab
Din father of Nasir-ud-Din, and Bashir Ahmad (PW-3), a resident of the locality
where Nasir-ud-Din died. They both testified that Nasir-ud-Din had four
daughters and one son, Lal Din, and Lal Din had four sons and one daughter. All
the witnesses produced by the plaintiffs stood firm to the test of
cross-examination, and their testimony of the deposed fact could not be shaken.
The appellants also produced documentary evidence, such as the birth
certificate of Lal Din (Ex-P1) and his death certificate (Ex-P2), wherein he
has been recorded as son of Nasir-ud-Din, to prove their assertion. The quantum
of evidence produced by the appellants was sufficient to create a high degree
of probability of the relationship of the appellants with Nasir-ud-Din to
exist. Accordingly, the evidential burden shifted to the respondents/defendants
to rebut the facts asserted by the appellants/plaintiff.
15. In rebuttal, the respondents/defendants produced Khuda
Bakhsh (DW2) and Muhammad Din (DW3), who did not deny the asserted relationship
of the appellants with Nasir-ud-Din, rather only expressed their ignorance
about Nasir-ud-Din having four daughters and one son, Lal Din, and Lal Din
having four sons and one daughter. Karam Elahi, the beneficiary of the
inheritance mutations, as aforementioned did not appear to contest the suit and
dispute the asserted relationship of the appellants with Nasir-ud-Din, nor did
the respondents call him as a witness, to rebut the assertion of the
appellants.
16. In view of the above evidence produced by the parties, we
find that the appellants/plaintiffs proved their assertion with high degree of
probability and the preponderance of probability was clear and evident in favour
of their stance regarding their relationship with Nasir-ud-Din, while the
respondents/defendants failed to rebut the same through any cogent evidence.
Jurisdiction of revisional Court
interference of the concurrent findings of fact
17. The trial and appellate Courts had rightly found the
preponderance of probability in favour of the appellants in accepting their
assertion of their relationship with Nasir-ud-Din, whereas the revisional Court
appears to have exceeded its jurisdiction by setting aside their findings. We
note that the concurrent findings on the crucial issue of relationship recorded
by the two Courts was set aside by re-appraising the evidence, without pointing
out, what material evidence was misread or non-read by the Courts below or how
their appraisal of evidence was perverse or absurd. Needless to mention that a
revisional Court cannot upset a finding of fact of the Court(s) below unless
that finding is the result of misreading, non-reading, or perverse or absurd
appraisal of some material evidence. The revisional Court cannot substitute the
finding of the Court(s) below with its own merely for the reason that it finds
its own finding more plausible than that of the Court(s) below. Hence, the
positive concurrent finding in favour of the appellants regarding their
asserted relationship with Nasir-ud-Din would legally stand.
Application of limitation to
inheritance cases
18. So far as the finding of the
revisional Court on the issue of limitation is concerned, we find the same is
in accord with the law declared by this Court in Mst. Gharana v.
Sahib Kamal Bibi[4]
and Atta Muhammad v. Maula Bakhsh,[5]
as well as in the recent case of Ghulam Qasim v. Mst. Razia Begum[6]
wherein after referring to some of the leading judgments on the issue, this
Court opined that the law of limitation would be relevant in inheritance cases,
where third party interest has been created in the property, as is in the
present case.
19. In the present case, the trial Court
found the suit to be within time by holding that limitation would run from the
date the appellants got knowledge about the fraudulent transaction. The
appellate Court upheld the finding of the trial Court observing that no
limitation runs against a fraudulent act. The revisional Court set aside the
findings of the trial and appellate Courts with the observation that the
appellants had failed to disclose the date of their knowledge, therefore, the
suit instituted by them in the year 1982 questioning the validity of
inheritance mutations of 1959 was hopelessly time-barred.
20. We find that all the three Courts
have failed to notice the exception provided in Section 18 of the Limitation
Act, 1908 (“Limitation Act”), according to which the benefit of postponing the
commencement of the period of limitation provided to an injuriously affected
person is not applicable against a bona fide purchaser. The section reads:
18.
Effect of fraud. Where any person having a right to institute a suit or
make an application has, by means of fraud, been kept from the knowledge of such
right or of the title on which it is founded, or where any document necessary
to establish such right has been fraudulently concealed from
him, the time limited for instituting a suit or making an application--
(a) against the person
guilty of the fraud or accessory thereto, or
(b) against any person
claiming through him otherwise than in good faith and for a valuable
consideration,
shall
be computed from the time when the fraud first became known to the person
injuriously affected thereby, or, in the case of the concealed document, when
he first had the means of producing it or compelling its production.
(Emphasis added)
Before we consider
and explain the exception provided in the above provision, it would be
pertinent to understand the true purport of the general rule encompassed in the
section. In essence, this provision is a safeguard against fraud committed to
conceal from a person his right to sue. It postpones the commencement of the
period of limitation to the date when the fraud first became known to the “person
injuriously affected”. Such injuriously affected person can, therefore,
institute a suit within the limitation period specified for such suit in the
First Schedule (“Schedule”) to the Limitation Act, but computing it from the
date when he first had knowledge of the fraud, whereby he was kept from
knowledge of his right to institute the suit.
21. We, however, must appreciate that the “fraud” envisaged in this
provision of the law only relates to concealing, not creating, the right to sue
and thus, affects only the limitation period and has nothing to do with the
cause of action and the relief prayed.[7]
It is also needless to mention that, a plaintiff who wants to avail the benefit
of Section 18 of the Limitation Act, must assert the commission of such fraud
by the defendant in the plaint, and should also give the particulars thereof,
and the date of knowledge as required under Rule 4 of Order VI of the C.P.C.,
and then prove the same through positive evidence.[8]
22. The umbrella concession qua
the commencement of period of limitation, under Section 18 of the Limitation
Act, has an express exception, that is, when the disputed property is purchased
by a third person in good faith and for valuable consideration (bone fide
purchaser), the benefit of Section 18 to the owner would then not be available
against such third person.
23. In the present case, Ghulam Hussain and Abdul Aziz sons of
Ahmad Din, the predecessors of Respondents Nos. 8 to 18, had purchased and
taken over possession of the major part of the suit land from Karam Elahi,
vide sale deed dated 12.05.1960 (Ex-D1). The record of the case is silent
on which dates, Karam Elahi, sold the remaining part of the suit land to other
respondents, as the appellants have not mentioned the mutation numbers, in
their plaint as well as in their evidence, whereby the remaining part of the
suit land was sold by Karam Elahi. What is important is that, the appellants
have neither asserted in their plaint, nor have discharged their initial legal
burden to prove the same by making statement on oath to that effect while
appearing in the witness box, that the respondents (further transferees) had
not purchased the suit land in good faith and for a valuable consideration or
that they were accessory to the fraud committed by Karam Elahi. Most
importantly, their possession over the suit land has not been disputed by the
appellants. For these reasons, the benefit of Section 18 of the Limitation Act
is not available to the appellants against the respondents, and the limitation
period for the suit instituted by the appellants was to be adjudged as per the
regular limitation period provided in the applicable Article of the Schedule to
the Limitation Act.
24. The suit instituted by the
appellants was for declaration of their proprietary rights in the suit land,
which is covered by the provisions of Article 120 of the Schedule to the
Limitation Act the residuary provision that caters for cases not expressly
provided under the Limitation Act. This Article prescribes six years period of
limitation for instituting the suit to be computed from the time when the right
to sue accrues. It reads:--
Description
of suit. |
Period
of limitation. |
Time
from which period begins to run. |
120. Suit for which no period of limitation
is provided elsewhere in this schedule. |
Six years |
When the right to sue accrues. |
The
above provision only provides that the period of six years is to commence, when
the right to sue accrues. However, it does not state when such right accrues.
25. A suit for declaration of any
right as to any property is filed under Section 42 of the Specific Relief Act,
1877 (“Specific Relief Act”). Therefore, to ascertain when the right to sue
accrues to a legal heir to seek a declaration of his ownership right over the
property inherited by him and of his such right not to be affected by the
further transfer of such property, we need to consider Section 42 of the
Specific Relief Act, which reads:
42.
Discretion of Court as to declaration of status or right--Any person entitled
to any legal character, or to any right as to any property, may institute a
suit against any person denying, or interested to deny, his title to
such character or right, and the Court may in its discretion make therein a
declaration that he is so entitled, and the plaintiff need not in such suit ask
for any further relief:
Provided that no Court shall make any
such declaration where the plaintiff, being able to seek further relief than a
mere declaration of title, omits to do so.
(Emphasis added)
It becomes evident by reading the above
provisions that the right to sue accrues to a person against the other for
declaration of his right, as to any property, when the latter denies or is
interested to deny his such right. It thus postulates two actions that
cause the accrual of right to sue, to an aggrieved person: (i) actual denial of
his right or (ii) apprehended or threatened denial of his right.
26. What “actions” can be termed as an
“actual denial of right”, and what a mere “apprehended or threatened denial of
right”, in the context of adverse entries recorded in the revenue record, is a
question that requires consideration. Admittedly, entries in the revenue record
do not create or extinguish proprietary rights. Such an entry may at most be
termed as a mere “apprehended or threatened denial” of right, and not an “actual
denial” of right. Accordingly, every new adverse entry in the revenue record
relating to proprietary rights of a person in possession (actual or
constructive) of the land regarding which the wrong entry is made, gives to
such person, a fresh cause of action to institute the suit for declaration. The
situation is, however, different in a case where the person in possession
(actual or constructive) of the land regarding which the wrong entry is made, is
ousted from such possession, besides a wrong entry in the revenue record. In
such a case, the act of ousting him from the actual or constructive possession
of the land, constitutes an “actual denial” of his rights, and does not remain
a mere “apprehended or threatened denial”. Therefore, in such a case, if the
person injuriously affected by such an act of “actual denial” of his rights
does not challenge the same within the prescribed limitation period, despite
having knowledge thereof, then his right to do so becomes barred by law of
limitation.
27. In an inheritance case, like the present one, a wrong
mutation in the revenue record, as to inheritance rights does not affect the
proprietary rights of a legal heir in the property, as the devolution of the ownership
of the property on legal heirs takes place under the Islamic law, through
inheritance immediately, without any formality including sanction of
inheritance mutation. Therefore, a wrong mutation is a mere “apprehended or
threatened denial” of right, not necessitating for the person aggrieved thereby
to institute the suit. The position is, however, different when the co-sharer
in possession of the joint property, on the basis of a wrong inheritance
mutation, sells the joint property, or any part thereof exceeding his share,
claiming him to be the exclusive owner thereof and transfers possession of the
sold land to a third person, the purchaser. In such a circumstance, the
co-sharer by his said act “actually denies” the rights of the other co-sharer,
who is only in constructive possession of the same, and ousts him from such
constructive possession also by transferring the possession of the sold land to
a third person, the purchaser. In such circumstances, the right to sue accrues
to the aggrieved co-sharer from the date of such sale, and transfer of actual
possession of the sold land to the third person, the purchaser.
28. Therefore, in the present case,
the right to sue accrued to the appellants on 12.05.1960 when Karam Elahi,
their co-sharer, claiming him to be the exclusive owner, sold and transferred
possession of the major part of the suit land exceeding his share therein,
which he had inherited from his own father, Shams-ud-Din brother of
Nasir-ud-Din, vide sale deed dated 12.05.1960 (Ex-D1), to Ghulam Hussain
and Abdul Aziz sons of Ahmad Din, the predecessors of Respondents Nos. 8 to 18.
The limitation period of six years provided in Article 120 of the Limitation
Act was, therefore, to be counted for the suit of the appellants from the said
date, i.e., 12.05.1960, when the benefit of Section 18 of the Limitation
Act was
not available to them, as discussed
above. The suit instituted by the appellants on 15.04.1982 was thus hopelessly
time barred, as correctly held by the revisional Court.
29. The issue of limitation is one of law, or at-least mixed
one of law and facts; therefore, the re-examination of findings of the Court(s)
below on this issue by the revisional Court falls within the scope of the
revisional jurisdiction. The trial and appellate Courts had acted in the
exercise of their jurisdiction illegally by wrongly deciding the issue of
limitation, and the revisional Court has rightly interfered with, and
overturned their findings on this issue.
30. For the above reasons, we find that the decision of the
revisional Court, non-suiting the appellants on the ground of limitation, is
legally correct and made well within the scope of the revisional jurisdiction.
This appeal, therefore, fails and is dismissed, accordingly.
(Y.A.) Appeal dismissed
[1]. Zaka Ullah v. Muhammad Aslam 1991 SCMR 2126.
[2]. Muhammad Asghar v. State
2010 SCMR 1706.
[3]. See: Sumaira Malik v.
Umar Aslam
2018 SCMR 1432, for
election matters, Shamas-Ud-Din v.
Government of Pakistan, PLD 2003 SC 187 and Muhammad Ataullah v. Islamic Republic of Pakistan, 1999
SCMR 2321, for service matters; Chief Justice of Pakistan v. President of Pakistan PLD 2010 SC 61 Per Muhammad Nawaz Abbasi, J. for matters involving assertion/allegation of malafide
of
fact.
[4]. PLD 2014 SC 167.
[5]. 2007 SCMR 1446.
[6]. PLD 2021 SC 812.
[7]. In Re: Marappa Goundar AIR 1959 Mad 26;
Yeswant Deorao v. Walchand Ramchand AIR 1951 SC 16.
[8]. Naeem Finance Ltd v. Bashir Ahmad PLD 1971
SC 8; Izzat Bakhsh v. Nazir Ahmad 1976
SCMR 508; Faizum v. Nander Khan 2006 SCMR 1931; Bashir Ahmed v. Muhammad
Hussain PLD 2019 SC 504.