ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. S – 2870 of 2015

Date of hearing

Order with signature of Judge

1. For hearing of main case

2. For hearing of CMA No.8069/2015

29.10.2018

Mr. Sarfraz A. Akhund advocate for petitioner.

Bashir Ahmed and Abdul Aziz respondents No.2 and 3 respectively are present in person.

Mr. Asif Aman advocate for respondent No.14.

Mr. Ahmed Ali Shahani Assistant Advocate General Sindh.

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This Constitution Petition impugns an order passed by appellate Court whereby plaint of suit was rejected as being barred by time. It is the case of the petitioner that the property was purchased in the name of two sons / brothers of the petitioner while they were hardly ½ to 1 ½ year of age. It is the case of the petitioner that after sad demise of their father in 1961, their right and entitlement was never denied. They filed a suit in the year 2009 when the alleged transaction on the basis of a sale deed was made in favour of respondent No.14 which is considered to be a denial of their right and consequently they filed a suit for declaration immediately that it was benami purchase in the name of sons of Muhammad Suleman and as such their right cannot be denied by the execution of that sale deed in favour of respondent No.14. The appellate Court while passing the order in the ultimate para went on to observe that the possession was undisputedly with the respondent which is a strong point in favour of the person claiming to be the owner of the same land. It further observed that the father died in the year1961 and he never challenged the transaction in favour of his son. The appellate Court applying Article 120 of the Limitation Act observed that the suit was barred by time and hence the revision was allowed and the application under Order VII Rule 11 was allowed whereby apparently plaint was rejected being barred by time.

I have heard the learned counsel and perused the material available on record.

The grounds assigned by the appellate Court while allowing the application under Order VII Rule 11 does not germane to the requirement for rejecting of plaint under Order VII Rule 11. This is no ground that the petitioner was not in possession of the suit property since last so many years. It is also immaterial that the father has not challenged the title of his own son / sons during his lifetime. This is not disputed that the property was purchased at the time when these claimants from whom respondent No.14 has acquired the property now were only minors. It is also not denied that there is no such specific denial as far as alleged rights of the petitioner are concerned as merely in possession of the suit property does not mean that the rights of the petitioner were also denied. At the most the right of the petitioner could be said to have been denied prima facie, when an attempt was made to execute the sale deed in favour of respondent No.14 Mst. Hina Perveen which was the right accrued to the petitioner to file a suit to seek declaration as made in the plaint, hence this is a case of conflicting findings of two courts below. The reasoning and findings assigned by the appellate Court insofar as rejection of plaint is concerned, is not sustainable under the law. The appellate Court’s order is set aside, however, this being a mixed question of law and fact, trial Court is directed to frame issues amongst others and this being a preliminary issue, parties be directed to record evidence on this issue as well as on other issues as and when framed by the trial Court, however, since the matter is pending for quite some time, we expect that the trial Court shall conclude the trial and pronounce the judgment preferably in four (04) months with compliance report to Additional Registrar of this Court.

Petition and listed application stand disposed of the above terms.

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J U D G E

N.M.