Judgment Sheet.

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT.

Writ Petition No. 10459 of 2019.

(Muhammad Hafeez. Vs Muhammad Ramzan & 17 others)

J U D G M E N T.
Date of Hearing. 23.04.2025.

Petitioner by: Rana Muhammad Shahid

Mahmood, Advocate.

Respondent Nos.1 & 6 by: Rana Ahmad Tayyab Shahid,

Advocate.

Respondent No. 2 to 5 & 7 to 16 by: Nemo

------------------------------------------------------

KHALID ISHAQ, J: Through this Constitutional Petition,

the petitioner has called into question the Order and Decree dated
24.12.2018 (the “Impugned Decree”) passed by learned Addl.
District Judge, Shahkot, District Nankana Sahib (“Revisional
Court”).
2. Brief facts leading to the filing of this petition are that the
Petitioner/Plaintiff along-with Mst. Ishrat Bibi (respondent No.16 in
this petition) filed a suit for declaration and Permanent Injunction (the
“Suit”) challenging the registered gift deed bearing Document No.
6231 dated 03.09.1981 (“Impugned Gift Deed”) executed in favour
of respondent Nos. 7 to 10 by Elahi Bakhsh (“Original Owner”)
(maternal grand-father of the Petitioner/Plaintiff) in respect of two
parcels of land1, measuring 34- Kanals, 9-Marlas & 6-Kanals, 14-
Marlas, situated in Nizampura Chak No. 38/R.B Deva Singhwala
Tehsil Shahkot District Nankana-Sahib (the “Suit Property”). Plaint
avers that the Original Owner was an old age bed ridden person who

1
The Suit Property is more fully described in the Plaint and its description/measurement is not in issue.
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Writ Petition No. 10459 of 2019.

remained ill for a long time before his death and had lost normal
prudence due to protracted illness. It was asserted by the Plaintiffs that
respondent Nos. 7 to 10, in connivance with the revenue staff, got
registered the Impugned Gift Deed in their favour by depriving Mst.
Safia Bibi (real sister of the respondent Nos. 7 to 10) of her due legal
share. Needless to add that mutation No. 957 dated 24.01.1982 was
also sanctioned on the basis of Impugned Gift Deed. It was contended
that above-mentioned respondent Nos. 7 to 10 further sold out the
land to Respondent Nos. 1 to 6 through registered Sale Deeds bearing
Document No. 2545 dated 18.03.1984 and Document No. 2544 dated
18.03.1984 (“Registered Sale Deeds”). Mutations bearing Nos. 1441
dated 24.09.1988 and 1442 dated 24.09.1984 respectively were also
sanctioned on the basis of Registered Sale Deeds. As per the
averments of the plaint, the Petitioner contacted the beneficial
owners/respondents for his inheritance but in vain. Contesting
Defendants filed written statement and supported the Impugned Gift
Deed, as well as, Registered Sale Deeds executed and registered
thereafter. During the proceedings of the Suit, contesting defendants
also filed an application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 (“C.P.C”) which was disposed of by learned Civil
Judge Class-I, Shahkot (“Trial Court”) vide order dated 08.07.2017
(“Trial Court Order”), erroneously treating the Suit inter-se the co-
owners, completely ignoring the 3rd party rights and questions of
waiver, acquiescence and limitation. Being aggrieved of the Trial
Court Order, the contesting respondents preferred a Civil Revision
Petition in terms of Section 115 of the C.P.C, which was allowed vide
the Impugned Decree, consequently the plaint was rejected under
Order VII Rule 11 of the C.P.C being barred by limitation. Hence this
Constitutional Petition.
3. Leaned counsel for the Petitioner argued that question of
limitation is irrelevant in inheritance claims and if right of a legal heir
is accrued, all subsequent transactions, denying that right, are liable to
be cancelled. Further submits with vehemence that it was a matter of
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Writ Petition No. 10459 of 2019.

recording of evidence as limitation is a mixed question of law and

facts, therefore, plaint was not liable to be rejected under Order VII
Rule 11 C.P.C. Placed reliance upon “Khan Muhammad through L.Rs
and others v. Mst. Khatoon Bibi and others” (2017 SCMR 1476).
4. Conversely, learned counsel for respondent Nos. 1 & 6 has ably
assisted this Court by confining his submissions to legal premise of
rejection of plaint through Impugned Decree; submits that the
recording of evidence was not required as the Suit was patently barred
by limitation; argues that Court must put an end to litigation at the
very initial stage when it becomes evident that a full-fledged trial
would be a futile exercise. Further submits that limitation cannot be
brushed aside in every claim based on inheritance; adds that
admittedly the impugned transaction of gift and subsequent sales were
never challenged by the deceased lady who remained alive till 2009
and as such, legal heirs of the said deceased cannot challenge the
same. Finally submits that Mst. Safia Bibi was married in the same
village where the Suit Property is situated, the plaintiffs, who are her
successors, are also residing in the same village, which fact is
admitted and evident from the address of the plaintiff/petitioner
supplied in the plaint as well as in the Petition in hand. Learned
counsel has placed reliance on the cases reported as “Agha Syed
Mushtaque Ali Shah v Mst. Bibi Gul Jan and others” (2016 SCMR
910), “Noor Din and another v Additional District Judge, Lahore and
others” (2014 SCMR 513), “Mst. Grana through Legal Heirs and
others v Sahib Kamala Bibi and others” (PLD 2014 SC 167), “Lal
Khan through Legal Heirs v Muhammad Yousaf through Legal Heirs”
(PLD 2011 SC 657), “Muhammad Rustam and another v Mst.
Makhan Jan and others” (2013 SCMR 299), “Muhammad Raz Khan
v Government of N.-W.F.P and another” (PLD 1997 SC 397) and
“Pakistan Agricultural Storage & Services Corporation Ltd v Mian
Abdul Latif and others” (NLR 2008 Civil 578).
5. Arguments heard. Record perused.
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Writ Petition No. 10459 of 2019.

6. It is pertinent to mention here that Safia Bibi died on

01.12.2009. It is also admitted that she never challenged the
Impugned Gift Deed in her lifetime, although she remained alive for
28 years after the Impugned Gift Deed but did not come forward to
impugn the same. It is worth mentioning here that Impugned Gift
Deed is a registered document on the basis of which Mutation No. 957
dated 24.01.1982 was sanctioned in favour of respondent Nos. 7 to 10,
who are real brothers of Mst. Safia Bibi. It is also noteworthy that
aforementioned respondents/brothers of Mst. Safia Bibi further
alienated the Suit Property in favour of respondent Nos. 1 to 6 through
Registered Sale Deeds/ Mutations and since then the said purchasers
are in cultivating possession of the Suit Property. The Impugned Gift
Deed was challenged by the Petitioner/Plaintiff on 24.11.2015, after
34 years of the Impugned Gift Deed and 06 years after the death of
Mst. Safia Bibi. At the outset I will discuss as to what right vests in
the Petitioner/Plaintiff when no such right was claimed by Mst. Safia
Bibi within her lifetime and whether the most important question of
limitation involved in this case can conveniently be brushed aside,
ignored or condoned on simple claim of inheritance. It needs to be
appreciated that the present petitioner/plaintiff has not inherited
anything qua his claim on the basis of his relationship with his
deceased mother Mst. Safia Bibi as she did not leave behind any
inheritance with respect to the Suit Property. Not only the Impugned
Gift Deed was not challenged within her lifetime, the subsequent
transactions of sales to 3rd parties, evidenced by registered instruments
were not challenged either. The law has been well settled that if a
predecessor has not challenged a transaction in his/her lifetime, which
transaction purports to deprive the predecessor of his/her share and 3rd
party rights have been created, simple claim on the basis of
inheritance will not absolve the question of limitation.2 A careful

2
“Muhammad Rustam and another v Mst.Makhan Jan and others” (2013 SCMR 299), “Mushtaq Ul
Aarifin and others v Mumtaz Muhamamd and others” (2022 SCMR 55), “Mst. Grana through Legal Heirs
and others v Sahib Kamala Bibi and others” (PLD 2014 Supreme Court 167), “Lal Khan through Legal
Heirs v Muhammad Yousaf through Legal Heirs” (PLD 2011 Supreme Court 657) and “Atta Muhammad
v Maula Bakhsh and others” (2007 SCMR 1446)
 Page |5
Writ Petition No. 10459 of 2019.

perusal of the law laid down by the Apex Court clearly leads to an
ineluctable conclusion that the question of limitation cannot be
dubbed irrelevant in every claim of inheritance. Based on a thorough
analysis of the judgments of the Supreme Court of Pakistan, the
settled legal position emerges that only in the cases of exceptional
facts, the question of limitation has not been treated as a statutory bar
against the claims of inheritance. Those exceptional cases may be
summed up in the following terms:
i. Cases filed by female heirs, within their lifetime,
claiming fraud and misrepresentation played against them qua
the immoveable property left behind by their predecessor in
interest;
ii. Cases where it is pleaded and proved that the deprived
female heir(s) were being paid some proportionate share from
the income/lease of the immoveable property in question;
iii. Cases where a co-sharer has successfully pleaded and
proved that the rival heir or co-sharer was in deemed
possession of immoveable property on behalf of all other
heirs/siblings;
iv. Cases where no third-party rights have been created in
the immoveable property, which is/was subject matter of
undisputed inheritance;
v. Cases where the elements of acquiescence and waiver
are absent on the part of the claimant legal heir or his/her
predecessor in interest.

Muhammad Rustam’s case3 relates to plea of inheritance

agitated by a successor through predecessor, whose predecessor never
agitated his right of inheritance during his lifetime. The Supreme
Court of Pakistan has held:

3
“Muhammad Rustam and another v Mst.Makhan Jan and others” (2013 SCMR 299)
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Writ Petition No. 10459 of 2019.

“11. Atta Muhammad was deprived of right to inherit the

property as a consequence of mutation in dispute but he did
not challenge the same during his lifetime. The petitioners
claimed the property through Atta Muhammad as his heirs
who filed the suit as late in 1979 about nine years after the
sanction of mutation which had already been given effect to
in the record of rights. The petitioner, therefore, had no locus
standi to challenge the mutation independently, for Atta
Muhammad through whom the claimed inheritance himself
had not challenged the same during his lifetime.”

7. Similarly, while dealing with the often-argued ground that the

limitation does not come in the way of claims based on inheritance,
the Supreme Court of Pakistan in Mst. Grana4 case had considered
the landmark judgment on the subject in Ghulam Ali’s case5, and
enunciated the law in the following clear terms:
“6. It appears that in a suit which involves some element
of inheritance the Courts are generally quick to declare that
the law of limitation would not be attracted. It is not in all
cases of inheritance that the question of limitation becomes
irrelevant. Even in Ghulam Ali’s case the Court recognized
that there could be exceptional circumstances wherein a suit
based on inheritance, issue of limitation may become
relevant. This Court recently in some cases had invoked the
principle of time limitation and acquiescence of the plaintiff
material in suits of inheritance. In Mst. Phaphan v.
Muhammad Bakhsh (2005 SCMR 1278) a suit for declaration
and possession was filed in the year 1983 by the
plaintiff/petitioner claiming to be the owner of the inherited
property. The suit was held to be barred by time wherein
mutations of the year 1959 and 1967 were challenged in the
year 1983 when the plea of the defendants was that the
plaintiffs had alienated the property of her own free-will. The
plaintiff’s plea of being pardanashin lady and reliance on
the case of Ghulam Ali was not accepted as the plaintiff was
found to have remained in deep slumber for 24 years despite
the fact that the physical possession of the land was passed

4
“Mst. Grana through Legal Heirs and others v Sahib Kamala Bibi and others” (PLD 2014 Supreme
Court 167).
5
“Ghulam Ali v Mst. Ghulam Sarwar Naqvi” (PLD 1990 SC 1).
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Writ Petition No. 10459 of 2019.

on to the defendant. Recently in the case of Lal Khan v

Muhammad Yousaf (PLD 2011 SC 657) this Court had set
aside the concurrent findings of the three Courts and
dismissed the suit filed on 13.05.1970, where the plaintiff
had challenged inheritance mutation of 13.02.1947; the
Court held it to be barred by time. The rationale of the law
of limitation has been reiterated in Atta Muhammad v.
Maula Bakhsh (2007 SCMR 1446) where the concurrent
findings of the three Courts were set aside and the suit filed
by the respondents/plaintiffs in the year 1988 questioning
the inheritance mutation of 1942 was declared to be barred
by time. The Court held:--
“The law of limitation provides an element of certainty
in the conduct of human affairs. 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.”

The Court found that real dispute was whether a particular

person was or not a legal heir of one, Mst. Khairan, whose
inheritance mutation was attested in favour of appellant, Atta
Muhammad.
7. It emerges from the afore discussed case-law that the
law of limitation is not entirely to be ignored or brushed
aside whenever property is claimed on the basis of
inheritance. The conduct of such claimant may become
relevant and material when the bar of time limitation is
pleaded by the adversary. A defendant may show that the
plaintiff by her or his act, overt or implicit, had demonstrated
acquiescence in the defendant’s title to the suit properly
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Writ Petition No. 10459 of 2019.

thereby allowing him to deal with it as exclusive owner, for

instance regularly and openly disposing of parts of the
property or developing it at his own expense over a period of
time within the knowledge of the plaintiff. When in such
circumstances the defendant/heirs transfers the property for
valuable consideration the transferee is entitled to believe
that the transferor had a valid title to transfer. It may be
reiterated that in Ghulam Ali’s case the question of interest
protection of transferees from a legal heir in a suit of
inheritance was left open as the transferees were not
impleaded as defendants. That is not the case here. The very
facts of this case would demonstrate that the plaintiff had
acquiesced in the various transfers made of the suit property
from time to time.”
[Emphasis Supplied]

8. Likewise, in the case of Atta Muhammad 6, it is held:

“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.”
[Emphasis Supplied]
6
“Atta Muhammad v Maula Bakhsh and others” (2007 SCMR 1446).
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Writ Petition No. 10459 of 2019.

The above judgments have consistently been approved and

followed by the Supreme Court of Pakistan. In Salamat Ali’s case7,
the true import and exceptions of Section 18 of the Limitation Act,
1908, read with Order VI Rule 4 C.P.C has authoritatively been
settled in the following terms:
“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

7
Salamat Ali and others v Muhammad Din and others” (PLD 2022 SC 353)
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Writ Petition No. 10459 of 2019.

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. 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.
22. .......
23. .......
24. .......
25. .......
26. .......
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.
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Writ Petition No. 10459 of 2019.

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.”
[Emphasis Supplied]
9. For the cases, where the element of acquiescence and waiver is
depicted from the facts of the case, though the claim was based on
inheritance, the argument of brushing aside the limitation on the basis
of inheritance claim was not entertained, the reliance may be placed
on Syed Kausar Ali Shah’s8 case, the relevant paragraph whereof is
reproduced herein below:
“10. In our opinion there is a clear distinction between (a)
cases in which an heir alleges that his/her rights to
inheritance have been disregarded and his/her share not
mentioned in the inheritance mutation, and (b) those cases in
which such an heir sits idly by, does not challenge mutation
entries of long standing, or acquiesces, and only comes
forward when third party rights in the subject land have been
created. To succeed in respect of the latter (b) category cases
an heir must demonstrate that he/she was not aware of having
been deprived, give cogent reasons for not challenging the
property record of long standing, and show complicity
between the buyer and the seller (the ostensible owner) or
that the buyer knew of such heir's interest yet proceeded to
acquire the land. If these two categories are kept in mind,
then the judgments of this court, respectively relied by both
sides, which are apparently at variance, become
reconcilable.”
[Emphasis Supplied]

Similarly in the case of “Mst. Faheeman Begum (Deceased)

through L.Rs and others v Islam-Ud-Din (Deceased) through L.Rs
and others” (2023 SCMR 1402), lack of challenge by the donor
within her life time was declared fatal by the Supreme Court and bar

8
“Syed Kausar Ali Shah and others v Syed Farhat Hussain Shah and others” (2022 SCMR 1558)
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Writ Petition No. 10459 of 2019.

of limitation was accordingly applied. The principle is also followed

in plethora of other judgments9.

10. In various claims of inheritance brought by female legal heirs

against their brothers/male heirs, the Supreme Court of Pakistan has
authoritatively held that the question of limitation cannot be ignored
in every such case and such question of limitation is dependent upon
the facts and circumstances of each case. In Saadat Khan’s case10, it
was held:
“9. We may say at the very outset that in view of the
provisions of the residuary Article 120 of Schedule-I to the
Limitation Act 1908, there can hardly be any suit to which
the bar of limitation does not apply. As per the said Article a
suit for which no period of limitation is provided elsewhere in
the Schedule, the period of limitation for that suit is six years
from the time when the right to sue accrues. No specific
Article of Schedule-I to the Limitation Act provides a period
of limitation for a suit instituted by a person, under Section
42 of the Specific Relief Act 1877, for declaration of his
ownership rights to any property against a person denying his
said rights; therefore, the residuary Article 120 applies to
such suit. A suit instituted by a female legal heir for
declaration of her ownership rights as to the property left by
her deceased father in his inheritance, against her brother
who denies her rights is thus governed by the provisions of
Article 120. To decide whether such a suit is barred by
limitation, the six-year period of limitation provided by
Article 120 is to be counted from the time when the right to
sue for declaration accrues as provided therein. The question,
when the right to sue for declaration has accrued in a case,
depends upon the facts and circumstances of that case, as it
accrues when the defendant denies (actually) or is interested
to deny (threatens) the rights of the plaintiff as per Section 42
of the Specific Relief Act, 1877. The actual denial of rights
gives rise to a compulsory cause of action and obligates the

9
“Abdul Haq and another v Mst. Surrya Begum and others” (2002 SCMR 1330), “Taj Muhammad Khan
through L.Rs. and another v Mst. Munawar Jan and 2 others” (2009 SCMR 598), “Muhammad Rustam
and another v Mst. Makhan Jan and others” (2013 SCMR 299).
10
“Saadat Khan and others v Shahid-Ur-Rehman and others” (PLD 2023 SC 362)
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Writ Petition No. 10459 of 2019.

plaintiff to institute the suit for declaration of his rights, if he

wants to do so, within the prescribed period of limitation;
while in case of a threatened denial of rights, it is the option
of the plaintiff to institute such a suit on a particular threat.
On the actual denial of rights, the cause of action and the
consequent right to sue matures for instituting the suit for
declaration; whereas every threatened denial of rights gives
rise to a fresh cause of action, and thus a fresh right to sue
accrues on such a denial. This Court has, therefore, decided
the question of limitation in the cases relied upon by the High
Court and referred to by the counsel for the petitioners, in the
peculiar facts and circumstances of each case.”

11. The above makes it abundantly clear that neither the question of
limitation may be ignored in every claim based on purported rights of
inheritance nor it is permissible for the litigants to lay a statute barred
challenge by couching the relief in the form of an inheritance claim.
Indeed, there are few judgments by the Supreme Court of Pakistan,
the first blush wherefrom may lead to an inference otherwise,
however, appreciating the facts of all such cases in true perspective
will predominantly lead to the conclusion that all such cases fall in the
exceptions formulated above. For instance, In Shabla’s case11, it was
held by the Supreme Court of Pakistan that in a case where a female is
deprived of her share in the immoveable property of her predecessor,
limitation will not be a question against her claim of inheritance. A
perusal of the facts of the case would reveal that the female claimant
had successfully pleaded all the ingredients of fraud being played
upon her while sanctioning the inheritance mutation by excluding her
from inheritance; she was a minor at the time when the impugned
mutation was sanctioned; she proved that she was consistently paid
the share from the income of the immoveable property; she claimed
her right in her lifetime; the mutation through which her right was
infringed was not brought about as required under Section 42 of the

11
“Shabla and others v Ms. Jahan Afroz Khilat and others” (2020 S C M R 352) [2-MB]
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Writ Petition No. 10459 of 2019.

Specific Relief Act, 1877. Similarly, in the case of Mst. Fatima12, the
Supreme Court of Pakistan, while relying upon Shibla’s case has held
that the limitation will not be an obstacle in the case of inheritance as
in this case too, the fact of claimant lady being deprived from the
inherited property by way of impugned mutation was concealed from
her, however, she pleaded and proved that she was being paid her
share of income from the property and once the same was denied, she
brought the suit within her lifetime. Similar are the facts of the case of
Noor Din13. Likewise, the case of Mst. Khatoon Bibi supra, (also
relied upon by the learned counsel for the petitioner), the Supreme
Court has not held that no limitation runs against all kind of claims
based on inheritance nor the applicability of Article 120 of the
Limitation Act, 1908 has been excluded per se in the claims based on
inheritance. The cited precedent just holds that if a person feels
himself aggrieved of entries in the revenue record, on the basis of an
inheritance mutation, he can file a suit for declaration within six years
of such wrong entries or knowledge; the scope and exception has also
been confined to the claims against co-sharer. It is worth noting that
Mst. Khatoon Bibi’s judgment also duly recognizes the questions of
waiver, acquiescence and estoppel.
12. The above judgments authoritatively settle the law on the
subject that a claim of inheritance must cross the bridge of limitation,
waiver and acquiescence. An unchecked tendency of encouraging a
relief in the guise of inheritance is not warranted under the law,
particularly when the property in issue changes hands and the slumber
of a purported claimant of inheritance crystalizes valuable rights in
favour of third party(s). The encouragement of such claims and long
drawn trials in statute barred suits is counterproductive for genuine
and bona fide claims of female heirs. In the case in hand, predecessor
in interest of the Petitioner/Plaintiff (Mst. Safia Bibi) never voiced
any grievance against the Impugned Mutation, even on her demise in

12
“MOHAMMAD BOOTA (DECEASED) through L.Rs., and others v Mst. FATIMA daughter of Gohar Ali
and others” (2023 SCMR 1901)
13
“Noor Din (Deceased) through LRs v Pervaiz Akhtar and others” (2023 SCMR 1928)
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Writ Petition No. 10459 of 2019.

2009, her legal heirs (Petitioner/Plaintiff), who kept a mum for almost
six years despite being resident of same village, suddenly woke up
from his slumber and filed the Suit in November 2015, which is not
permissible under the law.
13. Insofar as the ground taken by learned counsel for the
Petitioner/Plaintiff qua the rejection of plaint under Order VII Rule 11
C.P.C without recording of evidence is concerned, it is observed that
when the plaint is barred by any law on the face of it, recording of
evidence would be a futile exercise and meant to encourage the abuse
of process of law. In the case of Mst. Bibi Gul Jan14, the Hon’ble
Supreme Court has held:
“22. As regards Mr. Awan's contention that the
question of limitation being a mixed question of law
and facts ought to have been decided after recording
evidence, we may observe that it is only in cases
where determination as to when the cause of action
for the suit arose, is dependent upon a certain factor,
situation, happening or occurrence, existence, extent
and the nature whereof could only be ascertained
after recording evidence, that the question of
limitation needs to be determined after such evidence.
However, where on the plain reading of the plaint, as
in the present case, it can be clearly seen that the suit
is patently barred by limitation, no evidence is
required. In fact to plead that a plaint cannot be
rejected, for the suit being barred by limitation/law,
without recording evidence, is to plead against the
mandate of law as contained in Order VII, Rule 11 of
the Code of Civil Procedure, which essentially
requires the Court to reject the plaint which appears
from its contents to be barred by limitation. The five
judgments relied upon by the learned ASC for the
appellant on question of recording evidence, listed at
Sr. Nos. 3, and 5 to 8 in para 11 of this judgment, also
are of no avail to the appellant. As in the case of
Fatima Moeen15, supra, where the plaintiff assailed the

14
“Agha Syed Mushtaque Ali Shah v Mst. Bibi Gul Jan and others” (2016 SCMR 910).
15
“Fatima Moeen v. Additional District Judge, Sheikhupura” (1992 SCMR 1199).
 P a g e | 16
Writ Petition No. 10459 of 2019.

sale of her immovable property by her mother on the

ground that at the time of the impugned sale she was a
minor, the Court found it necessary to record evidence
to determine the age of the plaintiff at the relevant time
i.e. time of the impugned sale, as it was found
incumbent to determine the age of the plaintiff and
such determination in that case was not possible
without framing an issue and without allowing the
parties to produce evidence thereon. It may also be
noted that in the said very case this Court has also
observed that from the provisions of Order VII, Rule
11, C.P.C. it is apparent that the Court can reject a
plaint if from the contents thereof it finds the suit to be
barred by limitation. However, the plaint in that case
by itself did not indicate so. Similarly in the case of
Mst. Gul Nisa16, supra, as discussed in para 20 above,
it was found necessary to determine the nature of the
land for deciding as to whether recurring cause of
action was available to the plaintiff that this Court
ordered decision of the case on merits altogether.
Likewise in the case of Haji Abdul Sattar17, supra,
where the plaintiff had impugned issuance of PTDs in
respect of her property in favour of the defendants on
9th January 1961 and 28th June 1963 through a suit
filed on 30th March 1995, and for the purposes of
limitation had pleaded that he came to know of the
issuance of the impugned PTDs in another
proceedings on 08.02.1999 only, this Court held that
the issue of limitation involved therein was a mixed
question of law and facts, and therefore the same
cannot be decided without evidence and directed the
Trial Court to decide the issue of limitation upon
evidence produced by the parties. In Irshad Ali18,
supra, where the plaintiffs suit for rendition of
accounts was dismissed after framing of a preliminary
issue regarding limitation and after recording some
evidence thereon, this Court, in view of the fact that
the controversy as to whether the partnership between

16
“Mst. Gul Nisa v. Muhammad Arif” (1996 SCMR 1239).
17
“Haji Abdul Sattar v. Farooq Inayat” (2013 SCMR 1493).
18
“Irshad Ali v. Sajjad Ali” (PLD 1995 SC 629).
 P a g e | 17
Writ Petition No. 10459 of 2019.

the parties had been dissolved on 30th June 1989, as

alleged by the defendants, or was subsisting as
claimed by the plaintiff, which had a direct bearing on
the question of limitation, was not delved into by the
Trial Court, whilst holding that a sound decision on
the question of limitation was dependent on a well
considered decision regarding the dissolution of
partnership, upheld the decision of the High Court of
remanding the case for framing an issue on the
question of dissolution of partnership, recording
evidence thereon and deciding the matter afresh. In the
case of Muhammad Afzal19, supra, this Court, in view
of the fact that in holding that an appeal filed before
the Divisional Canal Officer against an order of Sub-
Divisional Canal Officer was barred by limitation, the
two fora below had failed to take into consideration
the time consumed for obtaining the copy of the order
of Sub-Divisional Canal Officer, remanded the case
for recording evidence on the question of limitation,
for the reason that from the copy of the relevant order
of the Sub-Divisional Canal Officer, it was apparent
that the time beyond the prescribed period of
limitation was in fact consumed in obtaining the copy
of the order. It seems that recording of evidence was
found necessary for the reason that the copy was of an
order passed by a non judicial forum and the
certification/endorsement thereon did not carry the
degree sanctity and authenticity as that of a court of
law.”

Similarly, while interpreting the scope, true import and

applicability of Order VII, Rule 11 of the C.P.C, the Supreme Court
exhaustively enunciated the law in the case of Florida Builders20. The
judgments rendered on the question were extensively discussed and
the issue was summed up in the following terms:

“After considering the ratio decidendi in the above cases, and bearing in
mind the importance of Order VII, Rule 11, we think it may be helpful to

19
“Muhammad Afzal v. Muhammad Hayat” (1994 SCMR 12).
20
“Haji Abdul Karim and others v. Messers Florida Builders Pvt. Ltd”. (PLD 2012 SC 247)
 P a g e | 18
Writ Petition No. 10459 of 2019.

formulate the guidelines for the interpretation thereof so as to facilitate

the task of courts in construing the same.
Firstly, there can be little doubt that primacy, (but not necessarily
exclusivity) is to be given to the contents of the plaint. However, this does
not mean that the court is obligated to accept each and every averment
contained therein as being true. Indeed, the language of Order VII, Rule
11 contains no such provision that the plaint must be deemed to contain
the whole truth and nothing but the truth. On the contrary, it leaves the
power of the court, which is inherent in every court of justice and equity to
decide whether or not a suit is barred by any law for the time being in
force completely intact. The only requirement is that the court must
examine the statements in the plaint prior to taking a decision.
Secondly, it is also equally clear, by necessary inference, that the
contents of the written statement are not to be examined and put in
juxtaposition with the plaint in order to determine whether the averments
of the plaint are correct or incorrect. In other words the court is not to
decide whether the plaint is right or the written statement is right. That is
an exercise which can only be carried out if a suit is to proceed in the
normal course and after the recording of evidence. In Order VII, Rule 11
cases the question is not the credibility of the plaintiff versus the
defendant. It is something completely different, namely, does the plaint
appear to be barred by law.

Thirdly, and it is important to stress this point, in carrying out an

analysis of the averments contained in the plaint the court is not
denuded of its normal judicial power. It is not obligated to accept as
correct any manifestly self-contradictory or wholly absurd statements.
The court has been given wide powers under the relevant provisions of
the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled
to make the presumptions set out, for example in Article 129 which
enable it to presume the existence of certain facts. It follows from the
above, therefore, that if an averment contained in the plaint is to be
rejected, perhaps on the basis of the documents appended to the plaint,
or the admitted documents, or the position which is beyond any doubt,
this exercise has to be carried out not on the basis of the denials
contained in the written statement which are not relevant, but in
exercise of the judicial power of appraisal of the plaint.”

[Emphasis Supplied]
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Writ Petition No. 10459 of 2019.

14. Aggrieved person has to pursue his legal remedies with

diligence and if a suit is beyond limitation, the delay of each and
every day consumed for approaching the Court beyond the period of
limitation has to be explained21. In the case in hand, the plaint on the
face of it fails to explain the delay of a period of 34 years. The
contents of the plaint fail to set up a case in a manner which renders
the question of limitation as a mixed question of law and fact. Mere
reading of the contents of the plaint makes it abundantly clear that it is
statute barred and was liable to be dismissed in terms of Order VII
Rule 11 C.P.C without employing valuable judicial resources and time
of the Civil Court, which Courts are already inundated with the cases
requiring determination on merits. By specifically incorporating the
provision in terms of Order VII Rule 11 C.P.C, the legislature has
empowered the Court with an independent Suo Motu and Sua Sponte
power to examine the plaint by using its wisdom. The Courts always
nip a frivolous suit in the bud, by rejecting such frivolous, fictitious
and untenable claims in order to retain Courts’ docket and time for
more serious claims. It has been held by the respectable authority that
non-actionable plaint or suit is non-starter and in the interest of
administration of justice and good judicial governance, it is best if
such plaints are dismissed at the earliest. Keeping in view the
mandatory provision of Section 3 of the Limitation Act, it is duty of
every Court and forum itself to look into the question of limitation
irrespective of the fact whether any objection in this regard has been
raised or not22. Moreover, where a person is aggrieved of an action

21
“Saqib Ali v. Government of Punjab and others” (2023 PLC (C.S.) 310), “Shahin Shah v. Government
of Khyber Pakhtunkhwa through Secretary Irrigation Department, Peshawar and others” (2022 SCMR
1810), “Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs” (PLD 2011 Supreme
Court 657), “Qaisar Mushtaq Ahmad v. Controller of Examination and others” (PLD 2011 Supreme
Court 174).
22
“Hakim Muhammad Buta and another v. Habib Ahmad and others” (PLD 1985 Supreme Court 153),
“Ahsan Ali and others v. District Judge and others” (PLD 1969 Supreme Court 167), “Syed Iftikhar
Hussain v. Ijaz Ahmad Cheema and another” (1996 SCMR 943), “Dilmir v. Ghulam Muhammad and 2
others” (PLD 2002 Supreme Court 403), “Haji Ghulam Rasul and others v. Government of the Punjab
through Secretary, Auqaf Department, Lahore and others” (2003 SCMR 1815), “Almas Ahmad Fiaz v.
Secretary Government of the Punjab Housing and Physical Planning Development, Lahore” (2006 SCMR
783), “Muhammad Sami v. Additional District Judge, Sargodha and 2 others” (2007 SCMR 621),
“Government of N.W.F.P. and others v. Akbar Shah and others” (2010 SCMR 1408).
 P a g e | 20
Writ Petition No. 10459 of 2019.

and if such person did not object, he/she shall be held to have waived
his/her right to object and shall be estopped from raising such
objection at later stage23. It is also settled principle of law that the
limitation runs even against a void order and a void order too has to be
challenged within limitation24. There is no justification at the outset
merely by considering the averments of the plaint to overlook the
delay of 34 years25. When Mst. Safia Bibi did not challenge the
Impugned Gift Deed in her life time despite 3rd party transfers through
Registered Deeds, Petitioner/Plaintiff has no right to claim inheritance
of Mst. Safia Bibi26. It is worth mentioning here that under Article
100 of Qanun-e-Shahadat, 1984 a presumption is attached to the
Impugned Gift Deed which was 34 years old document at the time of
its challenge before the Trial Court.
15. Since the petition in hand is filed under Article 199 of the
Constitution of Islamic Republic of Pakistan (the “Constitution”),
therefore, the question of exercise of jurisdiction of judicial review of
this Court under Article 199 is also required to be considered before
interfering with the Impugned Decree. The extent to which the
jurisdiction under Article 199 of the Constitution can be invoked has
been assessed by the Supreme Court of Pakistan over the course of
several decades. In the case of Muhammad Hussain Munir27,
Supreme Court of Pakistan has held that High Court, while exercising
Jurisdiction under Article 199 of the Constitution, in the matters

23
“Dr. Muhammad Javaid Shafi v Syed Rashid Arshad and others” (PLD 2015 SC 212).
24
“Chief Engineer, Gujranwala Electric Power Company (GEPCO), Gujranwala v Khalid Mehmood and
others” (2023 PLC 65), “Kiramat Khan v IG. Frontier Corps and others” (2023 SCMR 866), “Abid
Hussain v Secretary, Ministry of Defence, Government of Pakistan through Chief of Air Staff, Islamabad”
(2021 SCMR 645), “Muhammad Sharif and others v MCB Bank Limited and others” (2021 SCMR 1158),
“Haji Wajid v Provincial Government through Secretary Board of Revenue Government of Balochistan,
Quetta and others” (2020 SCMR 2046), “Ghulam Hussain Ramzan Ali v Collector of Customs
(Preventive), Karachi” (2015 PTD 107)=(2014 SCMR 1594), “Ch. Shujaat Hussain etc v Zafar Ahmed
Qureshi etc” (2014 SCMR 585), “Messrs Blue Star Spinning Mills Ltd v Collector of Sales Tax and
others” (2013 SCMR 587), “Evacuee Trust Property Board and others v Mst. Sakina Bibi and others”
(2007 SCMR 262), “Rehmatullah and others v Saleh Khan and others” (2007 SCMR 729), “Government
of Sindh through Advocate-General, Sindh, Karachi v Masood Hussain and others” (2002 SCMR 155),
“Ali Muhammad through Legal Heirs and others v Chief Settlement Commissioner and others” (2001
SCMR 1822), “S.Sharif Ahmad Hashmi v Chairman, Screening Committee, Lahore and another” (1978
SCMR 367).
25
“Atta Muhammad v Maula Bakhsh and others” (2007 SCMR 1446).
26
“Abdul Haq and another v Mst. Surrya Begum and others” (2002 SCMR 1330), “Jamil Khatoon and
others v Aish Muhammad and others” (2011 SCMR 222).
27
“Muhammad Hussain Munir v. Sikandar” (PLD 1974 SC 139).
 P a g e | 21
Writ Petition No. 10459 of 2019.

arising from Appellate or Revisional orders, should only be concerned

with whether or not the Courts below acted within their jurisdiction. If
such a Court has the jurisdiction to decide a matter, it is considered
competent to make a decision, regardless of whether the decision is
right or wrong and even if the said decision is considered to be
incorrect, it would not automatically render it as being without lawful
authority so as to invoke High Court’s constitutional Jurisdiction.
While dealing with the tendency of large number of petitions under
Article 199 of the Constitution in the matters arising out of civil
matters decided by Appellate or Revisional Courts, a five-member
larger bench of the Supreme Court in Noor Muhammad’s case28 had
deprecated such practice, as back as in 1985 in the following terms:
“6. Before parting with the case we may observe that there is an
increasing tendency to file Constitutional petitions even when the Court
whose orders are challenged had the jurisdiction to pass those orders,
notwithstanding the fact that it has been held time and again that where
a Court (in contradistinction to a persona designata, has jurisdiction to
decide a matter, it can do so rightly or wrongly and the mere fact that the
decision on a question of fact or law is not correct, does not necessarily
render it `without lawful authority' and certainly not illegal. Refer
Badrul Faque Khan v. The Election Tribunal, Dacca and others (P L D
1963 S C 704), Muhammad Hussain Munir and others v. Sikandar and
others (P L D 1974 S C 139) and Abdul Rehman Bajwa v. Sultan and 9
others (P L D 1981 S C 522).

We are of the view that the tendency to file such Constitutional

petitions tends to clog the superior Courts with frivolous litigation and
causes unnecessary delays in the disposal of other cases and this tendency
should therefore, be curbed with a strong hand.

[Emphasis Supplied]

In the case of Hasan Din29, Supreme Court followed the law

settled in Noor Muhammad supra. The object of exercising
Jurisdiction under Article 199 of the Constitution is to foster justice,

28
“Noor Muhammad v. Sarwar Khan and 2 others” (PLD 1985 SC 131)
29
“Hasan Din v. Hafiz Abdus Salam and others” (PLD 1991 SC 65)
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Writ Petition No. 10459 of 2019.

preserve rights and to right the wrong. The conversion of scope of

exercise of constitutional jurisdiction into that of a second appeal or
second revision has consistently been deprecated by the Supreme
Court of Pakistan30. There are no grounds or basis in this case,
requiring interference by invoking extraordinary Constitutional
Jurisdiction of this Court.
16. For what has been discussed above, I find no grounds to
interfere with the well-reasoned Impugned Decree passed by the
Revisional Court. There is no substance in this petition, therefore, the
same is hereby dismissed.

(KHALID ISHAQ)
JUDGE.
APPROVED FOR REPORTING.

(KHALID ISHAQ)
JUDGE.
Announced and dictated on 23.04.2025.
Signed on 09.05.2024.
*Ajmal Rana.

30
“Mst. Mobin Fatima v. Muhammad Amin and 2 others” (PLD 2006 SC 214), “Secretary to the Govt. of
the Punjab v. Ghulam Nabi and 3 others” (PLD 2001 SC 415)