P (PLP)

A declaratory suit indeed could lie in the absence of physical tangible possession if the plaintiffs could prove their constructive possession on the property in suit. Here there is no allegation of the constructive possession of the plaintiff on the suit land nor is there evidence to that effect. We therefore hold that as other remedy was open to the plaintiff's consequently a simple declaratory suit was misconceived and could not succeed. Abdul Hameed. For appellant. Ahmed Hassan. For Respondent. JUDGMENT.‑--One Ghulam Qadir owned 192 kanals 13 marlas of land at well known as Chah Gul Mohammad Wala in the village Karampur, tahsil Chishtian. Mst. Ghulam Fatima defendant No, 1 was the wife of Ghulam Qadir. Ghulam Qadir died leaving his son Ghulam Haidar. The land after the death of Ghulam Qadir was mutated in the name of his son Ghulam Haidar. Ghulam Haidar later on died and the land was mutated in the name of his mother on 21st of September 1.941. Mst. Ghulam Fatima sold her land to Ahmad Yar Khan and Mohammad Din defendants No. .2 and 3 for Rs. 6,000 in equal shares. Mohammad Din subsequently sold his one half to Ahmad Yar who thus became the full owner of the property: Mst. Ghulam Fatima' subsequently married to one Mohammad Khan. A declaratory suit was brought by the plaintiffs alleging that they were governed by the Customary Law in the matter of inheritance, and consequently the land was wrongly mutated in the name of Mst. Ghulam Fatima after the death of her son. She was therefore incompetent to make any alienations in favour of defendants No. 2 and 3 as they (plaintiffs) were the rightful owners of the land and had been continuously in its, possession since the death of Ghulam Haidar. Consequently, a declaration be granted to them that they were the lawful owners of the property and were legally in its possession. The defendants pleaded that the rule of succession in the family of MW. Ghulam Fatima and the plaintiffs was the Mohammadan Law and not the Customary Law and as such Mst. Ghulam Fatima was the sole owner of the entire property and was competent to alienate it. They also pleaded that the suit was barred by time under Art. 14 of the Limitation Act and lastly that section 42 of the Specific Relief Act 'was a bar to the claim of the plaintiffs as they were not in possession of the property in dispute at the time of the institution of the suit. The findings of the learned Senior Sub‑Judge were that Art. 125 of the Indian Limitation Act and not Art. 14 governs the case, and the suit therefore was within the period of Limitation. He also held that the rule of succession in the family of Mst. Ghulam Fatima and the plaintiffs was the Muhammadan Law and Mst. Ghulam Fatima was entitled to 1/3rd of the land left by her deceased son and she was competent to alienate only to the extent of her share. He further held that as the plaintiffs were in possession of the property, consequently a declaratory suit was competent. He therefore passed a decree in favour of the plaintiffs to the extent of Z/3rd shares of the property in dispute. The defendants not being satisfied with the decision of the Court below have preferred the present appeal. The finding of the Court below that the rule of succession in the family of Mst. Ghulam Fatima and the plaintiffs is Muhammadan Law and not the Customary Law has become final because it is not contested by either party. The next question is whether the, decision of the Court below that the suit was governed by Art. 125 is correct. We should unhesitatingly say that the mere perusal of the Article would show that it has no relevancy to the case before us. The learned counsel for the respondent to support the view of the learned Senior Sub‑Judge had referred us to 1927 L.

198. The concluding para. of the report would clearly prove that the decision does not apply to the present case, and therefore supports the contention of the learned counsel of the appellant that Art. 125 of the Limitation Act has no bearing to the question before us. In order to make the position clear I would quote the observations of the eminent judges in the ruling to which reference is already made by me. They are to the following effect :‑ " Mr. Mehar Chand has expressed his inability to cite a single judicial authority which would support his contention. The suit is certainly brought by Hindu reversioners to impeach an alienation made by a Hindu female, and it is conceded that on her death they will be entitled to the possession of the estate." Reference to Art. 125 would clearly show that it governs the cases of the alienation of the property by Mohammadan or Hindu females having a life interest therein. I have already pointed out that the finding of the Court below is that the Customary Law which could give life interest to the widow in the property of her husband is inapplicable to the present case ; consequently Art. 125 is, inapplicable to the case of the present parties. I may also say that Art. 14 of the Indian Limitation Act, equally does not apply to the present case. The ruling depended upon by the learned counsel for the appellant 1934 L. 384 is inapplicable to the present case. There the dispute was covered by section 12 of Act 11 of 1913 Redemption of Mort gages Act. There a particular provision was provided for the redemption of mortgage property before a person could go into a Civil Court. There the order of the Revenue Officer was necessary to be challenged in the Civil Court if any party stood in the necessity of going there. No such circumstance arise in the present case. I therefore agree with the view of the learned counsel for the respondent that the Article applicable to the present case is Art. 120 of the Limitation Act and according to that the suit of the plaintiff was within limitation. The first mutation in favour of 141st. Ghulam Fatima after the death of her son was sanctioned on 21st of September 1941 and the suit by the plaintiff was originally instituted on 17th of May 1945, though the amended plaint was produced before the Court on 18th January 1947. Art. 120 governs those cases for which no period of limitation is provided elsewhere in the schedule, and the limitation for such suits is six years from the date the right to sue accrues. The earliest date when the right accrued to the plaintiffs to bring the declaratory suit was Mst of September 1941 when the mutation was for the first time sanctioned in the name of Lust. Ghulam Fatima after the death of her son. We are therefore of opinion that the finding of the Court below that the suit was within time is correct but the application of the Article and the reasoning for that finding are evidently incorrect. The last question for our consideration is whether the suit as instituted could be entertained by the Court. In order to decide this question we should refer to section 42 of the Specific Relief Act, because it was admitted by the counsel for the respondent that the case of his client fell within the ambit of that section. 'In our opinion the wordings of this section make the dispute between the parties absolutely clear. Section 42 reads :‑" 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 declara tion that he is 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. The proviso to this section make it abundantly clear that no Court can make any declaration where the plaintiff being able to seek any further relief than a mere declaration of title, omits to do so. The learned counsel for the appellants contended that as the plaintiffs were out of the possession of the land consequently they were bound to bring a suit for the possession of the property and not for a simple declaration. The principle of law enunciated in this section is admitted by the learned counsel of the respond ent. His contention however is that as his clients were in possession of the land at the time of the institution of the suit consequently no further relief was needed by them and they were competent to bring a suit for a simple declaration. The point for consideration therefore is whether the plaintiff who had alleged in their plaint that they were in possession of the land and on whom the burden so heavily lay to prove it had succeeded to discharge that burden. There is no documentary evidence to prove the possession of the plaintiffs of the land in dispute at the time of the institution of the suit. Mr. Ahmad Hassan's view was that it was not necessary for his client to produce documentary evidence on this question as the oral evidence produced by them was sufficient to discharge the burden placed on his clients. It is true that it was open to the plaintiff to discharge the burden of proof resting on them either by document ary or reliable oral evidence. We cannot refrain from observing that in cases of this nature where the documentary evidence is available, that evidence could b the proper and reliable evidence to discharge the' burden. The dispute between the parties relates to agricultural land. Revenue records are prepared at the time of' Girdawari to show‑the actual possession of the persons who occupy it. Those entries subsequently give material for the preparation of the jamabandis. Both these documents are of great value because they carry the presumption of truth. Of course it was rightly argued by the opposite counsel that the failure on the part of the plaintiffs to produce such important documents leads to the presumption if not rebutted by the oral evidence that if they, had been produced they would have gone against the plaintiffs. We are therefore left to consider the oral evidence produced by the plaintiffs. We cannot hesitate to express our regret that the learned Senior Sub‑Judge has not discussed the oral evidence which would have been helpful to‑us in deciding its value. He only observed that the evidence produced by the plaintiffs was sufficient to dishcarge the burden of proof. Every original Court must know that it is its primary duty to discuss oral evidence in detail and not to be satisfied only by the impression which the evidence made on the mind of the judge. The evidence produced by the plaintiffs which we proceed to discuss does not lead us to the conclusion that it was sufficient to discharge the burden so heavily laid on the `plaintiffs. The most important witness is Mst. Ghulam Fatima P. W.

8. She is the lady who according to the allegations of the plaintiffs had taken possession of the property rightly or wrongly after the death of her son. Her statement was that after the death of her son her brothers had been cultivating the land on her behalf and had been paying her dues. After the alienation of the property in the name of Ahmad Yar he had been in the possession of the property and the tenants were informed of it. Ali Mohammad P. W. 4 had stated that Ahmad Yar had taken possession of the land six or seven years ago through Police: Similar is the evidence of Peeran `Khan, Ghulam Qadir P. W. 5 Sarbarah Zambardar had deposed that the Government Revenue was received during the lifetime of Ghulam Qadir from him and after his death from his mother Mst. Ghulam Fatima and after the alienation of the land by Mst. Ghulam Fatima from the alienees. Mr. Ahmad Hassan drew our attention to the evidence' of Sadoo P. W. 5, Meeran Bakhsh P. W. 12 who are the plaintiffs, to prove that they were in possession of the property at the time of the institution of the suit. Their evidence indeed is interested'; unless it is supported by any other independent evidence on the file we cannot attach any importance to it. Mst. Ghulam Fatima is a witness of the plaintiffs. She states against them Mr. Ahmad Hassan's reply to her evidence is that she is inimical to his clients. But if a party selects his enemy to prove his case he must not turn aside and say that her evidence should be disbelieved because the witness is inimical to him. A party to a suit making selection of such a witness must be prepared to bear the consequences of his evidence. He put reliance in him and with open eyes; and consequently we are not inclined to discredit the statement of Mst. Ghulam Fatima. There are no reasons to discredit the evidence of Ghulam Qadir Sarbarah Lambardar. If Mst. Ghulam Fatima and the purchasers of the land from her were not in possession of the land why they Government' revenue was recovered from them and how did they pay it. No collusion is alleged or established between this witness Ghulam Qadir and the defendants. This fact is abundantly clear that after the death of Ghulam. Qadir his mother got the mutation of the entire land in her favour. The presumption therefore is evident that she was in possession of the property. When she was dispossess ed and the plaintiffs went in to the possession of the land rested on the plaintiffs to establish. There is not an iota of evidence on the file to prove the time when they dispossessed Mst. Ghulam Fatima and took possession of the land. It was contended by Mr. Ahmad Hassan that in a case Ahmad Yar v. Meeran Bakhsh and others, under section 107 Criminal Procedure Code surety bonds were written by Mohammad Ramzan on 12th of August 1945 and the suit was instituted on 17th of May 1945 consequently it should be held that the plaintiffs were in possession of the property at the time of the institution of the suit. We are unable to raise this preposterous presumption in the absence of any documentary evidence or reliable oral evidence in favour of the respondents. Can we ignore this presumption that. the plaintiffs at the time of the institution of the suit were not in possession of the property and realising the defect in the nature of their claim they tried to take unlawful possession of the property and were ousted, or that the case under section 107 in the year 1945 did not specifically relate to the dispossession of the defendants by the plaintiffs and there may be other reasons for a suit under section 107 of the Criminal Procedure Code. We are not therefore attaching any importance to the proceedings under section 107 Criminal Procedure Code either way. We are of opinion that it was the duty of the plaintiffs either to produce documentary evidence to establish their possession at the time of the institution of the suit of the land in dispute or reliable oral evidence in support of their case and should have fixed the 'time by that evidence when they came into possession of that property and retained it till the institution of the suit. The oral evidence is not satisfactory and the plaintiffs therefore in our opinion have failed to discharge the burden placed on them. If that be the conclusion then the law is evident, that a simple declaratory suit was incompetent. Mr. Ahmad Hassan's conten tion was that the possession was not a condition precedent for his clients to bring this suit. No authority was cited in support of his contention. A declaratory suit indeed could lie in the absence of physical tangible possession if the plaintiffs could prove their constructive possession on the property in suit. Here there is no allegation of the constructive possession of the plaintiff on the suit land nor is there evidence to that effect. We therefore hold that as other remedy was open to the plaintiffs consequently a declaratory suit was misconceived and could not succeed. With these observations we accept the appeal, set aside the decree and judgment of the Court below and dismiss the suit with costs throughout. Parties Present, Announced. K. M. A. Appeal accepted.