2021 PLP 1929 (YLR)

ALI BAIG, J.

Through the instant civil revision petition, the petitioner/plaintiff has called in question the validity and propriety of the impugned judgment/decree dated 11-03-2020, passed by the learned Addl. District Judge Gilgit in C.F.A. No.74/2018, whereby the learned 1st Appellate Court has dismissed the civil first appeal of the present petitioner/plaintiff and has upheld the judgment/decree dated 24-04-2018 passed by the learned Senior Civil Judge Gilgit in Suit No.50/2017.

2. Succinctly facts giving rise to the filing of the instant civil revision petition are that, the present petitioner/plaintiff (here-in-after called as petitioner) instituted a suit for declaration and possession of suit land fully described in the head note of plaint against the present respondent/defendant (here-in-after called as respondent) in the trial court asserting therein, that the petitioner was owner of suit land which was transferred by way of gift to his late son namely Mukhtar Hussain for the purpose of getting loan from Karakorum Co-operative Bank Limited (KCBL) by mortgaging the suit land. Later on, son of the petitioner suffered from mental illness. The respondent taking benefit from mental illness of son of the petitioner, purchased the suit land in consideration of one vehicle (Haice) and amount of Rs.50,000/- and disputed property was transferred in his name in collusion with the Revenue Officials vide mutation No.933 dated 09-05-2006, whereas, the suit property was mortgaged with the KBCL. The petitioner/plaintiff has also prayed for cancellation of the aforesaid impugned mutation No.933 attested on 09-05-2006.

3. The present respondent being defendant in the suit contested by the way of filing his written statement in the trial court.

4. During pendency of suit, the learned trial court framed an issue on 12.12.2017, which is reproduced as under:- Whether the suit of plaintiff is maintainable? OPP After framing the aforementioned issue, the learned trial court after hearing arguments on maintainability of suit on behalf of both the parties had rejected the suit of the petitioner under Order VII, Rule 11, C.P.C. holding that the suit of the plaintiff is not maintainable under law vide order dated 28-04-2018.

5. Feeling aggrieved and dissatisfied with the aforesaid order of the learned trial court, the petitioner had filed civil first appeal in the court of learned Addl. District Judge Gilgit, which was also dismissed by the learned Ist Appellate Court, hence this civil revision petition.

6. The learned counsel appearing on behalf of the petitioner contended that the impugned judgment/decree passed by the learned Addl. District Judge Gilgit is contrary to law and facts on the record of the case; as such, the impugned judgment/ decree passed by the learned Ist Appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the grounds of rejection of plaint under Order VII, Rule 11, C.P.C. were not available and the learned trial court has erred while rejecting the suit/plaint of the petitioner simply holding that suit of the petitioner/ plaintiff is not maintainable under law, but the said law has not been mentioned in the judgment/order by the trial court, and the learned Ist Appellate Court has also wrongly maintained the judgment/ order of the learned trial court vide the impugned judgment/decree dated 12.03.2020. The learned counsel for the petitioner further argued that the suit land was gifted to his son by the petitioner for the purpose of getting loan from the KCBL by mortgaging the same and disputed land was mortgaged with the KCBL and during mortgage period, the respondent has illegally purchased the suit land. The learned counsel for the petitioner further argued that the Revenue Officials have also declared transaction of the disputed land and attestation of mutation of suit land in the name of the respondent illegal vide inquiry report, therefore, by accepting this civil revision petition the impugned judgments/decrees passed by both the learned courts below may be set aside and suit may be remanded back to the trial court for trial on merits.

7. Conversely, the learned counsel for the respondent vehemently opposed the arguments advanced by the learned counsel for the petitioner by contending that since the respondent has purchased the suit land from son of the petitioner namely Mukhtar Hussain, therefore, the petitioner has got no locus standie to file the suit against the respondent/defendant, suit was not maintainable and the learned trial court as well as the learned Ist Appellate Court have rightly rejected the suit of the petitioner under Order VII, Rule 11, C.P.C. vide the impugned judgments/decrees which may be maintained.

8. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance.

9. It is case of the petitioner/ plaintiff that he had transferred the suit land measuring 7 kanals and 3 marlas in the name of his son namely (late) Mukhtar Hussain by way of gift for the purpose of getting loan from KCBL Gilgit by mortgaging the suit land. Accordingly, son of the petitioner obtained loan from KCBL by mortgaging suit land. During mortgage period, the present respondent has illegally purchased suit land from the son of the petitioner namely Mukhtar Hussain.

10. It is pertinent to mention here that after getting loan and selling the suit land to the respondent, the son of the present petitioner namely Mukhtar Hussain passed away/murdered and installments of loan have been paid by the petitioner to the KCBL as evident from the record. When it was come to the knowledge of the petitioner that the respondent has purchased the suit land and mutation No.933 has been attested in his favour on 09-05-2006, the petitioner submitted an application to Collector Gilgit regarding illegal transfer of his land in the name of the respondent. The Deputy Commissioner/Collector Gilgit had appointed Tehsildar Gilgit for conducting an inquiry in the matter. The Tehsildar Gilgit vide his report addressed to AC Gilgit dated 27th October 2008, has reported that out of total 12 kanals and 3 marlas land, Mr. Mukhtar Hussain has sold out of 7 kanals and 3 marlas land bearing khasra No.1308 to the present respondent prior to it's redemption from the Bank (KCBL). The mutation No.933 is illegal and required to be cancelled to protect the interest of National Financial Institution (KBCL). I also concur with the report of Tehsildar Gilgit for the reason that during mortgage period the disputed property cannot be sold-out. Moreover, as provided in Order VII, Rule 11, C.P.C., plaint would be rejected in four cases:- (a) it does not disclose a cause of action. (b) the relief claimed is undervalued, and the plaintiff on being required by the court to correct the valuation within time to be fixed by the court, fails to do so. (c) the relief claimed is properly valued, but the plaint is written upon paper insufficient stamp paper. (d) the suit appears from the statement in the plaint to be barred by any law.

11. From perusal of contents/ averments made in the plaint and impugned judgments/decrees passed by both the courts below, it transpires that no a single ground for rejection of plaint under Order VII, Rule 11, C.P.C. is available. 11(sic). For the foregoing reasons, I have come to the conclusion that the petitioner has been able to make-out prima facie case in his favour and both learned courts below have committed material irregularity and illegality while rejecting the suit of the petitioner under Order VII, Rule 11, C.P.C., thus, this civil revision petition is allowed. Consequently, the impugned judgments/ decrees passed by both the learned courts below are set aside and case/ suit is remanded back to the learned trial court with the direction to dispose of suit on merit after recording evidence of the parties in accordance with law. Parties are left to bear their own costs. File. MQ/58/GB Revision allowed.