P L D 2004 Lahore 471 (PLP)

(d) Specific Relief Act (I of 1877)‑‑‑-- ‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Such suit could be maintained by one of the owners against third party claiming adverse title. Habib and others v. Mst. Hakam Bibi and others PLD 1955 Lah. 31.; Hassain Ali Mondal v. Khoka Mulla (Minor) and others PLD 1964 Dacca 739 and Khalique Ahmad v. Abdul Ghani and another PLD 1973 SC 214 rel. Qazi Muhammad Arshad Bhatti for Petitioners. This civil revision assails judgments and decrees dated 22‑6‑2002 and 10‑12‑2003 passed by the learned Civil Judge and learned Additional District Judge, Mianwali, deciding lis against the petitioners respectively.

2. Precisely, relevant facts are that the respondent filed a suit for declaration with permanent injunction that he wag owner in possession of 4 Kanals of land, as detailed in the plaint and that the petitioners were his close relatives to whom he permitted its use, but they have incorrectly started claiming title over this property He also prayed a prohibitory injunction against the petitioners from claiming any title thereto.

3. The petitioners being defendants to the suit, refuted the assertions of the respondent and besides raising certain preliminary objections with regard to limitation, payment of court‑fee and locus standi to file this suit, pleaded that land in question was purchased by the respondent from one Jalandhar Khan and out of which two Kanals were sold by the respondent to the petitioners for an amount of Rs.8000 vide receipt dated 20‑11‑1975. The petitioners also asserted that they have constructed shops in the two Kanals area purchased by them. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge who was seized of the matter after doing the needful vide his judgment and decree dated 22‑6‑2002 decreed the suit of the respondent.

4. The petitioners aggrieved of the decision of the trial Court dated 22‑6‑2002 filed an appeal before the learned Additional. District Judge but remained unsuccessful as their appeal was dismissed do 10‑12‑2003. Now they have filed instant revision petition for annulment of two concurrent decrees passed by the two Courts below.

5. Learned counsel for the petitioners submits that suit for mere declaration was not maintainable as respondent was undeniably out of possession of two Kanals of land It has also been contended that the respondent has transferred a part of the property in favour of his sons who were not impleaded to the suit, in their absence, suit could not proceed. Learned counsel for the petitioners also submits that the petitioners are in possession of their own rights under an agreement dated 20‑11‑1975, executed by the respondent himself.

6. I have anxiously considered the respective arguments of the learned counsel for the petitioners and have examined the record, appended herewith. The respondent has proved his title to the entire lands measuring 4 Kanals by producing a registered sale‑deed Exh.P.6 dated 2‑9‑1972. The petitioners have based their ownership over two Kanals out of the land forming part of Exh.P‑6 on the basis of an agreement to sell (Exh.D‑1) allegedly executed by the respondent. The petitioners being beneficiaries of the alleged agreement were to prove the sale transaction incorporated in the agreement but they miserably failed to bring on record any evidence to this effect. Neither the agreement to sell itself was proved to have been executed by the respondent nor any payment thereunder was established to be paid to the respondent. It is a settled proposition of law that agreement to sell does not create any title. A reference can be made to the cases of M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others PLD 1966 Lah. 953, Sh. Nazir Ahmed v. Haji Ghulam Hussain and others 1985 CLC 7, Cap. Dr. Abdul Wahab v. Province of Punjab and another 1986 MLD 2049 and Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others 1989 SCMR

949. This agreement was allegedly prepared about two decades back and it never saw maturity in form of sale‑deed besides the fact that it has over writings and tampering of the figures of alleged consideration paid. Figures of Rs.800 are converted into Rs.8000. Both the marginal witnesses of this document are closely related to the petitioners as Sh. Hussain one of the marginal witness is son‑in‑law whereas the other Subedar Gulbaz is near relative of Noor Shah Gul Khan, petitioner. Statements of D.Ws are not only self‑contradictory but C are materially opposed to the alleged agreement Exh.D‑1 and both the Courts below have duly taken note of all these things in the judgments, impugned. Besides it, I am of the considered view that by merely producing two marginal witnesses (party men), transaction of sale between the parties, independent of the asserted agreement, is not proved. The petitioners were required to: prove, in order to earn dismissal of suit of the respondent, the transaction itself but there is not an iota of evidence, to this effect, on the file. I have with me, on this point, judgments in the cases of Muhammad Anwar v. Nabi Hussain 1991 CLC Note 47 at p,34, Nawab Din v. Ghulam Qadir and 9 others 1994 MLD 1275 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lahore 633.

7. The respondent claiming himself to be owner in possession of the property in dispute filed a suit for declaration with permanent injunction, to the effect that he is owner of the property and the petitioners be restrained from claiming any title, therein. Under law such a suit is not bad and respondent was not required to ask for relief of possession and as such, his suit is not hit by section 42 of the Specific Relief Act, 1877. In a suit, like the one in hand, transferees, if any form the respondent were neither necessary nor proper parties because it was not a suit for partition of joint property. One of the owners can maintain suit for declaration against third party claiming adverse title. Reference in this behalf can be made to the cases of Habib and others v. Mst. Hakam Bibi and others PLD 1955 Lah. 31, Hassain Ali Mondal v. Khoka Mulla (Minor) and others PLD 1964 Dacca 739 and Khalique Ahmad v. Abdul Ghani and another PLD 1973 SC

214. Since the petitioners could not prove lawful sale in their favour by paying price of the land and transfer of possession under it, suit of the respondent was rightly decreed.

8. Both the Courts below returned concurrent findings of facts which are neither asserted nor are proved to have been given out of misreading or non‑reading of evidence which has, at the same time been properly appraised. Such judgments/findings are immune from interference, in revisional jurisdiction and this matter has already been put to rest in the cases of Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291, Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818, Sirbaland v. Allah Loke 2nd others 1996 SCMR 575, and Mst.Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others 2001 SCMR 1493.

9. For what has been discussed above, judgments and decrees of both the Courts below are in consonance with the evidence on the file. No illegality or irregularity was committed by the Courts below, in absence of which, no interference is permissible in revisional jurisdiction of this Court, under law. This revision petition has no merit in it and is accordingly dismissed in limine. S.A.K./N‑23/L Revision dismissed.