P L D 1959 (W (PLP)

SHABIR AHMAD, J.

Mirza Mahbub Beg; a Mughal, who used to be a resident of the town of Patti, died on the 23rd of February 1947. On his death, a dispute arose between Mst. Motia Begum, his widow, and Salim Ullah Beg, a minor who was claimed to have been adopted by Mirza Mahbub Beg as a son. It appears that on the 6th of August 1947, the revenue authorities accepted the claim made on behalf of Salim Ullah Beg and sanctioned a mutation in the revenue records in his favour. Before Mst. Motia Begum could take any proceedings to question the correctness of the mutation entered in the revenue records in favour of Salim Ullah Beg, Pakistan came into being on the 14th of August 1947, and the town of Patti, which was during the time of the British Rule over India a part of the district of Lahore, became a part of the dominion of India under the Radcliffe Award. As is well known; migration on a large scale followed on the Partition of the sub-continent of British India and persons who had laid a claim to the property left by Mirza Mahbub Beg also came to Pakistan and settled in the District of Lyallpur. In the beginning of the year 1949, Mst. Motia Begum, widow of Mahbub Beg, brought a suit for a declaration that Salim Ullah Beg had not been adopted by her husband and the claim to that effect on behalf of Salim Ullah Beg was baseless. 1n this suit, in the beginning Salim U11ah Beg was impleaded as the sole defendant, but on an objection being raised, Mst. Nemat Begum, the other widow of Mirza Mahbub Beg, was also impleaded as one of the defendants. Other objections were also raised, which resulted in the following being framed as preliminary issues :- (1) Whether the suit is premature, and (2) Whether the declaration sought for cannot be granted in view of the provisions of section 42 of the Specific Relief Act ? Both these issues were decided against the defendants and the trial of the suit on merits proceeded. On the pleadings of the parties the learned trial Judge framed the following issues :- (1) Whether Salim Ullah Beg, defendant No. 1, was adopted by Mirza Beg ? (2) Relief. The learned trial Judge decided issue No. 1 against Salim Ullah Beg and consequently granted a decree in favour of the plaintiff that Salim Ullah Beg was not adopted as a son by Mirza Beg. Against the decision of the learned trial Judge, Salim Ullah Beg presented an appeal in the Court of the District Judge, Lyallpur, which was dismissed on the 16th of December 1950, by the then District Judge, Mr. J. Ortcheson (now Mr. Justice Ortcheson of this Court). Against the decree of the District Court, Salim Ullah Beg presented a second appeal (Regular Second Appeal No. 116 of 1951) to the Lahore High Court. The second appeal was dismissed on the 2nd of July 1953, by a learned Single Judge of that Court, from whom a certificate was obtained that the case was a fit one for appeal under clause 10 of the Letters Patent of the High Court of Judicature at Lahore, and the present appeal was instituted.

2. The finding of the learned District Judge that Salim Ullah Beg was not the adopted son of Mirza Mahbub was on a question of fact and, being unassailable in second appeal, was confirmed by the learned Single Judge who heard the regular second appeal. The points agitated during arguments in the present appeal, were these :- (1) That as the plaintiff had sought a declaration to the effect that Salim Ullah Beg defendant had no right or interest in the property left by Mirza Mahbub Beg and that property was admittedly situated at a place which is not a part of Pakistan, the suit could not be entertained by any Court in Pakistan. (2) That the declaration sought by the plaintiff could not be granted as it was not covered by the provisions of law con tained in section 42 of the Specific Relief Act relating to declara tory suits. The first of the above mentioned two points was not raised in the pleadings in the trial Court or in the grounds of appeal before the learned District Judge, but as it raised a question of law which went to the root of the case, the learned Judge in Chambers allowed it to be agitated before him but found it against the defendants. Mr. Mahbub Elahi, the learned counsel for the appellant in this appeal urged that the suit was not triable by any Court in Pakistan and should have been dismissed on that short ground alone. In this connection, he placed reliance on section 16 of the Code of Civil Procedure which reads as follows :- "

16. Subject to the pecuniary or other limitations prescribed by any law, suits :- (a) for the recovery of immovable property with or without rent or profits. (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under dlstraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate Provided that a suit to obtain relief respecting, or compensa tion for wrong to, immovable property held or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the-local limits of whose jurisdiction of, the defendant actually and voluntarily resides, or carries on bsiness, or personally, works for gain. Explanation.-In this section "property" means property situate in Pakistan. The contention of the learned counsel for the appellant was that section 16 barred the suit because the property with regard to which relief was sought was situated in India. I have no doubt in my mind that the argument of the learned counsel for the appellant with regard to section 16 of the Code of Civil Procedure barring the suit is entirely misconceived. The explanation appended to the section says in clear terms that property mentioned in that section means property situated in Pakistan. Now if the term "property" occurring in the other portion of section 16 of the Code of Civil Procedure be substituted by the words "property situate in Pakistan"-as it must be because of the Explanation-it becomes clear that the section relates only to that property which is situate in Pakistan. What the section means is that if any property mentioned therein is situate in Pakistan, a suit with regard to it can be brought only in that Court in Pakistan which is mentioned in that section and not in any other Court in Pakistan. The suit which the appellant had to defend did not seek any of the reliefs mentioned in section 16 of the Code of Civil Procedure with regard to any property in Pakistan and I have consequently no doubt in my mind that that section did not bar it.

3. But the mere fact that section 16 of the Code of Civil Procedure, which provision alone was relied upon by the learned counsel for the appellant, did not bar the suit does dot necessarily mean that the suit was competent. If the suit asked for relief R with regard to property situate in India, no Court in Pakistani would, in the present state of law, be competent to grant that relief. The reason why such a suit would be incompetent is not that section 16 of the Code of Civil Procedure is applicable, but because on general principles a suit relating to property situate in a country should be instituted in the Courts of that country unless the laws of that country allow that it may be instituted in any other country. No provision of law in force in Pakistan bars a suit with regard to property situate in India being brought in Courts in Pakistan and because a suit of that nature would be a suit of civil character, it would have been open to Courts in Pakistan to entertain it had it not been for the fact that section 9 itself says that all civil suits may be entertained by the Courts to which the Code applies except those in which their cognizance is either expressly or impliedly barred. In my view cognizance by Courts in Pakistan of a suit with regard to property not situated in Pakistan is impliedly barred on the principle already mentioned, namely, that the Courts of the country in which the property to which a suit relates can pass a decree with regard to it. It is obvious that if Courts in this country passed decrees with regard to property situated in India, the decrees could not be enforced in India. It is true that judgments by Courts in Pakistan shall be conclusive with regard to certain matters because of the law con tained in section 13 of the Code of Civil Procedure which is in force in India also, but before a decree can be enforced, it will have to be passed by the Courts in India.

4. Having held that a suit with regard to property in India could not be entertained by any Court in Pakistan. I proceed to consider whether the present suit is hit by that rule. The plaint mentioned in one of its paragraphs that at the time when he died Mirza Mahbub Beg had considerable property in the town of Patti, but nowhere in the plaint has the plaintiff sought a declara tion that she, and not Salim Ullah Beg defendant, was the owner of that property. It may be that a decree in favour of the plaintiff would be construed as a finding that she was entitled to the property left by Mirza Mahbub Beg, but it is clear that the suit did not relate to the property left by Mirza Mahbub Beg at a place which is now part of India.

5. There is another way of looking at the matter. 1t is undeniable that neither the plaintiff nor Salim Ullah Beg can get the property left by Mirza Mahbub Beg in Patti because there is no doubt that because of their coming over to Pakistan the property has been treated as evacuee property by the Government of India and the object of the plaintiff in seeking the declaration she sought is not far to see. It was well known at the time when the suit was brought that Muslims who had had to abandon property in India would be allotted property in lieu thereof in Pakistan, and the suit of the plaintiff to obtain the declaratory decree was clearly actuated by the desire to have something substantial in her favour to prove to the satisfaction of the authorities competent to make allotments that she and not Salim Ullah Beg was entitled to allotment of property in lieu of the property left by Mirza Mahbub Beg. Looked at from this aspect the suit related indirectly to property situated in Pakistan and would be barred under the provisions of section 16 of the Code of Civil Procedure if the property to which it related was not situated within the jurisdiction of the Court in which the suit was instituted. At the time when the suit was instituted there was no proposal that the property which would be allotted in lieu pi. property of Mirza Mahbub Beg would be situated in any district other than Lyallpur and I would therefore hold that the suit of the plaintiff was cognizable by the Civil Courts at Lyallpur. But before parting with this part of the case I might make a reference to a decision of a Division Bench of this Court in Abdul Ghani v. Ismail (P L D 1958 Lah. 690) which was relied upon by the learned counsel for the appellant in support of his contention that the suit was not cognizable by Courts in Pakistan. In the case relied upon by the learned counsel for the appellant the finding was that as the suit related to determination of rights of the parties in the property in East Punjab, it was not cognizable in Pakistan. It will have become clear from what I have said about the present suit that the question that arises is entirely different from that that arose in Abdul Ghani v. Ismail.

6. The second of the two points raised by the learned counsel for the appellant may now be taken up. In support of his contention that the declaration prayed for by the plaintiff could not be granted to her, the learned counsel for the appellant relied upon section 42 of the Specific Relief Act, which runs as follows :- "

42. 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 declaration that he is so 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. Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee". The contention was that as the plaintiff did not seek a declaration that she had a legal character or a right in any property which character or right was being denied by the contesting defendant; section 42 of the Specific Relief Act was not applicable to the suit. Mr. F. M. Anwari, the learned counsel for the plaintiff -respondent urged that the suit was not barred by section 42 of the Specific Relief Act and in support of his contention relied on the decision of the Full Bench of the High Court of Judicature at Lahore in Abdul Karim v. Sureyya Begum (I L R 26 Lah. 489). In that case a daughter had brought a suit against her father for a declaration that she was his legitimate child. The competency of the suit was questioned and the Full Bench held that the suit was maintainable and in arriving at this conclusion their Lordships differed from an earlier decision of the Lahore High Court in Mahmud Shah v. Pir Shah (A I R 1936 Lah. 858) which they overruled. It appears to me that the case relied upon by the learned counsel for the plaintiff-respondent has no application to the present case, as in that case the plaintiff had claimed to have a status while in the present case the plaintiff does not claim a status for herself but wants a declaration that Salim Ullah Beg has not the status which was being claimed for him. It is obvious, therefore, that if the decision of the Full Bench relied upon by the learned counsel for the plaintiff-respondent were the only law applicable to the matter, the suit would have been incompetent. It appears to me, however, that the present suit cannot be thrown out on the ground that the plaintiff did not seek a declaration about her own status but wanted a declaration that someone else had not a particular status. Illustration (f) appended to section 42 of the Specific Relief Act relates to cases which raise questions resembling those that arise in the present case and as an illustration appended to a section is to be deemed to be a part of the section unless it conflicts with c the section-which is not the case here it is clear that the suit was not barred by section 42 of the Specific Relief Act. It is true that the plaintiff sought a negative declaration against Salim Ullah Beg but it is obvious that the result of the declaration would be that the heirs of Mirza Mahbub Beg, of whom the plaintiff is undeniably one, would be entitled to any property that may be allotted in lien of the property which Mirza Mahbub Beg left in India, and the suit was indirectly one claiming right in property. Moreover, from the fact that Courts of justice of unquestionable learning, including the Judicial Committee of the Privy Council of England, had been granting reliefs which did not fall strictly within the four corners of section 42 of the Specific Relief Act it may be safely inferred that the section is not exhaustive with regard to the suits in which a declaratory decree may be granted in a proper case. I hold, therefore, that even the second point raised by the learned counsel for the appellant has no force. The result, therefore, is that the appeal is dismissed, and the appellant is directed to pay her costs to the plaintiff-respondent. MASUD AHMAD, J.

I agree. A. H Appeal dismissed.