2020 PLP 46 (CLCN)

ALI BAIG, J.

Through the instant civil revision petition filed under section 115, C.P.C., the petitioner has called in question the validity and propriety of the impugned judgment/order dated 05-11-2018 passed by the learned District Judge Gilgit, whereby, the learned 1st Appellate Court has accepted civil first appeal of the present respondent No.1/plaintiff by setting aside the judgment/order dated 05-12-2017 passed by the learned trial court, whereby, the learned trial court had rejected suit of the plaintiff/respondent No.1 under Order VII, Rule 11(D), C.P.C. and the learned 1st Appellate Court has remanded the case/suit of the respondent No.1/plaintiff back to the learned trial court for adjudication on merits in accordance with law.

2. Succinctly, facts essential for disposal of this revision petition are that the present respondent No.1/plaintiff filed a suit for declaration and permanent injunction with consequential relief for cancellation of registered gift deed No.280 dated 11-11-2013 against the present petitioner and respondents Nos.2 to 5 in the trial court claiming that the present respondent No.1/plaintiff is owner in possession of suit land under khasra Nos.1299 and 1300, mutation No.9221, measuring 6 kanals 2 marlas, situated at mouza Jutial Gilgit. He has further averred/pleaded in the plaint that the present petitioner/defendant No.3 has got prepared a fake/bogus gift deed bearing registration No.280 in respect of suit land which is illegal, ineffective, against the rights of the respondent No.1/plaintiff, void ab-initio and liable to be cancelled and defendant No.3/present petitioner may be restrained from interfering in the suit land.

3. The present petitioner being contesting defendant in the suit hotly contested the suit by filing written statement in the learned trial court, wherein he has raised legal objections that the suit is rejected under Order VII, rule 11, C.P.C.. Suit of the plaintiff is hopelessly time barred and plaintiff has got no cause of action to institute the suit against the answering respondents/ defendants as such suit is liable to be rejected under Order VII, rule 11, C.P.C.

4. During pendency of the suit, the present petitioner, defendant No.3 had filed an application under Order VII, rule 11 read with section 151, C.P.C. for rejection of plaint. The learned trial court after hearing arguments on behalf of both the parties on the aforesaid application allowed the aforesaid application of the present petitioner and suit of the respondent No.1/plaintiff was rejected under Order VII, rule 11, C.P.C. vide order dated 15-12-2017. The present respondent No.1/plaintiff had challenged the aforesaid order of the learned trial court before the court of learned District Judge Gilgit through civil 1st appeal which was allowed by the learned 1st appellate court vide the impugned judgment/order dated 15-11-2018, hence this civil revision petition.

5. The learned counsel appearing on behalf of the petitioner contended that the impugned judgment/order passed by the learned District Judge Gilgit is contrary to law and facts on the record of the case; as such the impugned judgment is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that limitation for filing of suit for cancellation of instrument/gift deed is 3 years under section 91 of Limitation Act, whereas the instant suit has been filed after lapse of more than 4 years of the execution of gift deed, therefore, the suit of the respondent No.1/plaintiff is hopelessly time barred. The learned counsel for the petitioner further argued that suit land has been purchased by the present petitioner from defendant No.1/ present respondent No.3 and the respondent No.1/plaintiff is stranger and cannot file suit against the present petitioner. The learned counsel for the petitioner further argued that suit has been instituted on the basis of mutation No.9221, which has already been canceled by the revenue authorities on 04-12-2017.

6. On the other hand the learned counsel for the respondent No. 1/plaintiff controverted the arguments advanced by the learned counsel for the petitioner and defended the impugned judgment passed by the learned 1st appellate court by contending that limitation is mixed question of law and facts which shall be decided after recording of the evidence of the parties. The learned counsel for the respondent No.1/plaintiff further argued that suit was instituted on 2-12-2017 and mutation No.9221 was cancelled on 04-12-2017 during pendency of suit, which is illegal and ineffective on the rights of respondent No.1/plaintiff and liable to be set aside.

7. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record of the case with their able assistance.

8. From the perusal of record, it transpires that the learned trial court has rejected the suit of the respondent No. 1/plaintiff mainly on the ground that the present petitioner had filed an application before the Collector Gilgit for cancellation of mutations Nos.9293 and 9221 before filing of suit and matter was then subjudice before the Collector Gilgit who has sole responsibility of the correction of the mutations. Accordingly, the Collector has cancelled mutations Nos.9293 and 9221; therefore, jurisdiction of Civil Court is ousted under section 172 of the Land Revenue Act, 1967. Any decision of the Collector can be challenged before the Revenue Appellate Forum a provided by the Land Revenue Act, 1967.

9. From perusal of record it reveals that suit was Instituted by the present respondent No.1/plaintiff before the trial court on 02-12-2017 and mutations have been cancelled on 04-12-2017 by the Collector Gilgit. Thus mutations Nos.9293 and 9221 were cancelled during pendency of suit by the collector on 04-12-2017 while the trial court had taken cognizance of case and had issued interim injunction directing the parties to maintain status-quo, therefore, the Collector should have not cancelled the mutations during pendency of the suit. Both the parties are claiming ownership and title of suit land which falls in exclusive jurisdiction of Civil Court, hence the learned trial court has jurisdiction to entertain and adjudicate upon the suit of plaintiff/respondent No.1 and the learned trial court has not applied its judicious thought while rejecting the suit of the plaintiff under Order VII, Rule 11, C.P.C.

10. It is a settled principle of law that in order to invoke the provisions of Order VII, Rule 11, C.P.C., only the contents of plaint and its accompaniments/annexures to be taken in consideration and not the case of defendant that may be set up by him in his defence. In the instant case, the plaintiff has stated in his plaint that the suit land was owned by the defendant No.1/present respondent No.3 namely Abdul Qadir and plaintiff has purchased the suit land from respondent No.3/defendant No.1 in sale consideration of Rs.91,500,000/- vide mutation No.9221 on 02-11-2017 and suit land is in his possession. The title of the defendant No.3/present petitioner has also been challenged on the basis of collusion and fraud. The contentions raised by the plaintiff have been controverted by the defendant No.3/present petitioner in his written statement. Thus, claims of both the parties have to be proceeded by leading of evidence. It was not a suit where the plaint could have been rejected under Order VII, Rule 11, C.P.C.

11. The learned trial court has committed material irregularity and illegality while rejecting the suit under Order VII, Rule 11, C.P.C. and that is why the learned first appellate court has rightly set aside the order of rejection of plaint passed by the learned trial court following the principle that law favour adjudication on merits and not technical knockout. 11(sic.) For the foregoing reasons, I see no force in this civil revision petition, hence the same is dismissed. Consequently, the impugned judgment/order dated 05-11-2018 passed by the learned District Judge Gilgit is maintained. Parties are left to bear their own costs. File. ZC/178/GB Petition dismissed.