1995 PLP 1745 (CLC)

6. The learned trial Court framed the following consolidated issues. Issues. (1) Whether both the suits are in time? OP‑Parties. (2) Whether the Court has no jurisdiction to try the Suit No. 275 of 1987? OPD (3) Whether the Suit No. 275 of 1987 is not maintainable in its present form? OPD (4) Whether the plaintiffs have no locus standi to try Suit No. 275 of 1987? OPD (5) Whether the plaintiffs are entitled to the decree prayed for on the ground of the plaint of Suit No. 275 of 1987? OPP (6) Whether the defendant No.1 is the owner of house in dispute and as such is entitled to the decree for possession of same in Suit No. 274 of 1987? OPD.I. (7) Whether the plaintiff in Suit No. 274 .of 1987 is estopped by his conduct to bring the suit? OPP (8) Whether the Suit No. 274 is bad for non‑joinder of necessary parties? OPP (9) Whether the Suit No. 274 of 1987 is mala fide vaxatious and had been instituted with intent to counter blast the Suit No. 275 of 1987? OPP (10) Relief.

7. I have heard the learned counsel for the parties and have also gone through the record.

8. It is submitted by the learned counsel for the petitioners that the first appellate Court wrongly and illegally treated the agreement, dated 9‑11‑1970, (Exh.P.l) as an agreement of association and Muhammad Nazir petitioner No.1 is valid transferree of the property in dispute and the plaintiffs/respondents have nothing to do with the property in dispute and as they were in possession of the house merely as licensees and the said license have not been revoked by petitioner No.1, the learned trial Court correctly decreed his suit for possession and dismissed the respondents suit for declaration. It is also submitted that the execution of the agreement (Exh.Pl) is denied and it is alleged that it is a result of forgery. 8‑A. On the other hand, it is submitted by the learned counsel for the plaintiffs/respondents that the document stands fully proved by the plaintiffs witnesses and the transferee of the house/petitioner No.1 Muhammad Nazir is bound by the terms and conditions of the agreement which was entered into between the parties as far back as in 1970 under which all the parties concerned surrendered some of their rights mentioned in the agreement to each other, according to which, none of the parties to the agreement can be dispossessed by the other parties and house cannot be sold by the transferee to anyone else without the consent of the other party to the agreement and similarly it cannot be given on rent to anyone else without the consent of the others and if this document is not to be considered as an agreement of association for the purpose of transfer by the Settlement Authorities, it is to be treated as a deed of relinquishment by the executants of the agreement of relinquishing of their rights to each other to the extent of their respective possession. It is submitted that in these circumstances, valuable rights had accrued in favour of the plaintiffs and when threatened, the plaintiffs filed suit for the declaration of the rights which were being enjoyed by the plaintiffs under the above said agreement dated 9‑11‑1970 (Exh.Pl) and the plaintiffs have the right to remain in possession of the portion of the house in their possession perpetually, and therefore, the trial Court acted illegally in dismissing the plaintiffs' suit and decreeing the defendants/petitioners' suit for possession and this illegality was correctly removed by the first appellate Court by reversing the judgments and decrees of trial Court. The learned counsel for the plaintiffs/respondents further submits that the abovementioned agreement (Exh.Pl) stands fully proved by the testimony of P.W.1, P.W. 2 and P.W. 4 marginal witnesses and the scribe P.W.

3. Learned counsel for the respondents further submits that the contents of the above said agreement fully stand corroborated and supported by other documents also which are available on the record. He has referred to the copy of the C.H. Form (Exh.P2) which was submitted by Babu Khan, father of the defendants/petitioners for the transfer of the house in dispute which was later on transferred in the name of his son, petitioner No.1. In this Form, Babu Khan who was also one of the parties to the agreement, has stated that the house in dispute has been allotted in the name of his son‑in‑law i.e. the father of Muhammad Salim, the predecessor of the plaintiffs and he has stated that his son‑in‑law has since died and his widow, the daughter of Babu Khan is living in the said house. In the same C.H. Form, Babu Khan has further stated that he is living in the portion of the upper storey and in the other portion of the upper storey of the house, his widow daughter is living and on the top floor, his son i.e. the defendant/petitioner No.1 is living. The learned counsel has also referred to the statement of Babu Khan (Exh.P4) which was given by him on oath before the Settlement Authorities, in which, he admits that all the three parties to the agreement are living in the house and that he has given the C.H. Form for. the transfer of the house for the benefit of the plaintiffs. He has also placed reliance on Salim and another v. Malik Jalal‑ud‑Din and 7 others (PLD 1982 SC 457), to contend that the statement made by the predecessor of the defendant/petitioner No.1 is receivable as admission against him.

9. The execution of the agreement Exh.Pl stands fully proved by the testimony of P.W.1, P.W.2 and P.W.4, who are marginal witnesses of the document and by the testimony of P.W.3, the petition writer, who is the scribe of the document and the defendants have failed to dislodge these witnesses. The genuineness and correctness of the contents of the agreement also stands fully proved not only by the agreement itself but also by the other documents which have been brought on the record by the plaintiffs. The copy of the C.H. Form (Exh.P2) and the statement of Babu Khan (Exh.P4) fully establish that the house in dispute has three portions and all the three parties are in possession and are living in their respective portions and that the parties are closely related to each other. Babu Khan, the father of the transferee Muhammad Nazir/petitioner No.1 stated before 'the Settlement Authorities A (Exh.P4) that he had given the C.H. Form for the transfer of the house in dispute for the benefit of the plaintiffs. All these circumstances show that the signatories to the agreement, being closely related, had agreed that the rights of all the three signatories i.e. the predecessor of the plaintiffs, the predecessor of the defendants and defendant No.1 Muhammad Nazir/the petitioner shall remain safeguarded and protected irrespective of the fact that, in future, it is transferred to any one of the signatories to the said agreement.

10. The learned counsel for the petitioners has tried to argue that the plaintiffs have not asked for the relief in the correct form and have not stated that the disputed agreement (Exh.Pl) is a deed of relinquishment. This argument has no force. Order VII, rule 7 of the C.P.C. empowers a Court to grant general relief and the reliance can be placed on Samar Gul v. Central Government and others (PLD 1986 SC 35), wherein, it was held that Court is empowered to grant such relief as justice of case may demand and for determining relief asked for, whole of the plaint must be looked into, so that substance rather than form should be examined.

11. There is much force in the argument of the learned counsel for the petitioners that the agreement cannot be considered as an agreement of association for the purposes of transfer of the evacuee house because the agreement of association entails certain formalities and recognition by the Settlement Authorities. However, the fact remains that even if it is not an agreement of association, it is a lawful agreement entered into and executed by the executants, whereby, the executants surrendered certain rights mentioned in the agreement to each other perpetually. The law recognizes such agreements and the transferee bound himself that in case, the house is transferred to him, he shall not dispossess the other parties and shall also not sell the house or any portion of it to anyone else without the consent of others and, similarly, no portion of the house can be given on rent to anyone else without the consent of other parties to the agreement. Therefore, the first appellate Court correctly dismissed the petitioners' suit for possession and decreed the plaintiffs/respondents' suit for declaration and for permanent injunction. For the reason mentioned above, there is no merits in both the revision petitions which are accordingly dismissed with no order as to costs. AA./M‑2179/L??????????????????????????????????????????????????????????????????????? ??????????? Revision dismissed.