1999 PLP 1610 (YLR)

‑‑‑‑S. 42‑‑‑Suit for declaration without seeking consequential relief ‑‑‑Competency‑‑ No consequential relief had been asked for in the suit‑‑‑Plaintiffs who certainly were out of possession of suit property, had not prayed for the possession thereof‑‑‑Mere declaration for title without asking for possession as a consequential relief would bar the suit filed under S. 42, Specific Relief Act, 1877. 1980 CLC 1483 ref. Asad Kamal for Petitioners Safirullah Khan for Respondents. Date of hearing: 15th February, 1999 Farmanullah and 3 others (herein after called the petitioners‑plaintiffs) have preferred the present revision petition against Qalandar and 5 others (hereinafter called the respondents‑defendants), after having been aggrieved of the judgment and decree, dated 26‑2‑1992 of the learned Civil Judge, Charsadda and judgment and decree of the learned District Judge, Charsadda, dated 19‑10‑1995.

2. Facts of the case briefly stated are that Farmanullah and 3 others brought a suit before the Civil Judge for a declaration to the effect that they were owners in possession of the suit property through right of fore‑closure and that the subsequent sale of the suit property favourable to defendants 5 and 6 would be inoperative and ineffective upon their rights. Alongwith the suit an application for permanent injunction was also filed. It was averred in the plaint that Hamidullah predecessor‑in‑interest of the plaintiffs had obtained the suit house from Hikmat Khan, the predecessor‑in‑interest of defendants 1 and 2 on mortgage on 8‑3‑1912 for a period of 8 years in lieu of Rs.99 and that the aforesaid property was not redeemed and they were in possession of the same for more than 60 years, therefore, the defendants have lost their rights of redemption and they could not further transfer the suit property to defendants 5 and

6. The two Courts below after having examined the record and the evidence of the parties had turned down the plea of the petitioners. According to the report of the Local Commissioner Exh.C.W.1/1 it was positively clear that the house in question was unoccupied for many years and was not fit for residence. The record suggests that the petitioners‑plaintiffs were in occupation of the suit house as tenants on payment of 'Khakshora' and that they had abandoned the same 15/16 years ago as is evident from the statement of D.W.3 Tauheed Khan. The plaintiffs' claim was never supported by any positive or tangible proof. They have only relied on an unregistered document Exh. P. W.1/1 in respect of the mortgage which was never accepted by the defendants. The plaintiffs could not produce the scribe or marginal witness to this document at the trial though the defendants have positively in their written statement had turned down the claim of the petitioner‑plaintiffs.

3. The learned counsel for the respondents when questioned with regard to the flaws of the plaintiffs' case before the trial Court could not give any plausible explanation. Besides the case in hand is a case for a declaration brought under section 42 of the Specific Relief Act in which no consequential relief has been asked for. The plaintiffs are certainly out of possession of the suit property and they have not prayed for the possession of the same. In this situation mere declaration f6r title without asking for possession as a consequential relief would bar the suit of the plaintiffs under section 42 of the Specific Relief Act. Reliance is placed on CLC 1980 Peshawar page 1483. There was a police case registered at the instance of the plaintiffs against the respondents for their forcible dispossession from the suit house. It would, therefore, support the allegations of the defendants‑respondents that the plaintiff -petitioners were not in possession of the suit house as mortgagees. On the other hand, sufficient evidence supports the defendants' version that the plaintiffs were tenants in the suit house on payment of 'Khakshora'. Since the plaintiffs have failed to prove their case, therefore, the two Courts below were correct in giving the findings against the petitioners. The revision petition having no' merit is dismissed with costs. H.B.T./444/P