1989 PLP 3495 (MLD)

Mian Saeed‑ur‑Rehman Farrukh for Respondents. The only dispute in the present appeal is as to whether in the absence of any prayer for declaration, the suit for possession filed by the respondents against the petitioners was competent. In the suit filed by the plaintiffs‑respondents it was alleged that they and their predecessor have never alienated the land nor had authorised anyone else to enter into any such transaction and consequently the alleged sale of this land shown to have been made by Rehmat Ali deceased plaintiff and Mehr Din, the predecessor‑in‑interest of the present respondents, in favour of Mushtaq Ahmad petitioner No. 1 and the subsequent sales in favour of respondents Nos. 2 and 3, were fictitious and fraudulent. After the trial of the suit the learned trial Court held that the power of attorney on the basis of which the sale in favour of petitioner No. 1 was made by petitioner No. 4 was forged and had not been executed either by Rahmat Ali or Mehr Din. He, therefore, held that the sales in favour of the petitioners was invalid. However, the suit was dismissed by the learned Civil Judge in view of his finding on issue No. 2 concerning the maintainability of the suit. The trial Court was of the view that since the petitioners were not recorded as owners in the revenue record, they should have sought a declaration regarding their title and the suit for possession filed by them in the absence of any prayer for declaration was not competent. This finding of the trial Court was reversed by the District Judge, Okara on an appeal filed by the petitioners. According to the lower appellate Court after deciding all the material issues in favour of the plaintiffs‑respondents it was not open to the trial Court to dismiss the suit on a technical ground and that too wrongly. While accepting the appeal, the learned District Judge decreed the suit in favour of the respondents‑plaintiffs. The petitioners‑defendants have assailed the validity of the judgment of the District Judge by filing this civil revision.

2. Kh. Muhammad Farooq, learned counsel for the petitioners contended that as on account of entries in the revenue record showing the petitioners to be the owners, a cloud was cast on the title of the respondents and as such they were under an obligation to have that cloud removed by seeking a declaration from the Court about the title and could not have filed a suit for possession simpliciter.

3. I regret my inability to agree with the learned counsel. 1n law where plaintiff does not admit having entered into any transaction or where it is alleged that the transaction or the document, if any executed in that behalf, is wholly void, no obligation is cast upon the plaintiff to sue for a declaration of his title and he 13 can by ignoring the document or the transaction, sue for the substantive relief of the possession available to him. It is only when the instrument of transaction in question is voidable that it be necessary for the plaintiff‑petitioner to sue for a declaration to have it adjudged void before asking for the relief or any other relief. In Mst. Hamida Begum v. Murad Begum and others P L D 1975 S C 624 the observations made by the Supreme Court are as follows:‑‑ "Where the deed or instrument is ab initio null and void, it can be treated as a nullity without having to be cancelled or set aside. If, on the other hand, the instrument is only voidable then it would be necessary to have it set aside or cancelled in order to remove the impediment. in the way of the plaintiff. It is perhaps not possible to enumerate exhaustively the circumstances which would render an instrument null and void, but it is at least clear that if the person who executes the document had no authority in law to do so, or if he had only a conditional authority to dispose of property, and the conditions under which authority could be exercised were not fulfilled, then the instrument could be regarded as null and void". In Muhammad Ilyas Hussain v. Cantonment Board Rawalpindi P L D 1976 S C 785 the question before the Court was whether it was necessary for the plaintiff to have sued for declaration before claiming the relief of injunction. It was observed that the plaintiff is not required under the law to ask for declaration of his title and the suit for permanent injunction simpliciter was held to be competent. In the present case it was alleged by the respondent‑plaintiffs and as was found by the trial Court itself, the property m dispute was never alienated by the respondents or their predecessor in favour of the petitioners. The documents on the basis of which the title was being claimed were alleged by the petitioners to be forged and fabricated. It had been found to be so by the trial Court. In these circumstances it was unnecessary for the petitioners to claim for any declaration regarding their title or the invalidity of the transaction on which the petitioners were basing their title.

4. It is also to be observed that under the law a plaintiff is not obliged to file a suit in a particular manner. If it is open for him to frame a suit in any permissible way and it cannot be insisted by the Court that he should frame the suit in any other way. In Harkishan Lal v. Barkat Ali and others A I R 1942 Lah. 209 in this context it was observed that:‑‑ "If it is open to the plaintiff to bring a suit for possession or to bring a suit for a declaration with consequential relief for possession; it is entirely for the plaintiff to choose in which form he brings the suit." Furthermore, the learned trial Court while dismissing the suit of the petitioners has failed to keep in mind that a cause cannot be dismissed on a hypertechnical ground like the form of the suit. Indeed it is well‑settled that if the relief claimed L is inappropriate or inadequate the Court can suitably mould and grant it in view of provision of Order 7, rule 7 of the C.P.C. The defect if any in the form of suit could have been cured by granting the requisite declaration while passing a decree for possession. Taj Muhammad and others v. Muhammad Iqbal and others 1986 S C M R 276 refers. The learned District Judge was justified in then circumstances of the case in setting aside the dismissal of the suit by the trial Court. No interference with this is called for in these proceedings. In view of what has been staled above this revision petition has no merit. It is accordingly dismissed leaving the parties to bear their own costs. M.Y.H./M‑1435/L Petition dismissed.