1997 PLP 1685 (CLC)

The applicant filed First Class Suit No. 112 of 1980 in the Court of First Senior Civil Judge, Larkana and prayed for the following reliefs:‑ "(a) The Honourable Court be pleased to declare that the subsequent auction/transfer in favour of defendant No. 1, of C.S. No. 1308 Ward 'C' Larkana is illegal, void, mala fide, and plaintiff is owner of the said property, and defendants no any title or right over it. (b) The Honourable Court be pleased to grant permanent injunction to the plaintiff against the defendants restraining them not to threaten or interfere with the possession of C.S. No. 1308 Ward 'C' Larkana of the plaintiff's property. (c) Costs of the suit may be awarded to the plaintiffs. (d) Any other relief available under the circumstances of the suit may also be granted to the plaintiff."

2. The basis of the claim of plaintiff Dhani Bux (who died during the pendency of the suit through his L.Rs) in the suit was, that he was in occupation of C.S. No.1308 Ward‑C Larkana as its owner as the same was transferred to him on L.H. Form at the rate of Rs.1063 from Settlement Department in the year, 1959 and the P.T.O. was also issued which according to him due to the negligence of the Settlement Department, the said property was put in auction list and was given to the defendant No.2. The defendant No.2 gifted the disputed property to the defendant No.8 and the defendant No.7 is caretaker of the mosque who has contested the case filed by the predecessor‑in interest of the applicants. 2‑A. The respondents through the respondent No.7 contested the case and denied the claim of the plaintiff the predecessor of the applicants and have stated that the P.T.O. in favour of the plaintiff was cancelled and against the cancellation of the P.T.O. no appeal was filed. Such position is correct as P.T.O. so reveals at page 91,of the record. It is further stated by the respondent No.7 that the respondent No.2 gifted the property in favour of the respondent No.8 and that the suit filed by the plaintiff against the defendant No.2 was dismissed on 16‑5‑1989. The defendant No.8 claimed the possession of the property through the defendant No.2 and the order passed by the Civil Judge dismissing the suit against the defendant No.2 is final as the applicant did not file any restoration application. The respondent further contended that the auction has taken place on 19‑5‑1961 the property was given to the respondent No.2 and the respondent No.2 gifted the property on 15‑12‑1977. The suit was not filed for concellation of the gift deed and, therefore, the claim of the plaintiff was imaginary ill‑founded and not sustainable in law. The Court framed the following issues‑ (1) Whether the house in suit was transferred to the plaintiff on L.H. Form? (2) Whether the plaintiff paid transfer price and spend any amount on improvement of the house in suit' (3) Whether the auction of the house in suit. by defendant No. l is illegal, ultravires and without jurisdiction? if so its effect (4) Whether the plaintiffs are owners of the house suit? (5) To what relief, if any the plaintiff is entitled? (6) What should the decree be?

3. The trial Court decided the issue No. l in favour of the respondent. The trial Court held that the plaintiff has failed to discharge the burden on this issue as such decided it in the negative and in relation to issues Nos.4 and 5 held that the plaintiff has no right or title over the suit property and he not owners of the property and as such Issue No.3 decided in the negative. Consequently the suit was dismissed. The Appellate Court also maintained the order and held that the appeal filed by the applicant was misconceived as such this Revision Application has been filed.

4. Learned counsel for the applicants has urged that the P.T.O. was cancelled behind the back of plaintiff without hearing him as such the property could not have been auctioned. The record reveals that the P.T.O. was cancelled and thereafter, the property was auctioned in 1961. The plaintiff, the predecessor of the applicants did not agitate against the cancellation of the P.T.O. at any time. Even when the said P.T.O. which was cancelled was brought on record and no application‑for amendment was filed praying for the order of the cancellation. The contention of the learned counsel for the applicant is misconceived as no relief was sought in relation to the order which was passed earlier and was subsequently cancelled.

5. Learned counsel for the applicant further stated that the gift deed is on record. The gift deed is not registered and, therefore, does not confer any right on the respondents. He has relied on a judgment of Hon'ble Supreme Court reported as Ismail Said and another v. Commissioner of Karachi (1968 SCMR 509).

6. I have quoted the prayer of the applicant in his suit. No relief was claimed in relation to the gift nor any declaration has been sought against the gift. It is well‑settled .law that the Court may not grant the relief unless specifically prayed. No declaration was prayed nor any relief was claimed against the gift deed. In the absence of any such prayer and any issue framed in relation to the gift deed the contention of the learned counsel for the applicant is again misconceived.

7. Mr. Ghulam Sarwar Abbasi, learned counsel for some of the respondents contended that the suit was dismissed against the respondent No.2 as far back as on 16‑5‑1989 for want of prosecution. No application was filed. The order passed on 16‑5‑1989 against the respondent No.2 has attained finality. The respondent. No.2 is the auction purchaser of the property she has gifted the property to the mosque and since the suit against the respondent No.2 was dismissed, the plaintiff cannot claim any relief in this Revision Application. He has further contended that against the cancellation of P.T.O. in favour of the predecessor‑in‑interest of the applicant, no appeal was filed as such the order of cancellation had attained finality and the said property was subsequently auctioned. The relief claimed by the predecessor‑in- interest of the applicants was, therefore, patently illegal and the Courts below rightly dismissed the suit and also his appeal validly dismissed. Such contentions urged by the learned counsel appearing for some of the respondent are valid.

8. Consequently, this Revision Application is dismissed with no order as to costs In view of the above Civil Miscellaneous Application No.59 of 1995 has become infructuous which is also dismissed. A.A./M‑177/K Revision dismissed