2005 PLP 1872 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment, dated 13-3-2002 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, Rawalpindi in a civil revision arising out of a suit for permanent injunction.

2. The relevant facts in brief are that Muhammad Din, respondent No.1 herein, filed a suit for permanent injunction setting up the claim of possession as owner of the suit property since his forefathers and that the petitioners were intending to dispossess him forcibly. The suit' vas contested by the petitioners with the assertion that the suit-land was the common property of the village proprietary body. The learned Judge in the light of pleadings of the parties, framed issues and having recorded evidence, decreed the suit vide judgment, dated 24-6-1990. The appeal filed by the petitioners also met the same fate which was dismissed by learned Additional District Judge, Jhelum vide judgment, dated 24-2-1994 and further the concurrent finding of two Courts on the question of fact, was affirmed by the High Court in its revisional jurisdiction through the impugned judgment.

3. The pivotal issue for determination would relate to the maintainability of suit for permanent injunction without seeking declaration of title. The learned counsel contended that the title of the suit property was disputed, therefore, the suit for permanent injunction was not maintainable but unfortunately, all the three Courts misread the evidence and held that the title was not in dispute. There is no cavil to the proposition that if the title of the property is in dispute, the simple suit for permanent injunction or possession, without seeking declaration of title, would not be maintainable. The suit property admittedly was part of Shamlat Deh and the respondent No.1 asserted his claim of ownership on the basis of his possession since long whereas the petitioners being member of proprietary body of the village, claimed that they had the ownership right in the property. The pleading of the parties and the evidence would clearly show that the controversy between the parties was confined only to the extent of possession and the title of property was not in dispute. The perusal of record would not suggest the exclusive ownership of the petitioners or possession of the land to contend that without declaration of title, the suit for permanent injunction was maintainable.

4. In the circumstances of the present case, the counter-claim of the petitioners of constructive possession of the suit property on the basis of ownership in the village, would not be entertainable in the suit of respondent without setting up the right of exclusive ownership. The petitioners could file a separate suit for declaration for establishing their right in the suit property instead of agitating the non-maintainability of the suit of respondent on such ground. The parties in the suit are bound by their pleadings and in the present case, the finding of the three Courts on a question of fact, being based on the pleadings and evidence of the parties, would not be open to be challenged before this Court. We having heard the learned counsel for the petitioners and gone through the record, have not been able to find out any defect of misreading or non-reading of evidence or any legal infirmity in the concurrent findings of fact to justify our interference.

5. For the foregoing reasons, no exception can be taken to the impugned judgment and this petition, having no substance, is dismissed. Leave is 'refused. M.H./S-54/S Petition dismissed.