2010 PLP 246 (CLC)

S. ALI HASSAN RIZVI, J.

Muhammad Idrees plaintiff/respondent had filed a civil suit on 10-6-1998 seeking a declaration that he was owner in possession of house built on 4 Marlas situate in Abadi Mauza Ahla, Tehsil and District Mandi Baha-ud-Din and that the defendants Karam Din, . his wife Mst. Aashi, and his two sons Ashfaq Ahmad and Intezar Hussain alias Ahmad Yar, had no right or authority, whatsoever, to interfere with his peaceful possession. As a consequential relief, the defendants were sought to be permanently restrained from casting any clouds on the title of the plaintiff or from interfering with his peaceful possession in any manner, whatsoever. It was averred in para.1 of the plaint that the defendants had two and a quarter years before, taken the afore-said site as Areeat for construction of a Kurh (shed) for tethering the cattle and that a written agreement dated 26-3-1996 was executed between him and defendant No.3, Ashfaq Ahmad.

2. The suit was resisted by the defendants/revision petitioners vide their written statement dated 10-3-1999. It was claimed that they had filed a civil suit which was pending in the Court of Mr. Muhammad Shafiq Butt, then learned Civil Judge, Mandi Baha-ud-Din and that the present :.;at was a counterblast. They also pleaded that they were in possession since 1976. As to the afore-mentioned agreement, the execution thereof was denied.

3. During the pendency of the suit, Karam Din, defendant No.1 had died and his legal heirs, which are now the revision petitioners were substituted vide amended plaint dated 13-11-1998.

4. The learned Civil Judge seized of the suit put the parties on trial on the following issues:

"Issues: (1) Whether the plaintiff has not come to the Court with clean hands? OPD (2) Whether the plaintiff has filed the suit just to harass the defendants, hence the defendants are entitled to special costs Rs.20,000 under section 35-A of C.P.C.? OPD (3) Whether the plaintiff has no cause of action to file this suit? OPD (4) Whether the plaintiff is entitled to decree for declaration as prayed for? OPP (5) Relief.

5. On conclusion of the trial Mr. Mahmood Azam Warraich, learned Civil Judge Mandi Baha-ud-Din, dismissed the suit vide judgment and decree dated 28-1-2000 mainly on the ground that Muhammad Idrees the plaintiff/respondent was not the owner of the suit property.

6. In appeal, the findings recorded by the learned trial Court were reversed and consequently the suit was decreed vide judgment and decree dated 17-12-2004 rendered by Malik Abdul Rasheed, learned Additional District Judge, Mandi Baha-ud-Din.

7. The present revision petition was filed on 15-3-2005 to challenge the appellate judgment and decree dated 17-12-2004.

8. I have heard learned counsel for the parties and gone through the record. Issues Nos.1, 3 and 4 being interdependent, may be taken up together. The plaintiff/respondent Muhammad Idrees appeared as P.W. 1 and got exhibited the agreement dated 26-3-1996 as Exh. P.

1. He examined Muhammad Latif, Sub-Engineer P.W.2 who as a local commission had testified his report Exh.P.2 and the site-plan Exh.P.3. Further, Abdul Sattar P.W.3 was also examined who testified the afore-said agreement Exh. P.

1. Muhammad Ramzan P. W .4 was also examined who, too, testified the execution of agreement Exh. P.1.

9. On the other hand, Mst. Aashi one of the defendants/revision petitioners appeared as D.W.1. Ashfaq Ahmad, one of the defendants/ revision petitioners appeared as D.W.2. Muhammad Suleman D.W.3 was examined on their behalf.

10. The afore-mentioned was the entire evidence on record for and against the parties.

11. The case of Muhammad Idrees plaintiff/respondent was mainly based on agreement Exh.P.1. This agreement showed that Ashfaq Ahmad, defendant/petitioner was first cousin (Tayazad) of Muhammad Idrees 'plaintiff/respondent and the site in question was taken as Areeat for two years; that the defendants would raise temporary construction; that after 31-3-1998 they would remove the superstructure and hand over the vacant possession to Muhammad Idrees and that if the terms of the agreement were violated, he would have a right to get the site vacated through lawful means. The execution of this agreement was denied in the written statement. However, I find that the denial was not specific and rather evasive. Such an evasive denial when viewed in terms of Order VIII, rules 4 and 5, C.P.C., the relevant assertion made by the other side, would be deemed to have been admitted.

12. It is a settled law that in civil matters when entire evidence is recorded, burden of proof would lose its importance and the Court has to examine the evidence in its entirety. Mst. Aashi Bibi D. W.1 herself admitted that they had earlier filed a suit with regard to the same site in question and that the same was withdrawn with permission to sue afresh. She further admitted that no fresh suit was ever filed by them. She also admitted that when local commission had visited the spot, Muhammad Idrees plaintiff/respondent was in actual physical possession although with a lump and throat, she added that he had taken possession with the help of police. Ashfaq Ahmad D.W.2 claimed in his examination-in-chief that the property in question was owned by Government of Pakistan; that his father was in possession and that he had never executed any Iqrarnama. He claimed that the Iqrarnama relied by the plaintiff/ respondent was a fake document. During cross-examination he was confronted with the written statement. He denied having signed the written statement. However, he admitted his signatures on the front and back side of the agreement Exh.P.1. He also admitted that the I.D. Card number shown thereon related to him. Then he tried to take a shift saying that the stamp paper was got written through fraud. He however, failed to state any particular of the so-called fraud. It is evident that he had admitted the execution of the agreement Exh. P.1 dated 26-3-1996. The agreement Exh.P.1 was fully covered under Article 102 of Qanun-e-Shahadat Order, 1984 and any oral evidence against its terms, would stand excluded from consideration vide Article 103 of the Order (ibid).

13. As per Article 170 of Principles of Mahomedan Law by Dr. M.A. Manan (Pakistan Edition), an Areeat would be resumable at the grantor's option. "Areeat" is investiture with the use of a thing without return. In other words, it signifies simply a licence to use the property of another. In the present case, the Areeat was for a limited period from 26-3-1996 to 31-3-1998 whereafter the grant was resumable at the option of the grantor (Muhammad Idrees). The temporary possession of the defendants was nothing more than permissive under the agreement Exh.P.1 executed on 26-3-1996 for a limited period of two years. Muhammad Idrees plaintiff/respondent even if was not an owner of the site in question, had possessory rights and consequently could maintain a suit on the basis of his legal character. As per section 42 of Specific Relief Act, 1877, any person entitled to any legal character, or to any rights as to any property could maintain a suit for declaration with consequential relief. The term "legal character" has a bit different connotation from "a title to property". It was proved on record that Muhammad Idrees plaintiff/respondent was in actual physical possession of the property in question before 26-3-1996 when the agreement Exh.P.1 was executed. His possessory rights had conferred on him a legal status, except against the true owner, if any, which is equivalent to legal character as envisaged under section 42 of the Specific Relief Act, 1877. "Stronger is the position of the person who is in possession" is a time-accepted rule. The term "legal character" is familiar to the lawyers. It is, however, difficult to define precisely its connotation within a short compass. The defendants/revision petitioners in this case were bound by the terms of the agreement dated 26-3-1996 Exh.P.1. By denying the execution of the agreement Exh.P.1, in their written statement, the defendants/revision petitioners had cut their size. Its execution was proved during evidence. Section 42 of the Act ibid does not postulate that declaration in respect of right to any property could be sought only by an owner of the same. Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd. 1991 MLD 284 maybe relied upon.

14. In purview of the evidence and the legal position as discussed above, the plaintiff/respondent could not be dubbed to have come to Court with unclean hands. It could also not be said that he had no valid cause of action. He was, therefore, entitled to the decree for declaration and permanent injunction as prayed for with respect to the property in question. The allegation of the defendants/revision petitioners that Muhammad Idrees had taken forcible possession remained bald leading to no consequence. As a result, I find that the learned Additional District Judge was justified as a superior Court of fact, in reversing the findings recorded by the learned trial Court and had rightly decreed the suit in favour of the plaintiff/respondent vide his judgment/decree dated 17-12-2004.

15. Now a word about Issue No.2. In purview of findings on issues Nos.1, 2 and 4, there was no warrant to say that the plaintiff/respondent had filed the suit to harass the revision petitioners. There was, therefore, no question of awarding special costs under section 35-A, C.P.C.

16. For my own reasons as recorded above, I uphold the judgment/decree dated 17-12-2004 rendered by the learned Additional District Judge, Mandi Baha-ud-Din, decreeing the suit. Consequently, the revision petition is dismissed with costs.

17. A copy of this judgment shall be communicated through the District and Sessions Judge concerned to the learned trial Judge as also the learned appellate Judge wherever they are posted. S.A.K./K-32/L Revision dismissed.