2023 PLP 1784 (CLC)

ROZI KHAN BARRECH, J.

This revision petition is directed against the judgment and decree dated 21.04.2022 of the learned Additional District Judge-V, Quetta ("appellate court") whereby the appeal of the petitioners/plaintiffs against the judgment and decree dated 07.12.2022 of the learned Civil Judge-III, Quetta ("trial court") has been dismissed.

2. Essential facts for the decision of the present petition are that the petitioners filed a suit for declaration, possession, the mandatory and permanent injunction against the respondents/defendants before the learned trial court with the averment that they purchased suit property situated at Sragorgai Quetta against the consideration of Rs.10,85,000/- from the father of respondents Nos.1 to 3 and in this regard an agreement dated 16.06.2014 was also written. Respondents Nos.1 and 3 in connivance with respondents Nos.4 to 6, sold the same on respondents Nos. 8 and 9, and they started construction over the suit property.

3. The respondents resisted the suit, being the defendants. While submitting their written statements, they controverted the assertions contained in the plaint.

4. On the divergence of the pleadings, the learned trial court framed issues. After framing issues, the learned trial court rejected the suit of the petitioner on 7.12.2021. Being aggrieved from the order of the trial court dated 7.12.2021, the petitioners filed an appeal before the appellate court, and the same was also dismissed on 21.04.2022. Whereafter the instant petition was filed.

5. I have heard learned counsel for the parties and perused the record.

6. It is a settled principle of law that in order to take up the pleas under Order VII, Rule 11, C.P.C., the party concerned has to essentially take the averment made in the plaint as correct, and their entirety appears to be barred by law or a suit on the basis of it was incompetent, did not disclose cause of action. The totality of facts must coexist, if anything wanting a claim would be incompetent. The court would take into consideration the plaint as a whole and the document placed on record by the petitioners.

7. It is well settled that the party seeking relief must have "cause of action" not only when the alleged act is done but at the time of filing suit, the right to seek relief was in existence. The question as to whether a suit is barred by limitation or right to seek relief exists or not would therefore depend upon the facts and circumstances of each case. For the said purpose, only averments made in the plaint is relevant. At this stage court would not consider the defense.

8. Order VII, Rule 11, C.P.C. lays down an independent remedy to the defendant to challenge the maintainability of the suit instead of contesting the same on merit. The court can exercise power at any stage of the suit before passing judgment for deciding an application under Order VII, Rule 11, C.P.C. relating to clauses (a) and (d) can exercised power before the filing of a written statement. The averments in the plaint are generic. The plea taken by the defendants would be wholly irrelevant at that stage.

9. It is implied that Order VII, Rule 11, C.P.C., cast a duty on the court to perform its obligation when the same hit by any of the clause provided under Order VII, Rule 11, C.P.C. Even without the filing of application by defendants, while deciding an application under Order VII, Rule 11, C.P.C., it is to be considered whether the plaint discloses a real cause of action or something purely illusory/imaginary or hollowed has been stated within the meaning of Order VII, Rule 11, C.P.C. For Order VII, Rule 11, C.P.C., it is plaint alone which is to be considered.

10. After perusing the plaint, the plaintiffs/petitioners claimed that they purchased the suit property situated at Sraghurgai Quetta against the consideration of Rs.10,85000/- from the father respondents NoS. 1 to 3 and in this regard, an agreement dated 16.06.2014 was also written.

11. On the other hand, while filing their written statements, the respondents took the ground that the suit property is the unsettled property and the agreement dated 16.06.2014 is an un-registered document. Learned counsel for the respondents stated that the suit was filed by the petitioners in the year 2021, and the alleged agreement was executed in the year 2014; as such, the suit of the petitioners was also barred by time. It is further contended by learned counsel for the respondents that the father of the respondents died, and in his lifetime neither the petitioners claimed the property in dispute nor filed any suit.

12. Learned counsel for the petitioners has failed to satisfy the Court that how the case for declaration of the property in dispute on the basis of un-registered document is maintainable since no right has accrued to the petitioners under the un-registered document of sale through the learned trial court. It is settled law that a mere agreement of sale does not confer any right in favour of buyer. In this context, relevant provisions of the definition of sale is provided in section 54 of the Transfer of Property Act, 1882, and section 49 of the Registration Act, 1908. In section 54 of the Transfer of Property Act, after explaining what is "sale" and "sale how made", it is clearly mentioned that:- Contract of sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Section 49 of the Registration Act, 1908 is also reproduced below:-

49. Effect of non-registration of documents required to be registered. No document required to be registered under this Act or under any earlier law providing for or relating to the registration of documents shall (a) operate to create, declare, assign, limit or extinguish, whether in the present or in future any right, title or interest, whether vested or contingent to or in immovable property or (b) confer any power to adopt, unless it has been registered.

13. In view of the above legal position, the petitioners/plaintiffs filed a suit for declaration on the basis of an unregistered document which would neither create any title nor any right or interest in the disputed property as envisaged under section 49 of the Registration Act, 1908, as a such, declaratory suit under section 42 of the Specific Relief Act, 1877 on the basis of the deed in question is not permissible and, therefore, suit for declaration would not be maintainable. Even if the suit of the petitioners is considered to be that of specific performance, then under the law of limitation, the period for filing a suit for specific performance of a contract is three years, but the record shows that the agreement in question was executed in the year 2014 whereas the petitioners filed their suit in the year 2021, i.e. after the lapse of seven years; therefore, suit of the respondents is hopelessly time-barred especially when the petitioners had not uttered a single word in their plaint as to when they got the cause of action against the respondents/defendants.

14. It is worthwhile to mention here that both the parties admitted that the property in question is unsettled property. The same was neither in the name of the father of respondents Nos.1 to 3 nor in the name of the petitioners, then how the father of respondents Nos.1 to 3 sold out the said property to the petitioners without any title document; as a such, declaratory suit under section 42 of the Specific Relief Act, 1877 is also not permissible, and the suit for the declaration was not maintainable without any entitlement with the property in dispute.

15. In view of the above, the observations, and concurrent findings of both the courts below, the learned counsel for the petitioners have failed to point out any illegality or irregularity, in the impugned judgment and decrees passed by the trial court as well as appellate courts; thus, the petition being devoid of any merits is dismissed with no order as to cost. MQ/101/Bal. Revision Petition dismissed.