1987 PLP 1653 (CLC)

Secretary to Government (West Pakistan) Now N.‑W. F. P, Department of Agriculture and Forests and 4 others v. Kazi Abdul Kafil P L D 1978 S C 242; Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 S C 236; Begum Shams‑un‑Nisa v. Said Akbar Abbasi and another P L D 1982 S C 413 and Rehmat Ullah and others v. Mst. Hameeda Begum and others 1986 S C M R 1561 ref. (d) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 115‑‑Specific Relief Act (I of 1877), S. 42‑‑Revisional jurisdiction, exercise of‑‑Relief granted in excess of prayer‑‑Objection to grant of such relief abandoned by defendants in trial‑‑Effect‑‑Decree of lower appellate Court, held, would be quite just and proper where it provided a relief which otherwise would have been refused if objections as to maintainability of suit in its present form had not been abandoned. Taqi Ahmad Khan for Petitioners. Syed Shahid Hussain Qadri for Respondents. Dates of hearing: 6th and 7th April, 1987. This order will also decide Civil Revision No. 259‑D/1986 as both arise from the judgment/decree dated 7‑12‑1985 of the learned Additional District Judge, Sialkot, whereby while the petitioners' own suit was dismissed that of the respondents was decreed.

2. The point in question was whether Mst. Malan, a Sikh lady had migrated to India during the disturbances of 1947 and her land in dispute was treated as evacuee property. The petitioners' claim in their own suit was that she had died in Pakistan and that they had been rightly given the land as her heirs. Conversely the respondents brought their own suit contending that she had migrated to India; that the land left by her was rightly transferred to a displaced person; and that having purchased it from him in successive order, they were its rightful owners. Thus, they prayed for a declaration of title and opposed the petitioners' suit pleading finality of the orders passed by the Settlement Authorities.

3. Both the suits were contested and were disposed of by a single judgment. The petitioners' suit was decreed while that of the respondents was dismissed, but the learned Additional District Judge in appeal reversed the judgment holding that the land had been once held to be evacuee property; was rightly transferred to a displaced person; and that the respondents having purchased it from him were rightful owners thereof. The petitioners' claim that Mst. Malan had died in Pakistan or that they were her heirs was not accepted.

4. Mr. Taqi for the petitioners initially contended that there was no evidence to hold that the land was at all treated as evacuee property. This was the impression which I gained while writing my order of the 1st of February, 1986, and the reason for the same was that there was neither the P.T.O. nor R.L.II on the record. It persuaded me to call the respondents for whom Mr. Shahid Hussain Kadri, Advocate, adverting attention to paras. 7 and 8 of the impugned judgment submitted that even if there was no P.T.O. or R.L. II, mutations P.2, P.3 and D.9 by themselves were sufficient to reveal that the land was treated by the Rehabilitation Authorities as evacuee property. This contention seems to be correct. These mutations sufficed to show that the property was dealt with as such and was transferred to a displaced person. The petitioners did not raise any objection to those mutations in time before the Settlement Authorities and, evidently it was too late to assail them before a civil Court. The learned Additional District Judge from appraisal of these documents took the view that Mst. Malan had migrated to India and that her property left in Pakistan was treated as evacuee property. This finding cannot be upset in revision muchless on the ground that there was no evidence in support of the above‑mentioned two facts.

5. Next Mr. Taqi strenuously urged that the judgment and decree of the appellate Court, in so far as these gave the respondents relief of possession, were bad in law. He referred to the plaint in the respondents' own suit in which really they asked for merely a declaration of title. Ordinarily this objection would have carried weight, but the petitioners themselves worsened the situation by having abandoned their objection before the trial Court in this behalf. Issues Nos. 3 and 4 comprising this point were not pressed. The corollary was as if they did not object to the form of the suit. Even if the relief granted exceeded the prayer made in the plaint, there was room in terms of Order VII.

0. Rule 7, C.P.C. to sustain it because it did not appear to be based on any fresh ground or extraneous evidence, nor was in any way inconsistent with the substance of the suit. Rather it flowed out as a necessary consequence from the allegations levelled in the plaint and the evidence produced on the record. The suit in substance was for a declaration of title which was upheld and as a sequel giving possession to a rightful title holder was, by no means, entirely unrelated either to the suit or the evidence. The provision is enabling in character and I think should be used in a case where all equities are in favour of a true owner. Here the petitioners claim themselves to be heirs of a non‑Muslim lady telling wrongly that she died in Pakistan. This version was repelled out of hand because right in early days the property was allotted to a displaced person by the Rehabilitation Authorities. The status of the petitioners indeed was no better than that of imposters and it may not lie for them to say that due to little inaccuracy in the relief clause, the equities weighing heavily in favour of the rightful owner may be altogether reversed. I was thinking of even allowing amendment of the plaint on payment of court‑fee etc. for the relief of possession, but the contention was rendered totally ineffective by the petitioners themselves in having dropped the objection at the trial. They cannot be allowed to rake it up at this stage, for, had it not been given up, it could have been decided on merits by either of the Courts below.

6. Learned counsel for the petitioners sought support from Secretary to Government (West Pakistan) Now N.‑W.F.P, Department of Agriculture and Forests and 4 others v. Kazi Abdul Kafil PLD 1978 S C 242 wherein a decree for 48,305 sq. ft. of wood was allowed to the plaintiff as against his own claim of 42,000 sq. ft. The rule enunciated therein was that without amendment of the plaint the relief should not have exceeded 42,000 sq. ft as mentioned in the plaint. With respect, this authority may not be much applicable to the facts of the present case in that there was no quantitative excess as to the relief granted in it. What was granted was simply consequential. An owner is always entitled to possession, all the more when various objections raised against his title have been disproved. Order VII, rule 7, C.P.C. in essence is meant to grant all reliefs to a plaintiff even if not asked for provided those flowed out of the substantive claim. This is what was done here. As already remarked, dropping the objection seems to change the complexion. The rule laid own in Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 S C 236, Begum Shams‑un‑Nisa v. Said Akbar Abbasi and another P L D 1982 S C 413 and Rehmat Ullah and others v. Mst. Hameeda Begum and others 1986 S C M R 1561 was that a writ may not be issued in case where the order is just and proper though not stricto senso legal. The distinction between a writ petition and a civil suit cannot possibly be overlooked but a revision is generally treated akin to it. What may be common in both is to see if the impugned order was just and proper. Looking from this angle, the decree of the lower appellate Court was quite just ' and proper in so far as it provided a relief which may have otherwise been refused if the objection as to maintainability of the suit in its present form had not been abandoned.

7. As a result, there is no substance in the revision petition and the same is dismissed leaving the parties to bear their own costs. A. A./S‑62/L Revision dismissed.