2004 PLP 163 (YLR)

(1) Whether the suit is not maintainable in law? (2) Whether the suit is under‑valued? (3) Whether the suit is not properly stamped? (4) Whether the plaintiff has not paid the share till today? (5) Whether the defendant No. 13 is minor and the plaintiff has not given any share from the property? (6) Whether the defendant No. 12 is wedded wife of Gul Khan and the plaintiff has not paid any share till today? (7) Whether the plaintiff has misconceived the facts? (8) Whether the plaintiff has any right, if any? (9) What should the decree be? The learned trial Court after hearing the arguments of learned counsel for the respective parties dismissed the suit of the applicant.

4. The applicant being aggrieved with the judgment and decree of the trial Court filed civil appeal before the Court of learned District Judge, Sukkur which was also dismissed as mentioned above.

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

6. It has been contended by the learned counsel for the applicant that the judgments and decrees of both the Courts below are bad in law as both the Courts below have failed to consider that written statement filed by the defendants 12 and 13 was not a legally written statement and the same was in violation of Order 7, rule 1(d), Order VI, Rules 14 and 15 and Order 32, Rules 12 and 13, C.P.C. It has further been contended by him that the learned lower Courts have failed to take into consideration the legal points that at the time of filing written statement the defendant No.13 was minor and according to Majority Act, no minor can put his signature on written statement except through next friend of guardian, ad litem. It has also been contended that the learned Courts below have failed to appreciate the evidence of applicant and the documents produced by him and both the judgments and decrees based on mis-appreciation of evidence and wrong application of law. The learned counsel lastly argued that each issue is required to be discussed separately. The learned counsel for the applicant has referred to the cases of Mst. Shakooran v. Abdul Rashid through his L.Rs. and another 1993 CLC 1270; Abdul Khalique v. Administrator, M.C., Rawalpindi and others 1982 CLC 1837; National Insurance Corporation through Chairman v. Muhammad Sadiq 2000 CLC 1244; Nabi Bux and others v. Syed Mumtaz Ali Shah and another 2000 MLD 1318; Asadullah Khan v. Abdul Karim 1995 CLC 1889 and Syed Iftikhar‑ud‑Din Haider Gardezi and 9 others v. Central Bank of India Ltd. 1996 SCMR 699 in support of his contentions. As against the arguments of learned counsel for the applicant, Mr. S. Bahadur Ali Shah learned counsel appearing on behalf of the respondent has opposed this revision and contended that the suit is barred by section 42 of the Specific Relief Act and the same was not maintainable. It has been further contended by him that the applicant has not taken the plea of minority before the two Courts below as such the said plea could not be taken before this Court under its revisional jurisdiction. Learned counsel for the respondent has referred to the cases of Nabi Bux and 2 others v. Muhammad Ibrahim and 7 others PLD 1976 Kar. 882; Mamila Marry v. Sharif Mashin NLR 1979 Civil Lahore 542 and John through L.Rs. v. Abdul Majeed 2000 CLC 37 in support of his contentions.

7. I have given my anxious consideration to the arguments of learned counsel for the respective parties and perused the record, which reveals that the learned counsel for the applicant has not taken the plea of minority before the trial Court as well as the Appellate Court, inasmuch as the applicant has also failed to make City. Survey Officer as party in the suit as according to the applicant the disputed property was mutated in the Record of Right in the year 1977 by the City Surveyor whereas the Iqrarnama was allegedly executed in the year 1963 much after 14 years of execution of Iqrarnama. The applicant has also not prayed in his suit for cancellation of these entries, as such the very suit of the applicant was not maintainable under law and was barred by section 42 of the Specific Relief Act. The learned counsel for the applicant has failed to pinpoint any illegality or irregularity which could justify this Court to reverse the concurrent findings of the two Courts below under its revisional jurisdiction. Consequently I find no merits in this revision which accordingly is dismissed alongwith other pending applications. Civil Revision No.116 of 1992 stands disposed of. H.B.T./M‑561/K Revision dismissed.