2019 PLP 1770 (YLR)

MUHAMMAD SHERAZ KAYANI, J.

The above captioned appeal assails the legality and validity of the judgment and decree passed by the learned Additional District Judge, Muzaffarabad on 16.04.2018, whereby, the civil suit filed on behalf of the appellant has been rejected, under Order VII, rule 11 of the C.P.C.

2. The precise facts, leading to filing of the instant appeal are that Mst. Yasmeen Farooqi, plaintiff/ appellant, herein filed suit for declaration, perpetual injunction and possession of the suit property, against Muneer Ahmed Farooqi and others, defendant/ respondents, herein, before the Court of Additional District Judge, Muzaffarabad on 18.05.2017, stating therein that land bearing survey No.21 measuring 39 kanals and 6 marlas, situated in village Kham Dharang was allotted in favour of the father of the appellant and defendant No.1 vide allotment chit No.92/57 dated 02.09.1957, however, the allottee surrendered his allotment to the extent of 30 kanals and the same was allotted in favour of his wife; Razia Begum and his daughters, namely Yasmeen Farooqi and Tasneen Farooqi in equal shares, i.e 10 kanals each, vide allotment chit dated 01.12.1969. Out of the remaining land, a piece of land measuring 02 kanals 15 marlas and 03 Sarsai was acquired by the Government vide award dated 02.09.1979 and vide another award, in year, 1980 further land measuring 2 kanals and 2 marlas of the total land was acquired. It has been stated that after the death of one of the co-sharers, namely; Tasneem Farooqi, in August, 1985 her share also devolved upon her parents equally, however, the father of the appellant and defendant No.1 also died in December, 1985 and the defendant No.1 remained in the custody of his mother and elder sister/appellant. It was stated that the defendant, in 1989 told the appellant and her mother that proprietary rights of the allotted lands were being issued and they should also obtain the same, whereupon, the appellant and her mother also submitted declaration forms and also got measured the total land, whereupon it transpired that total land measuring 22 kanals and 9 marlas was in favour of the appellant and her mother and the defendant No.1, who was entitled to the land to the extent of only 2 kanals 10 marlas, was in possession of the remaining land, however, as per home settlement, it was agreed between the parties that the appellant will be entitled to land measuring 6 kanals 12 marlas, mother of the appellant and defendant No.1 measuring 8 kanals and 8 marlas and the defendant's land was agreed as 7 kanals 9 marlas and accordingly declaration forms were submitted and after due process, PRTO was issued accordingly. It has been alleged that on 15.10.2010, the defendant filed a suit for partition and also filed a declaratory suit on 03.01.2011 and with the connivance of defendants Nos.12 to 16 got prepared forged and fabricated revenue record and upon the reports of the relevant officials, obtained favourable orders and got allotted the land in his favour. It was craved that sale-deeds dated 17.10.1992, 13.05.1994, 14.10.2012, 24.02.2014, 26.06.2014 and 29.11.2014 and mutations Nos.464, 472, 483, 488, 10, 53, 476, be declared ineffective and inoperative upon the rights of the appellant.

3. Upon filing of the suit, the defendants were summoned and defendants Nos. 1,8 and 11 filed an application for rejection of the suit under Order VII, Rule 11 of C.P.C., which was objected to by the appellant, however, the learned Additional District Judge, Muzaffarabad vide impugned judgment and decree dated 16.04.2018, rejected the plaint under Order VII, rule 11 of the C.P.C., hence, the above captioned appeal before this Court.

4. Syed Atif Mushtaq Gillani, Advocate the learned counsel for the appellant , inter-alia, reiterated the facts incorporated in the appeal and contended that through the suit filed by the appellant, mutations and sale-deeds were also challenged on the ground of being executed in excess of the share of the vendor/defendant and also on the basis of impersonation. He maintained that the questions of validity of the mutations and sale-deeds can only be adjudged by the Civil Court and no other authority is empowered to decide such controversy. The learned counsel submitted that where more than one reliefs are claimed and atleast one claim can be granted by the Civil Court, the plaint cannot be rejected under Order VII rule 11 of the C.P.C. It was argued by him that the plaint could not have been rejected by the trial Court, even if, only one relief could have been granted, hence, the judgment and decree passed by the Court below is a nullity in the eye of law, hence, not maintainable, therefore, by accepting the appeal in hand, the same be declared as such. In support of his submissions, the learned counsel referred to and relied upon the following case law: (1) 2018 SCR 20, (2) 2011 CLC 490 Peshawar, (3) PLD 2007 Lah. 261, (4) 2005 SCR 97, (5) 1997 CLC 1852, (6) 1997 MLD 874 Karachi, (7) 2017 SCR 944 and (8) 2015 SCR 929.

5. Messrs Mr. Muhammad Yaqoob Khan Mughal and Raja Gul Majeed Khan, Advocates, the learned counsel for the respondents on the contrary, controverted the stance of the appellant, defended and supported the impugned judgment and decree on all four corners and contended the allotment chits and NOCs, on the basis of which, the sale-deeds and mutations were challenged, have not been proved as forged and fabricated before the relevant and competent authority, therefore, the plaintiff/appellant had got no cause of action, to challenge the sale-deeds and mutations, attested in furtherance thereof, hence, the learned Court below has rightly rejected the plaint under Order VII, Rule 11 of the C.P.C. The learned counsel submitted that with regard to the Evacuee property, the jurisdiction of the civil Court stands ousted, therefore, the court below was also not competent to try and decide such controversy and the same has rightly been held by the Court below and the findings of the trial Court, being strictly in accordance with law, don't warrant any interference by this Court.

6. I have heard the learned counsel for the parties, gone through the record and given due thought to the controversy involved, therein.

7. In order to decide the controversy regarding cause of action, the Court has to look into the averments of the plaint and relief claimed by the plaintiff. If all the averments are presumed as correct and even then, the relief cannot be granted or the suit is barred by any law, only then, the same can be rejected Summarily under Order VII, rule 11 of C.P.C. Furthermore, if the plaintiff makes a prayer for more than one reliefs and out of multiple claims, even if, only one claim can be granted by the Court, then also, the plaint cannot be rejected under Order VII, Rule 11 of the C.P.C. In order to settle the proposition it deems proper to reproduce the relevant portion of the relief clause of the plaint, which reads as under: -

8. It appears from the above reproduced relevant portion of the prayer clause that the plaintiff has sought declaration for setting aside the challenged sale-deeds and mutations, executed by the defendant No.1 and it has been averred in the plaint that the same have been executed with fraud, in excess of his share and also by practicing impersonation and committing forgery as well. To give a declaration and set aside an illegal or void transaction, (sale etc.), is the function and in jurisdiction of the Civil Court, no other authority has the jurisdiction to annul such sale-deeds.

9. It is settled principle of law that among several claims, even if, one relief can be granted, the plaint cannot be rejected under Order VII, Rule 11 of the C.P.C. The proposition attracted the attention of the Hon'ble apex Court in a case titled, 'Maryam Bibi and 7 others v. Hakam All and 6 others 2017 CLC Note 223, p.250 wherein, in para 5 of the report, it has been observed as under: "5 Furthermore the Courts below are unanimous on the point that declaratory decree regarding Shamilat-e-deh land cannot be granted, however, it has not been discussed in the judgments that what sort of declaration has been claimed by the appellants. Even otherwise, it is now settled that where the multiple remedies have been prayed by a party, if anyone of the same cannot be granted that does not mean that the suit would be treated barred for all other claimed remedies. It is well established principle of law that the plaint can only be rejected if all the reliefs claimed, as, are barred under law. Reference may be made on a case reported as Muhammad Younis Arvi v. Muhammad Aslam and 16 others [2012 CLC 1445]."

10. In the same judgment at page 949, it has been observed as under:-- "As the appellants claimed the multiple remedies in the prayer clause, therefore in view of the case-law referred to hereinabove, the trial Court was not justified to reject the plaint mere on the ground that one of the claimed reliefs cannot be granted. The question of limitation is mixed question of law and fact, which also required to be decided after recording evidence. In this scenario, we are convinced that the trial Court has wrongly rejected the plaint under Order VII, Rule 11, C.P.C."

11. The prayer clause of the plaint, when adjudged in light of the dictum of the Hon'ble apex Court, supra, this Court comes to the conclusion that the relief regarding cancellation of the sale-deeds and mutations, on the ground of being in excess of the share of the vendor/ defendant and the question of impersonation is not barred by law for a civil Court and these questions could not have been decided without recording evidence, being questions of facts and the decision of the trial Court, to that extent is not maintainable. Thus, the question of jurisdiction of the civil Court has wrongly been decided to the extent of sale-deeds and mutations attested on basis of those sale-deeds. This view of the court is supported by the case law, referred by the learned counsel for the appellant.

12. As far the declaration regarding amended PRTO and alleged forgery in allotment chit is concerned, in this behalf, this Court would like to observe that proper forum for the purpose was the Custodian, which has been availed by the plaintiff and has also availed the remedy in this Court through filing writ petition and the point has been settled, therefore, the question of validity of amended PRTO cannot be re-agitated before the trial Court, particularly, after finding by this Court in Writ Petition No.1541/2018, and to that extent, the trial Court has rightly rejected the plaint under Order VII, Rule 11 of the C.P.C.

13. The appellant, in the plaint has also sought the relief of ejectment of the defendant from the suit land. As admittedly land is evacuee land which was allotted to the plaintiff and the defendant No.1, by the Rehabilitation Authorities and acreage of their allotted land is also mentioned in the PRTO of 1992 and the description of the allotted land in favour of defendant No.1 is also clarified and mentioned in the amended PRTO dated 04.01.2011 and 25.01.2011, however, according to the entries of the revenue record, in column No.5 of 'Misal-e-Haqiyat', shares of the allottees are mentioned as 'Mst. Razia Begum, widow, 64 shares, Muneer Ahmed, son, 94 shares, Yasmeen Farooqi, daughter of Bashir Ahmed, 81 shares, residents, allottees'.

14. The above wording with the combined reading of the PRTO, issued in 1992, it is evident that so far, the land has not been partitioned, regularly by the competent authorities. Although, according to the impugned PRTO, the additional entry has been made in the revenue record that out of survey No.99 min, measuring 5 kanals 6 marlas, the land measuring 4 kanals 6 marlas along with house, courtyard and garden, according to the allotment chit, has been entered in the name of defendant No.1 Muneer Ahmed Farooqi but even then, the remaining 1 kanal land from same survey number is still left within the share of the deceased allottee Razia Begum. Obviously, the plaintiff/appellant would also inherit from the share of her mother, Razia Begum, as well according to the prescribed share, so, it is not a complicated proposition that the land is still un-partitioned. The question has been decided in this regard, by the trial Court regarding ejectment that whether, in such situation, the civil Court has the jurisdiction of ejectment or partition and in this regard, in my view, the jurisdiction of the Civil Court is barred in respect of the matters pertaining to partition of the evacuee land or ejectment of any person from the suit land. It would be useful to reproduce the relevant section 7 of the Rehabilitation Act, 1956, which reads as under:- "

7. Powers to make order.

(1) A Rehabilitation Commissioner may make such general or special orders, not inconsistent with this Act, as he may consider necessary for the proper discharge of his functions: Provided that . (2) In particular and without prejudice to the generality of the powers conferred by the preceding sub-section but subject to the provisions of this Act, a Rehabilitation Authority may -- (a) (b) . (c) . (d) . (e) where the evacuee property consists of a share in land, or any rights inland, effect a partition by defining the share, after obtaining the permission of the Custodian in the prescribed manner."

15. According to the abovementioned clause 'e' it is the function of the Rehabilitation authorities to make any partition, if any evacuee land is un-partitioned and the shares are also determined by the said authority. When, the Rehabilitation Authorities are competent to make any order in respect of a particular subject, the jurisdiction of the Civil Court is barred under Section 18 of the Act of 1956. Relevant portion of the provision is usefully reproduced, hereunder:-- "

18. Jurisdiction of Civil Courts barred

(1) Subject to the provision s of sections 13 and 42 of the Pakistan (Administration of Evacuee Property) Act, 1956, no order passed by a Rehabilitation Authority under this Act shall be called in question in any Civil Court in any suit, appeal, execution application or other proceedings . (2) .. (3) Subject to the provisions of subsection (1), no civil Court shall be competent to eject or dispossess a person to whom any immovable property has been allotted or leased by a Rehabilitation Authority or by a Custodian or to issue an injunction or other order in relation to any act done or intended to be done by a Rehabilitation Authority under the provisions of this Act."

16. The above provision of law clearly bars the jurisdiction of the civil Court in the matters pertaining to ejectment and any order passed by the Rehabilitation Authority or Custodian under the said Act, so, the validity of amended PRTO, genuineness of the allotment chit in favour of the respondent No.1 and question of ejectment cannot be decided by the Civil Court. So, the relief claimed by the plaintiff/ appellant to the extent of ejectment is also barred by law, suffice it to observe that when any claim, which is barred by law, can be rejected summarily in view of clause 'd' of Order VII, Rule 11 of C.P.C., the impugned judgment and decree to this extent is also correct, which is maintained, to this extent.

17. The gist of the above discussion is that the above captioned appeal is accepted, partly, the impugned judgment and decree of the Court below stands modified in terms that the issues of validity of the sale-deeds dated 17.10.1992, 13.05.1994, 14.10.2012, 24.02.2014, 26.06.2014 and 29.11.2014 and mutations Nos. 464, 472, 483, 488, 10, 53, 476 shall be decided after recording evidence, by the learned Court below. The suit regarding these issues shall be deemed as pending before the trial Court, which shall be decided on merits, in light of the observations, made in the preceding paras. The parties are directed to appear before the trial Court on 23-2-2019. ZC/8/HC(AJK) Case remanded.