P L D 1969 Peshawar 220 (PLP)

3. Fazlur Rahman pleaded that the plaintiff‑respondents, namely, Mst. Sikandar Jan and her children, had no cause of action, that the form of the suit was not proper, and that she was estopped from her conduct to bring the suit. On merits, his case was that he had purchased permanent rights of residence in the house in dispute from Umar Khan in his own rights, and subsequently he had mortgaged it to one Abdur Rahman, who was defendant No. 5 (he is not Abdur Rahman father of Fazlur Rahman). Subsequently, Abdul Aziz and Dost Muhammad (appellants) purchased the property from him and got the mortgage redeemed and they were in possession of the property. He also contended that the compromise decree dated 9‑3‑1959 was regular and was not at all fraudulent or collusive. The contesting defendants, namely, Abdul Aziz and Dost Muhammad (the present appellants), submitted a joint written statement in which they repeated the pleas raised by Fazlur Rahman respondent in his written statement. They also pleaded that their interests were protected under section 41 of the Transfer of Property Act, and that they were in possession of the property, and therefore the suit for mere declaration was not maintainable.

4. The learned Senior Civil Judge tried the suit on as much as eleven issues and he decreed the suit of the plaintiff respondents for declaration to the effect that they are the owners of 59/80 shares in the house in dispute as the successors‑in‑interest of Abdur Rahman, and that the decree obtained by defendants Nos. 1 and 2 in Civil Suit No. 40/1 from his Court on 9‑3‑1959 was not binding on them, and the parties were asked to bear their own costs.

5. Two separate appeals were preferred before the learned District Judge. Mst. Sikandar Jan filed Appeal No. 246/13 of 1960, and she claimed that the trial Court should have declared that she had become the owner of the entire house. She also claimed that the trial Court erred in having held that Abdur Rahman respondent was a mortgagee of the house from Fazlur Rahman respondent, and Abdul Aziz and Dost Muhammad defendant‑appellants had redeemed and obtained possession of the property. She also asked for the award of costs in her favour. Abdur Aziz and Dost Muhammad (the present appellants) filed Appeal No. 231/13 of 1960. Both the appeals were dismissed by the learned District Judge.

6. Abdul Aziz and Dost Muhammad alone have appealed, and in the appeal Mufti Muhammad Idris, learned counsel for the appellants, addressed his arguments only on issue No.

3. In this context, it was argued that the finding of the learned District Judge was to the effect that defendant No. 5 was a valid mortgagee under defendant No 3, and that the plaintiff respondents were not in possession of the property as the property was mortgaged with Abdur Rahman and later from Abdur Rahman it was redeemed by the appellants, and therefore the suit for a mere declaration was not competent. Here, reference was made to the statement of Mst. Sikandar Jan, wherein she had stated that the house was not mortgaged or sold to Abdur Rahman. On the other hand, Abdur Rahman. defendant No. 5 filed a written statement and appeared as D. W. and stated that the appellants had redeemed the house from hint before the institution of the suit. He, in fact, stated that he gave the possession before Qalandar Khan D. W., the Lambardar of the village. Qaiandar Khan also appeared and supported him. He also produced a deed (Exh. D. A.) dated 25‑3‑1959, showing redemption of the house in dispute. The suit was instituted on 31‑?‑1959. It was, therefore, argued that it was redeemed by the defendants on 25‑3‑1959, and that suit for possession instead of mere declaration should have been instituted.

7. The learned District Judge, however, held that the house was redeemed during the pendency ‑of the suit and not ‑on the date mentioned in the deed (Exh. D. A.) i.e. 25‑3‑1959: In coming to this conclusion, the learned District Judge was influenced by the fact that Dost Muhammad appel lant at defendant had stated in his statement in the last sentence: "We redeemed the suit hops;, after 20/25 days of the institution of the present suit by Mst. Sikandar Jan etc." The learned counsel for the appellants, however, argued that the learned District Judge should have read the entire‑statement of Dost Muhammad in conjunction with the other evidence on the record namely, statement of Qalandar Khan and the deed (Exh. D. A.) and should have held that !he house was redeemed before the institution of the suit. In my view, the argument advanced by the learned counsel was rightly repelled by the learned District Judge, Dost Muhammad was bound by his statement, wherein be had in unequivocal term stated : "We redeemed the suit house after 20‑25 days of the institution of the present suit by Mst. Sikandar Jan etc." This was stated in cross‑examination, but then the very object of the cross examination is to bring the truth out of the mouth of the witness. Again, Exh. D. A. does not say in so many words that the house was redeemed on 25‑3‑1959. Qalandar Khan also does not say that on 25‑3‑1959 the possession was actually delivered. In the circumstances, the finding of the learned District Judge that the house was redeemed after the institution of the suit by the plaintiff respondents was perfect.

8. In the alternative, it was argued by the learned counsel for the appellants that in case the finding of the learned District Judge was affirmed to the effect, that the redemption of the house had taken place after 20‑25 days of the institution of the suit, still the suit for mere declaration was not competent.

9. The learned counsel for the other side, Q. Asadul‑Haq, reposted the argument that it was proved from the statement of Dost Muhammad that the house was redeemed after the institution of the suit and the learned District Judge rightly came to this conclusion. He argued that the position of the parties will be determined on the date of the institution of the suit in respect of the possession of the suit house, and in support of this view, he cited Faiteh Shah v. Bahab Shah and others (A I R 1927 Lah. 128) which is to the effect :‑ " The proviso to section 42 that no Court shall pass a declaratory decree where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so refers to the position of the plaintiff at the date of the suit. Therefore the plaintiffs' right to maintain the suit for a declaratory decree is not affected by the fact that during the pendency of the suit right to possession also has accrued to the plaintiff. The learned counsel also cited Hurmat Ali Shah v. Tufail Muhammad and others (A I R 1935 Lah. 332) in support of the proposition that "If at the time when the suit is instituted, the plaintiff is not able to seek any further relief than a mere declaration of title, he need not in his suit ask for any further relief and his suit will be competent under the substantive portion of section 42" In the alternative, it was argued by the learned counsel for the respondents that assuming that the appellants had, redeemed the house, still their position will be that of mortgagees against the plaintiff‑respondents and the suit for a mere. declaration, was, therefore, competent. Gajadher Singh v. Hari Singh and others (A I R 1925 All. 421) was cited in support of the proposition that in a suit by a mortgagor for declaration of his title it is not necessary for him to make a prayer for possession by redemption. He also cited Sheo Prasad Singh v. Rare Khelawan Singly and others (A I R 1937 All. 653) in support of the same view, wherein it was held "that it was open to that person to bring a suit for mere declaration that he had a right to redeem without asking for redemption."

10. The learned counsel for the appellants made the point that since the house jointly belonged to the parties suit for mere declaration was not maintainable for the reason that the further relief by way of partition was not claimed. This argument was met by the learned counsel for the respondents by citing Surya Nath Singh v. Shio Karan Singh and another (A I R 1936 Rang. 316) wherein it was ruled that wherein in a suit for a declaration that certain property is the property of a joint family consisting of the plaintiff and the defendants, further relief by way of partition was not claimed, the suit still was not barred by proviso to section 42 of the Specific Relief Act, 1877.

11. The learned counsel for the respondents also argued on the general proposition of law that a wrong frame of a suit does not disentitle the plaintiff to the relief which is otherwise clearly admissible. In support of this view, he relied on Khisro Nawaz v. Khanimullah and others (P L D 1962 Pesh. 124). He also cited Ram Sadan Biswas v. Mathrua Mohan Hazra and others (A I R 1925 Cal. 233) in support of the proposition that‑ "Section 42 prohibits a suit for pure declaration without relief. But it does not compel the plaintiff to sue for all the reliefs that could possibly be granted nor does it debar him from obtaining a relief which he wants unless at the same time he seeks for a relief which he does not want, however, the section only prohibits the Court from making a declaration where no consequential relief is asked. The section does not authorise the dismissal of the suit." Reliance was also placed in the same context on Sree Sree Goddess Pitha Kali Matha Thakurani v. Surrendra Nath Tagore and another (A I R 1934 Cal. 192) wherein the law laid down is to the effect:‑ Where the plaintiff does not stand in need of any con sequential relief, a suit for a mere declaration is not incompetent. Courts have ample inherent powers and indeed it is their duty to shape their declarations in such a way that they may operate to afford the relief which the justice of the case requires.

12. For the foregoing reasons, I am of the considered opinion that the merit is on the side of the respondents. It was rightly held by the learned District Judge that at the time when the suit was instituted, the house was not redeemed by the appellants and the suit for a more declaration at that time was competent. The subsequent events will not alter, the position, and if in the meantime the house was redeemed' the suit for a mere declaration was competent and it is always open to the respondents to come forward and redeem their share of the property, provided they come within time. Finding no force in the appeal, it is dismissed. In view of the difficult law point involved in the case, the parties are asked to bear their own costs. A. E. Appeal dismissed.