2018 PLP 555 (MLD)

MUHAMMAD ALAM, J.

Order dated 22-12-2015 of the Additional District Judge Gilgit that he passed in CFA No.39/2015, has been challenged through this petition. Through impugned order, learned Additional District Judge Gilgit set aside decree/judgment dated 31-3-2015, passed by learned Senior Civil Judge Gilgit, passed in Civil Suit No.151-A/2008.

2. Petitioners/plaintiffs prayed for declaration coupled with permanent injunction regarding the suit land. Per averments of the plaint, petitioners claimed that they are rightful owners of the suit land as they obtained the same as a result of partition of common properties of husband of petitioner No.1 and Mr. Shah Jahan, since dead, real brother of husband of petitioner No.1. Mr. Shah Jahan, since dead, obtained the suit properties as a result of common business conducted by husband of petitioner No.1 and the said Mr. Shah Jahan. Learned trial court passed decree dated 31-03-2015 in the suit, and on appeal (C.F.A. No.39/2015), learned first appellate court accepted the appeal throughout, setting aside the impugned decree/judgment.

3. Admitted state of affairs between parties is that description of suit property as well as relationship between parties, described in the pleadings of parties is correct. Respondents were dispossessed from the suit property when the case was sub-judice in the Civil Courts. Possession of the suit property restored to the respondents on their application and feeling aggrieved from the same, petitioners filed appeal which was dismissed in default. From plain perusal of plaint, it is evident that petitioners have prayed for declaration coupled with permanent injunction regarding suit property but it is admitted at bar that suit property is in possession of the respondents. Learned counsel for petitioners or petitioners themselves did nothing to remove this defect in the plaint or even in this petition.

4. I have thoughtfully considered arguments advanced by the parties and have gone through the material available on file. The questions debated before me are, the real controversy between parties and is formulated in three questions hereunder:--

1. Whether suit property was part of common property between Mr. Shah Jahan, since dead, and Abbas Ali, his real brother?

2. Whether suit property fell in share of Mr. Abbas Ali as a result of any partition between parties?

3. Whether Civil Court has rightly exercised powers under Order VII, Rule 7, C.P.C.? Pleadings of the parties are very important. From plain perusal of plaint, it is evident that petitioners have prayed for declaration of suit land as their exclusive property while respondents have very clearly denied the same averment and claimed their exclusive title to the suit property. The learned trial Court has not decreed the suit throughout and has rather passed the following decreed:-- "

12. In the light of what has been discussed above, suit is decreed in favour of the plaintiffs against the defendants as under:-- i. Plaintiffs are also owners of the suit house and they are entitled to get their shares from the suit land. ii. Mutation No.4064 dated 25.11.2008 bearing Khewait No.001/001 and Jamabandi of 2002 under Khewait No.551/551 are hereby cancelled being against the rights of the plaintiffs." From plain perusal of above decree, it is evident that learned trial Court has declared petitioners/plaintiffs entitled to their shares in the suit land while in plaint, petitioners/plaintiffs have sought declaration coupled with permanent injunction regarding the suit property. So, this shows that trial court did not decree the suit throughout and rather passed a partial decree to the extent of share of petitioners/plaintiffs. Moreover, learned trial court has given its findings on issues Nos.1 to 4 against the petitioners/ plaintiffs. Issues Nos.1 to 4 are OPP issues. Petitioners/ plaintiffs neither filed any appeal against the findings of the trial court on issues Nos.1 to 4, nor have filed any appeal against the partial decree. From plain perusal of pleadings, issue No.4 was framed, whereby petitioners/plaintiffs were burdened to establish their possession to the suit property.

5. Petitioners/plaintiffs could succeed only if they could show that impugned order was result of any misreading or non-reading of evidence of parties. In the attending circumstances of the case, petitioners/ plaintiffs were bound to prove that suit property was common property between Mr. Abbas Ali and Mr. Shah Johan, who were admittedly real brothers inter se. Petitioners/plaintiffs were further responsible to prove that suit property fell in the share of Mr. Abbas Ali. In this regard, I find mention of above questions in issues Nos.1 to

5. I deem it necessary to refer the evidence of petitioners/ plaintiffs in proof of the above question. Petitioners/plaintiffs have produced three PWs in proof of the above question. I have gone through statements of the said PWs. In his statement, PW-1 is stating about common business husband of petitioner No.1 and Mr. Shah Jahan, but his statement is very clearly hearsay regarding the suit property. PW-2 has given very similar statement to that of PW-1. In his statement, PW-2 has also stated about common business between husband of petitioner No.1 and Mr. Shah Jahan, but regarding the suit house statement of this PW is also hearsay as he has stated whatever he heard from Mr. Shah Jahan. In their statements, PW-1 and PW-2 have very clearly stated that they are not witnesses of the title to the suit shop. PW-3 has also stated what he heard from Mr. Shah Jahan. So, statement of PW-3 is also hearsay. As to title to the shop, PW-3 has stated that he is not witness to that extent. Petitioners/plaintiffs have filed unattested copies of mutation which are obviously not admissible in evidence. The copies of mutations filed by the petitioners/plaintiffs have admittedly not been exhibited, therefore, cannot be read in evidence. There is no iota of evidence showing that suit property fell in share of Mr. Abbas Ali or any of his legal heirs. So, there is no evidence in proof of above question. I, therefore, hold that findings of the first appellate court are not result of any misreading or non-reading of evidence of either of the parties.

6. Learned trial court has granted a remedy very clearly different from that prayed in the plaint. In this connection, findings of the trial court on issue No.5 are worth perusal, whereby the learned trial court has granted the decree in exercise of his powers under Order VII, Rule 7, C.P.C. For ready reference, Order VII Rule 7, C.P.C. is reproduced hereunder:--

7. Relief to be specifically state.

Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. Exercise of powers of the trial court under Order VII Rule 7, C.P.C. are incorrect, firstly because this provision of law empowers the court for grant of a remedy different from the remedy prayed by the party only when a different remedy is established. In the case in hand, petitioners/plaintiffs very badly failed to establish their title to the suit property.

7. In the sequel of above discussion, I hold that the impugned order is not result of any misreading or non-reading of evidence of either of parties, therefore, I am reluctant to interfere in the findings of the first appellate court. Petition dismissed finding baseless. This file be consigned to record. MQ/42/GB Petition dismissed.