P L D 1958 (W (PLP)

MASUD AHMAD, J.‑Isa deceased, father of ‑respondents Nos. 1 to 6, owned about 1465 kanals of agricultural land in village Hyderabad Doona, Tehsil Sultanpur, Kapurthala State. After the Partition he, with other members of his family, migrated to Pakistan and settled down in the Montgomery District. He pre ferred a claim for allotment of evacuee land in lieu of the agricul tural land left by him in India. He was granted only 527 kanals 2 marlas of land in Chak No. 39/12‑L, in accordance with the Rehabilitation Resettlement Scheme framed by the former Punjab Government. As Montgomery was one of the congested districts of the Province and as the claims of all the temporary allottees of agricultural land, who had settled down in that district or had been allotted land there, could not be met from agricultural land left by evacuees in that district, he had to be allotted the rest of the land in other districts of the Province. With a view to have the rest of his land allotted in the same village or in an adjoining chak he gave an application on the 23rd December 1949, accom panied by an affidavit, to the Colonisation Officer, Pakpattan, stating: therein that the appellants Dr. Abdul Ghani etc. and respondents Nos. 7 to 14 were also co‑sharers in the land recorded in his ownership in village Hyderabad Doona and requested that all of diem may be accommodated in this or an adjoining village. This request was turned down. On the 22nd August 1951, he gave another application, to the same officer, accompanied by an affidavit, in which a similar request was made by him. This appli cation was also not accepted. He died on the 14th November 1951.

2. After the death of Isa, Dr. Abdul Ghani and the remain ing appellants filed a suit in the Court of the Senior Civil Judge, Montgomery, for the grant of a declaration that they and respon dents Nos. 7 to 14 were also co‑sharers in 1465 kanals 12 marlas of land in village Hyderabad Doona, Kapurthala State, which had been recorded in the name of Isa deceased and for which he had preferred a claim. The shares claimed by the appellants and the other co‑sharers were specified in paragraph 1 of the plaint, but no further particulars were supplied. However, in the repli cation filed by the appellants afterwards, they stated that 120 ghumaons of land had been purchased by means of a registered sale deed for a sum of Rs. 22,000,58 ghumaons of land by means of a registered deed for Rs. 24,000 and 6 ghumaons of land were acquired by means of a pre‑emption decree for Rs. 1,

800. It was stated In the plaint that all this property was acquired shortly before the Partition, that on account of the communal disturbances Isa deceased could not have mutation of the land recorded in favour of the other co‑sharers, though he intended to do so, and that all the co‑sharers remained in joint possession and owner ship of their respective shares. It was stated further that after the Partition when the parties migrated to Pakistan, Isa deceased intended to transfer in favour of the appellants and the other co‑sharers their respective shares and for this purpose gave two applications the first on the 23rd December 1949, and the second on the 22nd August 1951. On these allegations, a declaration was sought that the appellants and respondents Nos. 1 to 14 were co‑owners of the 1465 kanals 12 marlas of land, situated in village Hyderabad Doona. In accordance with the shares specified in paragraph 1 of the plaint.

3. Respondents Nos. 7, 8 and 10 to 14, who had been made pro forma parties to the suit, admitted the claim. The suit was con tested by respondents Nos. 1 to 6 and

9. These‑ respondents denied that the appellants and respondents Nos. 7 to 14 were co‑sharers in the land in dispute and stated that this property was acquired by Isa deceased with his own money. Regarding the applications and the affidavits filed by Isa deceased, it was stated by them that Isa had become too old to look after his interests and that if any admission was made by him regarding the claim of the appellants and respondents Nos. 7 to 14, the same was null and void and was not binding on them. The jurisdiction of the Court to try the suit was challenged and an objection was also taken to the form of the suit.

4. On the pleadings of the parties the following issues were framed by the learned Senior Civil Judge :‑ (1) Whether the suit was cognizable by a Civil Court? (2) Whether the suit was not in the proper form ? (3) Whether the‑ plaintiffs and defendants No. 7 to 14 were co‑sharers with Isa deceased in the land held by him in village Hyderabad Doona, Kapurthala State ? If so, what were their respective shares ? (4) Whether Isa deceased had admitted the plaintiff's' shares in his affidavits referred to in the plaint ? (5) If issue No. 4 is found in the affirmative, whether the said affidavits were legally void or whether Isa was unable to under stand what was for his good and hence the said statements were not binding on defendants Nos. 1 to 6 ? (6) What was the description of the land in suit, (7) Relief. Issues Nos. 2, 5 and 6 were found in favour of the appellants, but the findings on the remaining issues were given against them with the result that the suit was dismissed. Feeling aggrieved by the decree and judgment of the trial Court, the appellants have now come up in appeal to this Court.

5. The findings of the trial Court on issues Nos. 2, 5 and 6 have not been challenged before us and, therefore, it is not neces sary to discuss them.

6. The third issue framed by the trial Court was whether the appellants and respondents Nos. 7 to 14 were co‑sharers with Isa deceased, father of respondents Nos. 1 to 6, in the land held by him in village Hyderabad Doona and if so what were their respec tive shares. The fourth issue was whether Isa deceased had admitted the plaintiffs' shares in his affidavits referred to in the plaint. As both these issues relate to the same matter, it would be convenient to deal with them together. The allegations made in the plaint concerning this matter were very vaguely worded. It was stated in paragraph 1 that Isa deceased and respondents Nos. 7 to 14 had acquired, by means of sale deeds and a pre -emption decree, 1465 kanals 12 marlas of land in village Hyder abad Doona, for a sum of Rs. 47,800, that with the consent of all the co‑sharers the sale deeds were executed in favour of Isa deceased only and that the suit for pre‑emption was also filed in his name although all the co‑sharers had contributed their share of the sale price in accordance with the shares specified in that paragraph. In paragraph 4 of the replication filed by the appel lants, some further particulars of the land acquired by Isa deceased were furnished. It was stated therein that 120 ghumaons of land were acquired by means of a registered sale deed for Rs. 22,000, 58 ghumaons of land were acquired by means of a sale deed for Rs. 24,000 and 6 ghumaons of land were acquired by means of a pre‑emption decree for Rs. 1,

800. No copies of the sale deeds were produced, nor of the pre‑emption decree by means of which a part of this land was said to have been acquired. The appel lants' case, therefore, as set out in the plaint and the replication, was that the whole of the land which stood in the name of Isa deceased was acquired jointly by him, the appellants and respon dents Nos. 7 to 14, from the very beginning, and that the shares of these persons were as had been specified in paragraph 1 of the plaint.

7. In the first affidavit dated the 23rd December 1949, Exh. P. 3 which has been printed at pages 41 to 43 of the paper book, which is proved to have been signed and sworn by Isa deceased and on which the appellants now rely for establishing their case, the position taken up was entirely different. In para graph 1 of this document Isa had stated that he was owner of 1450 kanals of land in village Hyderabad Doona, East Punjab, and that he had made a verbal sale of a part of that land in favour of the thirteen persons (the appellants and respondents Nos. 7 to 14) named therein and had received the sale price. The date of the alleged verbal sale was not mentioned in this document, but in paragraph 2 it was added that the sale price had been received from each of the co‑sharers in East Punjab, before the Partition and that as disturbances started, mutation of the transfer could not be entered in the revenue records. In the second affidavit dated the 22nd August 1951, Exh. P. 1, which had been printed at pages 49 to 50 of the paper‑book, it was simply stated by Isa that he appellants Nos. 2 to 5 and respondents Nos. 10 to 14 were co‑sharers in 1465 kanals of land, which had been recorded in his ownership in village Hyderabad Doona, Kapurthala State. The names of respondents Nos. 7 to 9, for reasons which are not at all clear, were not mentioned in this document.

8. The facts recorded in these two documents run counter to the allegations made in, the plaint and do not support the appel lants' case that when this land was acquired all these persons had joined in the purchase and that they were co‑sharers with Isa deceased from the very beginning. Of the alleged sale referred to in the first of these two documents, there is absolutely no proof on the record. As the appellants' case was not based on any such subsequent sale in their favour, even if any such evidence had been led, it would have been of no help to them.

9. Reliance was also placed on the entries in a diary, Exh. P. 9, printed at pages 35 to 40 of the paper‑book, the docu ment, Exh. P. 8, a memorandum proved to have been signed by Muhammad Ali respondent which has been printed at pages 44 to 45 of the paper‑book, and the application, Exh. P. 5, and the letter, Exh. P. 7, written by the same respondent and printed at pages 50 to 51 and 54 to 55 of the paper‑book. In the applica tion, Exh. P. 5, no doubt, it is mentioned that Muhammad Ali's father, Isa, was not the sole owner of this land and that he repre sented all the co‑sharers on whose behalf this land was purchased, but Muhammad Ali. respondent when he was examined as a witness explained this admission by saying that he had no personal knowledge of the fact whether the appellants and respondents Nos. 7 to 14 were co‑sharers in this land with his father and that he mentioned this fact at the instance of Abdul Ghani appellant who told him that this was so. The admission made by Muhammad Ali respondent in the application Exh. P. 5, is, no doubt, in accor dance with the allegations made in the plaint, but as Isa's version, as given in the affidavit, Exh. P. 3, was entirely different it is difficult to hold that when this land was acquired the appellants and respondents Nos. 7 to 14 were also co‑sharers in it and that it was not solely acquired by Isa deceased.

10. The oral evidence led by the appellants in support of their case was equally, if not more, unsatisfactory. Besides Abdul Ghani appellant, who appeared as P. W. 7, two other witnesses, Salamat Ali (P. W. 3) and, Karam Elahi Patwari (P. W. 6) were examined by them to support their allegations. Salamat Ali deposed that when Isa deceased purchased some land in village Hyderabad Doona he told him that his brothers were also co‑sharers in this land and that he was purchasing it in his name, so that no one may file a pre‑emption suit against him. He did not wit ness any of the sale deeds, nor did he disclose the names of the persons who, according to the statement made by Isa deceased acquired this land jointly with Isa. His evidence was, therefor of no help to the appellants in establishing their case. The second witness, Karam Ilahi Patwari, also seemed to have no personal knowledge of the precise nature of the transaction. He simply stated that Isa, accompanied by Karam Ilahi, Fazal and Raj Khan respondents, came to him once and told him that he wanted to have mutations of this land entered in favour of "other persons", to which he replied that he was busy with girdawari work and had, therefore, no time for this purpose. No application in writing was said to have been given by Isa deceased for having mutation of this land recorded in favour of the other alleged co‑sharers, nor was it explained why, if he was really serious in making any such alteration, he did not approach the patwari again. The patwarl's evidence was also of no help to the appellants, in establishing their case.

11. The only other evidence on the record, about this matter, was that of Dr. Abdul Ghani appellant. The version given by him was neither in accordance with the allegations made in the plaint, nor in accordance with the facts stated in the two affidavits filed by Isa deceased. He stated that in the year 1925, 120 acres of land were acquired by Isa in which he, his son‑in‑law and Abdur Rahman had one‑third share, Haji Suleman, Fattu, Abdur Rahman, Ghulam Nabi and Ali Ahmad had one‑third share and the remain ing one‑third share was owned by Karam Ilahi, Fazal Ilahi, Abdullah and Abdul Qadir, the second acquisition was made in the year 1944 by means of a pre‑emption decree in which the same persons were co‑sharers, and the third acquisition was made in the year 194'1 by him (Abdul Ghanl), Haji Suleman, Fattu, Abdur Rahman and Raj Khan, and although Isa himself had no share in it to prevent any suit for pre‑emption being filed, the sale was recorded in his name. If this witness were to be believed, the land in question was acquired between the years 1925 and 1947 and not immediately before the Partition, as was alleged in para graph 2 of the plaint. The witness admitted that before making the first acquisition Isa deceased was not an owner of land in this. village. It is, therefore, not understood how a suit for pre‑emption could be avoided by acquiring the land in the name of Isa deceas ed, who was not an owner in the village in that year. It is also not understood why at the time of the third acquisition Isa's name was brought in and why the land was not purchased in the name of Fazal Ilahi respondent, one of the alleged co‑sharers, 'who had acquired land in this village before the third acquisition was made.

12. Abdul Ghani appellant further stated in his evidence that after the parties came over to Pakistan, they had a talk about this matter and it was decided that all the land standing in the name of Isa, which had been acquired on three different occasions, should be brought into a common pool and divided between the co‑sharers according to the shares which were then fixed. In other words, according to this witness though different persons had acquired different shares of land on three different occasions, the actual transfer of ownership took place after the Partition with the consent of all the co‑sharers. There is no proof on the record to support this part of the statement made by Abdul Ghani appellant and if he is believed, it would mean that a new transaction altogether was entered into after the Partition, with the consent of all the co‑sharers, and the present claim was, therefore, based on the alleged vernal agreement made in or after the year 1947 and not on the understanding arrived at on three different occasions when the acquisitions were made in the years 1925, 1944 and 1947.

13. It is apparent that the case set out in the plaint was different from the version given in the two affidavits filed by Isa deceased, while the allegations made by Abdul Ghani appellant, when he appeared as a witness, which are not supported by any other documentary or oral evidence were different, both from the allegations made in the plaint and the facts stated in Isa's affidavit. In these circumstances, in our opinion, the trial Court could not give any other finding except to hold that the appellants and respondents Nos. 7 to 14 were not co‑sharers with Isa in the land in dispute. The findings on issues Nos. 3 and 4 are, therefore, in our opinion, quite correct.

14. In their written statements respondents Nos. 1 to 6 had pleaded that the appellants could not ask for any relief from a Civil Court, while respondent No. 9, had pleaded that this suit was not cognizable by a Civil Court. It was not specifically pleaded by any of the respondents that as the land in suit was not situated in the Montgomery District the Senior Civil Judge, Montgomery, had no jurisdiction to try the suit. The first issue framed by the Court was whether the suit was cognizable by a Civil Court, but while deciding this issue the Court went into the question whether the suit, which related to property situated outside Pakistan, could be tried by that Court or not. We may, therefore, presume that both parties had notice of the precise nature of the objection and the appellants have not, in any way, been prejudiced. In any case, the question of want of jurisdic tion being a pure question of law and being a matter which affects the validity of the orders passed, the same can be gone into even though the issue framed on the point is not very correctly worded.

15. During arguments before us, it was conceded that the suit, as framed, was of a civil nature, within the meaning of section 9 of the Code of Civil Procedure, as the rights and interests claimed by the appellants were to be determined and, therefore, it could be tried by the learned Senior Civil Judge, Montgomery, provided he had jurisdiction over the subject matter of the suit. The arguments addressed to us related to the question as to whether the Court at Montgomery was competent to enter tain and decide a suit of this nature which related to property situated outside Pakistan. The finding of the trial Court is that this suit fell within the purview of clause (d) of section 16 of the Code of Civil Procedure and as it was not covered by, the proviso to this section, it had no jurisdiction to try it. This finding has been very seriously challenged before us and it was contended by the learned counsel for the appellants that even though the suit related to property situated outside Pakistan the Court at Montgomery had jurisdiction to entertain and try it under section 20 of the Code of Civil Procedure, because the persons against whom relief had been asked for, by the appellants, resided within the jurisdiction of that Court. Reliance, for this purpose, was placed on certain observations made in a Single Bench authority of this Court reported as Heman and others v. Fazal (P L D 1955 Lah. 280). It was held in this reported case that under section 20 of the Civil Procedure Code a suit can be brought in a Court if the defendant resides or the cause of action, wholly or in part, arises within the jurisdiction of that Court, even though that suit might relate to rights or interests in immovable property situated outside its jurisdiction, if the plaintiffs do not ask for possession of that property or any relief directly connected with it. The dispute in this reported case was between the collaterals of a deceased owner of property left in India and a person who had set up adverse title against them. The ostensible object of obtaining a declara tion of title, as in the present case, was to get some land allotted in lieu of the property left in India. On the face of it, the views expressed in this reported case would be applicable to the facts of the present case, but a number of authorities, in which contrary views have been expressed, have been cited on behalf of the opposite side. Reference was also made by the learned counsel for the appellants to two other reported cases, one of the Lahore High Court and the other of the Punjab Chief Court. In the first of these cases, Ram Kishan v. Ranshan (A I R 1923 Lah. 551), following an earlier Punjab decision, it was held that British Courts had jurisdic tion to deal with a suit for accounts and partition of property including immovable property situated in a native State. The facts of the earlier Punjab Chief Court case, reported as Jagnandan Singh and others v. Kishore Chand and others (100 P W R 1908), were different. That suit arose out of a contract and an agreement of partnership was written and executed at Ferozepur. The relief was asked for personally against the defendants. The matter was clearly covered by the proviso to section 16 of the Code of Civil Procedure and it was not surprising that it was held that Courts in British India had jurisdiction to try the suit. The facts of Ram Kishan v. Ranshan were entirely different and the principle laid down in the earlier Punjab case, in our opinion, could not be applied for deciding this reported case.

16. For the opposite side reference was made to two reported cases of the Lahore High Court in which a different view was taken. In Murli Mal v. Sant Ram and another (A I R 1929 Lah. 24) it was held that Courts in British India had no jurisdiction to enforce an award which related to a factory outside British India. In Ram Kishan and another v. Omparkash and another (A I R 1941 Lah. 347) it was held that no decree could be passed by British Indian Courts in respect of property situated outside British India ; nor can an injunc tion be issued in respect of the management of such property, Reference was also made to a case of the Bombay High Court reported as Keshav v. Vinayak (I L R 23 Bom. 22). This case is clearly of the same type as the case before us. It was held that the Court at Nasik had no jurisdiction to try a suit with respect to immovable property situated in the Nizam's dominions and that such a case will have to be determined according to the law in force in the Nizam's dominions and by the Courts of that territory. The relief asked for, though of a personal nature, depended upon the deter mination of questions relating to rights and interests in immovable property situated outside British India. The following observations made at pages 30 and 31 of this reported case are very significant "The plaint, and the valuation of the claim which was raised to ten times the value of the appellants' share of the allowance, show clearly that the appellants sought a determina tion of their interest in immovable property* *. Where the right was not in dispute, or was otherwise established, the claim to receive any one or more years' share would certainly be a claim to fix a personal liability on the respondents, and as such maintainable in the Court within whose local jurisdiction the cause of action for money had and received arose * * * * *. In the present case the question of title does not incidentally arise. It is the principal point in dispute * * * * * *. The evident object of the detailed provisions of section 16 is to limit jurisdiction in respect of claims to immovable property to Court within whose local jurisdiction such property r1ay be situated, and as a rule Indian Courts have no power to decide on rights and interests in immovable property lying outside their local jurisdiction." In coming to this decision the Court was guided by the following observations made in Grahman v. Massey (23 Ch. D. 743) :‑ "I am not aware of any case where a contested claim depen ding upon the title to immovables in a foreign country strictly so called, being no part of the British dominion or possessions, has been allowed to be .litigated in this country simply because the plaintiff and defendant happen to be here."

17. In the Single Bench, case of the West Pakistan High Court, Heman and others v. Fazal, the view seems to have been taken that the provisions of section 20 of the Code of Civil Proce dure apply not only to personal or transitory actions, but also to real and mixed actions of the kind contemplated by section 16 of the Code of Civil Procedure and that section 16 does not, in any way, limit the powers conferred by section 20 of the Code. With all dues respect to the learned Judge who decided that case, we are of the opinion that this is not so and that section 20 ‑of the Code applies only to actions of a personal or transitory kind and not to actions of real or mixed kinds for which clear provisions exist in sections 16 and 17 of the Code. As remarked in (I. L. R.) 23 Bom. 22 the evident object of the detailed provisions of section 16 is to limit jurisdiction in respect of claims to immovable property to the Courts within whose, local jurisdiction such property may be situated. If the Court of the Senior Civil Judge, Montgomery, is not competent to entertain a suit with regard to immovable property situated in another district, say Lyallpur, how would it be possible for that Court to entertain a suit with regard to such property situated outside Pakistan? The position where a relief of a personal kind is asked for is different, because in granting that relief no question of determining the rights or interests with respect to any immov able property arises. Such a case would come within the purview of section 20 of the Code and would be cognisable by the Court within whose jurisdiction the defendants reside or carry on business etc; or where the cause of action had arisen. Where the relief sought for can be obtained entirely through the personal obedience of the defendant and where the suit is to obtain relief respecting, or compensation for wrong to, immovable property, the proviso to section 16 would come into play and even though the relief may arise out of immovable property, the suit would be cognizable by the Court within the local limits of whose jurisdiction the property is situated, or within whose jurisdiction the defendant actually resides or carries on business etc.

18. The case under consideration, in our opinion, was fort the determination of rights and interests in immovable property of the kind mentioned in clause (d) of section 16 of the Code of Civil Procedure: The relief asked for was not respecting, or compensation for wrong to, immovable property and it could not be entirely obtained through the personal obedience of the respondents who were the only persons made parties to the suit. The proviso to section 16 of the Code of Civil Procedure had, therefore, no application to the case and as section 20 of the Code does not contemplate cases of this kind, we agree with the trial Court that, it had no jurisdiction to try the suit.

19. If our finding had been that this suit was triable by the Court of the Senior Civil Judge, Montgomery, and if we had also found that the appellants had been able to establish their claim, we would not have hesitated to grant them the declaration asked for, because even though the decree may not have been effective in the sense that it would have been obeyed without objection by the Rehabilitation Department, it would have, at least, determined the rights of the parties inter se and, therefore, to that extent would have been effective and binding on the respon dents. As, however, the appellants have failed to prove their allegations and as Courts in this country are not competent, in our opinion, to determine rights and interests in immovable property situated outside Pakistan, we see no force in this appeal and, hereby, dismiss the same with costs. A. H. Appeal dismissed.