P L D 2011 Lahore 511 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.--The petitioner filed a suit for possession against respondents from the property detailed in the plaint; the respondents filed a suit for declaration and perpetual injunction against the petitioner of the same property. The learned trial Court consolidated both the suits and through a consolidated judgment and decree dated 22-3-2001 dismissed the suit filed by petitioner and decreed the suit filed by respondents. Both the parties filed appeals against the consolidated judgment and the learned appellate court vide judgment and decree dated 6-12-2001 reversed the finding of learned trial Court and consequently the suit of respondents titled Muhammad Jamil v. Muhammad Tanvir was dismissed and suit titled "Muhammad Tanvir v. Muhammad Jamil was dismissed and the decree was modified to the extent that the suit filed by petitioner was not only barred by limitation but was also barred under Order XXIII Rules 1 and 2, C.P.C. in spite of the fact that he has been declared owner of the property through decree dated 6-2-1996 Exh.D-2 but he cannot get possession through process of court. The petitioner has assailed the finding of learned trial Court through the present civil revision.

2. Learned counsel for petitioner submits that when it has been finally held by the learned appellate court that petitioner is the owner of suit property vide decree dated 6-2-1996, the suit for possession was bound to be decreed. He further submits that no doubt petitioner withdrew earlier suit but in a suit for possession, cause of action arose on day to day basis and, as such, second suit was not barred by time.

3. Learned counsel for respondents submits that the decree dated 6-2-1996 is a fraudulent document and the learned appellate court has rightly held that even if the decree is admitted as genuine, the suit for possession was barred by time. Further, petitioner withdrew the earlier suit without permission to file afresh and as such the second suit was hit by Order XXIII Rules 1 and 2, C.P.C. Learned counsel in support of his assertions has relied on Mst.Maroof Jan and 2 others v. Yaqoob and 4 others (1990 CLC 19), Mst. Mehrunnisa v. Karachi Contonment Board, through Cantonment Executive Officer and another (1990 CLC 1334), National Bank of Pakistan v. Hashim Khan (1995 CLC 88), Muhammad Ali and others v. Province of Punjab and others (2009 SCMR 1079), Muhammad Yousuf Memon v. Karachi Stock Exchange (Guarantee) Ltd. (1995 CLC 183) and Sardar Muhammad Aziz Khan v. Messrs United Kashmir Flour Mills (Pvt.) (PLD 2004 SC (AJ&K) 1).

4. Heard, record perused.

5. The respondents when filed a suit for declaration with perpetual injunction has asserted that grand predecessor of parties was the owner in possession of house measuring 9 marlas of land situated at Village Aalllian Kalan, Tehsil and District Sheikhupura, the property was an evacuee property, after the death of grand predecessor-in-interest of parties, the property came into possession of their father Jamil Ahmad by way of inheritance. The predecessor-in-interest of present petitioner Abdul Rasheed got the southern part of the suit property and sold it to one Faqir Muhammad against consideration of Rs.45,

000. The petitioner claimed the possession of remaining portion of house in possession of respondent.

6. The petitioner filed a suit for possession from the portion in possession of respondents on the ground that he is the owner of said property on the basis of a decree passed in his favour. He further asserted that petitioner is his licensee and he was allowed to occupy of portion of house temporarily as the respondents were not having any shelter.

7. Both the parties contested the suits and the learned trial Court out of the divergent pleadings of parties framed the following issues: "ISSUES: (1) Whether this suit is false, frivolous; vexatious and as such the defendant is entitled to special costs under section 35-A, C.P.C.? OPD (2) Whether this suit is barred under section 12, C. P. C. ? OPD (3) Whether this suit is time barred? OPD (4) Whether the plaintiff has got no cause of action to file this suit? OPD (5) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD (6) Whether this suit is bad for mis-joinder of parties and non-joinder of necessary parties? OPD . (7) Whether this suit is hit by principle of res judicata? OPD (8) Whether the plaintiff is owner in possession of disputed portion of house and as such he is entitled to a decree as prayed for? OPP (8-A) Whether the defendant Muhammad Tanveer handed over the disputed house to the plaintiff temporarily and as such he is entitled to decree for possession of the same as prayed for? OPP (9) Relief. "

8. Both the parties adduced their respective evidence and the learned trial Court came to the conclusion that petitioner is owner of suit property and passed the decree for handing over the possession of suit property to him. The learned appellate court while reversing the finding of learned trial Court came to the conclusion that no doubt the petitioner is the owner of property in dispute on the basis of a decree but his suit is barred by time and he is not entitled for possession of suit property. Further, the second suit is hit by provision of Order XXIII Rules 1 and 2, C.P.C.

9. The respondents have not assailed the judgment of the learned appellate Court. Exh.D-2 is a decree which confers upon the title of the property to petitioner and the said finding of fact is concurrent by two courts below but the learned trial court has held that the suit was barred by time. Issue No.3 was about the limitation. The learned appellate court while reversing the finding on Issue No.3 seems to be fallen in error. The learned appellate court while setting aside the finding on Issue No.3 came to the conclusion as under:-- "ISSUE No.3. Learned counsel for the respondents never argued the issue. However, otherwise suit for declaration can be filed at any time when one's right over the suit property is challenged by the other party. Hence, it is concluded that the defendants were unable to prove the issue. Accordingly, the issue is decided in favour of appellants, and against the respondents.

10. The perusal of issue No.3 shows that it was the case of petitioner in the suit for declaration filed respondents that suit for declaration is barred by time whereas the learned appellate court while deciding the Issue No.3 has wrongly held that petitioner's suit was barred by time. The petitioner's suit was a suit for possession on the basis of ownership which he acquired through decree dated 6-2-1996 Exh.D-2. Admittedly, the respondents have not challenged the decree till today. The said decree was passed in a suit titled "Mst. Saddiqa Bibi (daughter of one Abdul Rasheed) and others v. Muhammad Jamil and Tanvir (sons of Abdul Rasheed), etc.". The learned trial Court recorded the statements and vide judgment and decree dated 6-2-1996 came to the conclusion as under:--

11. Decree dated 6-2-1996 shows that the respondents and petitioner both were party in. the suit, the petitioner was declared the owner of house in dispute, the respondents have not assailed the said judgment and decree and as such it attained finality. This decree shows that the petitioner is the owner of suit property. The respondents' claim is that property was constructed on 9 marlas of land and it was inherited by their father. The petitioner was found entitled 5 marlas out of 9 marlas of land, he sold his 5 marlas land and the balance 4 marlas belongs to respondents being the inheritance of their father. This fact is negated through a decree dated 6-2-1996 which finally decides that suit property measuring 4 marlas is property of petitioner and as such the respondents have no right to claim the suit property being estate of their predecessors in interest.

12. Now the question arose, how the suit for possession was barred by law. It is not the case of respondents that they are enjoying the adverse possession of the suit house; respondents are claiming the bar of Order XXIII, Rules 1 and 2, C.P.C. on the ground that earlier suit for possession was withdrawn without permission of the court to file afresh. Admittedly, the petitioner is claiming the decree of possession on the basis of his ownership in absence of claim of adverse possession, the cause of action in favour of petitioner arose on day to day basis. The petitioner being the owner of property can claim vacation of the property again and again, if the petitioner earlier withdraw his suit for possession without obtaining permission to file afresh, this is not the impediment in the way of petitioner, hence the petitioner's suit was within time.

13. The learned trial Court decided the Issue No.7 in favour of petitioner and the learned appellate court has also held that the suit filed by respondents was barred by law, but the learned appeal court while deciding Issue No.7 has held that petitioner's suit for possession was barred by time and law. The finding of Issue' No.8-A is against the finding of issue No.7. The Issue No.7 was decided by Civil Court in favour of petitioner, the respondents have not assailed the finding on Issue No.7 of learned trial Court and as such it attained finality against the respondents and learned appeal court was not justified to up set the findings of Issue No.7 in the absence of any appeal.

14. In view of above, the impugned judgment and decree is set aside and judgment and decree of learned trial Court is restored. There is no order as to costs. S.A.K./M-918/L Revision accepted.