2002 PLP 3120 (YLR)

Nemo for Respondents. Petitioner filed a suit for declaration, specific performance and perpetual injunction before the learned civil Courts at Lahore. The claim in the suit related to and arose out of transactions of land measuring 277 Kanals and 13 Marlas situate in Village Lalyani District Kasur. Upon an alleged agreement to sell dated 10‑10‑1973 executed by Mst. Safia Begum i.e. respondent No. 1 with Rehman Khan (petitioner No. 1) and Mayo Khan (predecessor‑in‑interest of petitioners Nos.2 and 3) at a sale‑deed of Rs.70,000, diverse disputes arose leading to a long chain of litigation which culminated in the suit filed by the petitioners. The petitioners‑plaintiffs claimed ownership of the property upon purported basis of agreement to sell, "Mukhtar Nama" and payment of the entire sale price to respondent No.1 who statedly illegally made a sale‑deed with Muhammad Boota respondent. The prayer of the petitioners in the suit being relevant to the point in controversy is reproduced hereunder :‑‑ "It is, therefore, respectfully prayed that it may kindly be declared that under the agreement to sell dated 10‑10‑1973 executed by defendant No. 1 in favour of plaintiff No.1 and Meo Khan, predecessor‑in‑interest of plaintiffs No.2 and 3 and defendant No.2, of land measuring 277 kanals and 18 Marlas owned by Mst. Safia, Begum is owned by them. A decree for the specific performance, of the contract on the basis of agreement executed on 10‑10‑1973 be granted, subject to the payment of Rs.4,000 to the defendant No.

1. It may also be declared that all sale‑deeds executed about this land by the defendant No. 1 in anyone else favour in violation of the agreement dated 10‑10‑1973 may be declared to be illegal, void and not affecting the rights of the plaintiff No. 1, particularly the alleged sale‑deed in favour of defendant No.3." In jurisdiction clause‑15 of the plaint, the petitioners alleged that since defendant No.1 (respondent No. 1) resided at Lahore and part of cause also arose at Lahore, therefore, the civil Courts at Lahore had the jurisdiction to entertain the suit. The learned Civil Judge, Lahore by order dated 14‑12‑1998 held that land in dispute is situated in district Kasur, therefore, civil Courts at Lahore had no jurisdiction to try the suit and thereby returned the plaint under Order VII rule 10, C.P.C. to the petitioners. Upon petitioners' appeal, the learned Additional District Judge, Lahore through his judgment dated 19‑1‑2000 upheld the order of learned Civil Judge, Lahore, hence the present civil revision.

2. Learned counsel for the petitioners reiterated the arguments raised before the learned civil Judge and the learned Appellate Court to state that since the agreement was made at Lahore with respondent, No.1, who also resided at Lahore therefore the learned Courts below legally, erred in returning the plaint on the question of absence of jurisdiction in Lahore Courts. Reliance was placed upon "Mst. Rais Akhtar and another v. Muhammad Azizuddin" (1993 MLD 2555). It was also contended that respondent No.1 in her written statement had conceded jurisdiction to Courts at Lahore, though the same was objected to by other, respondents.

3. I have considered the record and submissions made by the learned counsel for the petitioners and the, learned counsel for respondents Nos. 1 and

2. Since no one appeared on behalf of legal, representatives of deceased respondent No.3 despite, service, therefore, they were proceeded. Against ex pane. The only point requiring adjudication in the present petition is that since respondent No. 1 resided at Lahore and agreement to sell was also made at Lahore regarding, the land situate in District Kasur could the suit be filed for declaration, specific performance and injunction by the petitioners before the civil courts at Lahore. Contention of the learned counsel for the petitioners is chat learned Courts at Lahore enjoyed the jurisdiction under section 20 of the Civil Procedure Code to try the present suit on the basis of location of defendant and cause of action irrespective of the location of the suit‑land And that respondent No. 1 had conceded to the jurisdiction of Lahore Courts in her written statement I am afraid the contention of the learned counsel for the, petitioners is negated by the express provisions of section 16 read with the rider contained in section 20, of the Civil Procedure Code Section 16 (d) C.P.C provides that suits 'for the determination of any other right to or interest in immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situated. Location of the suit‑land is admitted to be in the District of Kasur. The plaintiffs‑petitioners have claimed right of ownership on the basis of an agreement to sell which is also being sought to be enforced alongwith perpetual injunction and declaration to off‑set the effect of sale‑deed in favour of Boota. These claims obviously relate to the right to and interest in immovable property under section 16(d) of C.P.C. As such I have no ambiguity in my mind that suit to enforce these claims, rights, interests and agreements etc could only be filed within the territorial jurisdiction of the civil Courts at Kasur District. I am further re‑enforced by the provisions of section 20 of C.P.C. which can only be invoked on the basis of defendants residence or cause of action subject to limitations contained in sections 16 to 19 of C.P.C. section 20 begins with the rider that "subject to limitations aforesaid‑‑‑‑‑‑‑‑". These limitations are the dominent restrictions placed qua territorial jurisdiction spelt out in sections 16 to 19, C. P. C. As such to allow filing of suits relating to immovable properties on the basis of location of defendants or cause of action shall be defective of the express provisions or law. Such an approached will give overriding effect to the provisions of section 20, although this section being a residue section, is subservient to the limitations stated in section 16 etc. I am fortified in my view by the judgment of a learned Division Bench of Bombay High Court in the case of "New Mofussil Co. Ltd. and another v. Shankarlal Narayandas Mundade" (28) AIR 1941 Bombay" 247, wherein in almost a similar situation, the rule of location of immovable property was upheld under section 16(d) of the Civil Procedure Code as the suits relating to immovable properties are not suits in personam to fall in the residue provisions of section 20 of C.P.C. This Court in the case of "Muhammad Jewan and another v. Syed Abdul Qasim and 3 others" (1979 CLC 186) dealing with an identical case, held as under:‑ "It is not disputed that the land in dispute is in the District Kasur. The petitioners are primarily seeking a declaration to the effect that they are the owners of the said land. Thus, their suit is for determination of their right and interest in immovable property and falls within the purview of clause (c) of section 16 of the Code. This view is also supported by the fact that they are claiming a permanent injunction with a view to guarding against any interference in their use and occupation of the land in dispute. No doubt they have also (I should say incidentally) sought a declaration to the effect that certain documents relating to the land in dispute are of no legal effect but taking their prayer as a whole their suit attracts the provisions of clause (c) of section 16 of the Code. It is not their plea that the suit falls within the ambit of proviso to section

16. Their sole contention is that it could be instituted at Lahore, under section 20 of the Code. The provisions of section 20 can, however, be pressed into service only if a suit is not hit by the limitations laid down in the earlier provisions of the Code, including section

16. Since the suit does not get out of the, teeth of section 16, the provisions of section 20 cannot be made use of by the petitioners." The situation and facts dealt with in the case of Mst. Rais Akhtar and another, (supra), being distinguishable cannot be held to be a proposition in favour of petitioners case. It is also a well‑settled principle that consent of parties cannot confer jurisdiction upon a Court which is not vested with it by law. As such consent or concession of respondent No. 1 in his written statement cannot at all be a relevant question for decision of this case.

4. In view of the above discussion no legal infirmity is discoverable; from the impugned judgments of the learned subordinate Courts to justify interference by this Court in exercise of its revisional powers.

5. This revision petition is, therefore dismissed for being without substance. There shall, however, be no order as to costs. Q.M.H./M.A.K./R‑112/L Revision dismissed.