1998 PLP 537 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑The respondent instituted Suit No.72 of 1992 before the Senior Civil Judge, Quetta, seeking declaration that being in adverse possession of bungalow, working tube well and land bearing Khasra Nos.458, 458/1 and 2, 470, 472/1, 474, 469, 472 and 473 measuring 81, 785 sq. feet situated in Ward No.24, Mauza Urban City, Circle and Tehsil Qeutta, (hereinafter to be referred as 'the suit property' only) for the last 21 years has acquired prescriptive title over the suit property.

2. The suit was resisted by the petitioner who besides raising number of preliminary legal objections to the maintainability of the suit, contended before the trial Court that his late father Cawasjee Aspandiar through a will created a charitable trust on 8‑11‑1953, which was registered with Sub‑Registrar, Bombay, on 20‑1‑1954 and in April, 1955 with the Sub‑Registrar Quetta. It was claimed that the suit property being a part of a charitable trust created by late Cawasjee Aspandiar, the respondent could not acquire title over the suit property. It was also pleaded that the respondent was in fact appointed as attorney by his brother Rustam Cawasjee while he was acting as the Trustee of the said charitable trust, and therefore, the question of adverse possession of respondent over the suit property could not arise. The pleadings of the parties gave rise to the following issues in the suit: (1) Whether the plaintiff is entitled to file this suit in view of preliminary objection ' A' of written statement filed by the defendant? (2) Whether the suit is barred under Order 2, rule 2, C.P.C.? (3) Whether the plaintiff is estopped under the law to bring the present suit? (4) Whether no cause of action has accrued to the plaintiff against the . defendant for filing of present suit? (5) Whether the suit filed by the plaintiff is hit by the principle of res judicata? (6) Whether the plaintiff is entitled to sue the defendant in view of preliminary objection 'G' or written statement?

3. It appears that the petitioner moved an application before the trial Court praying for re‑framing of the issues and complaining that the burden of proving the issues framed in the suit has been wrongly placed on him. The trial Court rejected the application on 24‑3‑1994 and on the adjourned date of hearing, decreed the suit of respondent under Order 17, Rule 3, C.P.C.

4. The petitioner filed an appeal against the judgment and decree of the trial Court being Regular Frist Appeal No.28 of 1994 which was allowed by a learned Division Bench of the High Court of Balochistan and the case was remanded to the trial Court for decision on preliminary issues afresh, against which leave was granted to consider the following contention:‑‑‑ "

2. It is contended by the petitioner. that the learned Judges having, reached the conclusion and the counsel for respondent having conceded before the Court that the judgment and decree passed by the Trial Court was not sustainable in law, there was no justification for remanding the case to the Trial Court for fresh decision on preliminary issues as the material before the Court was sufficient to dispose of the controversy between the parties finally by the Appellate Court. The petitioner in support of his contention relied on Order 41, Rule 33, C.P.C., and contended that keeping in view the circumstances of the case, the learned Judges should have decided the issues involved in the case finally instead of remitting it back to the Trial Court for fresh decision. The contention raised by the petitioner requires examination and we accordingly, grant leave to appeal to consider the same. The operation of impugned judgment was stayed by a learned Judge in Chambers of this Court on 26‑4‑1995. The order passed on 26‑4‑1995 shall remain operative until decision of the appeal. "

5. After we heard the above appeal at some length, the learned counsel for the respondent stated before us that his client wants to withdraw Suit No.72 of 1992 filed by him against the petitioner unconditionally. The learned counsel also placed before us the following statement in writing duly signed by the Advocate‑on‑Record, of respondent and himself:‑‑‑ "It is to seek (i) that judgment of the High Court be set aside (ii) and Respondent be allowed to withdraw the suit unconditionally with no order as to payment of costs."

6. In terms of the above statement of respondent's Advocate‑on‑Record, and his counsel, Suit No.72 of 1992 filed by the respondent against the petitioner is dismissed as withdrawn under Order 23, Rule 1(1), C.P.C., with no order as to costs. As a result of withdrawal of suit unconditionally by the respondent/plaintiff, the judgments and decrees passed by the Courts below are set aside and this appeal stands disposed of accordingly, with no order as to costs. A.A./M‑63/S Order accordingly