2007 PLP 1229 (CLC)

RAFIULLAH SULTANI, J.

This revision petition is addressed against the order of Senior Civil Judge, Muzaffarabad dated 10-1-2007, whereby the legal Issues Nos.1 and 2 were decided in favour of non-petitioner, hence this revision petition. Brief facts of this case are that non-petitioner instituted a suit pertaining to new number Khasra 204, measuring 2 Kanals and 3 Marlas Shamlat Deh, situated at Chehle Phajgran, Tehsil and District Muzaffarabad, seeking perpetual injunction against the petitioners dated 25-1-2006, in the Court of Senior Civil Judge Muzaffarabad. The petitioners/defendants filed written statement and issues were framed on 12-10-2006. The arguments on legal Issues 1 and 2 were heard by trial Court and decided against the petitioners. Feeling aggrieved by the order of Senior Civil Judge, Muzaffarabad dated 10-1-2007, petitioners filed this revision petition. The learned counsel for the petitioners argued that non-petitioner has no cause of action and agreement to sell does not convey title to non-petitioner and non-petitioner has no locus standi. The suit is not maintainable in the eye of law and is liable to reject under Order VII, rule 11, C.P.C. He also contended that property is common land (Shamlat Deh) and decree of permanent injunction cannot be granted in favour of the plaintiff/non-petitioner. He further argued that the suit-land is Shamlat Deh due to this reason Civil Court has no jurisdiction. He referred section 9 of C.P.C., section 9 of Shamlat Act, 1966 and section 175 of Land Revenue Act. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioner argued that his suit is not declaratory suit rather it is suit for permanent injunction in which he claimed possession on the basis of agreement to sell. He has not instituted suit against the Government. He further contended that the non-petitioner's suit is against a private party and relief is claimed that the petitioners/defendants want .to snatch suit-land which is in his possession. He also contended that Civil Court has jurisdiction to entertain the suit and the trial Court has rightly decided the legal issues ill his favour. He further contended that the impugned order is correct in the eye of law. He relied on case-laws 2006 SCR 183, 2005 SCR 156 and 1997 SCR

57. Lastly, he contended that his suit is maintainable in the eye of law. I have heard the learned counsel for the parties and gone through the record. The Suit under consideration is not a declaratory suit rather it is suit for perpetual injunction. The Revenue Record, which is attached with the plaint, clearly shows the possession of non-petitioner. The objection raised by the learned counsel for the petitioners that suit-land is common land (Shamlat Deh) and non-petitioner is not owner of the property. It is clear from the contents of the plaint wherein it has been specifically pleaded that an agreement to sell was executed on 2-3-1993 and the plaintiff is in possession of the suit-land. Irrespective of question of ownership, the fact remains that a bare reading of the plaint clearly shows that the suit-land is prima facie in possession of non-petitioner. To ascertain the cause of action in a suit, the Court must apply its mind to the averments made in the plaint for ascertaining as to whether presuming averments made in the plaint to be .true, the non-petitioner is entitled to any relief, if the Court comes to the conclusion that prima facie the plaintiff may get the relief claimed, the plaint cannot be rejected for non-disclosure of cause of action. Here I want to reproduce Order VII, rule 7 of C.P.C. which is as under: "

7. Relief to be specifically stated.

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." Under Order VII, rule 7 of C.P.C., it is open to the Court to mould the prayer made in the plaint and grant proper relief in the circumstances given in the case. It is well-settled law that if the plaintiff has asked for a larger relief but the Court comes to the conclusion that C he is entitled to a lesser relief, the suit cannot be dismissed but the relief to which the plaintiff is entitled must be granted. In this case, according to the contents of the plaint, if the plaintiff does not prove agreement to sell in his favour but he proves that he is in possession of suit-land, he is entitled to decree of perpetual injunction according to law. In the case reported in 2006 SCR page 18 as Hameedullah v. Muhammad Hussain the Honourable Supreme Court has observed as under;-- "Agreement to sell does not bestow the ownership, hence respondent cannot be declared the owner of the land by way of a decree of the Civil Court however, the Court can grant the relief to which the respondent is found entitled after recording evidence and the respondent has sought the decree of perpetual injunction only claiming himself to be the owner of the land. He may not be owner, but he alleges to be in possession of land, Court can direct protection of his possession and pass decree to that extent without declaring or deeming him owner." Next question which needs consideration is question of jurisdiction. The question of jurisdiction is to be decided on the basis of the averments of the plaint and not on the basis of any defence which has been set up in the written statement. To resolve this controversy whether in a particular case, the jurisdiction of Civil Court has been ousted or not, depends upon the contents of the plaint and wording of the ouster clause. I want to reproduce section 9 of C.P.C. which is as under:

"

9. Courts to try all civil suits unless barred.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred." Next question arises whether in the light of contents of plaint section 9 of the grant of Khalsa Waste Land Shamlat-e-Deh Act Of 1966, the jurisdiction of the Civil Court has been ousted or not. The question of ouster of jurisdiction by necessary implication is to be decided in every case according to the words used in special provision of the statute. Section 9(1) of the Grant of Khalsa Waste Land Shamlat Deh Act reads as under: "9(1) No civil Court shall have jurisdiction on any matter which the Government or any Revenue Officer is competent to dispose of under this Act and shall not take cognizance of the matter in which the Government or any Revenue Officer exercises any power vested in it or in Govermneiit Order No.282/57." According to section 9 of the Shamlat Act, 1966, it is clear that the jurisdiction of Civil Court has been ousted in respect of all those matters upon which the Revenue Officer or Government have competency to lay their hands, Civil Court will not take cognizance of these matters in which the Government or Revenue Officer can exercise their power vested in them by or under this Act. In this case a private party has filed a suit against a private party for restraining them from interfering in their possession. Section 9 does not debar a private party to institute a suit against a private party; such suit is maintainable in the eye of law. Thus, the trial Court has rightly decided the legal Issues 1 and 2 in favour of non-petitioner and there is no illegality in the impugned order of the trial Court dated 10-1-2007. Section 175 of Land Revenue Act is not applicable in the case in hand. In the light of what has been stated above, there is no force in this revision petition which is hereby dismissed. The trial Court shall proceed with the suit according to law. H.B.T./5/AJK (H. C.) Revision dismissed.