Suit for possession

Contention of the petitioner/defendant was that Local Commission could not be appointed as it amounts to creating of evidence

Validity

Order XXVI, R.9, C.P.C. invests sufficient powers upon the courts to appoint the Local Commission for investigation so as to clarify itself as at the end of the day it is the court which has to decide the issue pending before it

No illegality had been committed by the courts below by ordering demarcation of the property in dispute so as to decide the controversy pending before it in a befitting and proper manner as demarcation did not mean that it was ordered for creating evidence for a particular party

Appointment of Local Commission qua demarcation was only to elucidate the pending matter and to verify the situation on ground enabling the courts to arrive at a just and proper conclusion, therefore, there was no circumstance to create evidence for any party, thus, the orders of courts below were in accordance with law

Constitutional petition was dismissed, in circumstances.

Suit for possession of suit property filed by appellants / plaintiffs was decreed in their favour and appeal was dismissed by Lower Appellate Court

High Court in exercise of revisional jurisdiction set aside concurrent findings of facts by two Courts below

Validity

Registered instrument as a sale deed was a title of suit property and could not be ignored despite the fact that it was challenged belatedly by respondent / plaintiff and such challenge failed not only at trial stage but also at the Lower Appellate stage

Trial Court and Lower Appellate Court decided all questions based on material and evidence placed before them with well-reasoned justification to arrive at such conclusion and within their jurisdiction

Supreme Court set aside the order passed by High Court and restored that of the Courts below

Appeal allowed.

Claim of the plaintiff was that he was owner in possession of the suit-property and that the defendant had illegally encroached to the extent of 08 marlas in the suit- property as per report of Girdawar Circle

Defendant filed revision as the Appelate/District Court allowed appeal filed by the plaintiff setting aside the dismissal order

Validity

Record reflected that the respondent/plaintiff moved an application to the concerned Assistant Commissioner Revenue for conducting demarcation of land and the said application was marked to the Tehsildar, for disposal, who deputed Girdawar Circle and report was submitted whereby property measuring 08 marlas was found encroached upon by the adjacent owner (the petitioner/defendant)

Tehsildar, on receiving the said report while disposing the application , directed the respondent/plaintiff to get possession of the encroached area through competent court

Record further depicted that the said order of the Tehsildar was never challenged before the revenue hierarchy which had now attained finality

Duly exhibited report of the Girdawar obviously showed that an area measuring 08 marlas was encroached by the petitioner/defendant and the said report was never challenged before the revenue hierarchy

Besides, the petitioner/defendant did not file any objection while proceedings were being conducted and had failed to file any appeal, revision etc. provided under the Land Revenue Act, 1967, against the order passed by the Tehsildar, therefore, the same attained finality

Furthermore, the exhibited report of demarcation proceedings reflected that the parties were present at the relevant time, however, the report was not questioned by filing any objection or appeal/revision, therefore, the same had been admitted as correct and the said order would be considered as final

Hence, the findings of the Appellate Court were well reasoned

Petitioner had failed to point out any illegality or irregularity committed by the Appeal Court while passing the impugned judgment warranting interference by the High Court in its revisional jurisdiction

Revision petition, being meritless, was dismissed, in circumstances.

Suit for possession instituted by the respondent/plaintiff was dismissed, but the Appellate Court allowed the appeal of the respondent/plaintiff and decreed the suit in his favour

Contention of the petitioners was that suit for possession was not maintainable being time barred and having been filed without seeking declaration of title

Validity

Respondent purchased property from Khasra No.746, however, possession was handed over to him from Khasra Nos.745 and 746 as the predecessor-in-interest of the petitioners was owner in both the Khasras, thus, petitioners had not thrown any serious challenge to the title of the respondent and as such objection of the petitioners qua maintainability of suit for possession was without any force

Person is only obliged to seek declaration when somebody is interested to deny his legal right or character as ordained in S. 42 of the Specific Relief Act, 1877

Petitioners were claiming protection of their possession on the plea of "adverse possession", thus, when they had no title to the suit property, they could only be termed as "trespassers"

With the afflux of time illegal possession upon the property of the other, irrespective of howsoever long it is, would not extinguish the ownership of the actual owner and validate the possession of trespasser

Knocking out the respondent on account of limitation would amount to giving premium to the petitioners under the obsolete provisions of law i.e. S.28 and Art. 144 of the Limitation Act, 1908, which had already been declared as deviant to the Quranic Injunctions

Civil revision was dismissed, in circumstances.

Suit filed by the petitioner/plaintiff was dismissed and the Appellate Court rejected his appeal due to non-deposit of court fee

Validity

Determination of court fee to be affixed in suit for possession is governed by S.7 of Court Fees Act, 1870, and according to amendment for the Province of the Punjab the provision of S.7 (v) of the Court Fees Act, 1870, stands substituted by Punjab Finance Act, 1973

Petitioner, being plaintiff was throughout aware of the quantum of court fee to be affixed for his suit

It was also evident from relevant paragraph of the plaint where the petitioner/plaintiff himself had valued his suit at Rs.200,000/- and affixed court fee in the amount of Rs.15,000/

Subsequently, in appeal proceedings the petitioner, being appellant, through relevant paragraph (No. 10) of memorandum of appeal acknowledged his obligation to affix court fee for Rs.15,000/- and sought extension of time for making good the deficiency of court fee due to reason duly elaborated in the said paragraph

In terms of law, the said paragraph (No. 10) would be deemed to be an application for extension in time for submission of court fee and the order sheet in the case reflecte that the Appellate Court impliedly permitted the petitioner/appellant by not insisting till passing of the impugned judgment and decree to affix the court fee

Petitioner from institution of his appeal till passing of the impugned judgment and decree by the Appellate Court had various opportunities to make good the deficiency of court fee: firstly, at the time of filing of appeal, the petitioner himself conceded to the fact of requirement of fixation of requisite court fee and sought extension of time with respect to making good the deficiency thereof; secondly, an opportunity was granted to the petitioner when the respondents filed application for rejection of memorandum of appeal due to deficiency of Court Fee and instead of affixing the court fee he took a new stance, that too, contrary to his earlier legal position reflected in relevant paragraph of his appeal, and asserted that no Court Fee was liable to be affixed on the memorandum of appeal

Therefore, the petitioner has no legal stand to persuade the High Court that he is not granted ample opportunity to make good the deficiency of court fee

Case of the petitioner clearly fell under the provisions of Order VII, Rule 11 (c) of the Civil Procedure Code, 1908, as throughout he neglected or avoided the payment of court fee despite acknowledging its payability and quantum

No material illegality or infirmity had been noticed in the impugned judgment and decree passed by the Appellate Court below

Civil Revision, being merit-less, was dismissed, in circumstances.

Grounds of fraud, misrepresentation and lack of jurisdiction could be agitated under S.12(2), C.P.C. and no ground beyond the same could be allowed

In the present case suit for possession under S.9 of the Specific Relief Act, 1877, was filed by plaintiffs against respondents out of which two respondents were real sons of the petitioner (applicant under S.12(2), C.P.C.)

Suit was dismissed by Trial Court

Respondents filed appeal before Appellate Court, which reversed the decision of the Trial Court and decreed the suit

Petitioner filed an application before Appellate Court under S.12(2), C.P.C. on the ground that petitioner had not been impleaded as a party in the suit, which application was dismissed by Appellate Court

Validity

Petitioner had throughout been aware of the proceedings initiated against his real sons, with whom petitioner was residing and petitioner had been indolent in pursuing the matter despite the fact that petitioner's real son contested the same and petitioner could have filed an application for being impleaded as a party, if petitioner so desired

Mere claim of petitioner based on ownership of the property and not being impleaded as a party in the given circumstances of the case was not sufficient to set aside order of the Appellate Court on the grounds raised by petitioner as for the purpose of application under S.12(2), C.P.C, petitioner had to show that he was not impleaded as a party through fraud or misrepresentation or the court lacked jurisdiction to decide the matter, which was lacking in the present case

Counsel for the petitioner had tried to argue that the case of respondents was not made out even on merits and decree was liable to be set aside

Such argument might be a ground to challenge impugned order before higher forum but the same could not be made basis for setting aside a decree by filing an application under S.12(2), C.P.C., wherein only grounds of fraud, misrepresentation and absence of jurisdiction could be agitated and no ground beyond the same could be allowed

Other grounds raised by petitioner could be raised through other proceedings but not through application under S. 12(2), C.P.C.

Title of petitioner to the suit property as claimed by petitioner did not require him to be impleaded as party to suit under S.9 of the Specific Relief Act, 1877 as the suit was required to be filed against persons who had dispossessed where as no such ground was raised by petitioner and it was also not the claim of the petitioner that the decree was obtained by plaintiff in collusion with petitioner's sons to deprive him of the possession of the property

Non impleading of petitioner as party, in the suit, for recovery of possession could not be held to be based on fraud and misrepresentation

Petitioner had also not been rendered remediless as he still had remedy of filing a suit for possession on the basis of title available to him, if he could establish the same

Constitutional petition was dismissed, in circumstances.

Held, that in all forums of revenue hierarchy time for filing of appeal was either overlooked or not properly calculated, which prima facie was filed on 30th day and as such the appeal of the petitioners was well within time

Petitioners were entitled for adjudication / decision of their appeal on merits

Constitutional petition was allowed accordingly.

Onus lies on the person who wants to establish the genuineness of the transfer.

Claimant had to prove its possession; such possession must have been dispossessed; such dispossession must be from immoveable property without consent of person in possession, without due course of law; and suit was to be filed within six months of such dispossession.

In a suit for possession under S.9 of Specific Relief Act, 1877, the plaintiff has to establish at trial: firstly, that he was in possession of specific immovable property; secondly, that he was dispossessed by the defendant; thirdly, that he was dispossessed without his consent and not in accordance with law; and fourthly, that such dispossession took place within a period of six months prior to the institution of the suit.

Plaintiff filed suit for possession claiming therein that he was owner of the suit land whereas the defendants were in possession of the land as Ghair Moroosi

Trial Court decreed the suit and Appellate Court dismissed the appeal

Validity

Plaintiff had filed suit on the basis of title on the suit land, so the contention raised by defendant that Art. 142 of Limitation Act, 1908, was attracted, had no force

Article 142 of Limitation Act, 1908, was applicable where plaintiff being originally in possession of property was dispossessed or discontinued to be in possession, whereas, Art. 144 was attracted when suit for possession was based on the essence of title

Time limit for filing a suit as detailed in Art. 144 was twelve years and the same was to be reckoned from the date when possession of defendant became adverse to plaintiff

Possession of the defendants had become adverse to the plaintiff's rights just one month ago

Courts below had accurately decided the issue of limitation

So far as contention of defendants that all the co-sharers were not impleaded was concerned, High Court observed that co-sharers were not necessary or proper party for the reason that nothing was claimed from the co-sharers

Appeal was dismissed.

Record revealed that the claim of tenancy of (part of) property-in-question of predecessor-in-interest of the petitioners/plaintiffs was dismissed about forty years ago for want of proving the relationship of landlord and tenant between the parties; and Rent Controller observed that it could not determine the question of title and legitimacy of the documents, while respondent (alleged tenant in said eviction petition) also claimed right in the property-in-question being purchased by predecessor of the petitioners/plaintiffs

Notwithstanding said facts/background, petitioners filed a suit for possession simplicitor, without claiming declaration qua their entitlement or alleged legal right in the property , being the estate of their predecessor, when their entitlement regarding legal title in the property was challenged/disputed

Suit of possession filed by the petitioners was not maintainable, in circumstances

Appellate Court had rightly reversed the decree and judgment passed by the Trial Court in the favour of petitioner

Revision petition was dismissed, in circumstances.

Plaintiff (son) filed suit for possession, mesne profits and permanent injunction claiming therein that suit property was purchased by his father; that he was nominated as legal heir and that after the death of his father suit property was transferred in his name therefore the defendants had no right to retain possession

Validity

Nominee had no superior legal rights except to what he had his own rights under the personal law of inheritance

Nominee could only represent all the legal heirs, as such he/she did not become an owner by virtue of being appointed as nominee

Nominee had no right to claim exclusive possession

Suit was dismissed with costs.

Plaintiffs/appellants claimed that the disputed survey number, along with other survey numbers, were allotted by Barrage Department to their predecessor-in-interest and in this regard transfer order was issued; that mutation of the disputed survey number was also affected in the revenue record, and that in such manner the title of the disputed survey number now stood in the names of the plaintiffs

Respondents, who were all part of a community, denied that disputed survey number was ever granted to the predecessor-in-interest of the plaintiffs and contended that Form-A did not contain such a grant and the mutation entries were bogus, and that over a century ago their forefathers established a village on the disputed survey number which now comprised of several houses of their community as well as a place of worship; held, that plaintiffs' own witness, categorically admitted that the disputed survey number was not mentioned in Form-A, which was the principal document which established grant of land by the government

When the original Form-A admittedly did not contain disputed survey number and some other Form-A was attempted to be introduced by the plaintiffs to establish their claim to the disputed survey number, the Member Board of Revenue considered it to be an unauthentic document

Even the original Transfer Order Form was not produced before him

Plaintiffs, therefore, failed to establish grant of the disputed survey number by the Barrage Department in favour of their predecessor-in-interest

While acknowledging the occupation of the disputed survey number by the respondents, the plaintiffs did not even take the plea as to when or at what point of time they were dispossessed

Further it was also not claimed that disputed survey number was ever brought under cultivation considering the fact that grants were meant for agricultural purposes only

Preponderance of probabilities led to the conclusion that the survey number in dispute was Government land, which was never granted to the predecessor-in-interest of the plaintiffs

Plaintiffs were therefore not entitled to seek the reliefs sought in their suits.

Suit was fixed for arguments on an application and ex-parte proceedings were initiated against the applicants-defendants

Applicants-defendants moved an application for setting aside ex-parte order but same was dismissed

Suit was decreed after recording evidence of plaintiff

Validity

Ex-parte order or proceedings could be set aside any time before conclusion of trial provided application for the same was moved within a period of three years

Disposal of application of defendants in a summary manner without providing an opportunity was unwarranted and not a proper exercise of jurisdiction

No opportunity was provided to the defendants to substantiate their claim in the application for setting aside ex parte order

No period of limitation had been provided for setting aside ex parte order and period of limitation had been provided for setting aside an ex parte decree only

Law favoured adjudication of lis after providing opportunity of hearing to both the parties

Case was fixed for arguments on application when ex-parte proceedings were initiated

Ex-parte order in the suit was not sustainable as applicants-defendants were to be treated in accordance with law

Trial Court could have only passed ex-parte order on the application fixed for arguments

Setting aside of ex-parte proceedings was not necessary as defendants had already filed written statement

Applicants-defendants might join proceedings to contest suit by cross examining the witnesses of opposite side and producing own evidence

Even if the defendants had not filed written statement they could be in a position to secure dismissal of suit by raising objections to the jurisdiction of court orally

No legal bar existed to allow the defendants to take part in the proceedings to defend their right

Applicants-defendants were to be given a chance of hearing before any order was passed against their interest

Applicants-defendants even if their application for setting aside ex-parte proceedings was dismissed could appear and defend the suit

Defendants who had been proceeded against ex-parte could take part in the subsequent proceedings as of right

Trial Court committed illegality by not allowing the defendants to lead evidence

Appellate Court dismissed the appeal in a mechanical manner

Both the Courts below had committed illegality while passing the impugned judgments and decrees

Impugned judgments and decrees were set aside and application for setting aside of ex-parte order was accepted

Matter was referred to the Trial Court with the direction to decide the same on merits after hearing the parties

Revision was allowed in circumstances.

Contention of plaintiff was that he was entitled for possession of suit property to the extent of his share whereas defendants contended that their father had distributed his property to the legal heirs

Suit was dismissed concurrently

Validity

Father of parties remained in possession on the suit property

Suit land was subject to distribution/partition amongst all the legal heirs of the deceased

Concept of inheritance in property of deceased would run against all kinds of properties

Selective ejectment proceedings would be a foul play and must be discouraged

One of defendants/legal heir was an insane person

Parties had no right of any kind of appropriation of properties or share of the insane heir during his life-time

Legacy of deceased was subject to partition/distribution amongst all the legal heirs

Trial Court was bound to calculate shares of all the legal heirs of the deceased

Courts below had not applied their mind in accordance with shariah laws

Appellate Court had neither recorded findings on each and every issue nor had rendered findings on the basis of points for determination

Impugned judgments and decrees passed by the Courts below were set aside

Case was remanded to the Trial Court with the direction to record its findings afresh on all issues

Revision was allowed in circumstances.

Appeal was allowed accordingly.

If transaction was alleged on behalf of a person and he appeared as his own witness and made a statement on oath then onus to prove the execution of said transaction would shift on its beneficiary

Registered sale deed had been executed by the father of plaintiff who remained alive for 10 years after its execution but did not challenge the same in his life time

Plaintiff being a third person had challenged the impugned sale deed

Principle of shifting of onus of proof would not apply in the present case

Defendant had proved the execution of sale deed by producing available witnesses of the same

Presumption was attached with the registered sale deed which was rebutable but plaintiff had failed to rebut the same

Sale deed had been validly executed in favour of defendant

Revision was dismissed in circumstances.

Separate suit was not maintainable and the only remedy for the plaintiff was to move an application under O. XXI, R. 100, C.P.C.

Plaintiff had not moved any such application in the execution petition

Present suit was barred under O. XXI, R. 103, C.P.C.

Suit was rightly dismissed by the Appellate Court in circumstances

Even present suit was not maintainable under Ss. 8 & 9 of Specific Relief Act, 1877

Plaintiff was required to recover possession of suit property in the manner provided under O. XXI, R. 100, C.P.C. and not in any other manner

Plaintiff was not dispossessed without due course of law but dispossessed in execution proceedings

Second appeal was dismissed accordingly.

Trial Court had wrongly declared said plaintiff as legal heir of the daughter of the original owner and Appellate Court below had agreed with the findings of the Trial Court without applying its judicious mind

Impugned orders of the courts below invited interference of Chief Court which were set aside and case was remanded to the Trial Court for trial of the case from appropriate stage affording the parties chance for necessary amendments in the pleadings.

Plaintiff had sought possession on the basis of same deed, on the strength of said deed his former suit had been decided

Subject matter with regard to suit house directly and substantially in issue was the same between the same parties and the courts which disposed of the former suit were competent to decide the suit on merits

Present suit, therefore, was not competent and was barred by principle of res judicata

Plaint in such like suits should be rejected even without any application from the party

No illegality or material irregularity had been pointed out in the impugned order passed by the courts below

Revision was dismissed in limine.

Defendants moved application for rejection of plaint which was dismissed by the Trial Court but appellate Court rejected the same being time barred

Validity

Cause of action arose in favour of plaintiffs in the year 1977

Plaintiffs instead of approaching the civil court in the first instance assailed the order of cancellation of allotment before the High Court and then before the Supreme Court

Plaintiffs after failure from the Supreme Court had not resorted to civil court which was the ultimate court for cancellation of registered document

Plaintiffs continued to prosecute their case before the revenue hierarchy and even after final order of the Member Board of Revenue they had not approached the civil court but assailed his order in constitutional petition

Plaintiffs had filed the present suit without application under S. 14 of Limitation Act, 1908 after dismissal of their constitutional petition

No particulars and dates of institution of earlier civil proceedings before the revenue courts and High Court and Supreme Court had been given in the plaint

Plaintiffs had not asserted in the plaint that they were prosecuting their case before different courts under bona fide impression that said courts had jurisdiction to decide the matter

Plaintiffs had not claimed exception for excluding of time in their plaint which according to them was consumed in prosecuting the litigation in revenue courts and High Court

Plaintiffs had to first admit that their suit or appeal was time barred then court could consider the request for condonation of delay

Plaintiffs could not take the benefit of O. VII, R. 6, C.P.C. and S. 14 of Limitation Act, 1908

Plaintiffs had not claimed that defendants were privy to the fraudulent allotment and S. 119 of Transfer of Property Act, 1882 was attracted in the present case

Constitutional petition was dismissed in circumstances.

No valid or authentic piece of evidence had been produced with regard to grant of state land in favour of predecessor-in-interest of plaintiffs

Nothing was on record that predecessor of plaintiffs or his legal heirs ever remained in possession on subject land or had even deposited any amount towards price of suit land

Suit simplicitor for possession in the wake of specific denial with regard to ownership or title of plaintiffs over the subject land without seeking relief of declaration of ownership or title was not maintainable

Suit property was government land but concerned government functionaries and the Province had not been impleaded as party who were necessary to be impleaded as defendants

Present suit was liable to be dismissed on these premises also

Plaintiffs had failed to discharge burden of proof rested on them

Findings of Trial Court declaring the plaintiffs as owners of suit land were not sustainable and were liable to be reversed

Judgment and decree passed by the Appellate Court decreeing the suit were without any evidence which were set aside

Suit filed by the plaintiffs was dismissed

Revision was allowed in circumstances.

Soon after the compromise decree, an execution petition was filed, and the representatives of the 79 decree holders of said suit obtained their shares in the suit

After obtaining the shares of the plaintiffs, the representatives of decree holders of execution petition, did not hand over the shares of the plaintiffs to them

Plaintiffs had filed suit, which was dismissed by the Trial Court

Appeal filed against judgment of the Trial Court was also dismissed by the Appellate Court

Validity

Defendants, had admitted the averments of the plaintiffs made in the plaint

Once defendants admitted that the plaintiffs were amongst, decree holders, the burden of proof shifted to the defendants to prove that they had handed over share of the plaintiffs to them after obtaining the same through execution petition

Trial Court, as well as the first Appellate Court in such situation, were duty bound to administer substantial justice by reopening the execution proceedings of execution petition, or suit could be decreed, if it was proved that defendants, did not hand over their due share to the plaintiffs

Trial Court, as well as the first Appellate Court, were not so helpless that they could not reopen the proceedings of the execution petition, or suit filed by the plaintiffs could not be decreed

Appellate Court below did not give issue-wise findings on all issues while giving impugned judgment

Such omission amounted to a material irregularity

Trial Court had mainly based his findings on the legal point that plaintiffs, could not file a separate suit for their share in the decree under execution

Once share of plaintiffs, was admitted in the land under decree and under execution, Trial Court or first Appellate Court, were bound to redress the grievance of the plaintiffs, either by reopening the proceedings in execution petition, or even through a decree in suit

Suit filed by the plaintiffs, was competent, and holding that same was incompetent, was a wrong notion, and was result of misconception or mis-appreciation of relevant law on the part of two courts below

Impugned orders, which were suffering from material and floating defects, were set aside, and case was remanded to the Trial Court with direction to pass fresh order on the suit after hearing parties.

Possession was not a good defence against true owner and the same was unjustified and unwarranted.

Lease deed executed in favour of plaintiff without possession was merely an entry in the record which did not confer any title

Mutation by itself would not create title and same had to be proved through evidence of title

Persons deriving title on the strength of mutation entries had to prove that transferor had parted the ownership of property in favour of transferee and mutation was duly entered and attested

Lease agreement and abstract of record maintained by Cantonment Board was not proved and same did not provide any assistance to the plaintiff's claim

Plaintiff had failed to substantiate his plea through documentary and oral evidence

Defendants had established their possession over the suit property since the life time of their predecessor

Pleadings and evidence produced by the plaintiff did not correspond to each other

Plaintiff had failed to establish that either he had constructed the property in question or had ever remained in possession of the same

Divergent pleadings and evidence was fatal for the case of plaintiff

Departure from pleadings could not be allowed and evidence which did not support the pleadings or vice versa in any case would not achieve the object

Both the courts below had passed well speaking and well reasoned judgments

Revision was dismissed in circumstances.

Constructive possession of plaintiff coupled with title would also be sufficient for bringing into operation S.9 of Specific Relief Act, 1877.

Where court was unable to decide the case on the basis of evidence adduced by parties, decision would be governed by (principle of) onus of proof

Mutation was not a document of title though presumption of truth was attached to longstanding mutation entries but that presumption could be rebutted by cogent and reliable evidence

Mutation in favour of plaintiff having been challenged immediately, strong presumptive value could not be attached thereto

Defendants had rebutted the presumption by producing dower deeds duly proved by two witnesses and the scribe thereof

Onus of proof to prove the genuineness of the actual transaction was on the beneficiary of mutation

Plaintiff failed to prove the payment of consideration and transfer of possession

Object of S.42 of the West Pakistan Land Revenue Act, 1967 was to ensure transparency and avoid fraud by carrying out mutation attestation in public gathering

Revenue Officer produced by plaintiff was not appointed in the estate where house in dispute was situated

Mutation in question, in circumstances, lacked the essentials acquired under S.42, West Pakistan Land Revenue Act, 1967

Revision was dismissed.

Findings of two courts below were in consonance with the evidence on record and no prejudice seemed to have been caused to the plaintiff

Plaintiff had failed to substantiate his claim through convincing, reliable and conclusive evidence while defendants had satisfactorily rebutted his claim

Both the courts below had rightly clinched the factual controversy and had dealt with the matter in a thread-bare manner and had come to the concurrent conclusion after due application of independent mind

Plaintiff had failed to point out any illegality by way of misreading and non-reading of evidence by the courts below

Trial Court as well as the Appellate Court had elaborately discussed every aspect of the case and had dealt with the same in detail leaving no room for further consideration

Findings on question of fact or law recorded by the court of competent jurisdiction could not be interfered in revisional jurisdiction unless those findings suffered from jurisdictional defect, illegality or material irregularity

Jurisdiction of High Court to interfere with the concurrent findings of fact in revisional jurisdiction was very limited

Process of examination of evidence for upsetting the concurrent findings of fact in exercise of revisional jurisdiction was neither permissible nor warranted by law

High Court while examining concurrent findings of fact in exercise of its revisional jurisdiction had to attend the reasons in support of such findings and misreading, non-reading or perverse appreciation of evidence had to be discovered in reasoning to justify interference

Trial Court as well as Appellate Court had passed well reasoned judgments and decrees after proper appraisal of evidence on file

Impugned judgments and decrees did not seem to have been tainted with any illegality or irregularity or jurisdictional error

Revision was dismissed.

Petitioners/plaintiffs filed suit for possession of constructed property/house before civil court, which was decreed in favour of the plaintiffs

Appeal filed by defendants was accepted and judgment and decree passed by Trial Court was set aside on the ground that the jurisdiction for ejectment of tenant exclusively fell within the domain of revenue court and the civil court was barred to adjudicate the matter in dispute

Contention of the plaintiffs/petitioners was that civil court had exclusive jurisdiction to decide the suit for possession through devolution of constructed house, therefore the appellate court had wrongly set aside the judgment and decree passed by trial court

Validity

Proceedings for ejectment could only be filed before civil court in respect of constructed property, whereas ejectment of the tenant from agricultural property could be sought from revenue hierarchy

Petitioners/plaintiff had rightly filed their suit for possession through ejectment of tenant from suit property/house which had no nexus with the agricultural property

Property in dispute was in constructed nature in the shape of house and jurisdiction to adjudicate the issue exclusively lay with civil court

Impugned judgment and decree passed by appellate court was set aside

Revision petition was accepted.

Suit was concurrently decreed by the Trial Court and Appellate Court below, but High Court in second appeal set aside concurrent judgments and decrees of the two courts below and dismissed suit on ground of limitation

Validity

Question of limitation having not been raised earlier, there was no occasion for the Trial Court and Appellate Court to decide said question

Suit, no doubt could be dismissed under O.VII, R.11, C.P.C. on question of limitation, but when the plaintiff had taken a specific position that she was not in knowledge of transaction; and she acquired knowledge on a particular date, then detailed inquiry would be needed into the facts and O.VII, R.11, C.P.C. was not applicable

Question of fact appearing to be involved in the case, suit could not be dismissed under said provisions of law

Plaintiff, on acquiring the knowledge, obtained the copies and filed suit without any delay

Plaintiff had alleged that cause of action arose firstly from false/fictitious sale-deed and mutation; and secondly from the suit filed by the defendant

Defendant in his written statement had not refuted the fact that the plaintiff was not in the knowledge of sale-deeds

Question of limitation being a mixed question of fact and law, if inquiry into facts was involved, then the question of limitation, could be resolved provided it was raised by a party in the pleadings and evidence was led on it

Defendant had not denied the fact alleged by the plaintiff that she attained the knowledge when defendant filed suit in civil court

Non-denial was an admission on part of defendant

Judgment could not be delivered against the pleadings of the parties

Impugned judgment of High Court was set aside and case was remanded to the High Court for decision on merit within a period of four months from the receipt of record.

Contention of plaintiff was that disputed house had come to his ownership through domestic arrangement (partition) and defendant was his tenant

Defendant contended that he had constructed the house in question

Suit was dismissed concurrently

Validity

Plaintiff had served upon defendant notice under S.111 of the Transfer of Property Act, 1882, which had not been denied

Plaintiff had not succeeded to substantiate lease deed through evidence

Solitary attesting witness had neither affirmed the execution of lease deed nor verified the signing of the same

Plaintiff had not succeeded to substantiate that defendant had paid any premium with regard to disputed house

Partition deed in respect of ownership of the plaintiff also remained unproved and plaintiff had failed to either prove himself as lessor and the defendant as lessee

Both the parties had not discharged their burdens with regard to the facts alleged and denied in the pleadings

Documents relied by the plaintiff in evidence were never alleged nor mentioned in the plaint

Defendant had failed to substantiate his plea of ownership who had never alleged in his pleading that another person was owner of the suit house and he could not be allowed to agitate such plea in cross statement

Plaintiff had been incorporated in the revenue record as owner of the disputed house which was constructed by the defendant with the permission of another co-owner

Defendant would not be a lessee but a licensee of the disputed house which had attained the status of village Abadi

Revision was partially allowed with the findings that the defendant be compensated in terms of improvement made with regard to disputed house who would vacate the same.

Plaintiff in presence of daughters of deceased could not become a legal heir and claim exclusive ownership over suit property

Matter involved in suit was that of inheritance, thus, non-impleadment of daughters of deceased therein would be treated as fatal

Suit was dismissed in circumstances.

In the present case, suit was filed by the plaintiffs for possession of immovable property on the ground that they were owners of the land, land of the defendants was adjacent to their land, who had allegedly encroached upon the same

Defence of the defendants was that they had not encroached upon the land, but were in possession of their own land

Case of the plaintiff, in the Trial Court was not one of dispossession or discontinuance of possession

Plaintiff had filed a suit for possession on the basis of title

Suit was not hit by the mischief of Art.142 of the Limitation Act, 1908.

Under Art. 142 of Limitation Act, 1908, period of limitation for filing a suit for possession of an immovable property, - when the plaintiff while in possession of property had been dispossessed from or had discontinued possession, was 12 years from the date of dispossession; or discontinuance of possession

Determining factor was date of dispossession or discontinuance of possession

Expression `dispossession' referred to actual physical dispossession and would involve collusion and expulsion

Constructive possession in spite of mere abandonment or non-use, would remain with the owner

To establish "discontinuance of possession" it must be shown that the owner had withdrawn with intention of abandoning the property; and the gap had been filled in by another person, who had come to occupy• the consequence of such withdrawal

When a suit was filed, not on the basis of dispossession or discontinuance of possession, but on the basis of title, Art.142 of Limitation Act, 1908 would not attract in the case

Article 142 of Limitation Act, 1908 was applicable only if a suit for possession of immovable property was filed on the ground that the party was in possession of land, and had been dispossessed or its possession was discontinued, but when a suit for possession of immovable property was filed on the basis of title, Art.142 of Limitation Act, 1908 was not applicable, but Art.144 would govern the period of limitation

After deletion/omission of Art.144 from 25-4-1997, no other Article of the Limitation Act, 1908 would govern the limitation for filing a suit on the basis of title or interest in the property

No period of limitation for filing a suit for possession of immovable property on the basis of title

True owner could file a suit for possession of immovable property any time on the basis of title.

Suit was dismissed by Trial Court and Appellate Court below, but on second appeal, High Court remanded case to Appellate Court for decision afresh

Validity

Provisions of R.31 of O.XLI, C.P.C., relating to contents of judgment of Appellate Court, were mandatory

First Appellate Court was also a court of facts, and it was enjoined upon the said court to decide each and every issue after discussing the evidence

If decision of appeal was possible after recording the finding on one or more issues, then it was not necessary to record finding of all the issues

In the present case Appellate Court below had not recorded findings issue-wise, but only resolved the question of limitation and question as to whether suit was hit by O.II, R.2, C.P.C., was not resolved

No issue was framed whether the suit was hit by O.II, R.2, C.P.C.

Appellate Court below delivered the judgment in a telegraphic manner without discussing the facts or evidence on record

Appellate Court was obliged to record findings on each and every issue when the decision on the basis of findings on one issue was not possible

Two issues were crucial in the suit and without deciding said issues, appeal could not be decided

High Court, in circumstances, had correctly remanded the case to Appellate Court below for resolving of issues.

Rights of such co-owners, who were not party to suit and had not been afforded opportunity of hearing, would be left undecided

Suit was defective for such reasons.

Defendant who was proceeded ex parte for his failure to appear in the court, filed an application for setting aside ex parte proceedings initiated against him on the plea that he was neither served upon personally nor through any other means and that he was quite unaware of the proceedings

Trial Court dismissed the application; Appellate Court upheld judgment of the Trial Court

Validity

Parties were legal heirs of common predecessor and the defendant once appeared in the court at stage of interlocutory appeal filed by another legal heir against the order passed by the Trial Court regarding temporary injunction

Defendant along with his counsel appeared before the Appellate Court in said appeal, but that fact had been suppressed by him in his application filed before the Trial Court setting aside ex parte proceedings and that fact had also been concealed before the High Court

Application for setting aside ex parte proceedings was filed by the defendant after the lapse of more than six years and same was not filed along with application for condonation of delay

Conduct of the defendant, especially concealment of fact from the High Court as well as from the lower courts, did not oblige any concession to him

In absence of any illegality or irregularity in the judgments/orders passed by the courts below, same could not be interfered with in revision.

Defendant would not be entitled to any compensation regarding such construction.

Every fresh Jamabandi would create fresh cause of action.

Prerequisites stated.

Defendant assailed said order of Trial Court on the ground that the suit was not maintainable for non-joinder of necessary parties

Validity

Suit had been decided by the Trial Court without impleading the necessary parties as was enemurarated in the lists produced by the defendant, and without affording reasons for such default

Order of Trial Court affected more persons than the defendant

High Court set aside order and decree of Trial Court and remanded the suit to Trial Court with the direction to implead the necessary parties, and decide the suit afresh

Appeal was disposed of, accordingly.

Plaintiff, in order to show ownership, had relied on a copy of haqdaraan wherein the plaintiff was shown as partly the owner of the suit land

Defendants were in possession of the land owned by them

Report of the local commission, when scrutinized in the light of documentary evidence produced by the plaintiff, was found to be clearly false as the plaintiff was not the exclusive owner of the suit land

Revenue record produced by the plaintiff was against the plaintiff's own version

Objections on the report of said local commission raised by the defendants, were not attended to by the courts below

Local Commission had not issued notices to the defendants and had not observed the instructions with regard to the demarcation issued by the Board of Revenue

Patwari was not present at the time of the spot inspection and revenue record had not been relied upon by the said local commission in its report

Report of the said local commission was not reliable and revenue record being against the plaintiff, there was no evidence available with the Trial Court to decree the suit

Findings of the courts below were based upon misreading and non-reading of evidence

High Court set aside orders of the courts below and dismissed suit of plaintiff

Revision was accepted, accordingly.

House in question was owned by father of parties and after the death of their father, plaintiff sought recovery of possession of the house on the basis of a registered gift deed executed in his favour

Suit was decreed in favour of plaintiff by Trial Court but Lower Appellate Court allowed the appeal and suit was dismissed

Validity

No witness deposed as to why gift was made in favour of plaintiff and donor used to live with him

No evidence was available about health of the donor till his death and types of special services rendered by the plaintiff

No reason was on record as to why other children were divested of their legitimate rights and were denied their rightful claim

Act of making a gift was a prerogative of an owner and it should not have been a covert exercise but an overt recital on the beat of a drum

Purported gift was brought in the notice of heirs after death of the donor which also cast doubt on the transaction

If such was intention of the donor, it would have seen the light of the day during his lifetime, so that the donor himself could have defended and endorsed execution of gift deed

Suit was brought after the death of the donor and averments of plaint were sufficient to hold that gift was kept secret and after the death of donor, suit was filed through which not only possession was claimed but mesne profits were claimed from the date of execution of purported gift deed, notwithstanding the fact that donor remained alive till year, 1983, whereas purported gift deed was got registered in year, 1980

No witness had uttered a single word about execution of the document in his presence

Even testimony of commission did not establish execution of purported gift as it was not found in evidence that donor had signed before him or he made any determination about gift

High Court declined to interfere in the judgment and decree passed by Lower Appellate Court

Second appeal was dismissed in circumstances.

Contention of petitioner that suit was dismissed as petitioners could not produce marginal witnesses of the agreement dated 5-6-1934 and the said agreement fell within definition of Art. 100 of Qanun-e-Shahadat, 1984 and the courts below misconstrued facts on record

Validity

Points of determination were as to whether petitioners were the owners of the suit land and were entitled to recover the same from the respondents

Perusal of record revealed that the ownership was not proved in favour of petitioners and did not suggest as to what was the right with which the predecessor of petitioners gave possession temporarily to the respondents

No documentary evidence was available on record for the petitioners to prove ownership of the suit land

No illegality and infirmity having been found in the judgments of the courts below, revision was dismissed.

Decree of Trial Court in favour of plaintiff to extent of 4 marlas passed on basis of such report set aside by Appellate Court-Judgment of High Court in revision restoring decree of Trial Court

Review petition to High Court by plaintiff for granting him additional 2 marlas of land

Order of ex parte proceedings against defendant and acceptance of review petition by High Court ex parte

Application by defendant for setting aside order of ex parte proceedings dismissed by High Court

Validity

Defendant had not challenged judgment of High Court passed in revision, which had attained finality to extent of decree for possession of 4 marlas of land to plaintiff

Defendant had not challenged judgment of High Court passed in review petition granting decree for possession of additional 2 marlas of land to plaintiff

Defendant though objected to such report before Trial Court, but had accepted its correctness after judgment of Revisional Court

Defendant after having accepted decree to tune of 4 marlas on basis of such report could not question encroachment to extent of remaining 2 marlas

High Court in exercise of review jurisdiction had corrected an error appearing on face of record

Demarcation of suit-land had been conducted by a senior officer of Revenue Department in presence of parties

Such report was not divisible

Supreme Court refused to grant leave to appeal in circumstances.

Neither any date of dispossession had been given by the petitioners in their plaint nor any such thing was mentioned in their evidence

Report submitted by the Evacuee Trust Property Board was to the effect that suit land was evacuee trust property and same was allotted to a school and said school was functioning since 1950

Impugned finding of the High Court to the effect that the respondents had acquired the prescriptive title in terms of S.28 of the Limitation Act, 1908, was unexceptionable, in circumstances.

Defendants though had shown some bank transaction qua the plaintiff but had not been able to establish, if the amount was credited to the latter and more so, if it was paid as a sale consideration pursuant to any sale transaction

No documentary evidence about the sale which could not be legally concluded except in accordance with S.54 of the Transfer of Property Act, 1882 and S.17, Registration Act, 1908 was available on record

No oral independent evidence had been led to establish the exact day, date, month, year, the venue as to when the sale transaction was allegedly negotiated and finalized between the parties and in whose presence

Factual findings of fact given by the three courts below did not suffer from any misreading or non-reading of the evidence

Provision of S.51, Transfer of Property Act, 1882 was not attracted to the case because in order to enforce the provision of S.51, a specific plea thereunder had to be taken in the written statement, an issue should be joined and evidence to that effect must be led

In the absence of said requisites being accomplished in the seriatim, no benefit could be attained under S.51, Transfer of Property Act, 1882

Application of S.51, Transfer of Property Act, 1882 was not a question of law simpliciter which could be agitated at any stage of the proceeding, rather the factual foundation within the parameters of S.51 had to be laid at the very inception of the case i.e. the pleadings of the parties so that the right conferred thereby could be legally enforced.

Earlier, case was remanded by High Court for appointment of Local Commission to verify as to whether land claimed by the plaintiff was in his possession or not and Trial Court appointed Local Commission who submitted report

Before the Trial Court could further proceed, plaintiff filed another application for appointment of another Local Commission to ascertain the improvement made by the plaintiff on suit property

Both Trial Court and Appellate Court dismissed said application

Validity

Order of rejection of appointing a Local Commission passed under O.XXVI, R.9, C.P.C. being not appealable under O.XLIII, R.1, C.P.C., such order passed by Appellate Court, would be deemed as a revision

Once revisinal jurisdiction had been exercised by Appellate Court below under S.115, C.P.C., High Court would lack jurisdiction to entertain revision against such order under its revisional jurisdiction as it would be against the clear command of S.115(4), C.P.C.

Revision petition was dismissed, in circumstances.

Said original owner, through a registered general Power-of-Attorney had authorized father of the plaintiff to act on his behalf as general attorney to look after his properties; and for alienating his properties by way of mortgage, sale, exchange, gift etc.

Father of plaintiff in view of said Power-of-Attorney disposed of the suit property in favour of his son/the plaintiff by way of registered gift deed

Defendant's occupation of suit property was declared as that of a licensee under the plaintiff

Physical possession of the plaintiff; in such circumstances, was neither possible nor necessary for validity of gift

Gift without delivery of possession could only be impeached by the donor and not by a third person as well as a person claiming hostile possession against donor and donee

Property in dispute was not owned by the defendant

Had he been the owner of the suit property, then the question of validity of gift and inheritance of the said property, would have been the valid and legal one, but when he was merely an attorney of the original owner, no question of his entitlement' or any other legal heir would arise

Defendant or any other, was bereft of locus standi to question the validity of the gift in favour of the plaintiff

Counsel for the defendant, was unable to make out a case for interference in revision

1n absence of any misreading or non-reading of evidence or jurisdictional defect in the concurrent findings of facts of the two courts below, High Court could not interfere in exercise of revisional jurisdiction.