Suit for declaration

Suit for declaration cannot be maintained nor can a declaration of title be given on the basis of an agreement to sell.

Right to institute such a suit is a continuing right, remaining intact as long as the claimant (plaintiff) possesses rights to disputed property

Pivotal point at which right to sue accrues arises when opposing party denies or challenges specific rights associated with property in question or at least exerts an unequivocal threat to infringe that right

In situations characterized by successive acts of denial, a new cause of action arises each time as there is a significant challenge to the claimant's (plaintiff's) rights.

There can be no "right to sue" until there is an accrual of the right asserted in the suit and its infringement or threat to infringe that right

It implies that the date of accrual of the cause of action, and not the cause of action itself, would be terminus a quo for computing limitation time for a suit for declaration under Article 120 of the Limitation Act, 1908.

Suit for declaration was instituted to enforce the arbitration award and, on the strength of award, relief was sought for declaration of ownership and transfer of mutation in the names of plaintiff

Plea of the petitioners was that the award was partly acted upon to the extent of handing over possession of the land to the petitioners

Relief sought was concurrently denied

Validity

The Arbitration Act, 1940 ('the Act 1940'), prescribes a statutory mode to give a legal effect to an award, that is, S. 17 of the Act, 1940

Unless an award is made rule of the court, the same would not create rights and liabilities in respect of its subject matter

Petitioners /plaintiffs had not applied to make the award as rule of the court; thus, the award could not have been enforced through the mode outside the provisions of the Act, 1940

Section 32 of the Act, 1940 bars a suit instituted for a decision upon the existence, effect or validity of an award nor shall in such suit, any such award be set-aside, amended, modified or in any way affected otherwise then as provided by Ss. 15, 16, 17,30 and 33 of the Act, 1940 which sections relate to modification and or amendment of an award, making the award as rule of the court and setting aside of it

An award cannot be enforced through a civil suit; thus, petitioners' suit was barred by S. 32 of the Act, 1940

In the present case, though the petitioners / plaintiffs pleaded that the award was partly acted upon to the extent of handing over possession of the land to them, however, they failed to prove the same through evidence as three of their witnesses, separately in their respective cross-examination, admitted many facts correct like both lands were in the possession of respondent; that both pieces of lands were waste lands and both parties had not cultivated the lands nor raised construction thereupon; and that petitioners had not an orchard nor any construction on the land

Thus, petitioners / plaintiffs failed to establish that the award was partly acted upon by handing over possession of the land

As the award had not been made rule of the court and it was not partly acted upon as pleaded by the petitioners, thus, petitioners' suit was not maintainable under S. 32 of the Act, 1940

Award was not accepted nor acted upon, partly or wholly, by the parties thereto

Thus, suit for claiming ownership of the land on the strength of the award was not competent under S. 32 of the Act, 1940

Consequently, the impugned concurrent judgments did not suffer from any error of law of S. 32 of the Act, 1940 and S. 42 of the Specific Relief Act, 1877

No illegality or infirmity had been noticed in concurrent judgments calling for any interference by the High Court in its limited revisional jurisdiction

Civil revision, filed by plaintiffs, was dismissed, in circumstances.

Claim of the plaintiffs (two in number) was concurrently dismissed on the ground that the matter regarding suit-property was already settled by the Court of competent jurisdiction

Validity

It transpired from the record that against the present petitioners / plaintiffs (cited as defendants Nos. 27 and 26 respectively in previous suit), present respondents / defendants had earlier filed a suit for declaration that they were having a right to graze their cattle in the suit property according to the Wajb-ul-Arz and entries in the revenue record mentioning the suit-property as Khud Kasht were wrong

Said dispute had already been decided and had attained finality; but the present petitioners / plaintiffs ( who were then defendants Nos. 26 and 27) again brought the same matter before the court by challenging the entries of Wajib-ul-Arz being Dhaka Charagah rather than Dhaka Rakh

Suit-property was Dhaka Charagah and not Dhaka Rakh and the entries pertaining to Khud Kasht were wrong which were rightly corrected by the court

Perusal of the previous litigation revealed that the entries to the extent of Khud Kasht in the revenue record qua khasra number 983 was challenged claiming it to be Dhaka Charagah which had already culminated into a decree in favour of the present respondents / defendants, therefore, the matter-in-issue, the parties, cause of action and parties in both the suits were the same which had been finally adjudicated and decided upon by the court of competent jurisdiction and was hit by the principle of res judicata and could not be re-opened

Petitioners failed to point out any illegality or irregularity in the impugned findings of the Courts below warranting interference of the High Court in limited revisional jurisdiction

Revision, being merit-less, was dismissed.

Wajib-ul-Arz carries presumption of truth because Wajib-ul-Arz is part of the Record of Rights, and strong, unimpeachable evidence is required to counter and rebut such entries

Grazing rights of the inhabitants of the locality were duly embodied in the Wajib-ul-Arz and no evidence had been provided from either side suggesting any changes in the consistent entries of Wajib-ul-Arz

Petitioners / plaintiffs failed to point out any illegality or irregularity in the impugned findings of the Courts below warranting interference of the High Court in limited revisional jurisdiction

Revision, being merit-less, was dismissed.

Petitioners filed a time barred application under S.12(2), C.P.C., after more than 04 decades, which was dismissed by the Trial Court, whereafter civil revision was filed by the respondent, which was accepted while remanding the application back to the Trial Court for decision afresh on merits after framing of issues

Validity

Once consent judgment/decree/order, as the case may be, has been passed by a competent court of law, then the parties cannot resile from it without any cogent and valid reasons

Consent decree operates as estoppel by judgment

When a person raises the ground of fraud or concealment to allege his claim or defend his stance, the same has to be specifically pleaded with clear particulars, which in the present case were not detailed by the respondents in their application

Framing of issues in an application under S.12(2), C.P.C., depends on the circumstances of each case, nature of alleged fraud and the decree so, obtained

Framing of issues in every case to examine the merits of the application would certainly frustrate the very purpose and object of S.12(2), C.P.C., which is to avoid protracted and time consuming litigation in order to save the genuine decree holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the courts below

Respondents had filed the application under S.12(2), CPC, after more than four long decades and that too without mentioning any specific date of knowledge therein, which was not maintainable being barred by law in terms of Art.181 of the Limitation Act, 1908

Constitutional petition was allowed, in circumstances.

Judgment-debtor/father of petitioners/ decree-holders alienated his immoveable property through gift mutations in favour of his second wife and son (step-mother and step-brother of petitioners) in order to prevent the execution of decree of maintenance

Petitioners after the death of their father instituted suit for declaration, which was decreed, however, upon appeal preferred by the respondents the decree was set aside

Validity

Disputed gift transactions subsequent to passing of order of attachment was ipso facto void and was an attempt by the judgment-debtor to deprive his minor daughters not only from decreed maintenance amount(s) by frustrating the process of law but also from their right to inherit

Under S. 17 of the Family Courts Act, 1964, the provisions of Qanun-e-Shahadat, 1984 and C.P.C. shall not apply to the proceedings before a Family Court except Ss. 10 & 11 C.P.C., and S. 13(3) of the Family Courts Act, 1964, empowers the Family Court to execute its own decree

Even S. 64, C.P.C, prohibited a private transfer or delivery of the attached property by the judgment-debtor after attachment has been made and all such transactions are void

Disputed gifts would deprive all the daughters from inheritance and the courts were not divested of the powers to scrutinize the reasons and justification of such like gifts so that no injustice could be done

Appellate Court while accepting the appeal failed to properly appreciate such legal proposition as well as the pleadings and oral/documentary evidence of contesting parties and fell in error while dismissing the suit

Judgment and decree of the appellate Court was set-aside and the judgment and decree of the trial Court was upheld

Civil revision was accepted, in circumstances.

Claim of respondents/ plaintiffs was that suit-land was in their occupancy and that petitioners/ defendants had nothing to do with the same

Plaintiffs had alleged that the names of the defendants had been entered in the column of cultivation as Dakheelkar in the record of right for the year 1976-77 and a mutation had also been attested in their name fraudulently with the connivance of revenue officials for conferment of proprietary right

Defendants refuted the claim of plaintiffs contending that mutations had been validly attested

Trial Court dismissed the suit, whereas, the Appellate Court accepted appeal of the plaintiffs

Validity

Tenancy of the defendants had not been established through any documentary evidence

Dakheelkar occupancy tenant was the only tenant who had possession upon the land about 20 years prior to promulgation of the Punjab Tenancy Act, 1887, (Act)

Witness of the defendants deposed that predecessors of the defendants migrated from Jammu and Kashmir at the time of partition of India

Defendants mentioned in their written statement that their predecessors were in possession of the suit property for the last 40/41 years, meaning thereby they were not in possession since 21st day of October, 1868

Prior to sanctioning of mutation, the particulars of the defendants did not exist in the revenue record as occupancy tenant, and even no affirmative document was produced by them, as such any entry made by the revenue officer and order passed by the Assistant Commissioner were perverse and patently illegal

Trial Court decided issue No.4 in favour of the plaintiffs but the defendants neither challenged the findings on said issue nor filed any cross objections under O.XLI, R.22, CPC, as such the said issue had attained finality against the defendants and had become past and closed transaction

Civil revision was dismissed, in circumstances, with a direction to the revenue hierarchy to consider the criteria prescribed in Ss.5 & 6 of the Act before granting proprietary right under S.2(b) of the Punjab Conferment of Proprietary Rights on Occupancy Tenants and Muqarraridars Act, 2012.

Testator can bequest his entire property to a non-heir through a will in the following cases i.e. where subject to the provision of any law for the time being in force, such excess is permitted by a valid custom; where there are no heirs of the testator; where the heirs existing at the time of the testator's death consent to such bequest after his death, and where the only heir is husband or wife and bequest of such excess does not effect his or her share

Consent given by heirs may be express or implied, it may be oral or in writing and it can also be implied from conduct

Where testator makes a bequest and on his death, other heirs help legatee in affecting a mutation in name or allow the legatee to take exclusive possession of property, it is proof of the heir's consent

There was no illegality, irregularity and mis-reading or non-reading of evidence on the part of two Courts below while passing judgments and decrees

Both the courts below while passing judgments and decrees considered every piece of evidence, oral as well as documentary, produced before them and nothing from the record was shown to have been overlooked by them from their judicious consideration

High Court in exercise of revisional jurisdiction declined to interfere in judgments and decree passed by two Courts below as their findings on question of facts and law were based upon proper appreciation of oral as well as documentary evidence produced in the suit and were not liable to be reviewed or substituted by the Court

Revision was dismissed, in circumstances.

Original allottee stated that she did not execute any general power of attorney and that the sale deeds based on that general power of attorney were forged documents and based on fraud and misrepresentation

Plaintiffs could not rebut that stance through any concrete, solid and trustworthy oral as well as documentary evidence, thus, it was proved that fraud was committed in preparing the files of the plots

General power of attorney was required to be proved by producing the alleged attorney, the scribe, witnesses as well as Sub-Registrar, who registered the said document but all these witnesses were not produced by the plaintiffs

Under Art.17 read with Art.79 of the Qanun-e-Shahadat, 1984, it was duty of the beneficiaries/plaintiffs to prove the alleged general power of attorney by producing both the marginal witnesses, whereas no marginal witness thereof was produced by plaintiffs in evidence without any reason, thus, they had failed to prove the execution of the alleged general power of attorney as per law

Best evidence of material witnesses was withheld, thus, adverse inference under Art.129(g) of Qanun-e-Shahadat, 1984, was drawn against them

Execution of general power of attorney could not be proved, thus, the subsequent transactions on the basis thereof would collapse and would have no sanctity in the eye of law

Vendor/transferor from whom plaintiffs had purchased the plots had no valid title, thus, plaintiffs being subsequent purchasers had to soar and sink with their vendor/transferor and they were debarred from claiming any better title

Plaintiffs had failed to prove the assertions made in the plaint through any unimpeachable and trustworthy evidence

Appellate Court did not consider or discuss any oral as well as documentary evidence and by committing misreading and non-reading of record passed the judgment and decree, which suffered from patent illegality and irregularity, thus, the same was set aside

Civil revision was allowed, in circumstances.

Non-mentioning of necessary details as to offer and acceptance of gift in the written statement/pleadings of the petitioners

Effect

Evidence beyond the scope of pleadings

Admissibility

Suit was dismissed by the Trial Court, however, the Appellate Court accepted the appeal of the respondent and decreed the suit

Validity

Basic ingredients of a valid gift are offer, acceptance and delivery of possession

No description of making of offer and acceptance of the same by the deceased donor had been given in the written statement of the petitioner, which were necessary to plead and prove

Same had not even been deposed during the evidence either by the petitioner or his witnesses because a party cannot lead any evidence beyond its pleadings

No illegality and irregularity as well as wrong exercise of jurisdiction was found in the findings of the Appellate Court

Civil revision was dismissed, in circumstances.

Plaintiff/predecessor-in-interest of respondents claimed to be exclusive owner in possession of the Shamilat land, as he had only executed sale deed and mutation qua his owned land without mentioning anything as to his share in the Shamilat land

Suit was dismissed, however, the appeal was accepted

Validity

Documents of sale deed and mutation did not show any entry of transfer of Shamilat land

Petitioners purchased only land but not the Shamilat

It was necessary to show in the mutation whether the transfer of land included the shares of the Shamilat

In case of selling of land without specifying Shamilat only the ownership of the land would be transferred and not the Shamilat

Civil revision was dismissed, in circumstances.

Consolidation authorities in appeal and revision, categorically advised the plaintiff to approach Civil Court for correction of entries in the revenue record

Every new entry in revenue record creates fresh cause of action and in this case recurring cause of action was available to the plaintiff

Plaintiff was in possession of the suit land as such the suit was well within time and the Civil Court had rightly adjudicated upon the matter

Pleas taken by the petitioners were repelled, accordingly.

Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed order against the defendants, however, District Court set-aside said order

Argument of the petitioner/plaintiff was that he has choice to decide which witness he shall opt to produce

Validity

Article 131 of Qanun-e-Shahadat, 1984 ('the Order 1984') empowers the court to disallow irrelevant or inadmissible evidence and to regulate the process of production of evidence

In the present case, the petitioner and his co-plaintiffs were expected to produce their own evidence in the affirmative in support of the alleged plea of oral gift and they could not be allowed to produce the opponent as a witness simply for the purpose of causing embarrassment of undergoing cross-examination by counsel for the petitioner as also by counsel for the co-defendants

If examination of any of the parties, who has not entered appearance in the witness-box, is necessary, Court can exercise its jurisdiction under O. XVI, R. 20, C.P.C., to direct any of the parties in the suit to appear in the court and give evidence or produce documents in their possession and power and the rules regulating the witnesses shall apply in such eventuality

Since no specific reason or explanation had been given for producing defendant -in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil /Trial Court and set it aside and in doing so no error of law was committed

Revision petition was dismissed, in circumstances.

Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed the order against the defendants , however, District Court set-aside the said order

Validity

As the plea of oral gift was specifically denied by the defendants/respondents in the suit, so the petitioner/plaintiff would have been expected to produce the evidence of persons who were alleged witnesses of transaction of oral gift

However, instead of producing said witnesses, the petitioner opted to produce one of the defendants as P.W. in evidence which was objected to

Petitioner/plaintiff did not claim in the plaint that the respondents/defendants were either witnesses to the alleged oral gift or they had ever acknowledged the same or that they were privy to any instrument in respect of the oral gift or were witnesses therein and, being so, propriety demanded that the petitioner and his co-plaintiffs shall in the first instance complete their oral evidence in support of their plea of oral gift and, thereafter, if the court felt that the recording of evidence of any of the defendants who had not entered appearance in the suit as a witness would be necessary or material it would not be denuded of its jurisdiction under O. XVI, Rr. 20 & 21, C.P.C., to compel the attendance of such party to record their statement

Permission to produce adversary may be accorded under O. XVI, R. 21, C.P.C., if such person was an executant of the document

Since no specific reason or explanation has been given for producing defendant -in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil/Trial Court and set it aside and in doing so no error of law was committed

Revision petition was dismissed , in circumstances.

Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed the order against the defendants, however, District Court set-aside said the order

Validity

Perusal of the order of the Civil Judge shows that it was perfunctory which was passed without application of judicial mind, as the objection was declined simply for the reason that respondent could not produce any legal precedent, not realizing that it was the duty of court to decide the points raised before it in accordance with law and this duty could not be declined to be exercised for the reason that proper assistance was wanting

District Court, after examining the whole case, observed that defendant-in-question was a rival party against whom the allegations of breach of alleged rights claimed by the petitioner/plaintiff were raised in the plaint and that having been arrayed as defendant, he could not possibly be produced as a witness of plaintiff

Since no specific reason or explanation has been given for producing defendant-in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil/Trial Court and set it aside and in doing so no error of law was committed

Revision petition was dismissed, in circumstances.

Plaintiffs made attempt to produce one of the defendants ('defendant-in-question') as a Plaintiff' Witness (P.W.); the objection against it did not sustain with the Civil Court which passed order against the defendants, however , District Court set-aside said the order

Petitioner placed reliance on the case of "Sri Awadh Kishore Singh and another v. Sri Brij Bihari Singh and others" (AIR 1993 Patna 122) to maintain that there was no provision to show that a party is debarred from examining its adversary as a witness and that the petitioner could legitimately produce defendant-in-question as a witness in the case

Validity

Though it is correct that Civil Procedure Code, 1908, (C.P.C.) does not contain any specific provision that bars the production of adversary by a party as their own witness but at the same time it is also true that there is no provision therein that permits such an exercise

Practice of summoning or producing an adversary as witness by the opposite party, in the ordinary course, has not been approved as it leads to unnecessary embarrassment for the opponent to face the cross-examination of his own counsel or the counsel of his co-defendants having common interest and, thereafter, reappear as a witness in support of their own case

Since no specific reason or explanation has been given for producing defendant -in-question as a witness by the petitioner/plaintiff, the District Court justifiably interfered with the order of the Civil /Trial Court and set it aside and in doing so no error of law was committed

Revision petition was dismissed, in circumstances.

Articles 66 & 69 of the Constitution, make it clear that Courts ought not to inquire into proceedings of Parliament and Parliamentary Privilege is accorded to Inter Parliamentary Communications; even the proceedings of a formally constituted Committee of either House falls within the ambit of internal proceedings of the Parliament, hence, outside the jurisdiction of the Court in terms of Art. 69 of the Constitution

Impugned Letter was prima facie Inter Parliamentary Communication

Plaintiff remained unable to demonstrate that High Court had any jurisdiction to entertain the pertinent relief claimed

Plaint merited rejection forthwith

Suit was dismissed accordingly.

Held, that precepts of declaratory relief are governed by S. 42 of the Specific Relief Act, 1877, and the sine qua non of seeking such a declaration is to demonstrate entitlement to a legal right

Suits seeking negative declarations are not appreciated by the Courts

No plaintiff can be permitted to seek relief in a suit which would frustrate the defendant(s) from initiating a remedy for redressal of its grievance; and a plaintiff cannot be permitted to seek an injunction against the defendant, restraining the defendant from seeking a remedy in law against the plaintiff and the plaint in such circumstances ought to be rejected

Relief under S. 42 of the Specific Relief Act, 1877 cannot be sought without demonstration of any legal entitlement, within the meaning thereof

Plaintiff had been unable to demonstrate any right to seek relief within the meaning of the statutory provision and no case had been made out to seek the negative declaration sought

Plaint merited rejection forthwith

Suit was dismissed accordingly.

Courts have the latitude to grant or deny such relief based on the merits and equity of each case.

Contention of the appellant was that he had divorced mother of respondent two years prior to birth of respondent, therefore, respondent could not be his son and in order to resolve the controversy courts below should have ordered for DNA test

Validity

Appellant did not deny respondent's paternity and he claimed that "he did not know", therefore, the court correctly drew an adverse presumption from his response

Respondent was born prior to divorce of appellant and his mother

Appellant had declined to acknowledge respondent as his child after more than 18 years

Paternity of a child born in lawful wedlock carries the presumption of truth, and it cannot be refuted by simple denial

Law inclines towards the presumption of paternity rather than illegitimacy

Child born during wedlock has the parentage of the husband

There is no need for an express acknowledgement or an affirmation

Legitimacy of a child cannot be questioned merely because of the father's claim without any evidence to substantiate the same

Appellant produced no evidence to controvert the evidence produced and relied upon by the respondent in support of his contention that he was the son of appellant

There was nothing available on record to suggest that appellant had moved either the trial or appellate courts to conduct DNA test

Resort to DNA testing may be made depending upon the facts and circumstances of the case where the evidence produced by both parties is evenly balanced that no conclusion can be drawn or where the party upon whom the onus lies has not produced any evidence

In the present case respondent had relied on documentary evidence, such as the school and educational records disclosing appellant as his father, whereas appellant could not question the paternity of respondent by asking for a DNA test, notwithstanding appellant put up such plea after more than 18 years of birth of respondent and that too before the court exercising revisional jurisdiction

Revision petition was dismissed accordingly.

When registered power of attorney by plaintiff in favour of defendant stood proved, the plaintiff should have challenged such document through filing a suit for cancellation of document under section 39 of the Specific Relief Act, 1877 and not a suit for declaration filed under section 42 of the Act

Petition was converted into an appeal and allowed.

Suit for declaration was filed by respondent/plaintiff claiming that he be declared owner of the suit plot, as the plaintiff never appointed defendants as his attorney nor he transferred the suit property in their favour through any document

Validity

Plaintiff/respondent had not specifically challenged the execution and registration of power of attorney in his pleadings when his case was that he had seen the said document in the office of City Development and Municipal Department

Further plaintiff himself produced the copy of said document as an exhibit and failed to discharge initial onus of negation of the registration of the document

It was very easy and simple for the plaintiff to get his signatures and thumb impression upon the impugned document compared with his sample signatures and thumb impressions but he had not opted to initiate this legal process

In these circumstances, when plaintiff failed to discharge initial onus, no question of shifting of onus upon the vendee/defendant or attorney arose, who had fully supported that he being validly constituted attorney of the plaintiff, sold the plot to defendant No. 3, who was initially not made party to the suit and was subsequently made party and further that defendant No. 3 sold the plot to defendant No. 1, i.e. the present petitioner

Plaintiff also failed to plead and produce evidence that why he had not raised any objection with regard to construction of house by the petitioner/defendant No.1 upon the suit plot

Trial Court had rightly dismissed the suit for declaration filed by the plaintiff/respondent

Petition was converted into an appeal and allowed, impugned judgments of revisional court as well as first appellate court were set-aside and that of Trial Court dismissing the suit was restored.

Respondents (plaintiffs) questioned transactions made in 1990 by their father after a period of almost 13 years, 7 months, and 6 days; when admittedly the respondents, who reside in Malaysia, had visited Pakistan after 1990 a number of times

Thus, reliance of the respondents on the Power of Attorney given by them to one "IH" in 1998 when the mutation entries in the name of the present appellants (defendants) had already been made in the revenue records in the year 1990, in accordance with the Power of Attorney given by the respondents to "GS" ( the late father of the appellants), appeared to be wholly unwarranted and misconceived

It was also an undeniable position that "GS" passed away in the year 1993 whereas the mutation entries were made in the year 1990 and no effort was made by the late "GS"to challenge the mutation entries in his life time

Moreover, the statement of "IH" that he came to know about the mutation entries in the year 2004 also appeared to be misconceived as admittedly the Power of Attorney was given to him by the respondents, who live abroad, in the year 1998; and it was quite strange that ever since then he made no effort to verify the mutation entries and only came to know about the same in the year 2004 when he examined the revenue record

It was also beyond comprehension that for over a decade the respondents were not aware of an alleged fabricated Power of Attorney and then sought a declaration as owners of the subject Khasras

Hence, keeping in mind such aspects, the action taken by the respondents was hit by limitation, and no lease in this regard could be given to them and thus the matter was hopelessly time barred

Appellants were declared to be the owners of the subject Khasras

Appeal was allowed and the impugned judgement and decree was set aside.

In the instant case, the impugned mutation regarding the disputed property was entered on 03.04.1984, which led the appellant to file the suit in 1998 seeking declaration of ownership, recovery of possession and permanent injunction

In the suit filed by the appellant, the reliefs for recovery of possession and permanent injunction are consequential ones, dependent on the main relief of declaration of ownership of the disputed property, which in the present case was filed after 14 years, and thus, goes clearly beyond the six-year period of limitation provided under Article 120 of the First Schedule to the Limitation Act, 1908

When the main relief of declaration of ownership is barred by time, the consequential reliefs, even if within time, would be of no legal avail

Appeal was dismissed.

Since a contract of sale does not create any right and or an interest in immovable property, therefore, suit for declaration on the basis thereof is not maintainable under S.42, the Specific Relief Act. 1877.

In case a mutation is challenged then the beneficiary is under onus to prove factum of the underlying transaction which includes payment of consideration.

Jurisdiction of the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Tribunal')

Scope

Plaintiffs were served with the eviction notices by the defendants (Provincial/District Government)

Plaintiffs, claiming themselves owners-in-possession of suit-property on the basis that their predecessor had purchased the same, filed before the Tribunal a suit for declaration which was dismissed

Said judgment had been assailed by the petitioners/ plaintiffs before the High Court

Contention of the petitioners / plaintiffs was that during the settlement the Revenue Officials had incorrectly entered suit-property in favour of the Provincial Government as Ghair Mumkin thoroughfare

Validity

Petitioners/ plaintiffs, during the trial before the Tribunal, produced the concerned Patwari who placed on record an extract from Jamabandi of relevant revenue estate for the year 1977-78 in which entries were, inter alia, shown as ownership-in-possession of the provincial government (status) being Ghair Mumkin thoroughfare

Said entries of revenue were based upon the first ever settlement of the concerned district, thus, from the very inception the suit-property was recorded in favour of respondents regarding which the petitioners/ plaintiffs had invoked jurisdiction of the Tribunal

Presumption of truth was attached with the documents (entries of Jamabandi, colourful copy of masavi and attested copy of aks-as-masavi), though the same rebuttable

Right, character and status of a person pertaining to a property could be determined (declared) in consonance with the provisions of the S.42 of the Specific Relief Act, 1877 ('the Act, 1877') when the same was denied or intended to be denied, whereas, no such declaration could be granted under provisions of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Act, 1977'), except that the Tribunal was vested with the powers to declare that any property was not a public property

Petitioners / plaintiffs could challenge the entries-in-question before the Civil Court of competent jurisdiction for proper determination and deliberation through recording of evidence and/or production of documents

Impugned judgment having been rightly passed by the Tribunal, constitutional petition was dismissed, in circumstances.

Plaintiff claimed that registered exchange deed, and subsequent mutation were illegal to the extent of certain part/share of the Khasra (Khasra-in-question)

Suit was dismissed by the Trial Court which judgment was maintained by the Appellate Court

Validity

Registered exchange deed, in the present case, was an admitted document, in consequence of which a mutation in the year 1981 was incorporated in the revenue record

Admitted facts need not to be proved

Even otherwise, the petitioners/plaintiff failed to bring on record any solid, concrete and trustworthy oral as well as documentary evidence in support of their assertions made in the plaint regarding concerned Khasra

As such the Courts below rightly passed the impugned judgments and decrees and no illegality had been committed

Revision was dismissed, in circumstances.

Registered exchange deed was executed in the year 1981 whereas the petitioners filed suit for declaration in the year 2009 after lapse of 28 years and 24 days

Under Art. 120 of the Limitation Act, 1908, the maximum period for filing the suit for declaration was six years as such the suit of the petitioners was barred by time and no convincing reason had been furnished for delayed filing of the suit

Suitors were under legal obligation to explain the delay of each and every day but no such convincing reasons of delay had been furnished to surmount the barrier of limitation in said regard, thus the non-furnishing of the explanation of delay disentitled the suitors for condonation of the delay

Revision was dismissed, in circumstances.

Suit filed by the petitioners was dismissed by the Trial Court which judgment and decree was maintained by the Appellate Court

Validity

Concurrent findings of fact against the petitioners/plaintiffs did not call for any interference by the High Court in exercise of its revisional jurisdiction

Revision filed by the plaintiffs was dismissed, in circumstances.

Held, that the petitioner/plaintiff had challenged the validity of gift-mutation in a suit for declaration which was instituted after lapse of more than thirteen (13) years, whereas under Art. 120 of the Limitation Act, 1908, the maximum period for filing such suit was six years, as such present suit was miserably time-barred

No convincing reason had been furnished for delayed filing of the suit, thus the non-furnishing of the explanation disentitled the suitor for condonation of delay whereas the suitor was under legal obligation to explain the delay of each and every day but no such requisite/ convincing reasons had been furnished in said regard

No illegality or infirmity was noticed in the impugned judgments, dismissing the suit of the petitioner/ plaintiff

Revision was dismissed, in circumstances.

Donees being minors at the time of execution of gift-mutation could not commit fraud with their father (petitioner/plaintiff), as such, onus was upon the petitioner/plaintiff to firstly describe the detail particulars of the fraud and mis-representation in his pleadings (plaint) as required under R. 4 of O. VI of Civil Procedure Code, 1908, but perusal of the contents of plaint showed that such requisite particulars of fraud or any other ingredient (mis-representation, breach of trust, undue-influence) had not been described in the plaint which was non-compliance of said provision of law

Said flaw alone dismantled the very foundation of the assertions made in the plaint and any evidence led beyond the scope of pleadings garnered no intrinsic value, rather the same were ignorable

Mere contents of the pleadings, until proved through trustworthy believable corroborative primary evidence, could not be taken as a valid proof or otherwise of controversial fact

Petitioner/plaintiff also could not produce any concrete and unimpeachable evidence in support of the fraud, as such, he had failed to prove the allegation of fraud

It was hard to believe that donees/minors, at such tender age, could commit fraud with their father, thus assertion/allegation of the petitioner/plaintiff was not believable

No illegality or infirmity was noticed in the impugned judgments, dismissing the suit of the petitioner/ plaintiff

Revision was dismissed, in circumstances.

Para 167(4) of Muhammadan Law stipulated as "once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift

Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift

Until a decree is passed, the done is entitled to use and dispose of the subject of the gift"

As per Para 155 of Muhammadan law, no transfer of possession was required in the case of a gift by a father to his minor child or by a guardian to his ward; and possession of father was the possession of the minors

No illegality or infirmity was noticed in the impugned judgments, dismissing the suit of the petitioner/plaintiff

Revision was dismissed, in circumstances.

Fraud vitiates the most solemn proceedings and thus period of limitation would not be an embargo upon a justifiable claim directed against fraud, more particularly if same involves right of a person to inheritance of the property.

No permission was sought for filing the suit afresh, therefore, the petitioners were precluded from instituting the fresh suit

Fresh suit was barred by limitation, because the fresh suit was filed after about 08 years of the withdrawal of earlier suit

Daughter (predecessor of petitioners) having died prior to death of her father was rightly excluded from the inheritance mutation as to legacy of her father, because at that time Muslim Family Laws Ordinance, 1961 had not been promulgated and enacted; therefore, no benefit of S.4 of the Ordinance ibid was available to the petitioners

Courts below had rightly appreciated and evaluated evidence of the parties and had reached a just conclusion, concurrently, that the petitioners had failed to prove their case by leading cogent, confidence inspiring and trustworthy evidence, thus, concurrent findings on record could not be disturbed in exercise of revisional jurisdiction under S.115, C.P.C.

Judgments and decrees passed by the courts below were upheld

Revision petition was dismissed accordingly.

Petitioner / plaintiff claimed to be owner in possession of suit land and sought cancellation of mutations attested in favour of respondent / defendant

Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court dismissed the same

Validity

Petitioner asserted that he was in possession of suit land but he in his statement conceded that possession of suit land was with respondent / defendant

Petitioner / plaintiff was precluded to claim decree of declaration as owner of suit land unless relief of possession was sought

Relief of declaration is an equitable and discretionary relief

Petitioner / plaintiff twisted some material facts and produced only anecdotal evidence in support thereof which made him ineligible to claim relief of declaration

Lower Appellate Court rightly interfered with judgment passed by Trial Court

High Court in exercise of revisional jurisdiction declined to interfere in the matter as petitioner / plaintiff failed to point out any illegality or material irregularity in judgment passed by Lower Appellate Court

Revision was dismissed, in circumstances.

Proof- Appellants/defendants were aggrieved of judgments and decrees passed by Trial Court and Lower Appellate Court declaring respondents/plaintiffs as owner of suit land

Validity

Unregistered deed of exchange comprising immovable property of value of more than Rupees 100/- per se was not admissible in evidence

Exchange deed was not a registered document, whereas under S. 17 of Registration Act, 1908, it was compulsorily, registerable document and without its registration, it could not be considered as a valid document

Suit for declaration on the basis of unregistered exchange deed was barred under S. 42 of Specific Relief Act, 1877

Respondents/plaintiffs did not produce marginal witnesses of exchange deed to negate execution of same without advancing any trustworthy reason in such regard

Such flaw amounted to withholding of best evidence and presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 operated against respondents/plaintiffs

No land was transferred in favor of predecessor-in-interest of appellants/defendant by predecessor-in-interest of respondents/plaintiffs, nor any document was produced by respondents/plaintiffs in such regard therefore, exchange of property in favour of predecessor-in-interest of respondents / plaintiffs was not proved

High Court in exercise of appellate jurisdiction set aside judgments and decrees passed by two Courts below as the same suffered from misreading and non-reading of evidence as well as misapplication of law and suit filed by respondents/plaintiffs was dismissed

Second appeal was allowed, in circumstances.

Suit filed by plaintiff in year 2016 was on the same subject matter in which an earlier suit filed in year 2009 was pending adjudication

Defendant / Federation of Pakistan sought rejection of plaint

Validity

Object of S. 10, C.P.C., is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue

Insertion of S. 10, C.P.C., is to avoid two parallel trials on same issues

Even if cause of action and some consequential relief prayed for is added and/or some of the issues in a former and subsequent suits may differ, that may not be a ground for non-application of S. 10, C.P.C., if it is being observed that the final decision in earlier suit may either operate as res judicata or would materially affect proceedings and trial of subsequent suit

Legislature has purposely carved out language of S. 10, C.P.C., to include all those issues which are directly and substantially in issue in previously instituted suit and does not talk about identical and similar nature of issues and reliefs

Relief claimed in subsequent suit was somehow directly and substantially linked with earlier one

Any formal or informal addition of a party having no substantial effect to proceedings and relief claimed, would not materially affect operation of S.10, C.P.C.

High Court stayed trial of the suit till decision of connected suit filed earlier in year 2009 by invoking provision of S. 10, C.P.C.

Application was disposed of accordingly.

Claim of the plaintiff was that he was owner-in-possession of suit-property which was transferred vide mutation (mutation-in-question) in the name of the defendant only with the condition that the same would be returned to him once he would return the amount borrowed from the defendant

Application for the temporary injunction filed by the plaintiff was dismissed by the Trial Court which order was maintained by the Appellate Court

Validity

Petitioner/ plaintiff, in order to substantiate his claim, himself had attached an attested copy of the mutation-in-question

Contents of the mutation-in-question revealed that there was no condition written in the same, rather the respondent/defendant had purchased the suit-property for consideration

Petitioner/plaintiff failed to make out an arguable case in his favour and balance of convenience was not in his favour; moreover, eventually, the petitioner/ plaintiff would win the case, the respondent/defendant would return the suit-property, as such he (petitioner) would not suffer irreparable loss if temporary injunction was not granted in his favour

Respondent /defendant, prima facie, seemed to be bona-fide purchaser of the suit-property

No illegality or material irregularity had been noticed in the impugned judgments and orders passed by both the Courts below while declining temporary injunction to the petitioner/plaintiff

Revision was dismissed, in circumstances.

Sale deed and exchange deed executed by plaintiffs' father was challenged on the plea that their father was unable to walk due to illness, so the defendants produced another person before the Sub-Registrar and got the disputed documents registered fraudulently, and that the Sub-Registrar did not mention their father's identity card number on the disputed documents

Validity

Neither the plaintiffs in their plaint nor any of their witnesses had alleged that the Sub-Registrar was in cahoots with the defendants

Disputed documents were registered by the Sub-Registrar/Naib Tehsildar, and he was produced as a witness by the defendants; he clearly stated in his examination-in-chief that the disputed documents were presented before him by the father himself, and he was identified by the lambardar, the statements of witnesses were recorded, and the father admitted that consideration amount had been received, and also acknowledged the exchange of land

During cross-examination, the Sub-Registrar/Naib Tehsildar admitted that the father's identity card number was not mentioned on the disputed documents, but stated that if there was no identity card number, the document was registered on the identification of a proper person, which included lambardar, councillors etc.

Plaintiffs' father was identified by the lambardar, who appeared in Court and confirmed it

Even without so, the father's identification would not have been difficult to ascertain as he was a lambardar himself, and generally the Sub-Registrar/Naib Tehsildar knows the lambardar of his area

Thus, in the given circumstances, merely on the basis of non-recording of the father's identity card number, it could not be said that any other person had appeared instead of the father at the time of registration of the disputed documents, and any fraud was committed

Since the plaintiffs, had failed to discharge their initial burden, it did not shift to the defendants to prove the transactions

Defendants not only produced all the witnesses to the disputed documents, the identifier, and the Sub-Registrar, but also produced all their records from the custody of the Record-Keeper before the Trial Court and from the statements of all of them, the transactions recorded in the disputed documents were proved

Suits for declaration filed by the plaintiffs were rightly dismissed by the Trial Court and the First Appellate Court

Appeals were allowed and impugned judgments and decrees of High Court were set-aside.

Through a declaration in civil matters claimed under section 42 of the Specific Relief Act, 1877, a pre-existing right can be declared, but a new right cannot be created by grant of a decree by the civil court.

Donee is/are bound to prove the factum of oral gift.

Section 42 of the Specific Relief Act, 1877, provides that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right of property.

Unregistered agreements allegedly executed by one of the defendants in favour of another defendant and that defendant in favour of the father of plaintiff did not per se create any interest in the property much less any title to it

Agreement did not create right of ownership in the suit land rather it only created right to seek specific performance of the terms and conditions of the agreement

Sections 17 & 49 of the Registration Act, 1908, required that any document purporting to create any right, title or interest in a property of the value more than one hundred rupees required compulsory registration

Transfer of immovable property by way of sale could only be through a deed of conveyance (duly stamped and registered as required by law)

Contract of sale which was not registered deed of conveyance (deed of sale) fell short of the requirement of Ss.54 & 55 of Transfer of Property Act, 1882 and did not confer any title, nor transfer any interest in the immovable property

Claim of plaintiff was based on an unregistered sale deed, which did not confer any title in the suit property

Suit for declaration of title on the basis of purported agreements filed by the plaintiff was not maintainable

Judgment and decree passed by Appellate Court warranted no interference

Revision petition was dismissed.

Subject of partition, demarcation and eviction of unauthorized land owner is regulated by S. 135 of Balochistan Land Revenue Act, 1967 (' the Act 1967') read with Rr. 67-A & 67-B of the Land Revenues Rules, 1968 ('the Rules 1968')

Provisions of S. 117 of the Act 1967 authorizes Revenue Officer to define the limit of any estate or any land on application of any interested person and to define limit of boundaries for ascertaining whether or not any outsider has encroached the property of the applicant and as a result such proceedings, a land owner, if found in wrongful possession of land can be evicted on an application

Rule 67-B of the Rules 1968, provides a specific procedure for seeking eviction of an encroacher

In a matter of demarcation of boundaries of agriculture land, jurisdiction of Civil Court is barred under S. 172(2)(xiii) of the Balochistan Land Revenue Act, 1967 ('the Act 1967'), but in case where a claim is laid for declaration, permanent injunction and possession of area demarcated by the Revenue Authorities and found encroached by someone, a suit must lie before Civil Court.

Land of both the private parties were adjacent to each other and construction of bypass road by the Government resulted into dispute between them

Both the (private) parties filed separate suits for declaration, inter alia that the other respective party be declared as tress-passer/land-grabber and the respondent/Government be directed to forthwith carry out a survey and to demarcate the subject-property

Civil Court consolidated both suits, however, returned both the plaints under O. VII, R. 10 of Civil Procedure Code, 1908, for want of jurisdiction under S. 172 of the Land Revenue Act, 1967

Only the appellants challenged the impugned order before the High Court whereas the respondents (other private party ) supported the same

Validity

Pleadings of both the parties revealed that they had not challenged the property having been recorded in their respective names in the revenue record, but their main claim hinged on the controversy that some portion of their property fell in the construction of the road, therefore, the appellants through declaration under S. 42 of the Specific Relief Act, 1877, had actually sought relief of new right of demarcation

In case of controversies between the parties with regard to demarcation of boundaries of agricultural land, Civil Court had no jurisdiction unless demarcation of area had already been conducted by the Revenue Authorities under the provision of S. 117 of the Land Revenue Act, 1967 read with Rr. 67-A & 67-B of the Land Revenue Rules, 1968

Through a declaration in civil matter claimed under S. 42 of the Specific Relief Act, 1877, a pre-existing right could be declared, but a new right could not be created by grant of a decree by the Civil Court

Where a claim of encroachment over his property was made by a person against the adjacent owner, his remedy laid before the Revenue Authorities for demarcation of land under Rr. 67-A & 68-B of the Land Revenue Rules, 1968, and in the said respect, the Revenue Officer had ample powers under S. 117 of the Act 1967 to define the boundaries

In the present case, neither any demarcation took place prior to institution of the suit, nor the appellants had taken any step to the said effect

There was no dispute between the parties with regard to title of the properties recorded in the revenue record

Both properties were adjacent to each other and both parties had raised claim that portion of their property fell in the construction of road made by the Government without specifying the encroached area

Title documents relied upon by the appellant showed his ownership, which right had not been denied by the respondent

Pleadings of the parties made clear that matter of demarcation of boundaries of the agricultural land had been raised by the appellants which fell in the domain of Revenue Authorities and jurisdiction of Civil Court was explicitly barred under S. 172(2)(xiii) of the Land Revenue Act, 1967

No interference in the impugned order of returning the plaints was made out by the High Court

First regular appeal was dismissed, in circumstances.

Subject of partition, demarcation and eviction of unauthorized land owner is regulated by S. 135 of Balochistan Land Revenue Act, 1967 (' the Act 1967') read with Rr. 67-A & 67-B of the Land Revenues Rules, 1968 ('the Rules 1968')

Provisions of S. 117 of the Act 1967 authorizes Revenue Officer to define the limit of any estate or any land on application of any interested person and to define limit of boundaries for ascertaining whether or not any outsider has encroached the property of the applicant and as a result such proceedings, a land owner, if found in wrongful possession of land can be evicted on an application

Rule 67-B of the Rules 1968, provides a specific procedure for seeking eviction of an encroacher

In a matter of demarcation of boundaries of agriculture land, jurisdiction of Civil Court is barred under S. 172(2)(xiii) of the Balochistan Land Revenue Act, 1967 ('the Act 1967'), but in case where a claim is laid for declaration, permanent injunction and possession of area demarcated by the Revenue Authorities and found encroached by someone, a suit must lie before Civil Court.

Land of both the private parties were adjacent to each other and construction of bypass road by the Government resulted into dispute between them

Both the (private) parties filed separate suits for declaration, inter alia that the other respective party be declared as tress-passer/land-grabber and the respondent/Government be directed to forthwith carry out a survey and to demarcate the subject-property

Civil Court consolidated both suits, however, returned both the plaints under O. VII, R. 10 of Civil Procedure Code, 1908, for want of jurisdiction under S. 172 of the Land Revenue Act, 1967

Only the appellants challenged the impugned order before the High Court whereas the respondents (other private party ) supported the same

Validity

Pleadings of both the parties revealed that they had not challenged the property having been recorded in their respective names in the revenue record, but their main claim hinged on the controversy that some portion of their property fell in the construction of the road, therefore, the appellants through declaration under S. 42 of the Specific Relief Act, 1877, had actually sought relief of new right of demarcation

In case of controversies between the parties with regard to demarcation of boundaries of agricultural land, Civil Court had no jurisdiction unless demarcation of area had already been conducted by the Revenue Authorities under the provision of S. 117 of the Land Revenue Act, 1967 read with Rr. 67-A & 67-B of the Land Revenue Rules, 1968

Through a declaration in civil matter claimed under S. 42 of the Specific Relief Act, 1877, a pre-existing right could be declared, but a new right could not be created by grant of a decree by the Civil Court

Where a claim of encroachment over his property was made by a person against the adjacent owner, his remedy laid before the Revenue Authorities for demarcation of land under Rr. 67-A & 68-B of the Land Revenue Rules, 1968, and in the said respect, the Revenue Officer had ample powers under S. 117 of the Act 1967 to define the boundaries

In the present case, neither any demarcation took place prior to institution of the suit, nor the appellants had taken any step to the said effect

There was no dispute between the parties with regard to title of the properties recorded in the revenue record

Both properties were adjacent to each other and both parties had raised claim that portion of their property fell in the construction of road made by the Government without specifying the encroached area

Title documents relied upon by the appellant showed his ownership, which right had not been denied by the respondent

Pleadings of the parties made clear that matter of demarcation of boundaries of the agricultural land had been raised by the appellants which fell in the domain of Revenue Authorities and jurisdiction of Civil Court was explicitly barred under S. 172(2)(xiii) of the Land Revenue Act, 1967

No interference in the impugned order of returning the plaints was made out by the High Court

First regular appeal was dismissed, in circumstances.