Suit for declaration and possession

Brief facts were that the petitioner filed a suit for declaration and recovery of possession regarding suit property i.e. shop claiming it was allotted in his name during a municipal survey, while respondent No. 1 (petitioner's/ plaintiff's real brother) was allotted adjoining shop

Both the Trial court and the appellate court dismissed his suit, prompting him to institute the present civil revision

The record showed that the municipal corporation confirmed the allotment of suit property in the petitioner's/plaintiff's name, whereas the dispute between the brothers centered on who held the genuine entitlement to the suit property/shop

Core issue for determination before the High Court was as to "Whether, under S.42 of the Specific Relief Act, 1877, the petitioner/plaintiff could lawfully be declared entitled to suit property/shop and recover possession when the allotment stood in his name which fact was not denied by the municipal authority, but was disputed by his brother claiming benami allotment"?

Held: It was evident from the written statement filed by respondents Nos.1 and 2 that there was an admission regarding allotment in the name of petitioner/plaintiff

Allotment in the name of petitioner/plaintiff had not been denied but a specific plea was taken that petitioner was "benami" allottee and respondent/defendant in alternate spent money and got him a shop but did not bother to prove his plea taken in the written statement

Both the courts below failed to read the pleadings as well as evidence of parties and also failed to apply Art.113 of Qanun-e-Shahadat, 1984 which provided that "admitted facts need not to be proved"

It was clear from the record that the petitioner/plaintiff was the allottee of the suit property/shop

Both the courts below failed to interpret and evaluate the words "title" and "entitle" in its true perspective while judging the case between two competitors i.e. petitioner and respondent No.1

While doing so, both the courts below mis-interpreted the said expressions due to which petitioner was non-suited

Respective allotments in favour of petitioner and respondent No.1 were their entitlement and right and equated title as they could sell/transfer their allotment rights to any person by definitely informing the City District Government which was owner of the suit property

Judgments and decrees passed by both the courts below were result of mis-reading and non-reading of record and were not sustainable in the eye of law and same were set aside

Suit filed by the petitioner for declaration and possession was decreed

Present civil revision petition was partially allowed, in circumstances.

By no stretch of imagination an immoveable property could be allotted to any person while same still existed in name of some other person in the official record

Brief facts were that the petitioner/plaintiff filed a suit for declaration and possession of land along with mesne profits claiming that the land, originally owned by government, was granted to him by the barrage department in 1984 under the land grant policy, with relevant documents such as A-Form and Qabooliyat issued in his favour, whereas, the respondent/defendant denied petitioner's claim and asserted that the land had already been granted to his father in 1979-1980, supported by original title documents

The Trial Court dismissed the suit, and the appellate court upheld the Trial Court's decision, where after, the petitioner/plaintiff filed present civil revision under S.115 C.P.C.

Held: During the course of evidence the petitioner/plaintiff could not produce original order of grant in respect of the suit land issued by the barrage department in 1984

Perusal of official record revealed that the land in question was already granted to father of respondent/defendant No.1 which was not cancelled, therefore, it was clear that the said grant made in favor of father of the respondent/defendant No.1 was still intact when the suit land was allegedly granted to the petitioner/plaintiff

The original order of grant in favor of petitioner was never brought on record

On the other hand, respondent/defendant No.1 produced original title documents

In this view of the matter it was apparent that the grant made in favor of respondent/defendant's father was prior to the alleged grant in favor of petitioner/plaintiff

The claim of the applicant / plaintiff over subject property related to the year 1984 i.e. subsequent to the grant of land in favour of father of respondent/defendant No.1 in the year 1979-1980, thus, the same was apparently unlawful

By no stretch of imagination an immoveable property could be allotted and / or granted to any person while the same still existed in the name of some other person in the relevant record

Although original order of grant was not produced by the petitioner/plaintiff, even then if it was presumed that the land was granted by the concerned department in favour of the applicant / plaintiff in the year 1984, the same was not in consonance with the settled law and by such grant the respondent/defendant No.1 could not be deprived of his legitimate right as the grant made in favour of his father was still intact and effective when the alleged grant of land was made in favour of the petitioner/plaintiff

Civil revision petition was dismissed, in circumstances.

Petitioners could not prove their possessory title on the disputed land through purchase and failed to establish that respondents had no possessory title

Petitioners and their witnesses admitted the possession of respondents on the disputed land, therefore, they even failed to prove their possessory title

Petitioners did not offer any explanation, why they purchased the disputed land without receiving its physical or constructive possession

It is an established principle that 'potior est condition possidentis' (the condition of actual possessor is stronger)

Where both the parties are equally at fault, then law will favour the party who is in possession, thus, petitioners had no cause of action for seeking declaration and perpetual injunction against the respondents

Petitioners had intentionally concealed the possession of respondents on the disputed land and the existence of the decision of a religious scholar in their plaint

Remedy of declaration and injunction are equitable in origin and discretionary in nature and remain so despite statutory confirmation in Ss.42 & 54 of the Specific Relief Act, 1877 (Act)

One who seeks declaration and/or injunction in his favour must come to the court with clean hands

Petitioners had not come to the Trial Court with clean hands and concealed the material facts from the Trial Court, thus, they were not entitled to the equitable remedy and discretionary reliefs under Ss.42 & 54 of the Act

Petitioners were not in possession of the disputed land, thus, they could not have sought perpetual injunction against the respondents

Petitioners had not even pleaded their dispossession from the disputed land by the respondents and they had not sought the relief of possession and cancellation of contract in their plaint

Furthermore subordinate Courts had also decided issue of court fee against the petitioners and they had not met the deficiency of court fee either before the Trial Court or before the Appellate Court

Civil Revision was dismissed, in circumstances.

Plaintiff in relevant para of the plaint had categorically illuminated that a few days ago on scrutiny of revenue record she came to know about the registration of gift deed in question, whereas the appellant/defendant on rebuttal of said para simply stated that suit was against law, procedure, facts, without entitlement and jurisdiction, and did not utter any word regarding knowledge of the plaintiff, hence it would be deemed that he admitted the claim of the plaintiff that she came to know about the said gift- deed few days prior to institution of suit because the evasive denial would be deemed as an admission

Even otherwise the plaintiff assailed the gift-deed on the basis of fraud and in case of fraud limitation would run from the date of knowledge

Second appeal filed by the defendant/ brother was dismissed, in circumstances.

Plaintiffs filed a suit for declaration, possession and mesne profits with a prayer that they were legal heirs of the owner of property and the defendant being in distress after his migration had obtained the property on rent but had subsequently got the suit property transferred in his name

Trial Court dismissed the suit whereas Appellate Court decreed the suit

Validity

Plaintiffs never had any title document in the name of their predecessor in interest

If the predecessor of plaintiffs had let out the property to the defendant then the proceedings were to be initiated under the law relating to landlord-tenant so as to seek ejectment of defendant

Suit was time barred as the pleadings suggested that the cause of action accrued in 1967 when the property was purportedly purchased by the predecessor of plaintiffs, whereas the suit was filed in 1992

Revision application was allowed, judgment passed by Appellate Court was set aside and that of Trial Court was maintained.

Plaintiff sought declaration with possession of her share in the suit land and claimed 1/9th share from the legacy of her father

Trial Court partially decreed the suit and held that she was entitled to 1/11th share

Appellate Court dismissed the appeal filed by defendants

Validity

Plaintiff was entitled to receive 1/11th share from the whole legacy left behind by her father but the plaintiff had relinquished her claim in the properties held by the children of her deceased brother and had also effected compromise with another share holder, therefore, her share in the suit land had fallen and reduced to 1/22nd

Impugned judgments warranted interference of Chief Court to the extent of declaration in favour of plaintiff

Revision petition was partially accepted.

Revision petition was dismissed, in circumstances.

Petitioner, who was not impleaded in the suit instituted by the respondent/plaintiff, filed application under S.12(2) of Civil Procedure Code, 1908, contending that under the garb of decree , her owned/possessed property was intended to be taken from her

Trial Court dismissed the application under S.12(2), C.P.C, without framing issues and adducing the evidence

Held, that property owned by the petitioner was not the subject matter of the suit filed by the respondent/plaintiff, thus there was no decree against the petitioner's property

Record revealed that in the suit-in-question , no decree for partition was passed on the basis of which the specific portion of the property was to be handed over to the decree-holder

Decree for declaration, in the present case, was to the extent of shares in the joint property and in terms of O.XXI R.35(2) of Civil Procedure Code, 1908, only symbolic possession would be handed over to the decree-holder

Contention of the petitioner could not be treated as one under S.12(2), C.P.C, instead she had a remedy under the provisions of O.XXI, Rr.99, 100 & 101 Civil Procedure Code, 1908 under which she, being a bona fide claimant, could approach to the Executing Court by contending that no decree had been passed regarding her property

In case of possession from joint property, the mode of possession would be symbolic (by affixing a copy the warrant in some conspicuous place on the property etc.) under O.XXI, R.35(2), C.P.C

Property of the petitioner was not the subject matter in the suit-in-question, then there was no case of either fraud or misrepresentation of fact

No illegality or infirmity was found in the impugned judgments and orders passed by both the Courts below

Constitutional petition was dismissed in limine.

Contention of plaintiff was that she was owner of suit property and sale agreement in favour of defendant was forged and fabricated

Suit was decreed concurrently holding that documents relied upon by the defendant were forged and fabricated

Validity

No specific issue with regard to limitation had been framed

Matter of limitation was mixed question of law and fact

No bar of limitation had been found in the case

Contentions of defendant were not supported by record

Plaintiff was an earlier valid title holder of suit property

No further right was available to be given as claimed by the defendant

Alleged sale agreement had not been proved on behalf of defendant

Revision was dismissed, in circumstances.

Plaintiff filed suit for declaration and recovery of possession of the suit land on the basis of allotment order issued by the revenue authorities in his favour

Provincial Government, being custodian of the state land, had also filed written statement wherein it had admitted the allotment in favour of the plaintiff

Plaintiff had proved his case by producing cogent reliable oral as well as documentary evidence and the defendants had failed to rebut the same by producing reliable evidence

Courts below had passed the impugned judgment and decrees after proper appreciation of the material available on record

Revision petition was dismissed.

Trial Court rejected the plaint/suit on ground of maintainability on the application filed by the respondent (defendant)under O. VII, R. 11 of Civil Procedure Code, 1908

Contention of the petitioner/plaintiff that he had transferred the suit-land by way of gift in the name of his son (who later suffered from mental illness and passed away) for the purpose of getting loan from the bank by mortgaging the suit-land; and during the mortgage period the respondent had illegally purchased suit-land from his son

Validity

Record revealed that the installment of the loan had been paid by the petitioner to the bank; and that when mutation-in-question came to his knowledge, he submitted an application to the concerned Collector regarding illegal transfer of his land in the name of respondent

Collector appointed the Tehsildar for conducting an inquiry in the matter, who reported that mutation-in-question was illegal and was required to be cancelled to protect the interest of bank

During mortgage period the disputed property could not be sold-out

Contents/averments made in the plaint as well as impugned judgments/decrees passed by both the Courts below, transpired that no single ground for rejection of plaint as stipulated under O. VII, R. 11 of Civil Procedure Code, 1908 was available

Petitioner had been able to make out prima facie case in his favour and both the Courts below had committed material irregularity and illegality while rejecting his suit under O.VII, R.11 of C.P.C.

Chief Court set aside impugned judgments/decrees passed by both the Courts below and remanded the case back to the Trial Court to decide the case on merits

Revision was allowed, in circumstances.

Contention of applicant was that he was not party to the suit and compromise decree had been obtained through fraud and misrepresentation

Petition for setting aside of compromise decree was dismissed concurrently

Validity

Petitioner had appeared before the Trial Court as a witness in the suit in which compromise decree had been passed

Applicant was well aware with regard to pendency of suit between the parties and he had not filed an application for his impleadment in the said suit

Witnesses of petitioner had not substantiated his claim as they had not uttered a single word with regard to fraud and misrepresentation

Petitioner had failed to prove any misrepresentation or fraud on the part of respondents in obtaining impugned decree

Petitioner had not filed copies of pleadings and documents with the revision petition therefore, same was not maintainable

No mis-reading or non-reading of evidence had been pointed out in the impugned orders passed by the Courts below

Concurrent findings of facts rendered by the Courts below were based on proper appreciation of evidence

Revision was dismissed, in circumstances.

Points raised in the petition for rejection of plaint were not discernible from the same and had been mentioned only in the written statement

Documents placed on file on behalf of defendants for rejection of plaint could not be relied at such stage of proceedings

Petition for rejection of plaint was dismissed, in circumstances.

Government had illegally cancelled the allotment in favour of Development Authority on account of non-payment of entire price and dues

Government had resumed land regarding which bona fide third party interests had been created in due course of time

If Development Authority was defaulter in payment of entire occupancy price then Government should take action under the law against the same but bona fide purchasers could not be penalized

Government could not resume subject land and Development Authority was entitled to transfer proprietary rights to the plaintiffs in accordance with law and after fulfilling codal formalities

Plaintiffs were entitled for the possession of their respective plots as per their allotment orders

Suit was decreed, in circumstances.

Contention of plaintiff was that he was owner of suit property which was temporarily handed over to the defendant for his residence

Suit was dismissed concurrently

Validity

Suit property had been delivered to the parties after its partition

Plaintiff had failed to prove his case by adducing cogent and unimpeachable evidence

Defendant had proved his version through reliable and unimpeachable evidence

Courts below had properly evaluated evidence of the parties and arrived at a right and just conclusion

No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed in circumstances.

Contention of plaintiffs was that they had obtained suit property through gift deed from its owner but defendants were in possession of the said land

Trial Court decreed the suit to the extent of declaration but relief of possession was refused

Appellate Court dismissed the entire suit

High Court restored the judgment of Trial Court with the modification that plaintiffs were entitled to their respective shares in the Shamilat Deh land but possession of land in question should be obtained through partition

Validity

Both the contesting parties of the suit were landowners in the village and had got common legal right and interest in the Shamilat Deh land

Civil Court could not grant declaratory decree of Shamilat Deh land nor decree of specific possession

High Court had restored the decree of the Trial Court with the condition that plaintiffs were entitled to their respective share in the Shamilat Deh land and possession through partition according to law

Conclusion drawn by the High Court was in accordance with law

Appeal was dismissed, in circumstances.

Principal of attorney had not authorized him to refer the matter to the arbitrator or enter into compromise with the defendants

Attorney should have sought permission from the principal for such act, in circumstances

Act of attorney in absence of any such permission was misrepresentation and it had element of fraud

Purported award was not only undated but it also did not contain the names and signatures of arbitrators

Terms of said award could not be enforced, in circumstances

When parties to the suit had agreed that matter in question should be referred to arbitration then they might, before announcement of judgment, apply to the Court in writing for an order of reference

Where parties to the suit had agreed or consented to refer the matter to arbitration, Court could refer the same to arbitrator and specify the time for making the award

Parties who had agreed to refer matter to arbitrator would be bound by such award

Reference to arbitration and an award in the pending suit without intervention of the Court would be nullity and such award could not be made rule of the Court

Presumption could not be attached to the document more than thirty years old when defendant had denied the same

Parties should prove said document in accordance with law

Presumption of truth was attached to the revenue entries unless rebutted through cogent evidence

Longstanding impugned mutation in favour of a party could not be disturbed due to presumption of truth attached to such entries

Impugned mutation was not challenged by the vendor in his lifetime and defendants had no locus standi to assail the same

Possession was an incident of ownership and it could be transferred by the owner of an immovable property to another

Possession would be important when there was no title document and other relevant record

Once a document and record of title came before the Court then it was the title which had to be taken into consideration

Possession on suit property could not be considered in vacuum

Mere longstanding possession would not be good against the rightful owner and the assumption that he was in peaceful possession would not work and could not operate against the true lawful owner

Plaintiffs were owners of suit property and they had sought relief of possession

Evidence produced by defendants spoke about possession which could not work against the plaintiffs

Plaintiffs had adopted due course of law by filing suit for possession

Defendants while filing written statement had denied the title of plaintiffs and raised question of limitation

Limitation would run from the date when written statement was filed by the defendants, in circumstances

Defendants had no title document to continue their possession

Revision was dismissed, in circumstances.

Burden of proof did lie on the shoulders of the person who desired any Court to give judgment as to any legal right or liability dependent on the existence of fact which he had asserted

Plaintiffs were bound to prove as to how defendants were in peaceful possession on the suit land which they had failed to discharge

Defendants had proved that they were bona fide vendees of suit property

Attestation of mutation in column of tenancy or ownership was official responsibility of revenue officials

If any person had permanently acquired ownership rights in a land then his name was to be entered in column of ownership through attestation of mutation

If a sale was incorporated and sale mutation was attested in column of tenancy then it would not affect the sale or rights of vendee in the said land

Acts performed by public authorities deserved due regard by the Court

Presumption of regularity was attached to the official acts

Sale effected in column of tenancy could not be given any other meaning except a permanent transfer of ownership in immovable property

No illegality or irregularity had been pointed out in the impugned judgments passed by the Courts below

Revision was dismissed, in circumstances.

In the present case, even encroachment allegedly made by the defendant was not identifiable from the pleadings or evidence of the plaintiff

Revision was dismissed, in circumstances.

Suit filed by the plaintiff-wife was dismissed whereas that of defendant-husband was decreed by the Trial Court but Appellate Court decreed the suit of wife and dismissed that of defendant

Validity

Burden of proving fraud was on the party who had alleged the same

Fraud and forgery must be proved by producing unimpeachable, impartial and confidence-inspiring evidence

Mere allegations in the pleadings could not partake proof required under the law

Transactions for transfer of properties in the record of Capital Development Authority in accordance with procedure for such transfer between family members should be given due sanctity

Any family member who was a party to such transfer assailing such transaction on the ground of fraud or forgery must come with cogent and unimpeachable evidence to be successful in his endeavor

Plaintiff in her evidence had not given any particulars of fraud allegedly played on her by her husband for transfer of suit property from her name

Nothing was on record that signatures for transfer of suit property in favour of defendant were forgeries

Plaintiff did not make effort to have her signatures on the documents in question forensically examined in order to prove that same were forged

Plaintiff had failed to impeach the transaction as to transfer of suit house from her name to that of defendant on ground of fraud

Defendant-husband was owner of suit property

Impugned judgment and decree passed by the Appellate Court were not sustainable, in circumstances

Suit for declaration was dismissed whereas that of possession was decreed, in circumstances

Revision was allowed accordingly.

Suit was dismissed on the ground that Civil Court had no powers to entertain disputes with regard to correction of entries in the revenue record

Validity

Dispute with regard to correction of revenue record did fall within the exclusive competence of revenue department

Courts below had rightly held that a civil Court had no jurisdiction to adjudicate upon with regard to the matter of correction of revenue record

Findings recorded by the Courts below were in accordance with law

Appeal was dismissed in circumstances.

Plaintiff filed suit for declaration and possession of land wherein she claimed that defendants had illegally and in an unauthorized manner occupied the suit land

Trial Court restrained the defendants from alienating the suit property, however, allowed them to raise construction thereon

Appellate Court set aside the order passed by Trial Court and directed the parties to maintain status quo

Plea of revenue department was that suit land was owned by government and that defendant was not entitled to construct residential house thereon

Validity

Issuance of injunction subject to condition, being a matter of discretion of Trial Court, could not have been interfered with unless condition attached was arbitrary or not in consonance with attending circumstances of the case

Land revenue department had neither filed appeal nor cross-objections in the Appellate Court against the order of Trial Court, therefore, it was estopped by its conduct and admission to challenge the order passed by Trial Court

Order passed by Appellate Court was set aside and that of Trial Court was maintained

Revision petition was accepted accordingly.

Placement of documents on record would not serve the purpose rather their execution was to be proved by evidence as required

Onus to prove the document would be on the person who relied upon the same

Law required to prove not only the document through evidence but also its contents if denied

Proof of signature on the questioned document was mandatory

If document had created financial liability then production of at least two marginal witnesses to prove its execution was necessary

Marginal witnesses should not only identify their signatures but they should witness the execution of document, passing of consideration and signing of document by the parties

Mere signature or thumb impression on a deed was not sufficient to prove its execution

If a party who relied on the document failed to meet with the criteria then said document would not be considered to be proved to shift the onus on other party

Beneficiary of agreement had to establish its execution as required

Two marginal witnesses, author of agreement, stamp vendor and attesting witnesses or the persons who witnessed the transaction were to be produced by the vendee

In the present case, only one marginal witness of the agreement had been produced by the defendant

Findings recorded by the Courts were based on mere presumptions

Agreement which was basic document had not been proved

Instrument if pertained to some financial obligation and rendered in writing should have been attested by two witnesses

Defendant being beneficiary of transaction was bound to establish a legal transaction but he could not succeed

Impugned judgments and decrees were set aside and suit was decreed

Defendant being illegal occupant was directed to hand over vacant possession of suit property to the plaintiff

Revision was allowed in circumstances.

Petitioners/defendants contended that mother of plaintiff/ respondent in her lifetime gave her share to her sister/mother of the defendant through gift deed which document was not challenged in any court

Plaintiff/ respondent contended that alleged gift deed was never a gift deed even in its form and that after demise of his mother, defendant took possession of whole of suit property

Validity

Suit property was undisputedly in ownership of real mother of plaintiff, once it was admitted, the petitioners/ defendants were duty bound to prove that the same came in their possession as a result of a valid gift as averred in their written statement

Burden of proof shifted to petitioners/defendants in the light of averments of parawise written statement

Counsel for petitioners/defendants had conceded that burden of proof was shifted to the defendants, so, the sole question for determination was whether there was sufficient evidence in proof of the alleged transfer of suit property to the petitioner through a valid gift

Perusal of gift deed exhibited by defendants showed that word hibbah had not been used therein

Exhibited document was written in Persian and was a private document

Petitioners/defendants were legally bound to prove the said document in strict accordance with the relevant provisions of Qanun-e-Shahadat, 1984 governing proof of private document

Exhibited document contained names of the marginal witnesses thereto as well as the name of scribe of the same, but neither contained any signature of the marginal witnesses thereto nor the signature of the scribe

Article 79 read with Art. 17(2) of Qanun-e-Shahadat, 1984, governed the procedure of proof of a document similar to that of exhibited document

In case of non-availability of witnesses to a document, proviso to Art. 71 of Qanun-e-Shahadat, 1984 was attracted

Petitioners/defendants did not adduce any evidence in the light of said provisions of law, therefore, failed to prove the exhibited document

Petitioners had produced two witnesses who had stated with reference to what they had heard from a person who was not a marginal witness, such witness was not convincing

Impugned judgment of first Appellate Court was not result of any misreading of evidence, nor that court committed any other material irregularity in coming to the conclusion reflected in the impugned judgment

Revision was dismissed accordingly.

Neither the contents of plaint had been discussed nor the nature of suit and the relief prayed for had been considered by the courts below

Suit had been dismissed merely confining the same to the extent of correction of revenue record which was not a proper course of law

Courts below could have properly appreciated the averments of the plaint as a whole and thereafter draw the proper conclusion

Plaintiff had attributed some acts of tampering with record to the officials of revenue department and had also prayed for declaratory decree as well as decree for possession

Suit could not be dismissed merely on the ground that one of the remedy prayed for in the plaint could not be granted while ignoring the others

Matter of remedies had to be resolved by the Trial Court at the time of final disposal of suit as to which of the remedy had to be granted or refused

Suit could not be dismissed while picking one of the remedies out of several, if others were permissible under law

Party aggrieved by the entries in the revenue record could file declaratory suit

Jurisdiction of Civil Court was barred in certain matters which were specifically enumerated in S. 172 of Land Revenue, 1967

Suit for declaration with regard to adverse entries in the revenue record could competently be filed by an aggrieved person in a Court of competent civil jurisdiction

Impugned judgments and decrees passed by the courts below were set aside and case was remanded to the Trial Court for conducting proceedings according to law

Appeal was disposed of in circumstances.

Defendants could not agitate new plea either before the Appellate Court or before the High Court to defeat the verdict of Trial Court

Appellate Court was bound to set out the points for determination and decide the appeal with specific reasons in view of said points after due consideration of evidence and documents produced by the parties

Provisions of O.XLI, Rr.30 & 31, C.P.C. were mandatory in nature and its deviation would be utter violation of law

Appellate Court had failed to appreciate the evidence adduced by the parties

Short order passed by the Appellate Court without setting the points for determination and discussing merits in view of the evidence was devoid of any legal substance and the same was not sustainable under the law

Both the parties had adduced their evidence and had produced all the relevant documents

Material illegality had been committed by the Appellate Court while passing the impugned short order which being devoid of legal substance was set aside by High Court

Judgment and decree passed by the Trial Court was maintained to the extent of restoration of possession only, while findings of Trial Court to the extent of mesne profits and compensation under S.35-A, C.P.C. were set aside

Revision was disposed of accordingly.

First appeal before Additional District Judge was accepted and judgment/decree passed by the Civil Judge was set aside and case was remanded to the Civil Judge for fresh determination of the rival claims of the parties

Parties filed separate appeals before the Additional District Judge, whereby appeal filed by the plaintiff was accepted and that of defendant dismissed

Chief Court maintained the judgment and order passed by District Judge

Judgment passed by First Appellate Court as well as impugned judgment passed by Chief Court, were well founded

Petition for leave to appeal was converted into appeal by the Supreme Appellate Court and was dismissed

Trial Court was required to hear and decide the case on its merits expeditiously within a period of three months.

Suit was filed on the basis of gift and as alternative their shari share which was decreed by the Trial Court to the extent of 4/7th share

Appeal against the judgment of Trial Court was dismissed by appellate court and revision was also dismissed by the Chief Court

Validity

Factum of gift had been admitted

Defendants/petitioners, could not point out any illegality and infirmity in the impugned judgment passed by the Chief Court

Petition for leave to appeal was converted into appeal by the Supreme Appellate Court and dismissed

Judgment of the Chief Court was maintained.

Contention of appellant that due to the inadvertent mistake of his counsel the appeal had been filed before the District Court (wrong forum) instead of the High Court

Validity

Such mistaken advice of a counsel, even if unintentional, simpliciter did not constitute a sufficient cause in terms of S. 5 of the Limitation Act, 1908, instead there had to be cogent reasons, clearly spelt out and proved on the record, for such purpose

Mere pendency of an appeal before the wrong forum especially when no sufficient cause had been made out shall not be a ground per se or simpliciter for condonation of delay

Application for condonation of delay filed in the present case contained a mere narration of the facts leading up to the filing of the appeal before the wrong forum (District Court), and there were no plausible reasons or justifications given for the filing of such appeal before the wrong forum, apart from a feeble assertion that "the delay for filing the Regular First Appeal was not intentional" on the part of the appellant

Besides case record showed that the memorandum of appeal was ordered to be returned on 23.6.1994 but the appellant never approached the District Court (wrong forum) for receiving the same within reasonable time rather, after considerable lapse of time of about 18 months, it was received on 2.1.1996

No explanation was provided for such delay, i.e. 18 months and 10 days

Appellant had never claimed that after the order of return of the memorandum of appeal he approached the District Court (wrong forum) promptly and it was the (District) Court which delayed the return of the memorandum of appeal

No sufficient cause for delay in filing the appeal had been made out in the present case

Appeal was dismissed accordingly.

Essential requirement to the validity of a gift was that the donor should divest himself completely of all ownership and dominion over the subject of gift

Gift would be null and void if donor continued to exercise any act of ownership over the subject matter of gift

No gift existed in the present case

Plaintiffs had not relinquished their control over the suit property or for that matter subject of the gift

No limitation would run on account of permissive possession

Plaintiffs had succeeded to prove their ownership with regard to suit land

Defendants had failed to prove the factum of oral gift in their favour

Both the courts below had rightly appreciated the case

Children of the area were getting their education in the suit premises and plaintiffs were entitled for compensation for which no prayer had been made

Court had power to grant an effective or ancillary relief even not prayed for

Court was not precluded to mould relief in view of the changed facts and circumstances of the case to shorten litigation between the parties

Education department was directed to go for amicable settlement with the plaintiffs and give them compensation in accordance with the market value of suit property or straightaway go for acquisition of land in question

Revision was dismissed in circumstances.

Plaintiffs had failed to prove the gift and their exclusive possession on the suit property through documentary as well as oral evidence

Defendants were owners in possession of disputed property

Registered sale deed had been properly executed in favour of defendants

Defendants had purchased the suit shop from a co-sharer and had also become co-sharer in the joint property

Co-sharer could not file a suit for declaration and possession against the other co-sharer but only a suit for partition could be filed

No misreading or non-reading of material evidence had been pointed out in the impugned judgments passed by both the courts below

Both the courts below had meticulously examined the entire evidence of the parties

No infirmity, legal or factual had been pointed out in the impugned judgments

Revision was dismissed in limine.

Defendant had taken the plea that he along with the plaintiff had purchased the suit property commonly/jointly and then partitioned the same, and as result of said partition, the suit property had fallen in his share

Burden of proof was on the defendant that the suit property fell in his share after the partition

Suit property was comprised of landed property as well as buildings, while the averments of the written statement and evidence produced in support thereof was regarding the house only

Defendant's evidence, both documentary and oral, had shown that the suit property fell in the share of the plaintiff except the house; nevertheless, the courts below had not decreed the suit to the extent of that part of the suit property

All the defendant's witnesses were not the direct witnesses of any partition

No evidence was available on the record to show any joint purchase of the suit property or any part thereof by the parties

Peculiar circumstances of the case demanded for placing the documentary evidence of the parties in juxtaposition

Courts below had baselessly rejected the plaintiff's documentary evidence, on basis of which the plaintiff had proved that he himself had purchased the suit property

Courts below had failed to correctly read the evidence of the parties

Chief Court setting aside impugned judgments of both the courts below, decreed the suit

Revision was allowed in circumstances.

Plaintiffs, sought declaration to the effect that they were owners of total land measuring 21 kanals and 2 marlas by way of two gift deeds executed in their favour

Plaintiffs had alleged that defendant/respondent had taken possession of 4 kanals and 10 marlas out of said land; and claimed that plaintiffs were entitled for possession of said 4 kanals and 10 marlas of land

Defendant contested the suit and pleaded that disputed land measuring 4 kanals and 10 marlas had devolved on him from his mother

Trial Court decreed the suit and, Appellate Court set aside decree passed by the Trial Court and dismissed the suit filed by the plaintiffs

Validity

Question before the Chief Court being pure question of fact, parties had no objection, if the second appeal, was converted into civil revision

Title of the defendant to the suit land measuring 4 kanals and 10 marlas was not disputed as he was real son of the donor

Burden of proof shifted to the plaintiffs to prove that they had obtained the suit land through the said two gift deeds allegedly executed in their favour

Marginal witnesses of said two gifts deeds had died, and the scribe of the same, though was living, but he had appeared as defendant's witness; and had given statement in proof of gift-deed executed in respect of defendant regarding disputed 4 kanals and 10 marlas

Donor of the gift-deeds in favour of the plaintiffs, did not accept gift in favour of the plaintiffs as correct document; and instead had challenged the same in the Trial Court

Gift deed in favour of the plaintiffs could not be accepted as a correct and genuine document

Trial Court had given findings on issue, partly in favour of the plaintiffs, and partly against them, but they did not challenge the said finding in the appellate court which had attained finality, in circumstances

Trial Court had passed a vague decree and did not pass any decree for recovery of possession of the suit land, while in the prayer of the suit, the plaintiffs had very specifically prayed for possession thereof

Appellate Court had rightly set aside the judgment and decree of the Trial Court

Impugned judgment/ order of the Appellate Court was upheld, in circumstances.

One of the sisters was living in the house of her husband, while other sister/petitioner was residing with his late brother

Hereditament of the deceased, remained with the petitioner (sister) who was residing with her brother

Other sister of the deceased having died, after death of her brother

Legal heirs of said sister had filed suit for declaration and possession, claiming legal share out of the hereditament of deceased brother of their mother

Petitioners in his written statement denied legal right of the plaintiffs with the specific contention of the gift made by her late brother in respect of his legacy

Civil Court had concluded that plaintiffs were entitled to the decree partially (to the extent of cancellation of some mutations and de-suited the plaintiffs in regard to their prayer "declaration cum possession" of the disputed land)

Petitioners, re-iterated the plea of gift in favour one of the sister by her late brother and referred the document and the statements of the marginal witnesses

Said document was the photocopy, which was not admissible under Qanun-e-Shahadat, 1984

Document, in question, even if was original paper, could not be relied upon as it was un-registered

Executor of said document was Muslim and under Islamic Law he was bound to execute a 'will' in respect of 1/3rd of his estate

Document, (gift) in circumstances was void under Islamic Law

Petitioners, had failed to persuade the court to grant leave to appeal

Petition was dismissed.

Respondents, during pendency of suit, filed application under O.I, R.10(2) & O.VI, R.17, C.P.C., for amendment of pleadings and impleading of party; which application having been allowed, petitioners filed revision petition against said order, which was dismissed

Petitioners availed writ jurisdiction of Chief Court against the concurrent findings of Civil Judge and Additional District Judge

Chief Court dismissed writ petition

Validity

Held, concurrent findings of courts below need not to be interfered as all the impugned orders were in accordance with law, having no material irregularity

Liberal view was to be taken to allow applications under O.VI, R.17 and O.I, R.10(2), C.P.C.; unless said amendments might change the nature of the suits or would create new cause of action

Petitioners had failed to establish that amendment sought, could create a new cause of action in the suit; or it could change nature of the suit altogether

Points raised by the petitioners being devoid of substance, leave to appeal was refused accordingly.

Contention of the plaintiff was that she being the sister of the father of defendants, was entitled to get possession of her sharie share from the defendants

Plaintiff having passed away during pendency of the suit, her legal heirs were arrayed as plaintiffs

Trial Court de-suited the plaintiff's holding that defendants had proved that plaintiff (deceased) had given her sharie share to father of the defendants vide gift-deed

Appellate court below accepted appeal and decreed the suit in favour of plaintiffs

Chief Court dismissed the revision against order of Appellate Court below

Validity

Trial Court was not justified in law by relying on a document/gift-deed, which was neither original nor registered; by dint of such document a co-sharer lady could not be ousted from her share, unless it was proved that she had transferred her share without any reasonable doubt or undue influence

Unless a solid proof was available on record that a pardanasheen lady had withdrawn from her share without any coercive and undue influence, she could not be deprived of her legal share

Father of the defendant/brother of the plaintiff, being male was in a position to have undue influence over the plaintiff/his sister and to compel her not to claim her share and might also use unfair means to deprive his sister from her share

Plaintiff (sister) was not excluded by any custom prevailing at the relevant time when her father died

Plea of custom, unless proved beyond any shadow of doubt with solid evidence being acted upon for time immemorial in a particular area, could not be a pretext to deprive a female co-sharer from her sharie share

Petition for leave to appeal dismissed with costs, in circumstances.

Contention of defendant was that at the relevant time Mulsim Personal Law was not applicable in Gilgit-Baltistan and females were not getting their share from inherited property under prevailing customs and usage

Plaintiff, in circumstances, had no right from the legacy of her father and brothers

Validity

Chief Court had rightly admitted the claim of the plaintiff to be based on the Sharia laws and that right of inheritance given to a Muslim female in Holy Quran, could not be taken away by any law, authority, custom and usage

Extinguishment of such right was not recognized in Islam; notwithstanding the application of such rights under the custom, the Muslim female, would be entitled to inherit the property in accordance with the law of Sharia and the custom

Custom was contrary to the Injunctions of Islam

Judgment by the Chief Court, was well reasoned and no illegality and infirmity had been pointed out which called for interference by the Supreme Appellate Court.

Plaintiff filed suit contending that the suit land was rented out by her father to the father of the defendant through agreement deed in his life time; that father of the defendant paid rent Rs.2 per month as stipulated in the rent agreement; that suit land was retained by the defendant as legal heir of her father after his demise; that defendant not only had denied to pay the rent to the plaintiff, but also let the land on rent to another person; that plaintiff being legal heir of her deceased father, claimed rent from the defendant and demanded to vacate the land, as she had defaulted by sub-letting the suit land and by denying to pay the rent to the plaintiff

Defendant, rejected the claim of plaintiff, posing herself owner of suit land

Defendant denied the ownership of the plaintiff with the plea that suit land was gifted to her father by the father of the plaintiff in his life time; that her father remained in possession of suit land as donee; that after his death she was in possession of suit land as owner, being the legal heir of the donee

Trial Court decreed the suit filed by the plaintiff and judgment of the Trial Court was upheld by the appellate court, in appeal

Concurrent findings of two courts below, were upheld by Chief Court in revision

Defendant had filed petition for leave to appeal, which was also dismissed by the Supreme Appellate Court, converting the same into appeal and defendant had filed review petition

Validity

No legal infirmity was noticed in the concurrent findings, as the counsel for defendant, could not explain any legal error by the courts below and no appeal before the Supreme Appellate Court was competent, unless defendant/appellant would refer a vital legal question floating on the face of the impugned judgment, oversighted by the courts below

Plea of misconceiving or misunderstanding of facts of the case by the lower courts, was hardly a ground before Supreme Appellate Court

Defendant having admitted the initial ownership of the father of the plaintiff, could not be the owner of the suit land, unless she would prove plea of alleged gift in favour of her father

Defendant failed to prove the issue in regard to alleged gift; no single documentary or oral evidence, was available on the record of the case to prove the plea of gift

Plea of non-payment of the rent by the defendant to the plaintiff, had no substance; as "once a tenant, always a tenant"

Tenant could not claim the ownership over the rented property

Ownership, was needed to be proved otherwise

Rent deed filed by the plaintiff, being more than 30 years old, was admissible in evidence, which proved relationship of tenant and owners between the parties

Possession of the defendant over the suit land was permissive and constructive possession lay with the plaintiff being the legal heir of the owner/her father and no limitation would run in favour of the defendant

When it was proved that the defendant was in possession of the suit land as tenant, question could be raised that, the matter was triable by the Rent Controller under Rent Restriction Ordinance, 1959 for ejectment of the tenant

Supreme Appellate Court observed that point, though had not been taken in appeal, but there being point of limitation touching the jurisdiction, same needed to be discussed accordingly for future guidance of lower courts; that in a simple case for ejectment of tenant, Rent Controller under the Rent Restriction Ordinance, 1959 had exclusive jurisdiction to entertain the matter and the general jurisdiction of the civil courts, was barred by the special law, but when a person would claim himself owner of the disputed property and were denied relationship of tenant and owner and would make the title disputed, civil courts, would have jurisdiction to determine the title between the parties

Petition for review was dismissed being meritless and concurrent findings of the lower courts were maintained.

Plaintiff instituted civil suit claiming the possession of the suit land as being the sole owner of the legacy of his mother with further prayer of cancellation of mutation in respect of suit property, which allegedly was got sanctioned by the defendant in his name illegally, fraudulently and in connivance with the Revenue staff

Claim of the plaintiff was that suit property devolved upon him as being the sole legal heir of his deceased mother and that the defendant in connivance with the revenue staff got entire mutation sanctioned in his favour to deprive the plaintiff of his valuable right of which he had become the sole legal owner of his ancestral property

Claim of the defendant was that mother of the plaintiff had gifted out half of the share of her property in the name of father of the defendant in his life time and since then he was in peaceful and uninterrupted possession of the same

Defendant, who could not bring any evidence on the record in support of his assertion, had conceded that he had no witness to produce before the court to prove the factum of gift allegedly made by the mother of the plaintiff in her life time

Defendant had admitted that there was no such documentary evidence in that regard

Defendant, in circumstances, had failed to prove the factum of gift claimed by him, which was very basis of his claim

Trial Court as well as the first Appellate Court, without reverting to the real controversy between the parties, dismissed the suit of the plaintiff

Chief Court, setting aside concurrent judgment and decree passed by the courts below, decreed the suit

Validity

Mere sanction of mutation, would not confer any title on a party relying upon the same

Beneficiary of mutation was under legal obligation to prove the same through cogent and convincing evidence

Defendant failed to prove that the mutation in question (as claimed by him) was the result of compromise effected by the parties before entering and sanctioning the mutation

Marginal witness to the mutation, conceded that he was absolutely ignorant as to what was mentioned in the mutation

Both the Trial Court and Appellate Court below, were not justified in law to rely upon the witness while dismissing the suit of the plaintiff

Chief Court had ample powers in its revisional jurisdiction to interfere in the judgments of both the courts below, when the courts had passed the judgment in disregard to the material evidence

Purpose of revisional jurisdiction was always correction of irregularities and illegalities committed by the courts below in exercise of their jurisdiction

Such jurisdiction was meant to correct the error , and to see the material irregularities; and Chief Court was quite competent to make such orders in the case as it deemed fit

Trial Court as well as the first Appellate Court failed to read the evidence on the record in its true perspective to reach a just conclusion

Powers of revisional jurisdiction vested in the Chief Court, having been exercised by the Chief Court justly, fairly and in accordance with law appeal was dismissed, in circumstances.

Applicant had neither been personally served in the suit nor she had knowledge about its pendency and she had never given any power-of-attorney to the alleged attorney

Impugned judgment and decree passed on the basis of compromise was the result of fraud and misrepresentation and same was rightly set aside by the courts below

Respondent had failed to point out any illegality or irregularity in the concurrent findings of the courts below which had neither exercised jurisdiction not vested in them nor had failed to exercise jurisdiction so vested nor had acted illegally or with material irregularity

Judgments and decrees of both the courts below were well-founded and needed no interference by the High Court

Revision was dismissed in limine.

Plaintiff's own two witnesses had deposed that plaintiff's predecessor died in year 1971 and that plaintiff came to know about suit mutation after one year of death of his predecessor

Plaintiff would be bound by statements of his own witnesses

Stance taken by plaintiff during his evidence that his father died in year 1967 i.e. prior to attestation of suit mutation, was contradictory to such statements of his own witnesses

Plaintiff despite being aware about suit mutation had instituted suit in year 1986 i.e. after 18 years of date of its attestion

Plaintiff's predecessor during his life time had not challenged suit mutation

Defendant by examining Naib Tehsildar and witnesses of mutation had proved signatures of plaintiff's predecessor thereon

Plaintiff had failed to prove suit mutation to be illegal and collusive and that his predecessor had died prior to its attestation

Suit was dismissed in circumstances.

Second appeal would lie only when some misreading or non-reading of evidence or record was shown or judgment was arbitrary, capricious and contrary to law

No illegality or irregularity having been pointed out in the impugned judgments, second appeal was dismissed.

Evidence on record showed that plaintiff had not come to her village in year 1987, rather at time of attestation of suit mutation, she was staying with her husband in another District, where he was posted

Plaintiff's husband had corroborated such statement of plaintiff by deposing that after marriage, she had never come to her village

Defendant's special attorney had shown complete ignorance about visits of plaintiff to her village

As per plaintiff's statement, she came to know about suit mutation when she checked revenue record

Suit was within time from date of plaintiff's knowledge in circumstances.

Plaint was rejected concurrently on the ground that an earlier suit filed by the plaintiff on the same subject matter had been dismissed

Validity

Plaintiff had filed an earlier suit which was dismissed on merits and thereafter plaintiff filed the present suit on the same cause of action after six years, which was hit by principle of res judicata

Court, while considering an application under O. VII, Rule 11, C.P.C. had to examine the plaint and also could look into and examine the undisputed and admitted material that may be made available by the parties on record

Plaint was rightly rejected

Revision was dismissed.

Suit for' declaration and possession with the averments that Mill in which plaintiff was serving was closed in 1974 and in the year 1986 said Mill and Colony were devolved upon Finance Department

Plaint showed that houses of Colony and Bungalows were allotted to the dwellers, but plaintiff was deprived of such facility and instead he was forcibly dispossesed though he was paying rent regularly to the Government

Plaintiff claimed that on his application, house in question- was allotted to hint, but another person succeeded 111 getting house in question allotted in his name in 1991 and that suit filed by him against said allotment was dismissed and appeal was also dismissed by the Appellate Court

Validity

House in question earlier was allotted to plaintiff by Section Officer who had no power to make allotment under Government Servants Benevolent Fund Ordinance, 1960 and Rules made there under

Both Courts below, in circumstances had rightly repelled claim of plaintiff

Plaintiff was serving as Supervisor in the Mill, but he was fighting for a Bungalow constructed over 8000 Sq ft. to which he was not entitled

Revisional jurisdiction being discretionary, could not be exercised in favour of plaintiff as it would tantamount to perpetual illegalities.