Suit for declaration of title

2017 YLRN 145 Gilgit-Baltistan Chief Court Judicial Precedent

S. 42Suit for declaration of titleDismissal of suitValiditySuit land was government landMere possession of any of the party on the suit land did not confer any titleImpugned judgments passed by the Courts below were result of correct appreciation of law and evidence of the parties

Revision was dismissed in circumstances.

2016 CLC 1079 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 42Civil Procedure Code (V of 1908), O.II, R.2Limitation Act (IX of 1908), Art.91Suit for declaration of titleFrame of suitCause of actionBar of suitLimitationScopeSuit of plaintiff was rejected on ground that it was barred by limitation as well as under R.2 of O.II, C.P.C.

Contention of plaintiff was that Trial Court had failed to appreciate that previous suit filed by plaintiff was in respect of a different cause of action, hence the provisions of O.II, R.2, C.P.C. and that of Art.91 of Limitation Act, 1908 were not applicable and suit was not barred under S.42 of Specific Relief Act, 1877 for the reason that suit was filed only when it came to the knowledge of plaintiff that some construction was being done on the said property (land)

Defendant's plea was that defendant being an owner of plot which had no concern with the property in dispute since plaintiff had earlier filed a suit in respect of said property, therefore, a subsequent suit seeking declaration in respect of same cause of action was barred under O.II, R.2, C.P.C.

Held, that since cause of action for filing present suit arose only when it transpired that area in question of plot had included areas of other plots, bar of O.II, R.2, C.P.C., would not be applicable

When suit was filed, the question that whether the other plot was carved out after allegedly encroaching upon the areas of other plots had not arisen and no relief in that regard could have been sought by plaintiff and with regard to objection that suit was time barred

High Court observed that construction work was already started and plaintiff got knowledge about such fact in year 2012

Period of limitation would start from thereon and not from the date of site plan dated 20-6-1998 through which existence of plot was being claimed

Plaintiff could have presumed that for some reason area of plot in question included some area of other plot or it had been carved out after bifurcating and or encroaching his plot until construction started and counting from date of such knowledge about construction, suit was within period of limitation

For purpose of limitation, date of cause of action as averred in plaint was to be looked into wherein it had been categorically accrued that only when construction was started on plot somewhere in year 2012 and it came to knowledge of plaintiff that plot had been carved out by allegedly encroaching upon area of other plot, hence, plaint could not have been rejected on the point of limitation as suit was filed immediately in the year 2012

Impugned order of Trial Court was set aside and case was remanded to Trial Court

Appeal was allowed accordingly.

2015 CLD 1749 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 19 & 22Specific Relief Act (I of 1877), Ss. 42 & 43Execution of decreeSuit for declaration of titleScopeAppellant was decree holder and during execution proceedings property in question was attached by Banking CourtObjector claimed her owner of ,the property on the basis of compromise decree passed in her favourBanking Court allowed objection and property in question was deleted from Fard-Taleeqa

Plea raised by decree holder was that decree in favour of objector was not binding as decree holder was not party to proceedings before Civil Court

Validity

Declaratory decree passed under S.42 of Specific Relief Act, 1877, could declare a pre­existing right and did not create or confer a new right, when creation of rights of decree holder in suit property was never denied

Procuring a decree without impleading decree holder as defendant in suit and without proving a right against decree holder for which declaration was sought, such decree was not binding upon decree holder

Decree in question could not injure rights of decree holder in property in question, -as claim of objector was wholly based upon ex parte declaratory decree

High Court set aside objection petition filed by objector

Appeal was allowed in circumstances.

2014 MLD 1237 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.42Qanun-e-Shahadat (10 of 1984), Art. 64Civil Procedure Code (V of 1908), O.XLI, R.27Production of additional evidenceScopeSuit for declaration of titleInheritance

Plaintiff's sought declaration to the effect that they were the legal heirs of the original deceased owner of the suit property, along with the defendants, and were entitled to a share in the deceased's property

Suit was dismissed concurrently

Validity

Plaintiffs had made application under O.XLI, R.27, C.P.C. to place on record the passport of the original owner of the suit property, and it was clear that the entries on said passport had been subsequently made

Said documents were inadmissible at the belated stage as the same were not offered at trial stage or the first appellate stage

Oral evidence regarding proof of the plaintiffs' relationship with the deceased predecessor-in-interest of the defendants had not been established

Plaintiffs in accordance with Art. 64 of the Qanun-e-Shahadat, 1984 had not produced the witnesses who were personally known them and the witnesses were not of the area in which the predecessor resided

One witness was the material uncle of the plaintiffs while the other was also an interest witness and their statements, thus, could not be relied upon

No documentary evidence had been produced by the plaintiffs and they were not parties to the previous round of litigation in relation to the suit property

No illegality was found in the findings of the courts below

Revision was dismissed.

2013 MLD 111 PESHAWAR-HIGH-COURT Judicial Precedent

S. 42Suit for declaration of titleRevenue recordLongstanding entriesPresumptionSuit for declaration of title was decreed by Trial Court but was dismissed by Appellate CourtValidity

Perusal of record revealed that the plaintiffs had based their claims on oral evidence which was neither convincing nor cogent to substantiate their claim

According to the revenue record, suit land was in name of the defendants right from the first settlement record

Such longstanding entries in the revenue record could not be disturbed since presumption of truth was attached to them

No defect was found in the judgment of Appellate Court

Revision petition was dismissed, in circumstances.

2013 MLD 108 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Suit for declaration of title

Plaintiff was the real sister of the defendant and had challenged the mutation of tamleek of the suit land in favour of the defendant

Defendant assailed the findings of the Appellate Court in favour of the plaintiff

Validity

When any transaction on behalf of a sister in favour of a brother in shape of relinquishment of a right of inheritance or transfer of property received in inheritance by a sister was challenged before a court by the alleged donor, and when the plaintiff made statement on oath before the court about the invalidity of such a transaction, then the onus to prove such a transaction as a valid one, shifted on the side which was the beneficiary of the said transaction

Defendant, being beneficiary of impugned transaction was bound under law to prove not only the mutation, but independent of the impugned mutation, was bound to prove the alleged gift in his favour by proving the ingredients of gift which were offer, acceptance and delivery of possession

Defendant not only failed to establish the transaction of gift independent of the mutation but also failed to establish the offer, acceptance and delivery of possession of the suit land

High Court declined to Interfere with the findings of appellate court

Revision was dismissed.

2013 CLC 499 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Specific Relief Act (1 of 1877), S.42Suit for declaration of titleLimitationFraud, plea ofEffect

When mutations challenged in suit otherwise proved to be result of fraud and forgery, question of limitation cannot be pressed into service to put use as a shield.

2013 CLC 1561 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XXIII, R.3 & S.12(2)Suit for declaration of titleDecree on basis of compromise without including one or more defendants in the suit

Defendant/applicant sought setting aside of compromise decree under S.12(2), C.P.C. on the ground that he was not party to said compromise but was party to the suit

Validity

When admitted position was that defendant/applicant was not party to the compromise application, it would be appropriate to set aside compromise decree against the defendant/applicant

High Court directed that suit may proceed against defendant/ applicant in accordance with law and the area which was in possession of the defendant / applicant shall not form part of the compromise decree between the other parties.