Suit for declaration and perpetual injunction

2024 PLD 5 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 172Specific Relief Act (I of 1877), Ss. 42 & 54Suit for declaration and perpetual injunctionCorrection of entries in revenue recordJurisdiction of Civil Court barredScope

Suit-land is entered as crown land and under S. 172 of the West Pakistan Land Revenue Act, 1967, the jurisdiction of Civil Courts, in a matter which falls within the jurisdiction of Revenue Officer, has been barred

Under S. 172(2)(vi) of the West Pakistan Land Revenue Act, 1967, the Civil Court shall not exercise jurisdiction over any matter regarding correction of any entry in the record of right, periodical record and register of mutations

Plaint of the plaintiff was rightly rejected under O. VI, R. 11 of the Civil Procedure Code, 1908

Writ petition filed by the plaintiff was dismissed, in circumstances.

2024 PLD 5 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 42 & 54Suit for declaration and perpetual injunctionPerpetual injunction, refusal ofPossession of the plaintiff, absence of

Plaintiff was not in possession of the suit-land, hence a decree for perpetual injunction could also not be issued in his favour because for granting decree for perpetual injunction, it is necessary to establish that plaintiff is in possession of the suit-land as being legal owner, and in absence of such stance a suit for perpetual injunction cannot be decreed

Plaint of the plaintiff was rightly rejected under O. VI, R. 11 of the Civil Procedure Code, 1908

Writ petition filed by the plaintiff was dismissed, in circumstances.

2023 MLD 1460 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

O. VII, R. 11Suit for declaration and perpetual injunctionRejection of plaintScopeAppellant filed suit seeking declaration to be sole owner of the suit land

Appellant in his plaint admitted that the original owner of land in question sold the same to three persons through a sale deed

Said sale-deed was pre-empted by appellant and predecessor of respondents

Suit was decreed on the basis of compromise between the parties and both appellant and predecessor of respondents were declared to be entitled to get 5 kanal each, hence appellant could not claim being sole owner of 10 kanal land which was pre-empted by appellant as well as predecessor of respondents

Thus, there existed zero probability that appellant could get required decree because even if claim of appellant that he had paid the whole consideration amount and expended huge money during litigation for the same land was deemed to be correct even then appellant could not be declared owner of land and respondents who were lawful owners of land in view of the decree could not be prohibited to enjoy the fruits of their land, therefore, both the Courts below had accurately rejected the suit under O. VII, R. 11, C.P.C.

Appeal was dismissed.

2022 MLD 1565 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

Ss.42 & 54Suit for declaration and perpetual injunctionCo-sharer of property, rights ofScope

Plaintiff filed suit for declaration and perpetual injunction alleging therein that she was owner in possession of the suit land; that her house on the suit land was turned into debris in an earthquake and that her real brothers (defendants) were inclined to snatch the suit land

Trial Court decreed the suit

Appellate Court endorsed the decree of the Trial Court to the extent of grant of relief by way of perpetual injunction and dismissed the suit to the extent of declaratory relief

Validity

Parties were admittedly co-sharers and possession of co-sharers over the portion of undivided property was deemed on the part of all the co-sharers

Proper course in such eventuality was to seek partition of the undivided property

Pronouncement of Appellate Court pertaining to dismissal of the suit to the extent of declaratory decree was in consonance with law

Appeal was dismissed.

2019 YLR 1287 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 42 & 54Suit for declaration and perpetual injunctionShamilat land, purchase ofScopePlaintiff filed suit for declaration, perpetual injunction and recovery of damages

Plaintiff claimed that he was owner in possession of property including shamilat, while defendants had no concern with the same

Plea of defendants was that they had purchased property through mutations and unregistered deeds

Trial Court decreed the suit of plaintiff and Appellate Court while accepting the appeal dismissed the suit

Validity

Parties were in unison that defendant had pre-empted certain transactions in the disputed shamilat

Courts below had ignored the fact that plaintiff was recorded as joint owner in the column of cultivation because entries in the column of ownership in shamilat property was only made when a person purchased any property along with share in shamilat

Purchase of any property without purchasing share in shamilat was alien to the principle that person belonging to non-proprietary body could not be given same status as a person belonging to proprietary body of the village, who inherited his ownership rights

High Court declared the plaintiff to be co-sharer along with defendant

Judgments and decrees passed by courts below were modified accordingly.

2019 CLC 840 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 42 & 54Suit for declaration and perpetual injunctionMutations challenged on grounds of fraud, forgery and misrepresentation

Plea of plaintiff that the mutations were entered into the revenue record at a time when he was in prison in connection with a First Information Report (FIR)

Held, that plaintiff during recording of his evidence did not appear to have brought any material on the record to establish that he was actually behind bars when impugned mutations were effected and/or entered into the revenue record

Indeed, plaintiff had not tendered any documentary evidence through his statement

Certified copies of mutations were submitted by the plaintiff through the statement of his counsel, who also submitted a copy of an FIR, and some ancillary documents

However, the FIR and its supporting documents were not admitted into evidence as exhibits but were only marked as Mark-A and Mark-B

In such circumstances, the factum as to whether the plaintiff was indeed behind bars at the relevant time became questionable

Revision petition was allowed in circumstances.

2018 SCMR 1199 SUPREME-COURT Judicial Precedent

Ss. 42 & 54Suit for declaration and perpetual injunctionCommon land/pathwayProprietary rights through exclusive usage

Question as to whether a pathway or a galli, in an Abadi Deh was a common land for the use of the village community or whether, exclusive usage of the pathway or galli over the years by respondents (certain residents of Abadi Deh) granted them possessory and, as a result, proprietary rights over the said pathway; held, that subject pathway was described as an Abadi Dehor "inhabited site of a village" as per the Record of Rights

Said pathway according to the Khaka Tasweri was connected to other pathways or gallis in the village and ran along the mosque and other houses and ended as a cul de sac at the house of the respondents

In the absence of any proof of exclusive possession of the pathway by the respondents, mere usage of a common pathway by the respondents did not amount to possession

Pathways formed part of the commons and were to be used by everyone in the village, unless of course, the residents (or respondents in the present case) had through any means denied access of the pathway over the years to other residents of the village, thereby establishing exclusivity of possession

Khaka Tasweeri showed that the pathway was connected to other pathways in the village and was a communal pathway just like the other pathways in the village, therefore, the argument that the respondents enjoyed exclusive possession of the pathway was not supported by any tangible evidence

Furthermore a special attorney of respondent had made a statement before the court that the said pathway was built up by the relevant Municipal Authority, which also underlined the public character of the pathway and affirmed that it was part of the commons/shamilat

Suit filed by respondents was rightly dismissed by the lower Appellate Court

Appeal was allowed accordingly.

2016 CLC 248 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), S.12(2)Suit for declaration and perpetual injunctionFraud and misrepresentation, proof ofGeneral power of attorneyScopeArbitration agreement beyond power of attorneyPermissibility

Plaintiffs application under S.12(2) of C.P.C. and suit for declaration and perpetual injunction, were dismissed by both trial and appellate courts

Plaintiffs claimed that predecessor of defendants, being general power of attorney of their predecessor, had fraudulently and through misrepresentation transferred suit land in favour of his brother by obtaining decree on basis of arbitration award

Contention raised by plaintiffs was that said attorney was not empowered to enter into any arbitration agreement

Validity

All transactions, that were arbitration proceedings, announcement of award and making of award rule of court, were based on registered general power of attorney

Even if said power of attorney was admitted to be correct, attorney had not been given power to enter into any type of arbitration to dispose of suit property

Agreement for referring matter to arbitrator, award and filing of petition had been made on same day, which was sufficient to show fraud and misrepresentation on part of predecessor of defendants

Fraud vitiated even most solemn proceedings or order

General or special attorney could not go beyond scope of terms of power of attorney

General power of attorney, in order to transfer suit and in favour of his own brother, had to obtain permission from principal, predecessor of plaintiffs, which was missing in the present case

Courts below did not peruse record, particularly power of attorney, which was basis of all subsequent misdeeds and frauds

Appellate court, instead of appreciating and evaluating record, had dismissed appeal in very summary and slipshod manner, which was not warranted by law

Appellate court was expected to correct irregularities and illegalities committed by trial court

High Court, setting aside impugned judgment and decree along with all transactions conducted on basis of general power of attorney with regard to suit land, decreed the suit

Revision petition was allowed in circumstance.

2015 GBLR 376 SUPREME-APPELLATE-COURT Judicial Precedent

Ss. 42 & 54Suit for declaration and perpetual injunction

Plaintiff had claimed that property (subject matter of the suit) was allotted to him vide allotment order by the competent authority and he was in possession of the same

Petitioners/defendants opposed the suit, contending that only two fields of land measuring about 24 kanals had been allotted to the plaintiff, but he had encroached pasture of village measuring about 200 kanals

Defendants, at the very outset abandoned all other points raised in their petition, but pressed the single point and urged that the plaintiff had encroached a huge chunk of land measuring 200 kanals belonging either to the inhabitants of village or to the Provincial Government as shamilat-e-deh

Point raised by the defendants/petitioners, was devoid of legal substance for the reasons; that counsel for the defendants had himself conceded that no land of the defendants had been encroached by the plaintiff, defendants, in circumstances, had no locus standi to ask the courts of law to make an order of ejectment of the plaintiff from excess land, if any in his possession; that no suit had been filed by the defendants to get decree of possession of the plaintiff from any land allegedly encroached by the plaintiff, no decree of dispossession/ejectment against the plaintiff and in favour of the defendants could be passed; even if, it was proved that the plaintiff was encroacher of the land; and that alleged encroached land in possession of the plaintiff belonged, either to the Provincial Government, or to the inhabitants of the village

Defendants, were neither representative of the people of the village, nor they represented the Provincial Government

Defendants had failed to point out any important legal aspect against the impugned judgment

Petition for grant of leave to appeal, was refused, in circumstances.

2015 GBLR 346 SUPREME-APPELLATE-COURT Judicial Precedent

Ss. 42 & 54Civil Procedure Code (V of 1908), S.9, O.VI, R.17 & O.VII, R. 11-Co-operative Societies Act (VII of 1925), Ss.54, 70 & 70-ASuit for declaration and perpetual injunctionRejection of plaint

Defendants filed application under O. VII, R. 11, C.P.C., for rejection of plaint on the ground that under Ss. 54, 70 & 70-A, Co-operative Societies Act, 1925 and S. 9, C.P.C., the civil court had no jurisdiction to entertain cases against Registrar Co-operative Societies and Co-operative Banks in the cases/disputes pertaining to the business of society

Trial Court dismissed the plaint/suit of the plaintiff

Plaintiff being aggrieved by said order, appealed to the Chief Court, which in absence of the defendants accepted the appeal, and remanded the case to the Trial Court

Defendants' contention was that order/judgment be set aside as the same was passed on the basis of misconception of law

Validity

Judgment of the Trial Court, was well reasoned and well founded

No infirmity and illegality had been pointed out by the counsel for the plaintiff

Judgment/decree passed by the Trial Court was upheld and the impugned order passed by the Chief Court was set aside.

2015 GBLR 249 SUPREME-APPELLATE-COURT Judicial Precedent

Ss. 42, 54 & 56(d)Civil Procedure Code (V of 1908), O.XXXIX, Rr.2 & 3Suit for declaration and perpetual injunctionApplication for temporary injunction

Contentions of the plaintiff were that it had constructed a class-D stand after getting licence from competent authority and carrying its business of transport since then; that authorities were causing hindrances and preventing the plaintiff from the use of the stand for its vehicles; that authorities had directed the plaintiff to shift its business to the Bus Stand constructed by the authorities outside the Municipal limits of the city

Plaintiff, filed application under O.XXXIX, Rr.2 & 3, C.P.C., for grant of temporary injunction against the authorities restraining them from dislodging the plaintiff from the Stand in question

Trial Court initially granted ad interim injunction against the authorities, but later on vacated the same

Appellate court below and Chief Court, refused to grant temporary injunction

Validity

Authorities had not prevented the plaintiff from carrying on the business of transport, as to run a business was a Fundamental Right of a citizen, but at the same time, administrative authorities were to avoid administrative problems creative of the business

Authorities faced traffic problems with the passage of time

Authorities had asked the plaintiff to shift its business to Bus Stand constructed outside the Municipal limits to control the traffic flow into the city

Plaintiff, had failed to establish balance of convenience, which was required for grant of temporary injunction

Application for grant of injunction was rightly refused under S.56(d) of the Specific Relief Act, 1877

Courts below, in circumstances, had applied their judicial mind in refusing the remedy

Concurrent findings, need not to be interfered

Petition for leave to appeal was dismissed by the Supreme Appellate Court.

2015 CLC 162 PESHAWAR-HIGH-COURT Judicial Precedent

S. 4Transfer of Property Act (IV of 1882), S.52Specific Relief Act (I of 1877), Ss.42 & 54Suit for declaration and perpetual injunctionDoctrine of lis pendens, applicabilityOriginal owner of property/predecessor-in-interest of the parties, died leaving behind two widowsFirst widow had only one son, while second one, had two sonsOne son of second widow died leaving behind a daughter who also died leaving behind one daughter

Plaintiff, the only son of first widow of original owner, was consanguine brother of deceased son of second widow, who died without leaving behind any male issue at the time of his death

Grand-daughter of deceased son of original owner, would stand for her mother, the daughter of deceased son, as deceased did not have any son

Predeceased daughter would get 1/2 share from her father under S.4 of Muslim Family Laws Ordinance, 1961, but her daughter, would get 1/2 share from the inheritance of her deceased mother, and not the whole

Section 4 Muslim Family Laws Ordinance, 1961, would not increase said daughters' share, her entitlement would come down to 1/4 in the total legacy of her deceased grandfather and 3/4 thereof would go to plaintiff/only son of first widow of original owner, being consanguine brother of deceased, who died without leaving behind any male issue

Impugned inheritance mutation was cancelled, so was the result of all subsequent mutations attested on the basis of said inheritance mutation under the doctrine of 'lis pendens'

Impugned judgments and decrees of the courts below, were set aside and suit filed by the plaintiff was decreed, in circumstances.