Suit for possession and declaration

2022 CLC 1374 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.9 & 42Suit for possession and declarationEntitlement/ownership of propertyExistence of right at the time of filing suit

Petitioner/plaintiff contended that he was in possession of the disputed plot since 19 years; that despite the fact that the disputed plot was owned by the Central Government, nobody appeared to defend the case; that the petitioner was entitled to retain possession till such time the application for grant of land filed by the petitioner be decided otherwise

Trial Court unequivocally found that the property in dispute was Government property and that the evidence of both the parties transpired that the disputed plot had not yet been allotted either to plaintiff or defendant

Despite the said findings against the very claim of the petitioner, all other issues were answered in favour of the petitioner and the suit was decreed as prayed

Validity

Admittedly, the petitioner had only sought a declaration of possession which in absence of a title could not have been granted

Pleadings had transpired that the land was owned by Central Government and Trial Court had also held so

Once record showed that none of the petitioner and the respondent was the owner of the land then taking up other irrelevant issues and the evidence led on the same including the claim regarding possession was not required to be adjudicated upon

Both the petitioner and respondent had never claimed ownership on the basis of any title/instrument

Dispute between the parties was regarding use/encroachment of the land, which none of them owned

At the time of filing of the suit, the petitioner was not holding any title to seek the relief as prayed for

Petitioner had asked for a declaration not of an existing right but of chance/possibility of acquiring a right in the future

No declaration of an abstract right could be granted, howsoever practical it might be to do so

Trial Court ought not to have exercised any discretion in the matter, as it was not a matter of absolute right to obtain a declaratory decree; rather it was a discretionary relief

Revision petition was dismissed accordingly.

2021 YLR 864 Gilgit-Baltistan Chief Court Judicial Precedent

O.VII, R.11Specific Relief Act (I of 1877), Ss. 8 & 42Suit for possession and declarationRejection of plaintFraming of issues

Plaintiffs/ respondents claimed to be legal heirs of deceased owner of suit property who was their maternal grandfather and sought their legal share out of property left by him

Plaint was rejected by Trial Court in exercise of jurisdiction under O.VII, R.11, C.P.C. after issues had already been framed but Lower Appellate Court set aside order passed by Trial Court

Validity

Plaintiffs/respondents made bundle of claims which required to be proved by them

Chief Court observed that sufficient opportunity should have been given to plaintiffs/respondents to prove their allegations/claims by adducing evidence

Plaintiffs/respondents disclosed cause of action in their plaint and allegations/claims asserted therein and written statement could only be decided after framing of issues and recording of evidence of parties

Trial Court had already framed issues and case was fixed for evidence of plaintiffs/ respondents, as such pliant could not be rejected under O.VII, R.11, C.P.C. at such belated stage

Chief Court declined to interfere in the matter as Trial Court committed material irregularity and illegality while rejecting plaint of plaintiffs/respondents under O.VII, R.11, C.P.C. and Lower Appellate Court through its appellate jurisdiction had rightly set aside judgment/order passed by Trial Court

Revision was dismissed, in circumstances.

2017 CLC 285 Gilgit-Baltistan Chief Court Judicial Precedent

Ss. 8 & 42Suit for possession and declarationGiftParties of the suit were maternal brothers inter se and one defendant was brother-in-law of plaintiff

One of the plaintiffs contended that he being shari waris of his deceased mother and vide an iqrar nama, was the sole owner of suit land, which was left with one of the defendants as 'Amanat' (on trust)

Claim of all the plaintiffs was that after death of their mother, plaintiffs were her legal heirs and were entitled to get possession of suit land from the defendants

Trial Court, dismissed the suit, but appellate court below, set aside judgment/decrees passed by the Trial Court, and passed decree as prayed for in favour of the plaintiff

Claim of defendants was that mother of the plaintiffs after getting her shari share, handed over the same to her brother who was father of two defendants through gift, and that donee of suit land remained in possession of said gifted property for a period of 19/20 years; that after his death property had devolved upon said two defendants who being son of deceased donee were in possession of the same as donees

Validity

Said defendants had failed to prove a valid gift in favour of their father and the possession of the suit land by them as donees being sons of alleged donee

Trial Court without being satisfied about the necessary ingredients of a valid hiba/gift had wrongly, rather, illegally got proved the hiba in favour of defendants

Plaintiffs had proved through witness that their mother after getting her shari share from her brother, handed over the same to sister of one of the plaintiffs, who herself as plaintiff had authenticated the contents of the plaint

Appellate Court below had rightly dismissed judgment of the Trial Court

Chief Court declined interference in a just and legal conclusion arrived at by the Appellate Court.

2016 GBLR 232 SUPREME-APPELLATE-COURT Judicial Precedent

Ss.4 & 23Specific Relief Act (I of 1877), Ss. 8 & 42Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60Acquisition of landSuit for possession and declaration

Land in question owned by the plaintiffs/petitioners, was acquired by the authorities, without paying compensation to the owners

Suit for declaration and possession filed by the plaintiffs was decreed by the Trial Court

Lower Appellate Court dismissed the first appeal, however the judgment of the Trial Court to the extent of delivery of structure/buildings and compound interest was varied

Chief Court, in revision, set aside the concurrent findings of the courts below and authorities were directed to prepare fresh award as per prevailing rates of the relevant year

Validity

Land in question, admittedly was acquired by the authorities, who had constructed a school on the land in question, without giving compensation to its owners/petitioners

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

Judgment in revision passed by the Chief Court, was set aside whereas judgment passed by Civil Judge was maintained.

2016 GBLR 229 SUPREME-APPELLATE-COURT Judicial Precedent

Ss. 8 & 42Civil Procedure Code (V of 1908), O.IX, R.13Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60Suit for possession and declarationEx parte decree, setting aside ofDefendant/respondent after appearing before the Trial Court remained absent

Trial Court after proceeding ex parte against the defendant, allowed the plaintiff/petitioner to prove his case through evidence and the Trial Court passed ex parte decree in favour of the plaintiff

Defendant after expiry of limitation, filed application under O.IX, R.13, C.P.C., for setting aside ex parte decree which was dismissed by the Trial Court

Appellate court below having upheld the judgment/order of the Trial Court

Chief Court, in revision accepted the petition and set aside both judgments/orders of the courts below and also set aside ex parte decree and ordered for de novo trial

Validity

Defendant had failed to substantiate his non-availability in the city

Petition for leave to appeal was converted into appeal by the Supreme Appellate Court and allowed, setting aside the judgment/order of the Chief Court and maintaining judgments/orders of lower courts.

2016 GBLR 185 SUPREME-APPELLATE-COURT Judicial Precedent

Ss. 8 & 42Suit for possession and declaration

Plaintiff, claimed that he was the owner of suit land which was given to the defendant temporarily to take the benefits from its grass etc., with the commitment that the defendant would pay the entire amount of Rs.25,000 plus Rs.10,000 mark up to the 'Zarai Taraqiati Bank'; that the defendant paid only Rs.14,000 to the Bank and failed to pay the whole amount as per commitment

Plaintiff, alleged that the defendant with the connivance of Tehsildar fraudulently prepared bogus documents of the suit land in his name and declared himself as owner of the land

Defendant resisted the suit contending that defendant had paid amount of Rs.14,000 to the Bank on behalf of the plaintiff against his loan and the plaintiff had failed to pay the same

Defendant contended that the claim of the plaintiff that the suit land was given to the defendant as Amanat, just to take benefits in shape of grass, was baseless

Defendant had successfully proved his case through credible evidence which had rightly been appreciated by courts below; whereas the plaintiff had failed to produce any evidence in support of his contentions

Two courts below had rightly dismissed the suit

Plaintiff could not point out any illegality, infirmity and mis-appreciation of evidence in the concurrent findings of the three courts below

Appeal was dismissed by the Supreme Appellate Court.

2015 GBLR 364 SUPREME-APPELLATE-COURT Judicial Precedent

Ss. 8 & 42Suit for possession and declaration

Suit was decreed by the Trial Court and judgment and decree passed by the Trial Court, was upheld by the appellate court below

Defendants/respondents filed revision petition against said concurrent judgment and decree passed by two courts below before the Chief Court which was accepted and judgments of both the courts below were reversed

Validity

Judgment passed in revision by the Chief Court was well reasoned and well founded

No illegality and infirmity had been pointed out by the counsel for the petitioners in the impugned judgment, leave to appeal was refused

Order/judgment passed by the Chief Court, was maintained, in circumstances.