ABDUL KARIM versus SAIN MUHAMMAD

The limitation suit for the restoration of section 9 suit possession was excluded due to invalidity of evidence as well as limitations and proceedings. The plaintiff was unable to prove that he was apprehended by the defendants on the suit property, the two parties were partners in the land record in the case record was not in accordance with the claim of the plaintiff's first gift deed. Chose to file a decree for cancellation and in lieu of lace he was deprived of possession of the suit land plaintiff should pray for the reclamation of the land as relief as a result of the modification of the case. Was, the present case was dismissed by the trial court in the right direction, the plaintiff sought restitution within a period of six months. Was committed to trial. The plaintiff failed to prove its settlement from the due date. The trial court's erroneous judgment and decree passed by the trial court exercised its jurisdiction in a lawful manner, and the suit was dismissed because of the evidence, the invalidity of the evidence. Was made and the review was excluded because of the process.

2015 C L C 689

[High Court (AJ&K)]

Before Sardar Abdul Hameed Khan, J

ABDUL KARIM----Petitioner

Versus

SAIN MUHAMMAD and another----Respondents

Civil Revision No.40 of 2007, decided on 15th October, 2014.

(a) Specific Relief Act (I of 1877)---

----S. 9---Suit for restoration of possession---Limitation---Suit was dismissed for want of proof as well as on the point of limitation and cause of action---Validity---Plaintiff had failed to prove that his possession on suit property had been snatched by the defendants---Both the parties were co-sharer of the land in question---Record of the case was not in line with the claim of plaintiff---Plaintiff firstly opted to file a declaratory suit for cancellation of a gift deed and, during pendency of lis, he was deprived of the possession of suit land---Plaintiff should have prayed for the recovery of possession of land as consequential relief by way of amendment in the said suit---Present suit had been dismissed by the Trial Court in a right direction---Plaintiff was bound to institute suit for restoration of possession within a period of six months---Plaintiff had failed to prove his dispossession from the specific date mentioned in the plaint---No illegality, irregularity or perversity had been pointed out in the impugned judgment and decree passed by the Trial Court---Trial Court had exercised jurisdiction vested in it by law in a legal manner---Suit was rightly dismissed for want of proof, being beyond limitation and for cause of action---Revision was dismissed in circumstances.

2001 MLD 799; 2004 SCMR 1777; PLD 1972 SC 25; 1985 CLC 2644; PLD 1984 Lhr. 287; 1999 MLD 3384; 2006 YLR 8517 and 2005 YLR 241 ref.

(b) Specific Relief Act (I of 1877)---

----S. 9---Suit for restoration of possession---Limitation---Suit for restoration of possession could be filed within six months from dispossession of property.

(c) Specific Relief Act (I of 1877)---

----S. 9---Suit for restoration of possession--- Scope--- Suit for restoration of possession could be instituted irrespective of any right or title etc. which was special remedy to redress the persons dispossessed without any legal right and in unlawful manner.

(d) Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Scope---Any person entitled to a legal right or character might institute a suit against any person denying such right or character and court might in its discretion make a declaration that he was so entitled---No declaration should be given where a further or consequential relief deriving from the declaration which could have been claimed by way of relief before the same court and in the same suit had not been claimed---Purpose of such jurisdiction was to prevent future litigation and to remove existing sources of controversy.

Mir Tanvir Hussain for Petitioner.

Kh. Shaukat Hussain Ganai for Respondents.

JUDGMENT

SARDAR ABDUL HAMEED KHAN, J.---

The above titled revision petition has been filed against the judgment and decree of Additional District Judge, Muzaffarabad dated 2-6-2007, whereby judgment and decree passed by Senior Civil Judge, Muzaffarabad dated 24-8-2005 was upheld.

2. The brief facts forming the background of the instant appeal are that plaintiff/appellant, herein, brought a suit for restoration of possession under section 9 of the Specific Relief Act, 1877 pertaining to land bearing survey No.871 (old) 1308 (present) khewat No.29 measuring 16 marlas and survey No.916 (old) 1251 min (present) measuring 6 marlas situated in Sari Dara before Senior Civil Judge, Muzaffarabad on 28-7-2004. After obtaining written statement, framing issues, recording evidence and hearing, the abovementioned suit was dismissed vide judgment and decree dated 24-8-005. Feeling aggrieved from the above judgment and decree the appellant/plaintiff filed an appeal before District Judge, Muzaffarabad, which was made over to Additional District Judge, Muzaffarabad for hearing and disposal under law. The learned Additional District Judge, Muzaffarabad after hearing, concurred with the trial Court and dismissed the appeal filed by appellant/ plaintiff vide its judgment and decree dated 2-6-2007. Against the abovementioned judgment and decree the 2nd appeal was filed before this Court on 18-6-2007. This Court vide its judgment dated 23-12-2011 also dismissed the appeal with costs. Feeling aggrieved and dissatisfied the appellant approached the Supreme Court on 21-2-2012. The apex Court after hearing both the parties and perusal of the judgment of this Court accepted the appeal of the appellant/petitioner, converted the appeal filed before the High Court into revision petition, and remanded the case with the direction to decide the same while taking into consideration the provisions of section 115(2), C.P.C., within a period of 3 months vide order dated 16-1-2014, hence, fresh arguments heard in the above titled revision petition.

3. Mir Tanvir Hussain the learned counsel for petitioner argued at length filed written arguments and pointed out that the impugned judgment of both the Court below are self contradictory and glare example of non-reading and misreading of documentary evidence, Exh.PA Misle-Haqiat, Agreement Exh.PD, Exhs.PC, PF and other oral evidence of the witnesses, named Khair Din, M. Rafique, Imtiaz Ahmed (Attorney of appellant). He further contended that khasra gardawri referred by the trial Court in impugned judgment is stranger to the record of the case. Learned counsel vehemently contended that both the Court below have misconstrued the sections 8 and 9 of Specific Relief Act. He lastly prayed that the instant appeal be treated as Revision petition and be accepted and referred the following case law:---

(1) 2001 MLD 799, (2) 2004 SCMR 1777, (3) PLD 1972 SC 25, (4) 1985 CLC 2644, (5) PLD 1984 Lhr. 287, (6) 1999 MLD 3384, (7) 2006 YLR 8517, (8) 2005 YLR 241.

4. While controverting the arguments advanced on behalf of counsel for petitioner and also filed written arguments Mr. Shaukat Hussain Ganai, the learned counsel for respondents repudiated the stance of the petitioner and contended that the appeal is incompetent whereas the scope of revision is limited and no illegality, irregularity or perversity is pointed out. Moreover, both the suits were dismissed by the Courts below, hence, the petitioner has no case. The learned counsel defended the impugned judgment on all counts and prayed for rejection of revision petition with exemplary costs.

5. I have heard the learned counsel for the parties and gone through the record of the case in the light of direction of apex Court and propose to dispose of the revision petition, keeping in view the scope of Revision as laid down in section 115 of C.P.C.

6. To resolve the controversy before us it will be useful to reproduce section 115 of the C.P.C. and sections 9 and 42 of Specific Relief Act, respectively which reads as under:---

"115 Revision.--- [(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies therein, and if such subordinate Courts appears---

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

(d) The High Court may make such order in the case as it think fit.]

Provided that, where a person makes an application under this subsection he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court:

Provided further that such application shall be made within ninety days of the decision of the subordinate Court [which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months]."

[(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court."

(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.]

Sections 9 and 42 of Specific Relief Act are also reproduced as under:---

9. Suit by person dispossessed of immovable property.--- If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit **** recover possession thereof, notwithstanding any other title that may be set up in such suit.

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

No suit under this section shall be brought against [the Central Government or any Provincial Government].

No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed."

"42. Discretion of Court as to declaration of status or right.--- Any person entitled to any legal character or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Bar to such declaration.--- Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief that mere declaration of title omits to do so."

Explanation:---

A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be trustee.

Illustration:- (a to h) xxxxxxxxxxx

7. In light of the direction of the apex Court and the principle laid down in case titled Noor Hussain v. Ghulam and 14 others [1985 CLC 1925] relied upon by the apex Court by ignoring the judgment and decree passed by the learned Additional District Judge Muzaffarabad. I have gone through the impugned judgment and decree recorded by the learned Senior Civil Judge Muzaffarabad on 24-8-2005 and perused the record.

8. A perusal of the original suit reveals that bone of contention between the parties was gift deed registered dated 5-11-1980 which allegedly has been executed in excess of the share of the donor as well as without possession too. It was also the stand of the plaintiff that he has been dispossessed from the land comprising khasra No.1308 measuring 16 marlas on 5-5-2004 during pendency of the suit by the defendants. The version of the defendants/respondents is that the possession of the land was with them prior to institution of the suit and before issuance of the stay order by the Court.