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(a) Specific Relief Act (1 of 1877) ‑

---‑ Ss. 12 & 42‑Agreement to sell Suit for declaration of title to property on basis of agreement to sell not maintainable ‑Where plaint‑revealed that there was a mere agreement to sell, plaintiff, held, could not maintain his suit for declaration on basis of such agree ment as it did not create any right, title or interest in property‑Only proper mode of redress for plaintiff would be suit for specific per formance of said agreement.

Dip Narain Singh v. Nageshar Prasad and others A I R 1930 All. 1 ; M. Ghulam Muhammad v. Custodian Evacuee Property , Lahore and others P L D 1966 Lah. 953 ; Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others P L D 1967 Dacca 190 and Muhammad Nawaz v. Mien Muhammad Anwar Abbasi and others P L D 1982 B J 33 ref.

(b) Limitation Act (IX o(1908)‑‑

S. 144‑Civil Procedure Code (V of 1908), S. 115‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. I 18‑Plea of adverse possession, proof of‑Though plea of adverse possession was raised in plaint but no issue was claimed by plaintiff nor any evidence was led to substantiate such plea‑Plea of adverse possession, held, was not capable of being sustained in absence of evidence on record.

(c) Qanun‑e‑Shahadat Order (10 of 1994)‑

Art. 118‑Plea of limitation‑Onus of proof‑Onus of plea of limitation being on plaintiff, failure to produce evidence thereon, held, would mean that his suit was not within time.‑[Limitation].

(d) Civil Procedure Code (V of 1908)‑

‑‑ S. 115‑Specific Relief (I of 1877), Ss. 12 & 42‑Revisional juris diction, exercise of‑Where plaint disclosed suit to be based on agreement to sell, such suit, held, would not be maintainable on basis of perfection of title ‑ High Court in revisional jurisdiction would decline to interfere where findings of lower Courts were based on sound principles of law and fact.

Muhammad Mujahid Ahmad for Petitioner.

Petitioner filed a suit for declaration of title and permanent injunction with regard to a servant's quarter of an erstwhile evacuee house to be commonly known as 45, Jail Road, Lahore. In the plaint, after giving some details of previous possession and litigation about the property, he alleged that the defendant had received a sum of Rs. 5,000 in cash from him under a verbal agreement that after securing transfer thereof in her name, she would execute and get registered a sale‑deed in his favour but even after acquisition of title she put off the matter for some time and ultimately refused to do the needful. Therein he also alleged his adverse possession over the property. Respondent contested the suit by denying his assertions on merits and also disputed that the suit could lie in that form on the basis of those allegations. Bar of limitation was also pleaded in defence of the suit which was consequently set down to be tried on only two issues, relation to its form and limitation. The two Courts below have dismissed the suit, as also the appeal there against, with the findings that in the circumstances a suit, at best, for specific performance of the agreement could be filed but not for declaration of title. The other issue with regard to limitation has also been decided against the plaintiff who has now come up to this Court on revision.

2. Learned counsel has reiterated that the suit for declaration was rightly maintained on the basis of title acquired by the petitioner upon payment of Rs. 5,000 and his perfected adverse possession. This contention conveniently disregards the averments made in the plant itself. In para. 3 thereof it is unequivocally stated that the defendant had undertaken that in case the plaintiff paid her Rs. 5,000 then she would transfer to him the pos session of one quarter and that when the quarter is .transferred in her name she would execute its sale‑deed in his favour and would also get it registered. In the following paras. of the plaint it is reaffirmed that the plaintiff has been insisting upon the execution and completion of a sale‑deed but she put it A off Ti ere cannot be any doubt that in such a pleading the petitioner could not have contemplation of asserting a perfected title accrued upon payment of the said amount. The case set up by him, even if admitted to be correct in its entirety, would at best show the existence of only an agreement to sell which, by its very nature, would be a mere promise to do the needful in future and no title in the property can be conceived to have flown therefrom in favour of the petitioner. Reference in this behalf may with advantage be made to Dip Narain Singh v. Nageshar Prasad and others (A I R 1930 All. l) , wherein a Full Bench of that Court has held that a mere undertaking to mortgage or sell would not amount to actual transfer of any interest in the immovable property, but a deed of sale or mortgage if duly registered, would operate as a conveyance of such interest. Again, in a Division Bench judgment of this Court in M. Ghulam Muhammad v. Custodian, Evacuee Property, Lahore and others (P L D 1966 Lah. 953), it has been held :-

"An agreement to sell does not create any right, title or interest in immovable property."

There cannot be any doubt that without a right, title or interest created in immovable property, a suit for declaration would not be main tainable on the basis of such averments as have been made in the plaint. Declaratory suits are governed by section 42 of the Specific Relief Act which, so far as is relevant hereto, is as under :‑

"42. Any person entitled to any legal character, or to any 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."

In the case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (P L D 1967 Dacca 190), while considering the scope of the said section, it was observed that a suit for mere declaration aliunde is not permissible under the law, except, in the circumstances mentioned in section 42 of the Specific Relief Act. In Muhammad Nawaz v. Mian Muhammad Anwar Abbasi and others (P L D 1982 B J 33), where the plaint had revealed that there was a mere agreement to sell, it was held that, the plaintiff could not maintain his suit for declaration on the basis of such an agreement as it did not create any right, title or interest in the property.

3. It, no doubt, is manifest that the only proper mode of redress for the petitioner, in these circumstances, could be the suit for specific 6 performance of the alleged agreement and contention of the learned counsel has no merit: The same is accordingly repelled.

4. Next argument of the learned counsel relates to the absence of adjudication of the petitioner's plea with regard to adverse possession, raised in the plaint. It is significant that despite his suit having remained pending for a period of more than two years, the petitioner did not claim any issue on the point and learned counsel has not been able to point out any evidence led in the suit to substantiate such a plea. Actually, event.' with this Civil Revision, contrary to the requirement of section 115 of the C. P. C., there is no copy of pleadings and documents from the trial Court's record furnished beyond a copy of the plaint. Learned Additional District Judge has observed in the panultimate paragraph of his judgment that the plaintiff had not entered the witness, box. In these circumstances

petitioner's plea about adverse possession is not capable of being even sustained and contention of the learned counsel is, hence, rejected.

5. The only other argument of the learned counsel relates to adjudica tion adverse to the petitioner of the second issue about limitation. His contention is that it is anomalous on the part of the Courts below to have on the one hand held that the suit is not maintainable in the present form and on the other to have simultaneously held also that it is barred by time. The submission is not incorrect but it is only unachieving because the onus of the second issue was on the plaintiff who not only has not been shown to' have led any evidence on the point but also in his plaint has not mentioned any date or approximate period which elapsed since the alleged agreement and the defendant's refusal to abide by it. Thus, the sum total of the petitioner's case is that he has failed to show that his suit is within time. This contention also fails thus.

6. There does not emerge any case at all for exercise of revisional jurisdiction. Hence. dismissed in limine.

A. A.

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