PLJ 2004 SC (AJ&K) 168 [Appellate Jurisdiction]

Present: muhammad yunus surakhvi, C.J. ABDUL AZIZ-Petitioner

versus

ABDUL HAMEED and 10 others-Respondents Civil P.L.A. No. 19 of 2004, decided on 30.4.2004.

(On appeal from the judgment of the High Court dated 26.12.2003 in Civil

Appeal No. 26 of 2003)

(i) Specific Relief Act, 1877 (I of 187,7)-

—S. 42~Suit for declaration cum perpetual injunction-Courts helow decreed suit to extent of ownership and held that plaintiff failed to prove possession of suit land-Second appeal by respondent was accepted~A declaratory suit without consequential relief was not maintainable u/S. 42 of Specific Relief Act-Ground of~Held: Permanent injunction • can only be granted in these cases in which the possession of property or suit land vests with plaintiff but in instant use, it is an admitted fact that petitioner was not in possession of suit land and as such a mere declaratory suit was not competent under law-Petition dismissed.

[P. 171] B & C

(ii) Specific Relief Act, 1877 (I of 1877)--

—S. 42-Declaration regarding ownership could not be passed where .
plaintiff could have asked for relief of possession but failed to do so-Suit
of plaintiff was therefore dismissed. [P. 169] A

Ch. Muhammad Yunus Arvi, Advocate for the Petitioner. Ch. Jahandad Khan, Advocate for the Respondents. . Date of hearing : 23.4.2004.

order

This petition for leave to appeal has been directed against the judgment passed by the High Court on 26.12.2003, whereby the appeal filed by Abdul Hameed, Respondent No. 1, was accepted and the judgments and decrees passed by both the courts below were set aside.

1. The necessary facts, giving rise to the present petition for leave to appeal, are that the plaintiff-petitioner filed a suit for declaration cum perpetual injunction in the Court of Senior Civil Judge Bhimber. It was averred by him that total land of Khewat No. 19, according to Jamabandi of 1967-68 was 69 kanals, 15 marlas, but the defendants, Abdul Hameed and •others, with the connivance of the revenue department, got it inserted as 67 kanals, 8 marlas, in the recent settlement record. The land of defendant-

respondents, Abdul Hameed and others, from Khewat No. 2/1, according to Jamabandi of year 1967-68 was 2039 kanals, 14 marlas, but with the connivance of the revenue department in the recent settlement, it was enhanced to 2216 kanals, 5 marlas. The plaintiff-petitioner had purchased the land measuring 2 kanals, 11 marlas comprising survey No. 1074, Khewat No. 22, Khata No. 103/184 and also got possession of the same. Thus, it was in his ownership and possession. It was craved by him that the decree for declaration may be passed in his favour against the defendants and he- may be declared the owner in occupation of the land measuring 2 kanals, 11 marlas, comprising Survey No. 1074 rand the defendants-respondents may be restrained from effecting any change in the revenue record.

3. The suit was resisted by the defendants. After the trial of the suit,
the learned Senior Civil Judge vide his judgment and decree dated
25.10.2001 declared the plaintiff-petitioner owner of the said land but at the
same time, he also held that the plaintiff has failed to prove his possession on
the said survey number, therefore, Issue No. 1 was decided in favour of the
plaintiff-petitioner to the extent of ownership and it was held that the
plaintiff has failed to prove that he was in possession of the suit land.

4. Feeling aggrieved from the aforesaid judgment and decree, the
defendant-Respondent No. 1 filed an appeal in the Court of District Judge
Bhimber which was dismissed. The second appeal was filed by Respondent
No. 1 before the High Court which was accepted mainly on the ground that
as both the Courts below have held that the plaintiff was not in possession of
the suit land, so the proviso of Section 42 of the Specific Relief Act provides
that no Court shall make any declaration, where the plaintiff being able to
seek further relief than a mere declaration of title, omits to do so. It was
further held that it was settled principle that declaration regarding
ownership could not be passed where the plaintiff could have asked for relief
of possession but failed to do so. The suit of the plaintiff was therefore
dismissed. Hence this petition for leave to appeal.

In support of petition for leave to appeal it was vehemently
contended by Ch. Muhammad Yunus Arvi, the learned counsel for the
petitioner, that the High Court committed a grave error by dismissing the
suit of the plaintiff-petitioner. The learned counsel contended that the High
Court accepted the appeal of Respondent No. 1 on the sole ground that
under Section 42 of the Specific Relief Act, no Court shall make any
declaration where the plaintiff being able to seek further relief than a mere
declaration of title, omits to do so. The learned counsel also pressed into
service the submission that it is wrong to suggest that the possession of the
suit land lies with the defendant-respondents. The learned counsel
emphasised that the consequential relief in the shape of permanent
injunction has been sought by the plaintiff-petitioner in his plaint but this
aspect of the case was no taken into consideration by the High Court. The

learned counsel contended that a plaintiff may ask for a mere declaration of his right without claiming any relief under Section 42 of the Specific Relief Act and every suit is not liable to be dismissed where the possession is not prayed for.

6. Controverting the arguments raised by the learned counsel for
the petitioner, Ch. Jahandad Khan, the learned counsel for the respondents,
categorically stated that the suit of plaintiff-petitioner without asking for
possession as a consequential relief was liable to be dismissed and the same
was rightly done so by the High Court. The learned counsel contended that
as the plaintiff-petitioner simply craved for declaration and has not prayed
for possession of the suit land, therefore, under Section 42 of the Specific
Relief Act, his suit was liable to be dismissed. The learned counsel in support
of his contentions relied upon the cases reported as Azad Government vs.
Zubair Ahmad Khan and 11 others [2001 SCR 464] and Sultan Habib and 10
others vs. Mst. Walayat Begum and 10 others [2003 SCR 92]. On the
strength of these authorities the learned counsel contended that the suit
filed by the plaintiff-petitioner has rightly been dismissed by the High Court
for not seeking the prayer for consequential relief as provided under Section
*42 of the Specific Relief Act.

7. I have given my due consideration to the arguments advanced at
the Bar and perused the relevant record. The proviso of Section 42 of the
Specific Relief Act provides as follows:

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

The object of Section 42 of the Specific Relief Act is to express in definite terms the kind of cases in which the specific relief of a declaration of right, apart from all further relief, may be granted. At the same time care has been taken to avoid multiplicity of suits and to prevent a person getting a declaration of right in one suit, and immediately after, the remedy already available in the other. This is clear from provision of Section 42 which refers to the status of plaintiff at the time of filing the suit. In the instant case both the parties agree that at the time of institution of suit, the possession of the suit land was not with the plaintiff, therefore, his suit was liable to be dismissed on this sole ground.

8. In a case reported as Azad Government vs. Zubair Ahmad Khan
°and 11 others [2001 SCR 464] it was held by this Court that a declaratory
suit was regard to immovable property is not maintainable if the plaintiff
does not seek consequential relief to which he is entitled; besides, he must
have a legal right in the property. The proviso of Section 42 of the Specific
Relief Act is very clear on the point.

9. In Sultan Habib and 10 others vs. Mst. Walayat Begum and 10
others [2003 SCR 92] the suit was dismissed on the ground that a
declaratory suit without consequential relief was not maintainable under
Section 42 of the Specific Relief Act. This plea taken in the written statement
was not refuted by filing replication by the plaintiffs.

10. The contention of Ch. Muhammad Yunus Arvi, the learned
counsel for the petitioner, is that he has also sought a prayer for permanent
injunction against the defendant-respondents, therefore, the suit could not
have been dismissed summarily by the High Court. I am afraid that I cannot
subscribe to the view of the learned counsel for the petitioner as the
permanent injunction can only be granted in those cases in which the
possession of property or the suit land vests with the plaintiff but in the
instant case, the possession of the suit land vests in the defendant-
respondents. Therefore, this contention of the learned counsel for the
petitioner stands repelled.

11. The authority cited by the learned counsel for the petitioner
titled Fazal Ahmed and another us. Naeem Akhtar and 2 others [1992 MLD
251] is distinguishable and is not applicable to the instant case. In the said
authority it has been observed that the Courts below on the basis of evidence
on record had rightly found the plaintiffs to be in possession of the property
in question at the time of institution of the suit. It was further observed that
in the alternative if possession of the plaintiffs was not upheld, the suit was
not to be dismissed for their failure to ask for relief of possession as
consequential relief flowing from the title of the plaintiffs was permissible to
them. The suit was thus was not be dismissed but the Court in exercise of its
discretion was empowered to grant consequential relief flowing frc a the
main relief in the case.

12. In the above cited case the Courts below held and found the
plaintiffs in possession of the property in question at the time of institution
of the suit. However, it was observed that in the alternative if the possession
was flowing from the title of the plaintiffs, then the Court was competent to
grant consequential relief flowing from the main relief in the case. There is
no quarrel with the principle laid down in the above cited authority but in
the instant case it is an admitted fact that the petitioner was not in
possession of the suit land and as such a mere declaratory suit was not
competent under law.

13. Another contention of the learned counsel for the petitioner is
that he has averred in his plaint that the Court may grant the decree fqr
declaration-cum-perpetual injunction as well as any other relief which is
permissible under law. His point of view seems to be that "any other relief
covers every type of relief. I cannot agree with the view of the learned
counsel for the petitioner because to seek any other appropriate relief is a
general type of prayer which does not include the prayer for getting the
decree for possession.

14. In the light of what has been stated above, the plaintiff-petitioner has failed to make out any case for grant of leave; the same therefore stands dismissed in limine.

(F.M.) Petition dismissed.