2010 M L D 1659
[Quetta]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
Haji SALEH MUHAMMAD and another ---Appellants
Versus
ABDUL WADOOD and another ---Respondents
R.F.A. No. 9 of 2002, decided on 8th June, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42, 53, 54 & 55 ---Suit for declaration and damages and application for injunction to
restrain defendant from interfering in plaintiff's possession of suit -land---Plaintiffs asserted
that possession of suit -land was handed over to them after payment of sale price and mutation
was duly effected but defendant demolished the boundary wall erected by them on said
property causing them loss to the tune of Rs.500,000 ---Defendant contended that plaintiffs
were not in possession of property and suit was not maintainable for non joinder of the person
with whom the defendant had entered into agreement to sell the suit proper ty for
consideration of Rs.16,50,000 out of which said person had paid Rs.200, 000 to defendant
while remaining amount was agreed to be paid after said person had succeeded in selling the
property to a third person/party/some other person ---Said person had mutated the property in
favour of plaintiffs after obtaining money --Defendant further contended that he was
defrauded by said person who entered into a fraudulent deal with plaintiffs, therefore, the suit
was liable to be dismissed ---Trial Court, however, decreed the suit with damages amounting
to Rs.100,000 ---Validity ---Defendant had not only denied the title of plaintiffs but also
claimed that he was in possession of suit property, burden of proof, therefore, was on
plaintiffs to prove their title to the disputed property ---Safe presumption from assertions and
admissions of defendant was that said person sold the property with consent of defendant ---
Said person was not produced in court by any of the parties ---Title and possession of land in
question rema ined disputed ---Plaintiffs did not make any prayer for declaration in plaint and
failed to seek declaration of title to and possession of disputed property by virtue of being
bona fide purchaser, instead, he only prayed for injunction to restrain defendant from
disturbing possession and claimed damages ---Plaintiffs had to prove their legal title before
they could seek injunction to restrain defendants from interfering with the possession and
claim damages because injunction could serve no purpose in absence of declaration of title
which was not prayed in the plaint, so plaintiff could not be granted a relief sought in appeal
stage for the first time ---Relief of damages being consequential relief, plaintiffs had to prove
their title to disputed property in th e first instance to claim damages on the basis of that title --
-Trial Court had completely failed to consider the relevant facts in deciding suit in favour of
plaintiffs ---Suit was not maintainable in its present form ---Plaintiffs should have sought
declara tion of title first and relief of injunction could be prayed in addition while damages
should have been claimed as consequential relief ---Judgment and decree of Appellate Court
were set aside while suit was dismissed for being not maintainable.
Ajmal K han Kasi for Appellants.
Sundar Das for Respondent No.1.
Liaquat Ali for Respondents Nos. 2.
Date of hearing: 23rd December, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The appellants being aggrieved of judgment dated
24-12-2001 by Senior C ivil Judge -I, Quetta preferred instant appeal praying thereby for
setting aside of the same, while his suit be decreed' as prayed by him in his favour. It is his
contention that he successfully established case, while respondent No.1 failed to defend him
and respondent No.2 did not deny his claim, as such the order of granting compensation of
Rs. 100,000 instead of Rs.5,18,870 is unjustified.
Brief facts of the case are that the appellants filed a suit against respondents seeking
declaration to the effect that respondents/defendants have no right to interfere in their
possession in respect of property in question or to impose illegal demand of help on them and
injunction to the effect that the respondents/defendants be restrained from interfering in their
peaceful possession of land in question. They also prayed for damages to the tune of
Rs.5,18,870 with costs of the suit. It is their contention that land 9 -Qitas at Mohal Karez
Zaman, Mouza Sheikh Manda, Tappa Baleli, Tehsil and District Quetta measuring 4 rods 0 -
poles was purchased by them from respondent No.1/defendant No.1 in year, 1995 in
consideration of Rs.21,78,000, which was paid through respondent No.2/defendant No.2. On
payment of complete price money the land in question was mutated in their name s through
Mutation No.10 dated 2 -5-1995 by respondent No.1, while possession was also handed over
to them. Thereafter, in 1998 they constructed boundary wall around land in question and also
affixed main gate spending thereby an amount of Rs.500,000. No ob jection was raised from
any corner in all these years. But recently respondent No.1 raised illegal demand for their
help in connection with recovery of loan allegedly advanced by him (respondent No.1) to one
Naseem, in case of refusal, he advanced threats to interfere in their peaceful possession of
land in question. Despite their refusal and efforts for arriving to some settlement on 15 -2-
2000, respondent No.1/defendant No.1 in their absence interfered in land in question and
demolished the walls with trac tors thereby causing damage to them to the extent of
Rs.500,000. Matter was also reported to police. Respondent No.1 without any justification is
trying to interfere in their possession. They have prayed accordingly.
In reply respondent No.1/defendant No .1 raised several legal objections on maintainability of
the suit. According to him as the appellants/plaintiffs had already challenged the mutation
entry No.10 of 1995 as fraudulent, therefore, civil Court has no jurisdiction to entertain the
suit, as suc h the suit is not maintainable under section 172 of Land Revenue Act. Further, as
the sale transaction in respect of land in question is not registered, as such the suit on basis of
it is not maintainable. Furthermore, the appellants/plaintiffs are out of possession. The suit is
also bad for non -joinder of said Muhammad Naseem Qanoongo. On merits it is his
contention that in year, 1994 when respondent No.1/defendant No.1 was proceeding to
perform Hajj, he entered into an oral agreement for sale of land in q uestion with one
Muhammad Naseem, who was Qanoongo in Tehsil office in consideration of Rs.16,50,000,
out of which he (Naseem) paid an amount of Rs.200,000 to him (respondent No.1/defendant
No.1) with further promise to pay the remaining amount to him as a nd when he (Naseem)
become successful in selling out the said piece of land to some other person. At said occasion
he (respondent No.1/defendant No.1) also signed a copy of mutation register/Inteqal. It was
further agreed that until and unless the total am ount has not been paid to him and until
payment is completed the land in question may not be mutated or handed over to any other
person, he (respondent No.1/defendant No.1), would remain owner of land in question. But
on 24 -3-1999 this fact come into his k nowledge that said Naseem has obtained some amount
from respondent No.2/defendant No.2 and mutated the land in name of appellants/plaintiffs,
whereupon he filed complaint for cancellation of mutation entry before Collector, which is
still pending. As such he is still actual and lawful owner of land in question with possession,
such he restrained appellants/plaintiffs from raising any construction on land in question. He
claimed that he has been defrauded by Naseem, who entered into sale transaction with the
appellants in an illegal and fraudulent deal. He prayed for dismissal of the suit.
Respondent No.2/defendant No.2 in his separate reply objected on maintainability of the suit.
According to him no cause of action has accrued against him, as such he has been impleaded
unnecessarily, while no relief is sought against him. On merits it is his contention that sale
transaction was effected between appellant No.1/plaintiff No.1 and defendant
No.1/respondent No.1 through Muhammad Naseem, whereupon mutation was effected in
names of appellants/plaintiffs and possession of land in question was also handed over to
them by respondent No.1/defendant No.1. He further asserted that appellants plaintiffs paid
an amount of Rs.21,78,000 to him, which he paid to Muhammad Na seem in presence of
respondent No.1/defendant No.l. He prayed for dismissal of the suit to his extent.
Issues were framed and on completion of evidence from both the sides, the trial Court
decided the suit through judgment made on 24 -12-2001 thereby decr eed the suit as prayed for
except the amount of damages which was allowed to the extent of Rs.100,000 only. The
appellants feeling aggrieved of the same preferred present appeal praying thereby that their
suit be decreed in terms as prayed therein. The per usal of impugned judgment reveals that the
trial Court decreed the suit in terms: --
"The defendants are restrained to interfere in the peaceful possession of plaintiffs in
the land in dispute. As it is not proved through evidence produced by the plainti ffs
that he has spent an amount of Rs.5,18,870 as per Exh.P/1 in the construction of
boundary wall, therefore, damages is reduced to Rs.100,000. The defendant No.1 is
directed to pay the decretal amount to plaintiffs and cost of the suit also be paid to
plaintiffs."
The first relief to the extent of declaration is not mentioned, rather only injunction as prayed
was thereby granted. As far as damages are concerned, the appellants claimed it to the extent
of Rs.5,18,870 as estimated by them in respect of da mages sustained by them due to act of
demolishing of wall by respondent No.1 while the trial Court granted it to the extent of
Rs.100,000. The appellants seemed to be mostly aggrieved of granting them less amount for
damages as prayed by them or they wante d to obtain declaration to the extent of their
ownership and having possession with averments that respondents have no right to interfere
in the same. As in present appeal they prayed for setting aside of impugned judgment and
decreeing their suit in terms as prayed by them in suit. But to the contrary perusal of plaint
reveals that no such prayer of declaration is made in the plaint, rather in memo of appeal said
prayer is made for the first time. The appellants have prayed for a different relief in memo o f
appeal to that of made in the plaint, which is neither legal nor can be granted in such a way.
The appellants claimed themselves to be owners of land in question, further claimed to be in
possession of the same. Respondent No.2 did not contest the titl e, nor possession of the
appellants. Rather only asserted that he is joined unnecessarily as party. On the other hand
respondent No.1, the previous owner not only denied the title of the appellants, but also
claimed himself to be in possession of land in q uestion. In the circumstances the initial
burden lies on the appellants to establish their title, who in order to discharge the burden
produced P.W. 1 Faqir Muhammad, who gave oral evidence to the effect that the appellants
purchased land from respondent N o.1, transaction and payment were asserted to be made in
his presence, he also claimed to be present at occasion of effecting of mutation entry. While
P.W.3 Patwari Tehsil produced the relevant mutation entry entered in favour of appellants.
Appellant No.1 also recorded his own statement to substantiate their plea. According to him
he purchased land from respondent No.1 in consideration of nearly Rs.23 lacs. Further, at
time of Inteqal he gave cheque in name of respondent No.2, who on receiving of the same
gave money to respondent No.1, who on the same got effected mutation entry in his favour.
From whole set of evidence one thing is apparent that though respondent No.1 tried to negate
the fact of effecting of sale transaction between him and the appellants, but he did not
categorically deny the same. Rather in rebuttal asserted selling of land in question to one
Naseem Qanoongo. He further asserted in the written statement that he allowed Naseem to
sell out the land in question to some other person in order to make payment of the remaining
amount of sale consideration. From these assertions it can safely be presumed that said
Naseem sold the land in question to the appellants with consent p of respondent No.1, while
payment is made through respondent No.2. Bu t the appellants are silent to this effect, nor said
Naseem is produced in the Court by any of the parties. The title as well as possession of land
in question is disputed, despite the same the appellants failed to pray for the relief seeking
thereby decla ration of their title being bona fide purchasers with possession, they rather only
prayed for issuance of injunction thereby restraining the respondents from interfering in their
possession. The main prayer is about recovery of damages as discussed above. The
demolition of wall though not admitted specifically by respondent No.1, but he asserted that
he stopped the appellants from making interference in land in question, which is claimed to
be in his possession. It was the plaintiffs who on the first instan ce has to prove their legal title
in respect of property in question, whereafter, they have to establish the act of interference
done by the respondents and lastly the damages suffered by them due to act of respondents.
But the appellants failed to seek an y relief in respect of existence of lawful title of ownership
in their favour, therefore, without declaration to the extent of their title the remaining releifs
cannot be granted in their favour. Neither in absence of declaration of title the injunction as
prayed, can serve any purpose. Nor they can be granted the relief of declaration as prayed by
them in their appeal for the very first time.
Apart from the same on basis of evidence present on record the alleged interference is also
not establish. P.W. F aqir Muhammad only stated that wall was constructed by respondent
No.1 with his own expenses. Though he asserted that wall was constructed in his supervision,
but he failed to give details of material and amount spent thereon. The other relevant witness
is P.W.2 Abdul Qadir an Architect submitted estimate for construction of wall. But during
course of cross -examination he admitted that he never visited the site. In absence of visit of
the site, the estimated cost is of much less value as he has no knowledge about physical
existence of wall in question. Apart from these two witnesses no other evidence has been
placed on record. To show their entitlement in respect of damages sustained by them the
appellants have to produce such evidence through which it can b e established that a wall ever
existed on the site that too constructed by them at their own expenses which was demolished
by respondent No.1, thus caused them the alleged damage. Moreover, it is an established
principle that the relief of damages in itsel f is not a new cause of action, rather claim of
damages is a consequential relief. As such in present case, at first instance the appellants have
to establish their title/claim over disputed land, whereafter, they can claim damages which is
surely based on having of a legal title in same respect. Keeping in view of the above
discussion the trial Court has completely failed to consider the mentioned facts while
allowing the suit in favour of the appellants, thus taken an erroneous view. The plaint was
defect ively prepared by the appellants, which was surely not maintainable as discussed
above. The appellants may have sought declaration to the extent of their title and possession,
being a disputed one, in addition to the relief of injunction as prayed by them, while the
damages can be claimed as consequential relief. But they have failed, the suit in present form
was not maintainable. The trial Court made an error while decreeing the suit in favour of the
appellants in the circumstances.
In view of above disc ussion the impugned judgment -decree dated 24 -12-2001 of Senior Civil
Judge -I, Quetta is liable to be set aside, while the suit filed by the appellants/plaintiffs is also
liable to be dismissed being not maintainable. Thus ordered accordingly. The judgment is
hereby set aside, while the suit of the plaintiffs is dismissed being not maintainable. The
appeal is disposed of in above terms.
No orders as to costs.
A.R.K./72/Q Appeal disposed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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