2011 Y L R 332
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
FATEH KHAN ---Appellant
Versus
SHER KHAN ---Respondent
R.F.A. No. 36 of 2005, decided on 31st August, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42, 54 & 39 ---Civil Procedure Code (V of 1908), O.XXXII, Rr.2, 3 & 10 ---Suit
for declaration, injunction and cancellation of document ---Trial Court decreed the suit --
-Appellate Court dismissed the appeal of defendant ---Defendant claimed ownership of
property in question on the basis of sale agreement purportedly executed by plaintiff in
his favour contending that the suit for declaration was not maintainable with
consequential relief of possession ---Valid ity---Defendant was required to prove that
plaintiff was entitled to enter into sale agreement with him in respect of property in
question but even marginal witnesses of the sale agreement were not produced in the
court ---Testimony of the witnesses was of no value to defendant's case as they testified
only to the effect that defendant was in possession of the property which he had rented
out and was receiving rent from the tenant ---Defendant was required to establish the
existence of legal title in favour of plaintiff which he could pass on to the defendant ---
No legal title existed in favour of plaintiff at the time of sale agreement as owner of the
property was alive at that time ---Plaintiff filed suit only for declaration and cancellation
of document ---Having not claimed ownership of the property in question which
belonged to his father, plaintiff was not required to seek possession as consequential
relief ---Suit was, therefore, maintainable ---Trial Court was obliged to calculate the
amount of court fee to be paid by plaintiff in case of his success but the requirement was
not fulfilled ---Plaintiff was, therefore, ordered to pay the required court -fee-Defendant
having failed to make out a case in his favour, his appeal was dismissed.
Khushnod Ahmed for A ppellant.
Miss Sarwat Hina for Respondent.
Date of hearing: 7th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The appellant feeling aggrieved of judgment, dated
26-9-2005 of Majlis -e-Shoora Loralai, whereby the suit filed by the respondent was decreed
in his favour, preferred present appeal with averments that the trial Court failed to consider
the material present on record, while arrived to a conclusion which is based on
misappreciation of facts and misapplication of law. The documents pl aced on record are not
considered without assigning any reason. The legal objections are also neither considered, nor
proper findings are given. The point of limitation is not decided. Further, admittedly the
respondent is out of possession, thus suit for mere declaration without seeking possession is
not maintainable; the trial Court without considering the legal aspect decreed the suit.
Further, legal formalities as required under Order XXXIII Rule 13, C.P.C. were not fulfilled.
It is further contended th at proper opportunity, for hearing was not provided to him, as such
he has been condemned unheard. He prayed for setting aside of impugned judgment thereby
dismissal of the suit or in alternate remand of the suit after framing additional issue to the
exten t of possession with permission to lead additional evidence.
The brief facts of the case are that respondent/plaintiff filed a suit against appellant/defendant
for declaration and permanent injunction and also for cancellation of agreement dated 13 -2-
1990. It was case of respondent/plaintiff therein that a piece of plot measuring 782 square feet
situated at Muslim Bagh City was allotted in favour of one Malik Abdul Rehman, who was
brother of his father, both of them jointly raised construction of shops an d houses on the
same. Thereafter, said property was partitioned between the two brothers, while one shop,
two rooms and a veranda came within share of his father. The said shop was rented out to
appellant/defendant at monthly Rs.800 by his father. But as i n 1999 the appellant/ defendant
made alteration in the shop without permission subletted it and also stopped payment of rent,
whereafter, a compromise was effected between the father of respondent/plaintiff and
appellant/ defendant with undertaking that he would pay the rent regularly and did not sublet
the shop. But in 2002 appellant/defendant again subletted the shop, whereupon his father
filed application seeking eviction of appellant/defendant. During course of proceedings the
appellant/defendant produc ed an agreement dated 13 -2-1990 with contention that he has
purchased property in dispute from respondent/plaintiff. On basis, of this agreement the Rent
Controller dismissed the eviction application. Being aggrieved of the same his father
approached this court, while through judgment dated 27 -2-2004 the order of Rent Controller,
being made without jurisdiction was set aside, while directed the parties to approach civil
court for establishment of their title. The respondent/plaintiff asserted that the quest ioned
Iqrar Nama/agreement being forgedly prepared through fraud and misrepresentation, while
appellant/ defendant only want to usurp the property, which belonged to his father. He prayed
for cancellation of agreement being prepared through fraud and misre presentation, while
appellant/defendant be restrained from alienation or handing over of the property to anyone
else.
The appellant/ defendant in reply while contesting the suit on merits raised several legal
objections on maintainability of the suit. Ac cording to him suit is not maintainable due to
non-payment of proper court -fee, being time barred, hit under Article 114 of Qanun -e-
Shahadat Order, 1984, bad for non -joinder of parties and filed without cause of action. On
merits though he admitted that th e disputed shop up till present is entered in name of Abdul
Rehman in record of Municipal Committee, but on family partition the same devolved upon
the respondent/plaintiff, who is bound to transfer the shop in question in his name in view of
agreement dat ed 13 -2-1990. According to him as the respondent/ plaintiff was
administrator/attorney of whole property, thus the sale transaction was legally effected
through him and possession was also handed over to him. The case before. Rent Controller
was filed only to harass and tease him. He (appellant) is owner of shop in question since
1990, while he has been receiving rent from tenant Shah Muhammad. The agreement in
question is a valid document, while the marginal witnesses were appeared before Rent
Controller a nd recorded their statements. He prayed for dismissal of the suit.
It is apparent from record that the respondent/plaintiff filed suit along with application under
Order XXXIII Rules 2, 3 C.P.C. with prayer for giving him permission to sue as a pauper.
The said application was allowed though order dated 7 -2-2005. Out of the pleadings of the
parties issues were framed. Evidence from both the parties was called. On completion of trial,
the case was decided through judgment made on 26 -9-2005, whereby the sui t was decreed in
favour of respondent/ plaintiff. Feeling aggrieved of the same the instant appeal has been
filed by the appellant/defendant on the grounds mentioned above.
Learned counsel for the parties are heard. As per learned counsel for the appella nt Patta of
land in question still exists in name of Abdul Rehman, as land underneath was allotted in his
favour, while superstructure was raised by Nadir Khan, father of respondent, who died two
years ago. Agreement (Iqrar Nama ) executed between him and r espondent is very much
legal, right of ownership devolved upon him on basis of the same. He is in possession of
property in question as owner. Further, suit for mere declaration is not maintainable without
consequential relief of possession. It is further contended that as court fee has not been paid
as per order of the trial court, therefore, the plaint is liable to be dismissed. In reply of the
arguments made by learned counsel for appellant, it is contended by learned counsel for
respondent that the suit was very much maintainable, as a forged document was made in
name of the respondent, due to which he filed suit for declaration and cancellation of the
document, while possession was not sought. Further, contended that respondent has no legal
title in pro perty in question; because at the time of execution of agreement Nadir Khan, the
real owner, was alive. The evidence produced by the appellant was hearsay in nature, thus of
no legal effect.
The respondent/plaintiff sought cancellation of agreement dated 13-2-1990 allegedly
executed between him and appellant/defendant in respect of sale of a shop. According to the
respondent/plaintiff the shop in question owned by his father, which was rented by him
appellant defendant, while on the other hand appellant/d efendant claimed himself to be owner
of shop in question, as the same was sold to him by the respondent/plaintiff in consideration
of Rs. 115000. The agreement in question is present on record as Exh.D/1. The appellant is
claiming his right on basis of thi s document allegedly executed between them on 13 -2-1990.
As per contents of the same the respondent/plaintiff has sold his property consisting of
superstructure of shop, two rooms and a veranda, Kucca built in consideration of Rs.115000,
while possession i s handed over to him, since then he is in possession of the same. The
respondent strongly contested execution of this document; according to him it is prepared
through fraud and does not bear his signature.
In present case certain facts are admitted, as per pleadings and evidence of the parties. The
land underneath was surely allotted and still exists in name of Abdul Rehman, real brother of
father of respondent namely Nadir Khan. It is further an admitted position that the
superstructure was jointly rais ed by said two brothers, while on partition the property in
question comes within share of father of respondent Nadir Khan, who was very much alive
when the disputed transaction was held. The appellant has not asserted existence of any
transaction between him and the owner i.e. Nadir Khan; rather he asserted that the respondent
being administrator and attorney of his father and other legal, heirs sold' property in question
to him in 1990 and since then he is in possession of the same. He denied to be tenant of Nadir
Khan. Previous litigation before Rent Controller up till this court is also an admitted position.
The burden leis on the appellant to establish execution of sale agreement dated 13 -2-1999 and
the existence of legal title of respondent, enabling him to enter into agreement of sale in
respect of property in question. Both the parties produced witnesses, who deposed orally
about ownership of them. While appellant/ defendant produced record of statement recorded
during course of eviction application . He also produced the agreements one executed between
him and respondent/plaintiff and the second one executed between him and one Mitah Khan,
brother of Nadir Khan. Through this deed he sold a portion of disputed property to said Mitah
Khan. The marginal witnesses of both these documents are not produced before the trial
Court, rather only their statements recorded during course of eviction application were
produced by D.W.5 without any explanation to the effect that the witnesses are not available
or una ble to appear. In the circumstances, they are of less help to the appellant. He was
required to produce the witnesses in front of whom sale transaction was effected or payment
was made and possession was handed over. But no such witness appeared, rather al l the
defence witnesses only deposed about the fact that the appellant/defendant is in possession of
property in question, which is rented out by him (appellant) and he is receiving the rent from
the tenant occupying the shop. This sort of evidence is of n o use, the appellant at first
instance was required to establish that a legal title existed in favour of respondent/ plaintiff,
which passes on to him through this sale agreement. He in his written statement firstly raised
contention that in family partiti on property in question came within share of
appellant/defendant, while admitting devolving of disputed property in favour of father of
respondent/plaintiff. Further, raised plea that he (respondent) being attorney and
administrator of property in question sold the same to him through agreement (Iqrar Nama ) .
Two different stands are taken by the appellant. No title deed existed, in favour of respondent
or any power of attorney executed in favour of respondent in respect of property in question
has been prod uced. From whole set of evidence it is an established fact that no legal title
existed in favour of the respondent, which empowered him to transfer the title to a second
party. Admittedly the person, who is claimed to be the owner i.e. Nadir Khan, was aliv e at the
time of transaction. The appellant has completely failed to establish that a valid title in
respect of property in question existed in favour of the respondent, which devolved upon him
on execution of the agreement in question. Even this document is also not proved to be
executed by the respondent in his favour. Neither the author, nor the witnesses appeared
before court. Even the appellant did not try to verify the signatures of the respondent present
on the agreement through Handwriting Expert or to any other witness familiar with signatures
and handwriting of the respondent. Rather on bare perusal it reveals that the signatures
present on plaint are altogether different from the signatures present on the agreement.
The trial Court rightly asses sed the material present on record and arrived to a conclusion,
which is based on the same. The appellant has failed to point out any instance whereby the
evidence is misread or facts are misappreciated. As far as legal objections are concerned they
are al so decided properly. The suit is filed within provided period, thus maintainable. It is
also objected by the appellant that suit for mere declaration without seeking relief of
possession is not maintainable, as the respondent is out of possession. In prese nt case the
respondent filed suit seeking declaration and injunction and also cancellation of document.
The respondent in his suit did not claim himself to be the owner of property in question,
rather according to him the property he -longs to his father an d he has no right in the same. As
the respondent/plaintiff sought declaration and injunction and as consequential relief prayed
for cancellation of documents. As such in the circumstances he cannot sought for the relief of
possession, as he is not claiming himself to be owned of property in question. Keeping in
view the mentioned facts the suit was maintainable in present form, objection raised is
without basis, which is hereby rejected/over ruled.
As far as payment of court -fee is concerned, the learned trial Court allowed the
respondent/plaintiff to sue as a pauper, thus on completion of trial and while deciding the suit
in favour of plaintiff/ present respondent the trial Court was bound as per provisions
contained in Order XXXIII Rule 10, C.P.C. to cal culate the amount of court -fee required to
be paid if he had not been permitted to sue as a pauper. The trial Court while decreeing the
suit in favour of respondent/plaintiff failed to make an order in same respect, which was
required to be made, thus in t he circumstances as the suit was for cancellation of document
which is to be valued as per valuation of property described in the document which
cancellation is sought as such the respondent/plaintiff is required to pay an amount of
Rs.8625 as court -fee wi thin a period of two months in case of failure the suit stand dismissed.
As the appellant has failed to make out any case in his favour, therefore, the appeal is
dismissed being without merits. The impugned order dated 26 -9-2005 of Majlis -e-Shoora;
Loral ai is hereby upheld subject to payment of required court -fee, as assessed in preceding
para, by the respondent/plaintiff within a period of two month's, in case of failure the suit
stands dismissed.
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