1. This appeal arises out of the following facts:-- 2 Suits one by Mst. Rashim Jan and other by Feroz-ud-Din were brought in the Court of Civil Judge Bagh on different dates. Mst. Rashim Jan claimed Survey No, 470 Measuring 1 Kanal 19 Marlas as her ownership on the basis of an agreement dated 23.4.1965. She also claimed herself to be entitled one half of the landed property left by her husband who died during Dogra Regime. In prayer clause of her plaint she also claimed any other relief which was just in the given circumstances.
2. This suit was resisted by the defendant/respondents on the ground of limitation improvement etc. The execution of agreement dated 23.4.1965 was also denied. Her claim to be the widow of Kaloo Khan deceased was also refuted through the written statement.
3. In other suit titled "Feroz-ud-Din v. Shahas-Din & others" he sought possession of his share out of Survey No, 470 and 492 measuring 5 kanals 6 marlas. He also asked for cancellation of sale-deeds dated 8.3.1968, 27.4.1970 and an agreement to sell dated 4.11.1971 being ineffective and inoperative to his rights in the suit land. This suit was also resisted by the defendant/respondents on different grounds.
4. Both the suits were consolidated and common issues were framed. Mst. Rahim Jan and some of the defendants died during pendency of suits consequently, their legal heirs were brought on record. The trial Court, after due process of law, decreed the suit by Mst. Rashim Jan to the extent of one and a half marla out of Survey No, 470 whereas the suit by Feroz-ud-Din (appellant) was dismissed to the extent of Survey No, 470 however, his suit regarding Survey No, 492 was decreed in his favour to the extent of 19 marlas only. Both the parties feeling aggrieved by the judgment and decree of the trial Court went in appeal before Additional District Judge Camp Dhir-kot. The said Court set-aside the judgment of the trial Court to the extent of suit by Mst. Rashim Jan and declared that she was not entitled to any relief in view of her plaint. The judgment and decree of the learned trial Court in the case of Feroz-ud-Din was up-held. The respondents herein have no challenged the judgment of the 1st Appellate Court in the suit filed by Feroz-ud-Din appellant therefore, to this extent the controversy stands closed. The only controversy which needs to be resolved by this Court is whether the judgment and decree of the 1st Appellate Court to the extent of suit by Mst. Rashim Jan has rightly been passed or it needs any correction.
5. The learned Counsel for the appellant did not challenge the findings of the Courts-below to the extent of agreement dated 23.4.1965 or the claim put forwarded by Mst. Rashim Jan regarding her limited ownership however, he vehemently argued that the finding of the trial Court while allowing the suit by Mst. Rashim Jan to the extent of one and a half marla out of Survey No, 470 was perfectly right and did not merit interference by the 1st Appellate Court. According to him, she was proved as widow of late Kalo Khan. Her husband Kalo Khan deceased was entitled to 13 marlas land out of Survey No, 470 and the share of Mst. Rashim Jan being his widow comes to one and half marla (one 8th of total legacy left by the deceased).
6. Conversely, the learned Counsel for the respondents while supporting the judgment and decree of the 1st Appellate Court submitted that Mst. Rashim Jan or appellant herein was not entitled to any relief in view of the plaint submitted by Mst. Rashim Jan before the Court and the 1st Appellate Court rightly dismissed the suit in view of Order 7 Rule 7 CPC. She did not claim her share in view of law of inheritance rather she based her claim on customary law and an agreement dated 23.4.1965. Neither the agreement dated 23.4.1965 was proved as required by law nor any evidence was brought on record showing any custom prevailing in the family during Dogra Ragime therefore, according to the learned Counsel, the judgment and decree recorded by 1st Appellate Court merited no interference by this Court. He also argued that the suit by Mst. Rashim Jan was hopelessly time-barred.
7. After hearing the learned Counsel for the parties, I examined the record of the case carefully. Both the Courts-below are unanimous on the point that Mst. Rashim Jan deceased was widow of late Kalo Khan who died during Dogra Regime. This finding is, not questioned by the learned Counsel for the respondents. She died during pendency of suit which was briught in the year 1974. It is correct that agreement dated 23.4.1965 is not proved in accordance with law neither there is any evidence showing prevalence of any customary law in the family during Dogra Regime. Both the Courts- below are also of the same view therefore, as stated earlier, the only controversy which remains to be resolved is whether or not Mst. Rashim Jan or for that matter her successors-in-interest namely Mr. Feroz-ud-Din and Mst. Makhwari being son and daughter of Rashim Jan deceased are entitled to any relief in view of pleadings. Both the Courts-below are found to have accepted the suit by Mst. Rashim Jan as within time though with different observations. The respondents did not file any cross objection to the findings of the Courts-below regarding limitation however, the learned counsel was allowed to argue the point of limitation. According to him, the suit by Mat. Rashim Jan was hit by limitation provided under Article 91 of Limitation Act which provides 3 years limitation for cancellation of any instrument from the date of knowledge. Here in this case, Mst. Rashim Jan pleaded knowledge about the execution of sale-deed and a mutation sanctioned in view of the sale-deed in the year 1974. She also appeared in the witness-box and categorically stated that she acquired knowledge about the execution of sale-deed and attestation of mutation in the year 1974 when the vendees started raising construction over the suit land. The respondents could not bring any evidence on record showing knowledge of the execution of sale-deed and attestation of mutation 3 years prior to the institution of the present suit therefore, when there is no evidence in support of claim by the respondents about limitation and, moreover, they have not filed any cross objection to the findings of the Courts-below it can safely be said that the suit by Mst. Rashim Jan is within time.
8. The next question is about the validity of judgment and decree of 1st Appellate Court through which the judgment and decree by the trial Court has been vacated. No doubt, Mst. Rashim Jan brought her suit for-possession of Survey No, 470 Measuring 1 Kanal 19 Marlas mainly on the basis of 2 grounds; Firstly, she claimed this survey number in its entirety on the basis of limited ownership and secondly on the strength of agreement dated 23.4.1965 but at the same time she also claimed any other relief which may be just and equitable in view of pleadings and evidence thereon. She is claiming her entitlement out of the legacy of her late husband. It is satisfactorily proved that she being widow of late Kalo Khan brought her suit and she died during pendency of suit. Under law of Inheritance, she is entitled to her share in the legacy of her late husband however, she has claimed her entitlement out of Survey No, 470 only which is a joint estate. The share of late Kaloo Khan in the said survey number comes to 13 Marlas out of which she is entitled to one 8th coming to one and a half Marla which after her death devolved upon Feroz-ud-din and his sister Makhwari and they are the persons who are claiming the legacy of their mother Mst. Rashim Jan deceased.
9. Coming to the objection in view of Order 7 Rule 7 CPC on the strength of which the impugned judgment and decree has been passed, it may be observed that the present suit could not be dismissed by having resort to aforesaid provision of law. In order to have a correct perception about the above referred provision of CPC, it may usefully be reproduced as follows:--
7. Relief to be specifically stated.........Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.
10. This provision of law envisages that a plaintiff shall state specifically either simply or in the alternative the relief he claims. It also provides that it is not necessary for the plaintiff to ask for general or other relief which may always be given by the Court if it thinks just to the same extent as if had been asked for. It means that a Court is competent to give any other relief to a plaintiff if it arrived at the conclusion that it is just and equitable in view of pleadings and evidence thereon.
11. Here in this case, Mst. Rashim Jan deceased 'has been satisfactorily proved to be the widow of late Kaloo Khan and she, under law of Inheritance, is entitled to her share in the legacy left by her deceased husband. Though she is not found to have specifically pleaded her entitlement under law of Inheritance yet the fact remains that she claims her entitlement to the property left by her husband when she, particularly in view of clause 5 of the plaint and relief clause, asked for her right in the disputed landed property. When a Mohamdan is found to be entitled to any property left by her/his predecessor-in-interest mere omission to specifically mention this ground in a plaint cannot be allowed to deprive him/her of his/her legitimate right simply on the ground that he/she failed to specifically pleaded this point. The Court while deciding a civil suit is competent to allow any other relief if it is in the interest of justice. If it reaches the conclusion that it is just and fair to allow a relief to a claimant though not specifically pleaded, it can do so. Order 7 Rule 7 CPC allows such other relief which is just and equitable in view of facts of the case. It does not debar a Court to allow a relief which is not, specifically stated but is otherwise in the interest of justice.. Reference may also be had to 1995 CLC 1745, PLD 1965 Lahore 451 and PLJ 1980 Karachi 230. In all the precedent cases, the learned Judges are of the view that a general or other relief if it is in the interest of justice in the given circumstances of the case is permissible therefore, the judgment and decree of the 1st Appellate Court through which the judgment and decree of the trial Court to the extent of one and a half Marla in favour of Mst. Rashim Jan or the appellant herein has been vacated is bad under law which cannot be allowed to sustain. Another objection raised by the learned Counsel for the respondents was about the application of Order 2 Rule 2 CPC. This objection is devoid of any force because it applies to a subsequent suit and, that too in case of relinquishment of a claim or a portion of it. The proposition in hand is quite different. Mst. Rashim Jan claims her share in the legacy of her late husband through the present suit and there is no question of subsequent suit. The only proposition which cropped up before this Court is whether or not she could be given any relief in view of Order 7 Rule 7 CPC which stands resolved in the preceding paragraph of this judgment. There is no question of relinquishment of any claim in a previous suit which could be disallowed in a subsequent suit in view of Order 2 Rule' 2 CPC.
12. The result therefore, is that by accepting this appeal, the impugned judgment and decree to the extent of share of Mst. Rashim Jan or the appellant in Survey No, 470 coming to one and half Marla is set-aside by upholding the judgment and decree of the trial Court to this extent. However, it is a decree for joint possession subject to partition by revenue authorities. The question of improvement in view of a decree for joint possession has become immaterial because it is born- out by the evidence that entire survey number coming to 1 Kanal 19 Marlas is not a built- up/improved property but a portion of it is lying vacant. Therefore, the, decree for one and a half Marla out of Survey No, 470 being a decree for joint possession can easily be satisfied out of vacant land at the time of partition.