1. ' RAFIULLAH SULTANI, J.--- This revision petition is directed against the order of Senior Civil Judge, Muzaffarabad, dated 19-2-2007, whereby the application of the petitioner herein under Order VII, rule 11 was rejected.
2. ' Brief facts of the case are that non-respondents filed a declaratory suit along with a prayer for permanent injunction, pertaining to property situated at Shala Bagh, Tehsil and District Muzaffarabad, bearing old Survey No,100 and new 454 min, measuring 6 Kanals, 7 Marlas on 29-7- 2006, before Senior Civil Judge Muzaffarabad. It was alleged in the plaint that they are owners of suit-land on the basis of compromise-deed, executed on 3-7-2005, between their father and defendant No,1 Ali Akbar, defendant No,1, moved an application under Order VII, rule 11 of C.P.C. For dismissal of suit. It was alleged in the application that law of resjudicata and estoppel applies on the suit and the same is not maintainable in the eye of law. After hearing the parties, Senior Civil Judge, Muzaffarabad rejected the application on 19-2-2007. Feeling aggrieved by the order of Senior Civil Judge, Muzaffarabad this revision is filed before this Court.
3. ' Both the learned counsel for the parties submitted written arguments. The learned counsel for the petitioner herein reiterated the contents of revision in written arguments. He pleaded that law of res judicata and law of Estopple apply on the suit. The Honourable Supreme Court has given its verdict about his ownership in first round of litigation. He has started execution proceedings against non- petitioners and they have filed the suit with mala fide intention to frustrate and stop the execution proceedings. He further stated in his written arguments that father of the non-petitioners tendered unconditional apology from the Honourable Supreme Court on 30-8-2004 for filing suit on the basis of fraud. The non-petitioners have no right about property. Lastly, he requested to accept the revision and reject the suit.
4. ' The learned counsel for the non-petitioners pleaded in the written arguments that Khangi Jirga has taken place between the parties and, according to decision made in the Jirga, suit-land measuring 6 Kanals and 7 Marlas, bearing Survey No,454 min shall remain in possession of non- petitioners and they will be the owner of the land. The petitioner will be the owner of remaining property after cancellation of mortgage-deed. According to this decision, a compromise-deed has been written which was in the possession of Muhammad Ilyas Ex-Chairman Union Council Langerpura and photostat copies were delivered to the parties. After that Muhammad Ilyas died in earthquake of 8-10-2005. Due to this reason, original compromise-deed could not be produced before the Court and photostat copy has been annexed with the plaint. He further pleaded that according to compromise, the petitioner did not alienate the suit-land due to earthquake. Despite that, copies of the Revenue Record were produced before the Court for alienation. He further pleaded that due to earthquake restriction was imposed by the Government to alienate the property, which now has been taken off but the petitioner has denied to alienate the suit-land. On denial of the petitioner to alienate the suit-land, a new cause of action has arisen and for that reason non-petitioners have filed the suit; therefore, Order VII, rule 11 of C.P.C. Does not apply on this case. He further pleaded that facts, which have been alleged in the plaint, need evidence to prove.
5. Without proving the facts of the, case, it is not in the interest of justice to reject the plaint. He contended that impugned judgment of the trial Court is according to law which needs no legal interference by this Court.
6. ' I have examined the record of the case as well as the written arguments, made available by both the learned Advocates for the parties.
7. ' Before discussing the merits of the case, I want to reproduce Order VII, rule 11 of the C.P.C.:-- "11. Rejection of plaint.--- The plaint shall be rejected in the following cases:---
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
8. ' In the light of above stated law, it is to be seen that; (1) either the suit, which is in my hand, is maintainable or not? And (2) whether Order VII, rule 11 of C.P.C. Applies on it or not? The present suit is declaratory suit along with prayer of permanent injunction.
9. 'Every person having legal character or any right to any property may institute a suit against a person who is denying his, right about his title. It was held as under in PLD 1967 Dacca 190, while discussing legal character used in section 42 of Specific Relief Act: -- "The expression 'legal character' or 'status' denotes a character or status conferred by law on an individual or a number of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a 'status' or 'character' conferred by law. It is not a creature of contract but of law.
10. Indeed, in most cases one cannot contract out of the "status" with which the law clothes one. For example, a minor cannot contract into majority nor can one, who has attained majority, under law, contract himself into minority."
11. ' Now, I would like to reproduce section 42 of Specific Relief Act, which is as under:-- "42. Discretion of Court as to declaration of status or right.--- 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: Bar to such declaration.--- Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so."
12. ' In the light of above cited law, the definition of legal character and section 42 of Specific Relief Act applies to the case in hand. In this case, the non-petitioners/plaintiffs are seeking declaration that they are owners of the property due to a Jirga which was convened between their father and the defendant. Photostat copy of Jirga proceedings is attached with the suit. Father of the non- petitioners was claiming ownership through mortgage-deed, which was not accepted by the Honourable Supreme Court through its decision dated 19-10-2001. Again, proceedings were started by father of the non-petitioner and, in contempt proceedings before the Honourable Supreme Court, unconditional apology has been given to him, on 30-8-2004. In the third round of litigation, the non-petitioners are claiming ownership through Jirga but Jirga does not create any title in their favour. If I suppose that Jirga or Punchayat is an agreement to sell, even then it creates no title or interest about suit-land in favour of non-petitioners. According to decision of the Honourable Supreme Court, non-petitioners have no title about suit-land. Non-petitioners are not entitled to protect their possession and resist execution proceedings of decree of competent Court which was upheld upto the Honourable Supreme Court. According to law, their possession, as tenant, cannot be converted into possession as a vendee under agreement to sell. Section 53-A of Transfer of Property Act does not apply in this situation, nor the status of non-petitioners has been changed through Jirga. Jirga or Punchayat, as stated earlier, does not create any title in favour of the non- petitioner because there is much difference between agreement of sale and sale-deed.
13. Agreement to sell property requires a promise to do something for compliance of certain acts in future and further steps should be taken. But in case of sale-deed entire transaction maybe completed. Now it is settled that an agreement to sell does not create title in the property and an agreement to sell does not create ownership in the land. A person in whose favour an agreement to sell is made cannot claim a decree of title. As stated earlier that an agreement to sell only creates a right to obtain another document. Now it is settled that Jirga or Panchayat does not create any right or title about suit-land and non-petitioners have no legal character or title about suit- land after the decision of the Supreme Court. A suit for declaration under section 42 of Specific Relief Act is incompetent and under provisions of Order VII, rule 11 of C.P.C., the suit is barred. The Court should in such a case reject the plaint under clause (d) of Order VII, rule 11 of C.P.C. The trial Court fell in error in allowing to continue the suit, because the non-petitioners could file suit only for specific performance, if they were entitled to any legal character. They cannot seek declaration under section 42 of Specific Relief Act that they are owner of suit-land when they have no legal title and no right about suit property. New cause of action is not available to the non- petitioners through Jirga or Punchayat.
14. ' For the reasons listed above, the impugned order/judgment of Senior Civil Judge, Muzaffarabad dated 19-2-2007 is set aside, the revision is accented and original suit filed by non-petitioners is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.