' Since the trial and appellate Courts disposed of the two suits filed respectively by the parties by common judgment, Civil Revision Applications Nos. 279/78 and 280/78 will be disposed of by this judgment.
2. Briefly the facts forming the background of these revision applications are that the applicant and respondent herein are real brothers. The controversy between the parties relates to the title of half portion of Plot No, A-47/2, Lalukhet, Karachi with construction thereon. On 21st May, 1968 the applicant filed Suit No, 1048/1968 against the respondent for possession and mesne profits in respect of the property in dispute. The case of the applicant as disclosed in his plaint was that he had occupied the aforesaid plot of land in 1950 and subsequently obtained its allotment from the Deputy Rehabilitation Commissioner on 24th April, 1951. At the request of the respondent the applicant allowed him to live in a room of the house constructed by the applicant over the plot for some days until he could obtain another allotment. However, the respondent refused to vacate the said portion of the house and set up a false claim of ownership in respect of the entire house of the applicant. The applicant prayed for the following reliefs :-
(a) That the defendant be ordered to vacate and hand over peaceful possession of the room in his occupation in House No, A-47/2, Liaquatabad, Karachi and on his failure to do so the plaintiff be put in possession with the assistance of the Court.
(b) Decree for Rs, 10 as mesne profits and also grant decree for further mesne profits at Re. 1 per day from the date of the suit till possession.
(c) Costs of the suit be granted.
(d) Any other relief that this. Hon'ble Court may deem fit.
3. The respondent contested the suit and filed written statement. His defence in substance was that there were two plots of land bearing No, 47/2-A in dispute and the adjacent plot No, 48/2-A which were both in the occupation of the father of the parties on which he had erected hutments to accommodate his large family consisting of four sons, the families of two of his sons, his wife and himself. Subsequently in 1954 the father of the parties raised constructions over the two plots out of funds from his resources as well as the earnings of the four brothers, consisting of four tenements with independent access and amenities. The father then put his two sons Mohammad Ismail and Mohammad Ibrahim in the two tenements constructed on plot No, 48/2-A and the other two sons, namely, the parties to this proceeding were accommodated in two separate tenements on the plot in dispute. The father and the mother of the parties lived with them in the disputed premises. The respondent alleged that the applicant fraudulently obtained allotment without the knowledge of his brothers and mother. The father subsequently died but during his life time the parties had agreed to take half portion consisting of separate tenement on each portion respectively and the respondent was living there in alongwith his family in his own right since 16 years. Thus the respondent denied that his possession of the property is in his capacity as a licensee of the applicant.
4. On 3rd May, 1969 the respondent also filed Suit No, 711/1969 against the applicant on identical averments contained in his written statement as already set out above and prayed for the following reliefs :-
(a) The plaintiff has right and to continue to have the right of possession in the separately built portion in the Plot No, 47/2-A Liaquatabad.
(b) Costs of the suit be borne by the defendant.
(c) Such other relief as may arise from the circumstances of the suit and which this Hon'ble Court may deem fit may also be granted.
' The applicant resisted the suit of the respondent on the same pleas as contained in his plaint in the suit filed by him.
5. By the consent of the parties both the suits were consolidated and tried together. The learned Civil Judge upon consideration of the evidence led at the trial by the parties came to the conclusion that the applicant was the rightful allottee of the plot in question. He was, however, of the view that neither of the parties can be deemed to be the owner or possessor of the plot since the plot belongs to the K. D. A. And no regular Lease Deed had so far been executed in favour of either parties. Nonetheless, the learned Judge reached the finding that the .Construction raised on the plot was owned by the parties as well as their father and their remaining ' two brothers. He, therefore, held that no question of licence by the applicant to the respondent would arise. As a result of these conclusions and findings the learned Civil Judge by his judgment dated 12th July, 1975 dismissed the suit filed by the applicant and decreed the suit filed by the respondent for a declaration that the house in dispute was constructed jointly by him and his brothers and father and consequently he bad a right to the occupation and possession thereof.
6. In appeals filed against the aforesaid decrees the learned Vth Additional District Judge, Karachi affirmed the findings of the learned Civil Judge and dismissed the appeals. However, the learned Additional District Judge further held that in view of the fact that at the time of allotment the applicant must be a young man of about 15/16 years of age, the allotment was obviously not obtained independently by him in his own right but was issued in his name with the blessings of his parents without affecting the right of their occupancy or that of his brothers. The applicant has now come up in revision against the decision of the two Courts below.
7. Mr. Khuda Bux Omrani, the learned counsel for the applicant did not challenge and in fact could not challenge the findings of fact arrived at by the Courts below. He, however, contended that upon these findings the Court was wrong in dismissing the suit of the applicant. It was submitted by the counsel that the Court our hot to have decreed the suit of the plaintiff by suitably altering the relief so t at a decree for possession of the plot after demolition of the construction should have been passed. In other words, the augment of the counsel was that the necessary consequence of the finding to the effect that he was the allottee of the plot even if he was not the owner of the construction thereon, was to put him in possession of the plot after ordering the demolition of the construction. Reliance was placed by the learned counsel on Mohammad v. Atta Mohammad (1) where it was observed that the Court may grant relief in respect of the claim, arising out of the pleadings without there being any express prayer for the same in order to avoid multiplicity of litigation although the plaintiff is not found entitled to the relief in the form prayed for. There can be no cavil against the proposition of law that a Court is empowered to grant relief as the justice of the case may demand. In fact Order VII, rule 7, C. P. C. Expressly provides that Court may always give general or other relief which it considers just to the same extent as if it had been asked for. But there are important limitations on the power of the Court to grant altered relief 'where the plaintiff has B been found not entitled to the relief specifically prayed for. The general rule is that no relief can be granted upon facts and documents not disclosed in the pleadings, nor dealt with by the issues or evidence in the c case and which the other side was not called upon Or had no opportunity to meet. It has also been held that where the plaintiff asks for a particular relief on a specific ground, he cannot be granted the same relief on a different ground which is not at all disclosed in the plaint. The other limitation on the power of the Court in this behalf is that altered relief can be granted on other grounds only if such other grounds are not inconsistent with the case of the plaintiff as set in his pleadings and would not lead to a determination of the issues which would embarrass the defendant. Clearly, therefore, it is not open the Court to grant relief to the plaintiff on a different cause of action, and on a plea for (1) PLD 1975 Lah. 406 which there is no foundation in the pleadings. In Shiromani Gurdwara v. Prem Das (1) the plaintiff had sued on the basis of ownership and possession and no claim for title on adverse possession was pleaded. The Court refused to grant relief on the basis of adverse possession as the defendants had no opportunity of meeting this claim (see also AIR 1940 P C 3 and AIR 1965 SC 516).
8. Applying the aforesaid principles to the facts of this case it appears to me that the plaintiff is not entitled to decree in the manner contended for. In the first place the learned District Judge in-his judgment altered the finding of the trial Court if at all it was intended to hold that the applicant was the allottee in his own right, for, as already pointed out it was held by the District Judge that the allotment was not issued in favour of the applicant in his own right but subject to the rights of his father and brothers. Be that as it may, having regard to the finding that the construction was raised on the plot from the joint contribution of applicant's father and brothers, it is not clear to me on what basis the applicant would be entitled to obtain the possession of the land after removal of the structures. Such a case would be wholly inconsistent with the pleadings of the applicant and would amount to setting up a new case which will result in depriving the respondent of the opportunity of meeting it at the trial. It is possible to conceive of the various defenses to such a case. For instance, it could be contended that such a case ,would be a case of irrevocable licence under section 60 of the Easements Act, 1882 in so far as a work of permanent character was executed in raising the building by the licensees. .1, therefore, find no force in the submission of the learned counsel.
9. It was next contended by the learned counsel for the applicant that in any event there was no justification for the Court below to decree the suit of the respondent on the aforesaid findings. The argument was that the respondent having failed to prove his title to the disputed property could not be given the relief of declaration as to his right of possession. Reliance in this behalf was placed on Ayesha Begum v. Nibaran Chandra (2). Since the learned counsel strongly relied on this case it will be advantageous to state the facts of the case. The plaintiffs in that case had brought a suit for confirmation of possession on declaration of title to lands. According to the plaintiffs the disputed lands were all along in their possession from the time of their father in lieu of service rendered by way of washing clothes, but in spite of this the defendants upon their purchase of the lands in a revenue sale were threatening to dispossess them. The subordinate Courts reached the finding that the plaintiffs had failed to establish that they held the possession in lieu of their services but at the same time a finding was given that they were in fact in possession of the lands. It was contended before the Dacca High Court that by virtue of the last-mentioned finding, even though they have failed to establish their title, the plaintiffs were entitled in law to .Get a relief by way of declaration at least in regard to their possession. The High Court repelled this contention on the following grounds : "On a reference to the plaint it seems the plaintiffs' case was in substance one for declaration of title and for consequential relief in the shape of confirmation of possession which might flow from
(1) AIR 1933 Lah. 25 (2) PLD 1963 Dacca 172 the title that was to be found in this .Case. The whole suit, therefore, seems to have been based on the sole question of title. If, therefore, the plaintiffs have failed to prove their title it is difficult to think that any consequential relief could flow from a non-existent title. I am, therefore, inclined to think that the suit in, substance and effect being one for establishment of title and the plaintiffs having failed to prove their case in regard to such principal issue, they are not entitled to get any declaration even in regard to their so-called possession. That is to say, the consequential relief in the shape of confirmation of possession cannot be decreed in the absence of a finding in their favour on the question of title."
' It will be appreciated that the facts of the present case are materially and substantially distinguishable from the facts of the reported case. The relief of confirmation of possession in the reported case was sought by way , of consequential relief flowing from the declaration of title.
Obviously, therefore, such relief could not stand by itself and form independently the basis for a decree. In the present case, on the other hand, there was no prayer for declaration of title claimed by the respondent but the relief as set out above was claimed on the basis that the building on the plot was constructed out of the joint funds of the father and the brothers and that the applicant was not the allottee of the land. The finding of the Courts below was in favour of the respondent as to his first plea and as to his assertion that the plot was not validly allotted to the applicant also the learned Additional District Judge held that the same was not obtained by the applicant in his own right. Clearly, therefore, irrespective of the ownership of the plot the respondent was entitled to remain in possession of the property in dispute as a result of the finding that he had contributed towards the construction of the plot with the consent of the applicant.
' Such relief could be granted to the respondent in accordance with the principles for grant of relief on other grounds as mentioned above. The right of possession claimed by the plaintiff on the facts pleaded by him was clearly a right in immovable property and the Courts could, therefore, give such a declaration under section 42 of the Specific Relief Act.
10. No other contention was raised. In the result, both revision applications fail and are accordingly dismissed with no order as to costs.