1. Mrs. Syeda Tahira Safdar, J.--The appellants being aggrieved of judgment dated 24.12.2001 by Senior Civil 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.
2. 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 names 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 objection 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 advance 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 tractors 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.
3. 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 such 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 Muhamniad 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 question 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 and 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 amount 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 knowledge 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, as 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.
4. Respondent No. 2/Defendant No. 2 in his separate reply objected on maintainability of the suit.
5. 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 Naseem in presence of Respondent No. 1/Defendant No. 1. He prayed for dismissal of the suit to his extent.
6. 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 decreed 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.
7. The perusal 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 plaintiffs that he has spent an amount of Rs. 5,18,870/- as per Ex.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."
8. 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.
9. 5,18,870/- as estimated by them in respect of damages 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.
10. 100,000/-. The appellants seemed to be mostly aggrieved of granting them less amount for damages as prayed by them or they wanted 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.
11. The appellants have prayed for a different relief in memo of appeal to that of made in the plaint which is neither legal nor can be granted in such a way.
12. 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 title, 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 question. In the circumstances the initial burden lies on the appellants to establish their title, who in order to discharge the burden produced PW-1 Faqir Muhammad, who gave oral evidence to the effect that the appellants purchased land from Respondent No. 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 PW-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 fad 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 of Respondent No. 1, while payment is made through Respondent No. 2. But 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 declaration of their title of 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 instance 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 any relief in respect of existence of lawful title of ownership in their favour, therefore, without declaration to the extent of their title the remaining reliefs 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.
13. Apart from the same on basis of evidence present on record the alleged interference is also not establish. PW-1 Faqir 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 PW-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 be 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 itself 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 defectively prepared by the appellants, which was surely not maintainable as discussed above.
14. 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.
15. The trial Court made an error while decreeing the suit in favour of the appellants in the circumstances.
16. In view of above discussion 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.
17. No orders as to costs.