' The facts giving rise to the present revision may be briefly stated. The petitioners filed a suit for declaration to the effect that Shop No, 95/896, as described in the plaint, belonged to the Provincial Government and as not an evacuee property and consequently never formed part of the compensation pool, and as such, the orders of transfer of the property passed in favour of Ghulam Muhammad were illegal and ultra vires. A prayer for the grant of perpetual injunction was also made restraining the respondents from claiming themselves to be the owners of the disputed property and from acting on the orders of the transfer passed by the Settlement Department or from ejecting the petitioners from the said property through the Rent Controller. In nutshell the case of the petitioners as gleaned from the plaint, was that the property in question actually belonged to the Provincial Government and Ghulam Muhammad respondent No. 1 obtained the property from the Settlement Department by fraud. The petitioners admitted that respondent No, I had started receiving rent and that the property in question had been sold to Ghulam Hussain Respondent No,
2. It was also claimed in the plaint that the petitioners were entitled to protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned Administrative Civil Judge, Sargodha vide his order dated 17-11-1975 rejected the plaint. The learned trial Court observed that from the narration of facts in the plaint the appellant was pleading the title of the Provincial Government and as such, the suit was not maintainable under section 42 of the Specific Relief Act. It was for the Provincial Government to file a suit or take any other steps in case the property in question did not vest in the Settlement Department and the transfer order had been obtained by fraud. The petitioners filed an appeal which was also dismissed by the learned Additional District Judge, Sargodha vide his judgment dated 15-6-1977.
2. The learned counsel for the petitioners has argued that the petitioners had a possessory title in the property in dispute and on that account they had a right to file a suit and as such the plaint could not be rejected under Order VII, rule 11, C. P. C. This was precisely the question on which the present revision was admitted for regular hearing. The respondents have opposed this revision. It has been brought to the notice of the Court that a petition for eviction of the petitioners had been filed and the learned Rent Controller has already passed the orders of eviction against the petitioners. An appeal filed by the petitioners before the Appellate Authority was also dismissed and the order of eviction had also been affirmed by this Court in S. A. O. No, 89 of 1977 which was dismissed by Mr. Justice Muhammad Afzal Zullah (as his Lordship then was) on 11-2-1977 in appeal entitled Ali Muhammad v. Ghulam Muhammad. It is also pointed out that one of the petitioners filed earlier suit against Ghulam Hussain in May 1972 and obtained an ex parte decree on similar lines which is the subject-matter of the present suits. The contesting respondents made an application for setting aside the ex parte decree and a revision arising out of the said order was also dismissed by this Court on 11-11-1979 in Civil Revision No, 142 of 1978. It has also been submitted on behalf of the respondents that a third suit had also been filed by Ramzan Ali which is still pending before the Civil Judge, Sargodha. From the facts brought to the notice of this Court by the respondents it is abundantly clear that the petitioners are interested in avoiding their eviction. The question whether the petitioners are entitled to protection under section 30 of Displaced Persons (Compensation and Rehabilitation) Act could be raised in the proceedings for their eviction and no separate suit would lie on that account as the provisions are protective and could be used as a valid defence. The only remedy available to the petitioners was to file a suit for perpetual injunction in case they apprehended eviction per force without recourse to the process of law. This is not the case of the petitioners. As already stated above the contesting respondents have already obtained an order of eviction against the petitioners. A declaratory suit would have been maintainable if the plaintiff has acquired some rights in the property as for example when the possession is taken in pursuance of an agreement of sale a declaratory suit for the rights under section 53-A of the Transfer of Property Act. Reference may be made to a Full Bench judgment of this Court reported as Mt. Shankri v. Milkha Singh (1). Reference may also be made to another Division Bench judgment of this Court reported as Inayat Ullah v. Shah Muhammad (2). There is nothing like possessory rights in its abstract form in respect of which the declaration can be granted under section 42 of the Specific Relief Act. Both the Courts have rightly observed that for the purpose of declaratory suit under section 42 of the said Act, the plaintiff should have {{FOOT NOTE}}
(1) AIR 1941 Lah. 407 (2) PLD 1961 Lah. {{FOOT NOTE}} ' some rights in the property for which he may pray for a declaration. Mere right to remain in possession of the property can only be protected under section 54 of the Specific Relief Act and that too from eviction : save under the due process of law. The term 'possession title' is used in relation to section 9 of the Specific Relief Act. Where a person who is in lawful possession of the property is dispossessed, his possessory shall be restored irrespective of the title in the property within the prescribed limit of six months. Reference in this behalf may be made to Fazal Muhammad v. Muhammad B Usman (1). In this case it was held that if a person had entered into possession peacefully although he had no title to it and is dispossessed by another person, he becomes entitled under section 9 of the Specific Relief Act, to sue such other person for restoration of possession. In such a suit the Courts do not decide the question of title and all that the Court is concerned with is as to whether possession had been disturbed without any authority of law and in disregard of it. The possessory title of which the petitioner would take advantage would have become relevant if the petitioner bad been evicted save under the due process of law and had filed a suit under section 9 of the Specific Relief Act, 1877. As already indicated above the petitioners are not being evicted per force or illegally and the question whether they were entitled to protection under section 30 of the Act XXVIII of 1958 could be decided in the petition for eviction.
The present declaratory suit was, as such barred under section 42 of the Specific Relief Act as also because it did not disclose a cause of action. Both the Courts below have rightly observed that in case the property belonged to the Provincial Government the petitioners did not have any locus standi to file a declaratory suit under section 42 of the said Act.
3. Viewed from any angle the declaratory suit was not maintainable and the averments contained in the plaint did not disclose a cause of action for proceeding with a declaratory suit. No case is made out for exercise of the revisional jurisdiction under section 115 of the Civil Procedure Code.
This revision is, therefore, dismissed with costs. {{FOOT NOTE}}
(1) PLD 1970 Lab. 560 {{FOOT NOTE}}