AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioners have challenged the judgment and decree dated1.3.2000, passed by the Additional District Judge, ,Gujrat, whereby the appeal filed by the plaintiffs/respondents was accepted and the judgment and decree dated 17.12.1995, passed by the learned Civil Judge, Jhelum dismissing the suit, was set, aside.
2. Brief facts of the case are that the respondents/Abdul Ghani etc. Filed a suit for declaration that they be declared the exclusive owners of the suit property mentioned in paragraph 1-A of the plaint and that they are in possession of the same. In para No. 6-B it has been stated that the defendants without getting the suit property partitioned have taken over the possession of 2 kanals, 12 marlas.
The suit was contested and written statement was filed. The learned Trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. The learned Trial Court, vide judgment and decree dated 17.12.1995 dismissed the suit. The appeal filed against was accepted. Hence, this civil revision.
3. Learned counsel for the petitioners states that the suit is absolutely not competent in the light of Section 42 of the Specific Relief Act, 1877 as the plaintiffs have admitted that the possession has been taken over by the petitioners/defendants and they have prayed only for declaration and without consequential relief of possession, the suit was not competent. Further states that only P.W.I, who is one of the plaintiffs, appeared to support his version and his statement is also very short and is not sufficient to grant the relief claimed by the plaintiffs. He next states that the findings recorded by the learned Trial Court were well-reasoned and the learned first Appellate Court without any justifiable reason has set aside the same. He also states that even one of the plaintiffs, who appeared as P.W.1 has admitted that Adalat Khan was also owner of the suit property. Further states that Ex.D-1 'Fard Badar' has not been challenged by the plaintiffs. Adds that as the order of the Collector was challengeable before the Commissioner, civil suit was not competent. Further contends that only a suit for partition was competent when the plaintiffs themselves admitted the defendants to be the joint owners in the suit property or the suit under Section 9 of the Specific Relief Act, 1817 was competent in the light of the dictum laid down in the case of Mst. Rashid Bibi and others v. Lal Din and others (1999 SCM R 2325).
4. On the other hand, the learned counsel for the respondents/plaintiffs states that the judgment and decree, passed by the learned first Appellate Court is' absolutely in accordance with law whereas the findings of the learned Trial Court were against the evidence available on the record.
Contends that 'Fard Badar' was prepared in absence of the respondents/plaintiffs. Further contends that the Civil Court has jurisdiction in the matter. He has relied upon the case of Waris Khan and 18 others v. Col, Humayun Shah and 41 others (PLD .1994 SC 336). He submits that it was not necessary for the respondents/plaintiffs to agitate the matter before the revenue hierarchy in the circumstances of this case. He further submits that after 60 years the entry has been changed in the revenue record through 'Fad Badar', which was not permissible under the law.
5. I have heard the learned counsel for the parties at full length and have gone through the record with their able assistance.
6. It is the fundamental principle of law that the plaintiff has to stand on his own legs. I have notice that the pleadings of the plaintiffs are not clear and in line with ,their version which has been argued before this Court today. The case of the plaintiffs/respondents that due to 'Khangi,Takseem they be declared exclusive owners of the suit property and in the same .Time they admit that the defendants/petitioners are also the joint owners in. That property and further that the possession of land measuring 2 kanals, 1.2 inarlas has been taken from them by the defendants and still they have ot -prayed for any relief of possession Even they have not directly challenged the said mutations in favour of the defendants nor any declaration has been sought that the sale-deed's have no value against the rights of the plaintiffs/respondents have noticed that the statement of P.W.1 is very short one. The assertion made in his statement do not match with the revenue record, even produced by the plaintiffs themselves. P.W.1 has admitted the possession of the defendants/petitioners over the suit properly. In this view of the matter, I am clear in my mind that simple suit for declaration was not competent when the plaintiffs were having a right to ask the Court for consequential relief of possession of the suit property, which they have not sought from the Court. It is clear that when the plaintiff is required to ask for the consequential relief and he fails to do so he cannot succeed in a suit for declaration filed under Section 42 of the Specific Relief Act, 1877. Even otherwise, I am clear in my mind that in a suit for declaration, filed under Section 42 of the Specific Relief Act, 1877 the Court can declare an existing right but cannot create a new right through a decree of declaration in favour of any party. In this case, as the plaintiffs asked the Court to declare them exclusive owners of the suit property against the available revenue record therefore, the findings on issues No. 1, 2 and 7 recorded by the first Appellate Court are not in accordance with the settled principles of law as well as the evidence available on record produced by the parties. The findings recorded by the learned Trial Court are in accordance with the evidence available on the file, therefore, these well-reasoned findings were wrongly reversed by the first Appellate Court.
7. So far as the objection with regard to the maintainability of the suit raised by the learned counsel for the petitioners is concerned, I do not agree with the version and the view advanced by the learned counsel for the petitioners/defendants. Under Section 9 of the CPC Civil Court has the plenary jurisdiction to entertain and decide the suit except specifically barred under any law. In my view, the clear test for ouster of jurisdiction is, if the order passed by any forum or Tribunal is within the jurisdiction conferred upon it by the statute barring the jurisdiction of Civil Court then Civil Court has no jurisdiction to entertain and try the suit against that order and if the order passed by a forum or Tribunal is without jurisdiction then certainly the Civil Court has jurisdiction entertain and try the suit. In this case the learned counsel for the petitioners has not shown any bar against the jurisdiction of Civil Court, therefore, the suit was , competently filed before the Civil Court in the circumstances of this case.
8. In this view of the matter, this civil revision petition is allowed and the judgment and decree dated 1.3.2000, passed by the learned first Appellate Court is set .Aside. Resultantly, the suit filed by the respondents stands dismissed with costs throughout.
Civil revision .