' SARDAR ABDUL HAMEED KHAN, J.--- The above titled revision petition has been filed against the judgment and decree of Additional District Judge, Muzaffarabad dated 2-6-2007, whereby judgment and decree passed by Senior Civil Judge, Muzaffarabad dated 24-8-2005 was upheld.
2. The brief facts forming the background of the instant appeal are that plaintiff/appellant, herein, brought a suit for restoration of possession under section 9 of the Specific Relief Act, 1877 pertaining to land bearing survey No.871 (old) 1308 (present) khewat No.29 measuring 16 marlas and survey No.916 (old) 1251 min (present) measuring 6 marlas situated in Sari Dara before Senior Civil Judge, Muzaffarabad on 28-7-2004. After obtaining written statement, framing issues, recording evidence and hearing, the above mentioned suit was dismissed vide judgment and decree dated 24-8-005.
Feeling aggrieved from the above judgment and decree the appellant/plaintiff filed an appeal before District Judge, Muzaffarabad, which was made over to Additional District Judge, Muzaffarabad for hearing and disposal under law. The learned Additional District Judge, Muzaffarabad after hearing, concurred with the trial Court and dismissed the appeal filed by appellant/ plaintiff vide its judgment and decree dated 2-6-2007. Against the above mentioned judgment and decree the 2nd appeal was filed before this Court on 18-6-2007. This Court vide its judgment dated 23-12-2011 also dismissed the appeal with costs. Feeling aggrieved and dissatisfied the appellant approached the Supreme Court on 21-2-2012. The apex Court after hearing both the parties and perusal of the judgment of this Court accepted the appeal of the appellant/petitioner, converted the appeal filed before the High Court into revision petition, and remanded the case with the direction to decide the same while taking into consideration the provisions of section 115(2), C.P.C., within a period of 3 months vide order dated 16-1-2014, hence, fresh arguments heard in the above titled revision petition.
3. Mir Tanvir Hussain the learned counsel for petitioner argued at length filed written arguments and pointed out that the impugned judgment of both the Court below are self contradictory and glare example of non-reading and misreading of documentary evidence, Exh.PA Misle-Haqiat, Agreement Exh.PD, Exhs.PC, PF and other oral evidence of the witnesses, named Khair Din, M.
Rafique, Imtiaz Ahmed (Attorney of appellant). He further contended that khasra gardawri referred by the trial Court in impugned judgment is stranger to the record of the case. Learned counsel vehemently contended that both the Court below have misconstrued the sections 8 and 9 of Specific Relief Act. He lastly prayed that the instant appeal be treated as Revision petition and be accepted and referred the following case law:---
(1) 2001 M LD 799, (2) 2004 SCM R 1777, (3) PLD 1972 SC 25, (4) 1985 CLC 2644, (5) PLD 1984 Lhr. 287,
(6) 1999 M LD 3384, (7) 2006 YLR 8517, (8) 2005 YLR 241.
4. While controverting the arguments advanced on behalf of counsel for petitioner and also filed written arguments Mr. Shaukat Hussain Ganai, the learned counsel for respondents repudiated the stance of the petitioner and contended that the appeal is incompetent whereas the scope of revision is limited and no illegality, irregularity or perversity is pointed out. Moreover, both the suits were dismissed by the Courts below, hence, the petitioner has no case. The learned counsel defended the impugned judgment on all counts and prayed for rejection of revision petition with exemplary costs.
5. I have heard the learned counsel for the parties and gone through the record of the case in the light of direction of apex Court and propose to dispose of the revision petition, keeping in view the scope of Revision as laid down in section 115 of C.P.C.
6. To resolve the controversy before us it will be useful to reproduce section 115 of the C.P.C. And sections 9 and 42 of Specific Relief Act, respectively which reads as under:- "115 Revision.--- [(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such. High Court and in which no appeal lies therein, and if such subordinate Courts appears---
(a) To have exercised a jurisdiction not vested in it by law, or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity,
(d) The High Court may make such order in the case as it think fit.] ' Provided that, where a person makes an application under this subsection he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court: ' Provided further that such application shall be made within ninety days of the decision of the subordinate Court [which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months]."
[(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court."
(3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.] ' Sections 9 and 42 of Specific Relief Act are also reproduced as under:---
9. Suit by person dispossessed of immovable property.--- If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit **** recover possession thereof, notwithstanding any other title that may be set up in such suit.
' Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
' No suit under this section shall be brought against [the Central Government or any Provincial Government].
' No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed."
"42. Discretion of Court as to declaration of status or right.---Any person entitled to any legal character or to 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 that mere declaration of title omits to do so."
' Explanation:--- ' A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be trustee.
' Illustration:- (a to h) xxxxxxxxxxx
7. In light of the direction of the apex Court and the principle laid down in ease titled Noor Hussain v.
Ghulam and 14 others [1985 CLC 1925] relied upon by the apex Court by ignoring the judgment and decree passed by the learned Additional District Judge Muzaffarabad. I have gone through the impugned judgment and decree recorded by the learned Senior Civil Judge Muzaffarabad on 24- 8-2005 and perused the record.
8. A perusal of the original suit reveals that bone of contention between the parties was gift deed registered dated 5-11-1980 which allegedly has been executed in excess of the share of the donor as well as without possession too. It was also the stand of the plaintiff that he has been dispossessed from the land comprising khasra No.1308 measuring 16 marlas an 5-5-2004 during pendency of the suit by the defendants. The version of the defendants/respondents is that the possession of the land was with them prior to institution of the suit and before issuance of the stay order by the Court.
9. While going through the evidence of the appellant advanced before the Trial Court, it is noted that Imtiaz Ahmed son of Abdul Karim, attorney of the plaintiff got his statement recorded on 18-7- 2005 wherein he deposed that the defendants initially breached the conditions of status quo order on 29-2-2004 by interfering in the possession of the plaintiff and subsequently snatched the possession of the land from the plaintiff on 5-5-2004. It is pertinent to mention that this portion of the statement of Imtiaz Ahmed is not supported by any other evidence either documentary or oral.
The trial Court has dismissed the suit for want of proof as well as on the point of limitation and cause of action. A careful perusal of the record reveals that the plaintiff failed to prove that his possession of khasra No.1308 measuring 16 marlas has been snatched by the defendants on 29-2- 2004 or 5-5-2004. Moreover, the parties are co-sharer and the record of the case is not in line with the claim of the plaintiff-petitioner.
10. It is evident from the record that the plaintiff initially filed a declaratory suit and prayed for cancellation of gift-deed registered on 5-11-1980 under section 42 of the Specific Relief Act.
Possession of a part of the suit was allegedly snatched during pendency of the suit. The proper course for the plaintiff was to seek amendment in the suit filed under section 42 of the Specific Relief Act and seek possession of the land allegedly to have been snatched forcibly during pendency of the suit.
11. The very purpose of Specific Relief Act is that any person entitled to a legal, right or character may institute a suit against any person denying such right or character and the Court may in its discretion make a declaration that he is so entitled, provided that no declaration may be given where a further or consequential relief deriving from the declaration which could have been claimed by way of relief before the same Court and in the same suit, has not been claimed. The purpose of this jurisdiction vested in. The Civil Courts is plainly to prevent future litigation and to remove existing sources of controversy.
12. The scheme of law laid down in sections 8, 9 and 42 of Specific Relief Act is clear that under section 8, the suit for possession of property has to be instituted under the provision of C.P.C. And suit for declaration of a right and even with any consequential relief under section 42 of Specific Relief Act, 1877, whereas under section 9 of ibid Act a suit for restoration of possession of some property, wherefrom, one is disposed of the subject property within six months of such specific dispossession irrespective of any right to title etc, which is special remedy to redress the persons dispossessed without any legal right and in unlawful manner, which is on total different footings.
13. In the light of ibid scheme of law, it leaves no room to conclude that when the petitioner firstly opted to file a declaratory suit for cancellation of a gift deed and during the pendency of lis he was deprived of the possession of the suit land, then he was at liberty to pray for the recovery of possession of the part of land as consequential relief by way of amendment in the suit, filed under section 42 of Specific Relief Act. Hence, the suit under section 9 of Specific Relief Act has been dismissed by the trial Court in right direction.
14. So far as the question of limitation is concerned, the plaintiff was bound to institute the suit for restoration of possession of the land allegedly to have been snatched illegally within a period of 6 months but the plaintiff has failed to prove his dispossession from the specific date mentioned in the plaint and in the statement of attorney of plaintiff by even an iota of evidence, whereas the entries of revenue record pertaining to the suit land do not support the stance of the appellant, hence, the Trial Court resolved this point too in a legal fashion.
15. The case-law referred by the learned counsel for the parties need not to be discussed in light of the circumstances of the case.
16. In light of the above discussion, it can safely be concluded that no illegality, irregularity or perversity has been found in the impugned decree and judgment of learned Senior Civil Judge Muzaffarabad dated 24-8-2005. It is further held that the trial Court has exercised jurisdiction vested in it by law in a legal manner which warrants no interference by this Court. Hence, I am of the considered view that the learned Senior Civil Judge Muzaffarabad has rightly dismissed the suit for want of proof, being beyond limitation and for cause of action, therefore, the judgment and decree recorded by the learned Senior Civil Judge is kept intact.
Resultantly, the instant revision petition stands dismissed for IG having no substance in it. No order as to costs.