SADAQAT HUSSAIN RAJA, J.---The captioned appeal has been filed against the judgment and decree recorded by the learned Additional District Judge Muzaffarabad, dated 15.12.2004, whereby the judgment and decree recorded by the learned Civil Judge Muzaffarabad on 13.12.2001, has been maintained.
2. Precise facts of the case are that Aziz-ur-Rehman and another, appellants herein, filed a suit for declaration and perpetual injunction against the Azad Government and others in the Court of Civil Judge Muzaffarabad on 16.02.1992. It was averred that land comprising khasra No.250 measuring 05 Kanals 04 marlas, khasra No.392, measuring 02 kanals 07 marlas total measuring 07 kanals 11 marlas, situated in village Chatter Domail, Tehsil Muzaffarabad was in the ownership of the plaintiff as per revenue record. It was further averred that defendant No.4, showing the said land in his ownership and possession got issued award from defendant No.3, in his favour. It was further contended that award dated 20.11.1974, is ineffective and inoperative against the rights of the plaintiffs. The defendants contested the suit by filing written statement, wherein they have refuted the claim of plaintiffs. The learned trial Court framed issues in the light of pleadings of the parties on 03.02.1979 and provided them an opportunity to lead evidence. At the conclusion of the proceedings the learned trial Court vide judgment and decree dated 13.12.2005, dismissed the suit for want of proof as well as not maintainable in its present form. Feeling aggrieved from the judgment and decree Aziz-ur-Rehman and another appellants herein, filed an appeal before Additional District Judge, Muzaffarabad. The learned first appellate Court after hearing the parties vide judgment and decree dated 15.12.2004, dismissed the appeal, hence, the captioned second appeal.
3.The parties have filed written arguments in pursuance of the order of this Court dated 11.05.2017.
In view of the proposed conclusion the arguments of the parties need not to be reiterated.
4.The learned Advocate appearing for the respondents raised a preliminary objection that the appeal is barred by limitation for having been filed after 96 days from the impugned judgment and decree dated 15.12.2004.
5.The learned advocate appearing for the appellants while meeting the objection contended that the impugned judgment has been announced on 15.12.2004, whereas the appeal has been filed on 20.03.2015, after 95 days from the impugned judgment. He submitted that the appellant applied for the copy of the impugned judgment and decree on 04.01.2005, which was supplied on 08.01.2005, hence, after excluding 05 days, consumed in obtaining copies of the impugned judgment and decree, the appeal is well within time.
6.I have considered the arguments of the learned counsel for the parties and gone through the record of the case. A perusal of the record reveals that the impugned judgment has been announced on 15.12.2004, whereas the captioned appeal has been filed on 21.03.2005, after a period of 96 days. Even after consuming 05 days, consumed in obtaining copies of the impugned judgment and decree, the appeal is barred by 01 day, hence, is liable to be dismissed on this sole ground.
7.So far as the merits of the case are concerned, I am of the considered view that the learned trial Court as well as the first appellate Court has rightly held that the suit in its present form was not maintainable. The plaintiff is claiming the ownership of the land and the possession of the land admittedly is with the defendants-respondents. Without claiming possession of the land the declaration cannot be issued B against defendants-respondents in light of provisions contained in Section 42 of the Specific Relief Act, 1877. For proper proposition of the controversy section 42, is reproduced as under:-- "42. Discretion of Court as to declaration of status or right: Any person entitled to any legal character, or to any 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 than a mere declaration of title, omits to do so."
8.A perusal of the above reproduced provision of law reveals that the Court shall not make any declaration where plaintiff being able to seek further relief then the mere declaration of title omits to do so.
9. The same like controversy came under consideration of Peshawar High Court in case titled Kh.
Muhammad Naseem and others v. Tasleem Jan and others [1980 CLC 1483]. In that case an objection was raised that the suit was not competent in its present form because the plaintiffs therein were not in possession of the disputed property, therefore, suit for mere declaration without seeking possession as consequential relief was barred under section 42 of the Specific Relief Act.
The Court while meeting the objection held in para No.12 of the report as under:--
12. As regards the contention of the petitioners that the suit was not competent, in its present form, it may be pointed out that the property in suit was admittedly not in possession of the plaintiffs.
The findings of both the Courts below are also to this effect. It is, therefore, clear that the plaintiffs, not being in possession could not seek a mere declaration of title without asking for possession as a consequential relief. The suit was, therefore, barred under Section 42 of the Specific Relief Act and the findings of the Courts below on the issue of the competency of the suit cannot be upheld."
10. The same like proposition has been resolved in case titled Mst. Sikandar Jan and 13 others through its legal heirs v. Abdul Ghani and 11 others [1985 CLC 2582]. In para No.19 of the report it was observed as under:-- "19. I have held that the possession of the suit land is with the petitioners and not with the respondents. The suit brought by the respondents was for declaration and as such it was not maintainable in the present form. The finding of the learned lower appellate Judge on issue No.2, is also not maintainable." The upshot of above discussion is that the instant appeal is barred by limitation and has no substance in it even on its merits, hence, is consigned to record.