RASAAL HASAN SYED, J.---The petitioners in this Constitutional petition, have challenged order dated 20.9.2016 of the learned Addl. District Judge, Mian Channu, District Khanewal whereby the revision petition was accepted and the plaint in the suit "Mst. Iqbal Begum and others v. Mst. Rasheeda Begum and others" was rejected under Order VII, Rule 11, C.P.C.
2. Precisely the case of petitioners is that a suit for declaration was filed by late Iqbal Begum predecessor of the petitioners, claiming that in terms of the exchange agreement dated 18.7.1988, registered with Sub-Registrar, Mian Channu, the deceased was owner of land mentioned in schedule "Alif" while Rasheeda Begum deceased (predecessor of respondents) was owner-in-possession of the land mentioned in schedule "Bay" and that the deceased predecessor of respondents was not entitled to interfere in the possession and title of the petitioners' predecessor qua the land subject-matter of suit. The subsequent mutation of oral Tamleek No. 3658 in respect of portion of land, purportedly made by late Rasheeda Begum in favour of respondents Nos. 2 to 6 was also challenged on the grounds of being a result of fraud and without any right in the property. A decree for injunction to restrain the respondents from making interference in the title and possession of the petitioners' predecessor or from making any further alienation was also claimed. The suit was resisted. Stance taken by the respondents was inter alia that late Iqbal Begum predecessor of the petitioners did not own the land mentioned in schedule "Alif" and that the alleged agreement of exchange was never executed nor late Iqbal Begum deceased ever appeared before the Registrar for its registration and that the agreement of exchange was allegedly fictitious and forged and a result of fraud as it was allegedly secured by impersonation, in collusion with the registration office and that the respondents were not bound by the terms thereof. It was added that Iqbal Begum did not own the land to the, extent she claimed as per agreement of exchange, therefore, she could not make any alienation in excess of her entitlement and on this premises the resistance and validity of the exchange agreement was questioned.
3. It appears that an application under Order XXXIX, Rules 1 and 2, C.P.C. was moved in the suit which was statedly decided by the learned trial court by detailed reasoning. During the proceedings of the suit, respondents filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint claiming that late Iqbal Begum violated the terms of exchange by transferring a portion of the property, in favour of son, and she could not rely upon a document which she herself did not act upon. It was added that late Iqbal Begum had transferred land measuring 32 kanals vide mutation No. 3594 in favour of her son Muhammad Afzal and which was in excess of her share and that the mutation was subsequently corrected, whereafter she was only left with 25 kanals 16 marlas while at site she owned 4 kanals of land and that in terms of the alleged exchange agreement she was to provide 28 kanals 8 marlas. It was thus alleged that in view of the subsequent orders and correction of record, the petitioner's suit was liable to be dismissed. The application was vehemently contested.
The learned Civil Judge vide order dated 13.3.2014 dismissed the application under Order VII, Rule 11, C.P.C., observing that the circumstances described in the application under Order VII, Rule 11, C.P.C. did not bring the case within the purview of said provision and that the issues raised could not be decided without evidence and that mere saying that the deceased/plaintiff was not having enough property to fulfill the agreement will not be enough to persuade the court to apply Order VII, Rule 11, C.P.C. and further that the plaint, as it is disclosed cause of action and also that was drafted on sufficient stamp paper, therefore, the plaint at this stage could not be rejected.
4. Respondents/defendants challenged the order of rejection of their application under Order VII, Rule 11, C.P.C. in revision petition which was allowed by the learned Addl. District Judge vide order dated 20.9.4016 observing that after the sanction of mutation No. 3594 Iqbal Begum owned 11 kanals 16 marlas while she had agreed to transfer 28 kanals 8 marlas to Rasheeda Begum. A reference was made to certain documents which were placed on record by the respondents in defence along with the written statement. The learned Addl.
District Judge observed that the learned Civil Judge should not have issued summons to the respondents/defendants as the petitioners were owner of land measuring 11 kanals 16 marlas only. With this reasoning, the learned Addl. District Judge allowed the revision petition, accepted the application under Order VII, rule 11, C.P.C. and ordered rejection of the plaint in the suit vide order dated 20.9.2016 which is now under attack in this Civil revision.
5. Arguments heard.
6. From the contents of the plaint it is discernible that the case set up by the petitioner's was that a registered agreement of exchange was executed between late Iqbal Begum and late Mst. Rasheeda Begum for the exchange of land in terms whereof the property shown in schedule "Alif" was given to the predecessor of the petitioners while property given in schedule "Bay" was given to the predecessor of respondents. The grievance voiced in the plaint was that subsequently Iqbal Begum illegally made a Tamleek of a portion of land in favour of respondents Nos. 2 to 6, in which she had already given to the petitioner in terms of Tamleek and that the said mutation of oral Tamleek was illegal, invalid, a result of fraud and untenable. The defence raised in the written statement was twofold; firstly, that no such agreement of exchange was executed by Rasheeda Begum, predecessor of respondents, nor she ever appeared before the sub-registrar and that the document was got registered by impersonation. The second plea was that late Iqbal Begum did not own the land to the extent she agreed to give in exchange to the late Rasheeda Begum and that she only owned 11 kanals of land and, therefore, the transaction of exchange could not sustain. A Reference was also made to an alleged gift of a portion of land by late Iqbal Begum in favour of her son.
7. From the stance taken by the parties in their pleadings, as referred above, it is obvious that serious questions of facts and law were raised against each other, which required factual investigation for their final determination.
The petitioners were attributing allegations of fraud against late Rasheeda Begum while Rasheeda Begum was raising' allegation against the deceased predecessor of the petitioners. The question is as to whether any deed of agreement of exchange was executed and whether the deceased Iqbal Begum owned the land which she had agreed to give in exchange to late Rasheeda Begum; and whether her entitled was lesser than the one claimed by her and, if so, its effect on the exchange. These are questions which could only be resolved after evidence and framing of issues. Likewise, the allegations of the petitioner's predecessor that the oral Tamleek made by late Rasheeda Begum was invalid and fraudulent, could not be decided without evidence. It is a settled rule that while considering the application under Order VII, Rule 11, C.P.C. the court has to consider the contents of plaint and the documents annexed therewith and therefrom it has to be concluded whether the statements made in the plaint and facts stated therein, if accepted as true, will show the cause of action. It is the plaint which has to be seen for the purpose of concluding whether or not it discloses a cause of action; and for this purpose the law assumes that the facts stated in the plaint have to be deemed to be true and thereafter it can be examined as to whether it disclosed a cause of action and a triable issue had been raised or right to relief had been claimed which needed to be adjudicated. Whether or not on merits the plaintiffs could succeed, is a question which has to be decided after issues and evidence. Oddly enough, the learned Addl. District Judge by making reference to the material which did not form part of the plaint and. which was seriously in issue, assumed that whatever the respondents were saying was true and, on that assumption, he attempted to draw adverse inference against the petitioners. The course adopted by the learned Addl. District Judge was legally impermissible. It was rightly observed by the learned Civil Judge that the contents of the plaint did disclose a cause of action, it was properly valued and that there was no just or legal reason for its rejection at this initial stage and that the questions raised could only be decided after framing of issues and recording evidence pro and contra. The learned Addl. District Judge travelled beyond the scope of Order VII, Rule 11, C.P.C., and illegally assumed as if the plea raised by the respondents in defence should be deemed as proved and also as if the documents forming part of defence were duly exhibited or that the evidence had already been recorded and on these incorrect assumptions the learned Addl. District Judge proceeded to opine ' on merits of the case which was not permissible at this preliminary stage. The evidence having not been recorded, the respondent's stance having not been admitted, the documents having not been formally tendered in evidence after proper proof, the petitioners having not been allowed as yet to produce evidence in support of their stance of the plaint, the outright rejection of plaint, in the circumstances, cannot be countenanced under the law.
8. The writ petition is therefore allowed, the impugned order dated 20.9.2016 of the learned Addl. District Judge, Mian Channu is set aside and the order of the learned Civil Judge dated 13.3.2014 is restored, in result, the suit shall be deemed to be pending; which shall now be decided by the learned Civil Judge, on its own merits, after framing of proper issues, allowing the parties opportunity of evidence, and in accordance with law.