MUHAMMAD JUNAID GHAFFAR J.--- -Through this Civil Revision Application, the Applicants have impugned Judgment dated 29.5.2001 passed by the Additional District Judge. Gambat, in Civil Appeal No.20 of 1999 whereby, while allowing the Appeal and decreeing the Suit Judgment dated 26.5.1999 of Senior Civil Judge, Gambat in F.C. Suit No. 36 of 1992 has been set-aside through which the Suit of the-Respondents was dismissed.
2. Heard both the learned Counsel and perused the record.
3. It appears that the Respondents filed a Suit for Declaration, Possession and Mesne Profits with a prayer that it may be declared that they being the legal heirs of Late Syed Ali Hasan Naqvi are the owners of the Suit property. It was pleaded that Applicant No. 2 being in distress after his migration from Jadowahan obtained the suit property on rent from the predecessor in interest of the Respondents, whereas, an Agreement was also executed for such purposes. It was further pleaded that thereafter the Applicant No.1 perpetuated fraud and got the suit property transferred in their name by fabricating the title documents. The said Suit was dismissed by the learned trial Court, whereas, in Appeal after setting aside the judgment of the trial Court, the Suit has been decreed.
4. It is a matter of record that as per the pleadings the case as set up on behalf of the Respondents was that the suit property was given under the tenancy of Applicant No. 2 by the predecessor in interest of the Respondents. Now if that be the case then how a Suit for declaration could have been maintained is a question which has not been attended to by the Appellate Court correctly.
Rather, in a cursory manner, weightage has been given to the purported sale agreement entered into by the father of the Respondents. At the same time, the Respondents also pleaded; rather admitted that the property at the time of filing of the Suit was transferred in the name of the Applicant; but such transfer was allegedly done by way of fraud. The also stated in the plaint subsequently, that the Applicants were neither tenants owner or licensee; but trespassers. This contradictory stance in the plaint by itself was enough to discard the claim of tilt Respondents, as they never had an: title documents in the name of their predecessor in interests; rather the case a set-up was that the property was owned by one Kishanchand by virtue of a transfer order dated 26.6.1965 (Exh-89), whereas, thereafter predecessor in interest of the Respondents entered into an agreement of sale dated 1.1.1967. Now if the property was purchased by the father of the Respondents, then why he never sought transfer of the same in his name from the seller; or by way of a suit for specific performance in his lifetime is a question which remained unanswered. It is settled law that no title or ownership could be claimed merely on the basis of an agreement, even if the possession has been handed over. At the same length it has been stated in the evidence of Respondent No.1 that his father let out the property to Applicant. If this is true, then why no proceedings were initiated under the Rent law so as to seek ejectment of the Applicants. Again this question remains unanswered. In his evidence he has also admitted that from 1.1.1967 till 10.6.1983 neither any attempt was made to get the property transferred in the name of his father; nor during this period any taxes on the property were paid either by him or his father. Now if the property was owned as claimed then how these objections could be overcome is unclear. He has further admitted that neither a rent case was ever filed; nor any suit (except the present one) was ever filed for seeking any declaration or any other relief. As to signing of rent agreement, again there is contradiction in the evidence of Respondent No. 1 and his witness Dur Muhammad (Exh-90).
5. It may further be observed that the learned trial Court was fully justified in holding, that the suit for declaration was not maintainable as firstly the Respondents had no title in their favour; hence, it was hit by sections 42 and 56 of the Specific Relief Act, 1877. Similarly, the learned trial Court was also fully justified in holding that the suit was also time barred as the pleadings suggest that the cause of action accrued in 1967 when the property was purportedly purchased by the father of the Respondents, whereas, the Suit was filed in 1992, by pleading that the cause of action accrued in 1989 when some suit was filed by the Applicants. Admittedly the said suit was against someone else and was based on a different cause of action.
6. In view of the above facts and circumstances of this case, it appears that the Appellate Court had seriously fallen in error in setting aside a well-reasoned judgment of the trial court which was passed after appreciation of facts and the evidence led by the parties, whereas, the very Suit of the Respondents was not only time barred; but was also not maintainable under the Specific Relief Act, and lastly, if at all a case was to be made out, it could have been by way of rent proceedings as the Respondents had admitted as well as pleaded that the Applicants were tenants of their predecessor in interest.
7. Therefore, in view of the above, this Revision Application was allowed by means of a short order on 24 12.2021, by setting aside the judgment of the Appellate Court dated 29.5.2001 and maintaining the judgment of the trial court dated 26.5.1999 and these, are the reasons thereof.