The captioned appeal has been directed against the judgment/ decision passed by the learned District Judge Muzaffarabad dated 19.01.2016, whereby, the judgment and decree passed by the learned Senior Civil Judge Muzaffarabad dated 15.12.2015 was set-aside.
2. Precise facts necessary for disposal of the supra titled appeal are that plaintiff/Respondent No. 1, herein filed a suit for declaration and cancellation of gift deed dated 08.11.2012 alongwith mutation No. 470 quo perpetual injunction against appellants, herein, in the Court of learned Senior Civil Judge Muzaffarabad on the ground that the land comprising Khewat No. 25 Survey No. 29 old 79 new measuring 10 marla was firstly in the ownership of the plaintiff's father namely Syed Noor Hussain Shah, who was the husband of Defendant No. 1, Mst. Sabra Bibi and upon the suit land, a house and shops were constructed by the plaintiff's father and as per contents of appeal, the land was in the ownership of Defendant No. 1 (as be-nami), however, practically improvements upon the said land was made by father of the plaintiff and the suit land was given by the plaintiff's parents to plaintiff through oral gift deed and in the earthquake of 2005, the house and shops were badly affected and the plaintiff being the owner of the land got its compensation Rs. 1,75,000/-and the plaintiff by spending three millions, reconstructed the house and shops, the plaintiff not only looked after the mother but also met the total needs of his sisters. It has been stated that the plaintiff for livelihood often went to Pakistan and Defendant No. 1 Mst. Sabra Bibi secretly and fraudulently wrote and got executed a gift deed in favour of Defendants Nos. 2 and 3 and in this regard Mutation No. 430 was entered which later on was cancelled for want of possession and thereafter another Mutation No. 470 was registered and executed; neither the plaintiff had knowledge about the supra gift deed nor any entry was made in the revenue record and finally prayed for cancellation of the gift deed dated 08.11.2012 alongwith mutation No. 470 in respect of the land comprising Khewat No. 25 Survey No. 268 old 79 new measuring 10 marla.
3. After institution of the suit, defendants filed written statement stating therein-that the plaintiff had no cause of action and has no locus-standi to file the suit and the suit land was rightly gifted to Defendant Nos. 2 & 3 as Defendant No. 1 was the lawful and legal owner of the land, therefore, the gift deed dated 08.11.2012 has been written and executed in accordance with law, and finally prayed for dismissal of the suit. The learned trial Court in light of pleadings of the parties framed two issues and after necessary proceedings rejected the suit under Order VII Rule, 11 of CPC vide the judgment and decree dated 15.12.2015. Feeling aggrieved from the said judgment and decree, plaintiff/Respondent No. 1, herein, filed an appeal before the learned District Judge Muzaffarabad which was accepted and the judgment and decree of the trial Court was set-aside and the case was remanded back to the trial Court with the direction to decide the case on merits after completion of the evidence of the parties, vide judgment dated 19.01.2016, hence, this appeal.
4. Mr. Manzoor Hussain Raja, the learned counsel for appellants vehemently argued that the suit land was in the ownership and possession of Mst. Sabra Bibi, Appellant No. 1, herein, which was given by her mother to Appellant No. 1 and Defendant No. 1 has no nexus with the said land and Appellant No. 1 being the owner of the land transferred the suit land to Defendant No. 2 & 3 through registered gift deed dated 08.11.2012 and in this regard mutation No. 470 was also written and attested in presence of Defendant No. 1. The learned counsel further argued that in presence of registered gift deed, oral deed has no value but Defendant No. 1, herein, filed a suit for declaration and has failed to show his title in respect of the suit land, so, the plaint filed by Defendant No. 1 has not fulfilled the basic legal essentials and ingredients, which was rightly rejectee-by the trial Court under Order VII Rule 11 of CPC and the learned District Judge illegally and without any justification set-aside the judgment and decree of the trial Court. Finally, the learned counsel prayed for setting aside the judgment of the learned District Judge dated 19.01.2016.
5. Conversely Mohammad Saghir Javed, the learned counsel for Respondent No. 1, contended that the gift deed dated 08.11.2012 and mutation No. 470 are fake and fictitious and are without any possession and the learned trial Court has not taken into consideration the record properly and rejected the suit of plaintiff. The learned counsel further argued that the learned trial Court has mis-read and non-read the evidence produced by the plaintiff, however, the learned trial Court has rightly set-aside the judgment and decree of the learned trial Court. Finally, the learned counsel prayed for dismissal of appeal.
6. I have heard the learned counsel for the parties and gone through the record of the case.
SEQUEEZEED ANALYZATION The plaintiff/Respondent No. 1, herein, by filing a suit for declaration quo cancellation of gift deed dated 08.11.2012 stated that the same has been written and executed fraudulently and fictitiously without any possession as the same was not in the knowledge of plaintiff because he was in Pakistan for livelihood and the defendants/appellants, herein, in his absence got prepared the said gift deed which as per stance of the plaintiff is liable to be cancelled. Donor Sabra Bibi (deceased) herself contested the case and endorsed the factum of registered gift deed dated 08.11.2012 and specifically took a stance that mutation No. 470 was inserted and attested in presence and complete knowledge of Respondent No. 1 Shahzad Hussain Shah. Furthermore, the oral gift deed could not be preferred over registered gift deed, declaration is subject to clear cut title of the plaintiff. Objection quo maintainability of the appeal is repelled, appeal is competent against the decision of district Judge and no proof quo ownership has been brought on record by Respondent No. 1. Respondent No. 1 simultaneously portrayed two contradictory versions in the plaint and if entire evidence as per pleaded stance of Respondent No. 1 is allowed to be brought on record even then the fact of ownership cannot be resolved in favour of Shahzad Hussain Shah Respondent No. 1, herein. Hence, continuation of suit quo recording of evidence becomes futile exercise, thus, the suit filed by the plaintiff/Respondent No. 1/herein, was liable to be buried in its inception.
7. In the life time of donor, suit was brought by challenging the gift deed purported to be made by the real mother in favour of her two daughters, it was averred that the donor made the gift deed under undue influence and pressure but no efforts were made by the plaintiff to get his statement recorded (even in case of inability on her part to attend the Court it could have done through after, applying for appointment of Commission. Expression "Cause of Action" means the cause for which the suit was brought, while action means those proceedings in which a legal demand of a right was made, thus, the term cause of action covers every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment and which if not proved give the defendant a right to judgment and for this purpose only facts stated in the plaint where to be constituted in order to determine whether the plaintiff in a suit had a cause of action.[1] REJECTION OF PLAINT.
As per law for the purpose of rejection of plaint only the averments of plaint were to be looked into, cause of action meant the F bundle of facts incorporated in the plaint.[2] Order VII Rule 11, CPC, enjoins upon Court to bury a still born suit at earliest stage.[3] Nub of the above discussion is that while accepting the instant appeal, the decision passed by the 1st appellate Court i.e. learned District Judge Muzaffarabad dated 19.01.2016 is hereby set-aside and the decision rendered by the trial Court dated 15.12.2015 is upheld.
1. 2011 YLR 1473.
2. 2011 CLC 88, Sher Bano vs. Begum Dilshad Aslam.
3. Mian Abdul Monem vs. Asif Mushtaq 2005 YLR 1244, 1998 CLC 382.