This revision petition calls in question the judgment and decree dated 19th of December, 1988 whereby while setting aside the decree of the trial Court dated 10th of October, 1987 the District Judge, Okara dismissed the suit filed by the petitioner.
2. Mst. Haleema Bibi petitioner is the real sister of Muhammad Bashir respondent while respondents Nos. 2 and 3 are his sons. The suit out of which this revision petition arises was fled by Mst Haleeman Bibi petitioner on 27-6-1982 in which she prayed that the gift deed dated 21st of December, 1978 executed by respondent No.l Muhammad Bashir as general attorney of Chiragh Din, the father of the petitioner and the respondent No.l, in favour of respondents Nos. 2 and 3, the sons of Muhammad Bashir respondent No.l, be declared illegal, fraudulent, collusive and not binding on her.
This suit was resisted by the respondents on various grounds, inter alia, that the petitioner was not in possession of the suit land and, therefore, the suit was hit by proviso to section 42 of the Specific Relief Act. On merits it was pleaded that the gift in favour of respondents Nos. 2 and 3 was valid and lawful. On 10th October, 1987, the suit was decreed by the trial Court in favour of the petitioner on the finding that the gift in question was illegal, unlawful and void. Issue No.2 which pertained to the form of the suit was decided in favour of the petitioner on the finding that she being a co-heir of Chiragh Din deceased would be deemed to be in possession along with Muhammad Bashir respondent, of the suit land.
3. Aggrieved by this decision the respondents went in appeal which was accepted by the learned District Judge, Okara on the sole ground that the suit was barred by proviso to section 42 of the Act.
The learned District Judge observed that it was admitted by P.W.2, the petitioner herself that she was not m possession of the suit land and as she had failed to sue for possession, the declaration prayed for by her could not be granted and the suit was not maintainable in the present form. The merits of the respective claim of the parties were, not examined and the appeal was accepted only on the ground of defect in the form of the suit.
4. I have heard Mr. Muhammad Afzal Basra, Advocate, learned counsel for the petitioner. No one has appeared for the respondents although it is 12.05 p.m. Now. The learned counsel for the petitioner has contended that the impugned judgment of the learned District Judge is erroneous for two reasons. Firstly, that the suit had been filed by the petitioner under section 39 of the Specific Relief Act, 1877 and not section 42 of the Act and as such the proviso to the latter provision was not applicable; secondly, that as the petitioner was co-heir along with respondent No.l, of Chiragh Din she would be deemed to be in possession as co-sharer with Muhammad Bashir respondent.
5. Both the contentions of the learned counsel are well founded. As regards the first contention, from the perusal of the plaint it is apparent that the petitioner had sought a declaration that the gift deed in question was illegal, unlawful, void and not binding on her. The plaint did not contain any prayer that I she be declared as owner of the suit land and no declaration was asked for with 11 regard to her title. On a bare reading of the plaint it appears that the suit was I governed by section 39 of the Specific Relief Act and not by section 42 thereof. The distinction between a suit under section 39 of the Act and a suit under section 42 is quite obvious. In the former case the plaintiff does not seek a declaration regarding his title but only about invalidity of a deed while in the latter case relief asked for is regarding the title of the plaintiff or right in any property or status. In Bahadurmull Chauhay and others v. Nagarmull Madangopal and others AIR 1941 Calcutta 534 it was observed that though the Court's power to make declaratory decrees are limited by section 42 which apply only to cases in which the plaintiff, being entitled to any legal character or to any right to any property, brings a suit against a person denying his title to such character or right; but a suit to adjudge and declare that a contract is void and order it to be delivered up and cancelled is competent by reason of section 39. Similarly in Maneshier Gir v. Rehmatullah and others AIR 1936 Allahabad 710 it was held that where the plaintiff sought to have two deeds in question adjudged void, section 39 and not section 42 of the Specific Relief Act, 1877 applied.
6. In order to determine whether a suit falls under section 39 or section 4 of the Act, it is the plaint as a whole which is to be considered. Even if, like the present case, the petitioner only prays for a declaration that the deed is void or invalid without asking for further relief of cancellation of the document, still the B suit falls within section 39 of the Specific Relief Act, for, it is well settled that the prayer for cancellation need not be specifically made but is inherent and flows from the relief regarding the prayer for adjudging the document void. A Division Bench of Allahabad High Court in Akhlaq Ahmad and others v. Mst. Karami Elahi AIR 1935 Allahabad 207 was of the view that a suit under section 39, Specific Relief Act, for avoiding an instrument, even if there be no prayer for cancellation carries with it by implication a prayer that the Court may further use the discretion given to it by section 39 so as to order the said instrument to be delivered up and cancelled.
Similarly in Bulakram and another v. Ganga Bishum Chaudhury AIR 1940 Patna 133 it was observed that it is open to the Court though there is no prayer for it to order the document to be delivered up and cancelled in a suit brought by the plaintiff for a declaration that the document is void. It thus becomes clear that even in the absence of prayer for cancellation he suit of the petitioner was governed by section 39 of the Specific Relief Act and not section 42 thereof.
Under the law it is not necessary that in a suit governed by section 39 of the Specific Relief Act the plaintiff should in addition to a prayer for having the document adjudged void clam any further relief available to him. Section 39 of the Act does not contain provision similar to the proviso to section 42 of the Act which bars the Court from granting a declaration if the plaintiff being entitled to further relief, omits to do so. This question was examined by a Division Bench of this Court in Nur Muhammad v. Mst. Karim Bibi PLD 1959 Lah. 932 wherein it was observed that a suit under section 39 of the Specific Relief Act cannot be eld to be non-maintainable on account of the omission of the plaintiff to sue for further relief even if such a relief is available to him. The learned District Judge did not advert to this aspect of the case.
7. Reverting to the other contention of the learned counsel, according to the case of the petitioner no valid gift had been made in favour of Chiragh Din, father of the petitioner and respondent No.l. It is evident from Khasra Girdawari Exh.P.4 that the land is in occupation of Muhammad Bashir. If the gift in favour of respondents Nos. 2 and 3 is held to be void and of no legal effect, the possession of Muhammad Bashir shall be as an heir of Chiragh. Since admittedly the petitioner is a co-heir of Chiragh Din, she would be deemed to be a co-sharer and therefore, in possession of the land. The learned trial Court acting on these bases had decided the issue relating to the maintainability of the suit in favour of the petitioner. Unfortunately however, the learned District Judge did not advert to this aspect of the case at all. The decision rendered by him, therefore, is not sustainable. In the facts and circumstances of the case, the learned District Judge should have decided all the issues together but unfortunately he failed to do so and chose to dismiss the appeal holding the suit to be not maintainable in its present form without deciding the other issues. In view of what has been stated above, this revision petition is accepted and, the judgment and decree of the learned District Judge, Okara, dated 19th of December, 1988 is set aside, with the result that the appeal filed by the respondent against the decree of the trial Court shall be deemed to be pending before him.
The learned District Judge shall now decide the appeal on merits in the light of the observations made above. No order as to costs.