' Naeem Akhtar, Rukhsana Kausar and Farzana Kausar, descendants of Muhammad Asghar brought a suit for declaration and perpetual injunction in respect of a `khola', situate in village Barnala, Tehsil Bhimber. It was claimed that the `khola' (house) in question was in the ownership and possession of Muhammad Asghar, brother of Fazal Ahmed, defendant. On his death, the title and possession of the house vested in the plaintiffs. Fazal Ahmed and Muhammad Akram, his son, were trying to interfere in possession of the plaintiffs by denying their title. Thus, the plaintiffs were constrained to bring an action against them. The defendant-appellants repudiated the claim of the plaintiffs and alleged their counter-claim to the title and possession of the house. They also raised preliminary objection alleging non-maintenance of suit (i) for want of cause of action; (ii) for failure to implead the residents of the village as defendants; and (iii) non-maintenance of the suit in the present form. The trial Court decreed the suit. The first appeal of the present appellants failed before the Additional District Judge.
2. Ch. Shah Wali, the learned Counsel for the appellants contended that the subordinate Courts fell in error in decreeing the suit as the same was not maintainable on account of withdrawal of the previous suit without permission to bring a fresh suit.
3. The relevant law applicable to the withdrawal and adjustment of suits and to bring a fresh suit is prescribed under Rule 1, Order 23, C.P.C. It postulates that at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim when the Court is satisfied (a) that the suit must fail due to some formal defect; or (b) that there are other sufficient grounds to allow the plaintiff to institute a fresh suit, for the subject- matter of the suit or part of a claim. Unless no prayer for permission to bring a fresh suit was made the plaintiff was precluded from instituting any fresh suit in respect of same subject-matter or part of it. It was evident that in order to bring a fresh suit in respect of the subject of dispute, permission of the Court was a condition precedent. Morevoer, the Court was enjoined to accord such permission on the satisfaction that the suit under consideration would fail due to some formal defect or withdrawal of the suit was justified in the light of the circumstances placed before the Court.
4. Next, it is to be satisfied as to what should be the form of permission to bring a fresh suit. The law does not prescribe a definite form of order of the Court constituting its permission to bring a fresh suit. Thus, ordinarily, it was enjoined upon the Court to pass a self-speaking order reflecting acceptance of the request of the plaintiff to grant permission to withdraw the suit and also to state in clear words its sanction to bring a fresh suit. In the circumstances, where due to lack of aptitude of the Presiding Officer or for some other, reasons, an express order was not passed but the application was granted and the suit was allowed to be withdrawn in consideration of the request made to the Court, the presumption was in favour of the permission to bring a fresh suit. In case such permission was not granted, then as a consequence of refusal, the application has to be dismissed and the proceedings in the suit are to be continued. In Annamalai Chettiar's case (AIR 1918 Madras 127), Mr. Justice Wallis, Chief Justice observed that where a petition for withdrawal of the suit with permission to bring a fresh suit was simply endorsed as "permitted", it was held that the order should be construed as having impliedly granted leave to file a fresh suit. The proposition relating to withdrawal of suit with permission to bring a fresh suit was considered in Prem Ballabh Pant's case (AIR 1934 All.
292). It was a case where petition was moved containing terms of the compromise between the parties and praying for permission to withdraw and to file a fresh suit. The permission asked for was granted by acceptance of the application. An objection was raised by the contesting defendant that no necessary permision was granted to the plaintiff to withdraw the suit, to file a fresh one, in compliance with the provisions of Order 23, Rule 1, C.P.C. The learned Judge dismissed the objection as, in his view, grant of application by the Court to withdraw the suit is tantamount to a sufficient compliance to permit to file a fresh suit.
5. In the present case, it is evident from the copy of the order of Sub-Judge, Bhimber passed on April 5, 1982, that the counsel of plaintiffs moved the Court for permission to withdraw the suit on account of some formal defect and to bring a fresh suit. The application was granted and the plaint was returned to the plaintiffs. Undoubtedly, there was no specific mention of the permision to bring a fresh suit, but it is undenied that the application was accepted and the plaint was returned to the plaintiffs. It was a sufficient compliance of the provisions of Order 23, Rule, 1, C.P.C. As that purported to grant permission to file a fresh suit. The objection is, therefore, not sustained.
6. It was argued that the plaintiffs failed to prove their possession over the subject of dispute, as such omission to ask for the relief of grant of possession, barred the suit of the plaintiffs. Reference was made to PLD 1973 Peshawar 80. The proposition resolved in the aforesaid authority pertains to wake property. The plaintiff filed a suit, seeking declaration that the suit property was part of `wakf- ul-aulad', as such the defendant had no right to dispose it of by sale and that the sale-deed executed by the defendant-vendor in favour of defendant-vendee was wholly void and ineffective.
The averments in the plaint as well as evidence of plaintiff did not show him in possession of the suit property. In the aforesaid circumstances, it was observed that it was the duty of the plaintiff to ask for the relief of possession as without such relief, his suit would not lie under the provisions of section 42 of the Specific Relief Act. There is no cavil with the aforesaid observation as ordinarily, such is the spirit of the provisions of section 42 of the Specific Relief Act. In present case, the position is, however, different. The plaintiffs expressly averred that Muhammad Asghar, their father, was in possession of the suit property. They acquired title and possession of the property on his death. This is why they asked for a decree for declaration and perpetual injunction. The defendant- appellants, conversely repudiated their claim to possession and alleged that the property was purchased by him and he was in its possession, as such the suit was not maintainable. The issue was found against the defendants by both the subordinate Courts. The issue relating to possession is purely an issue of fact. It cannot be examined in second appeal unless it is satisfied that the findings of the subordinate Courts on the issue were perverse due to misreading, non-reading or misconstruing of the evidence. The onus of issue was obviously on the defendant-appellant. It was deposed by him that he purchased the suit house from one Gaman son of Haji on Magh 19, 2002 B.K. Vide receipt Exh. DA. He alleged his possession over the suit property and admitted that Muhammad Asghar, father of the plaintiff-respondents, lived with him at the time of his death.
Before that he lived with his in-laws. Allah Ditta, DW deposed that Muhammad Asghar lived with the defendant-appellant and died in his house. Muhammad Farid, the second defendant-witness deposed that Muhammad Asghar was brother of Fazal Ahmed, defendant. Muhammad Asghar had a separate house. It was sold out by him to one Fazal Amed Canda. It was admitted by the witness that Muhammad Asghar lived in the house in dispute at the time of his death. The testimony of Muhammad Farid, DW finds support from the evidence of Mst.Khanum Bibi, guardian ad litem of the plaintiffs and Rehmat Khan who deposed that the house in dispute was in the ownership and possession of Muhammad Asghar on whose death, the possession passed on to the plaintiffs. The statements of the parties were equally balanced but the testimony of Muhammad Farid, DW relating to possession tilted in support of the claim of the plaintiffs. Ch. Shah Wali, the learned counsel for the appellants referred to the report of the Commission, to seek its support in favour of possession of the appellants. Apart from the legal weight of the report of the Commission, the claim of the defendant-appellants does not find support from the report. The fact of the matter is that according to the report, Fazal Ahmed, defendant initiated reconstruction when plaintiffs brought a suit against him and also secured interim injunction whereby he was restrained from interfering in the possession and raising construction. The report clearly shows that according to the evidence of the witnesses who appeared before the Commission, Muhammad Asghar deceased lived in the house in dispute and he died over there. On his death, on account of divorce to his wife, the minors lived with their mother and the house was abandoned. May be that the minors/plaintiffs were not in actual possession of the house as they resided with their mother but their constructive possession could not be denied. Thus, the report was not of any help to the case of the defendant-appellants.
It is, therefore, rightly held that the plaintiff-respondents were in possession of the suit property at the time of institution of the suit. In the alternative, even if the possession of the plaintiffs is not upheld, the suit is not to be dismissed for their failure to ask for the relief for possession. The consequential relief flowing from the title of the plaintiffs is permissible to them. Therefore, the suit is not to be dismissed but the Court in exercise of its discretion, is empowered to grant consequential relief flowing from the main relief in the case.
7. Both the subordinate Courts accepted the claim of the plaintiffs to suit property. The defendant- appellant in his written statement repudiated the claim of the plaintiffs and alleged his counter title in the suit property. There was no express averment in his pleadings that he purchased the house in question from one Gaman. However, subsequently, on request of the defendant, an additional issue relating to his title by purchase of the house, was raised. In support of the issue, defendant produced a receipt purported to be executed by Gaman, the vendor, in his favour. According to receipt, Gaman was the owner of the house. He sold it to the defenant for a sum of Rs, 500 on Magh 19, 2002 B.K. The scribe of the receipt was one Karam Chand. The marginal witnesses were Hakim All and Fateh Khan. This document was tendered in evidence by the defendant. It was received in evidence without objection. The subordinate Courts ruled it out of the consideration for want of its registration and not having been proved in due course of law. Ordinarily, the document should have been proved and admitted in evidence under the rules of procedure described in the Evidence Act. But as no objection was raised at the time of its admission in evidence, at this stage it may be argued that the objection to the admission of the document in evidence was not available.
Be that as it may, the fact remains that both Allah Ditta and Muhammad Farid, DWs who were not marginal witnesses of the document, volunteered to support the alleged sale of the house by Gaman, to the defenant. Their testimony was rejected as both of them differed on the point of the payment of price of the louse. According to Muhammad Farid, the payment was made in the sum of Rs,700. Rupees 200 were paid as value of the built-up property and Rs, 500 as price of the site.
The payment was made in silver coins, in circulation at the relevant time. This witness was 45 years old on December 16, 1984 when he appeared as a witness. The transaction of sale of the house was made in the year 2002 B.K. Equivalent to the year 1945-46 AD. This suggests that at the time of alleged transaction, the witness was only of 5-1/2 years age. Allah Ditta, on the other hand, disclosed that the price was paid in currency notes of rupees ten and five. The evidence of these witnesses does not inspire confidence to believe that the transaction of sale was, in fact, made in their presence. It was, therefore, rightly discarded from consideration.
8. The receipt pertaining to transaction of sale was unregistered. It was not duly proved in evidence nor its execution was satisfied in the eye of law. For these reasons, the findings of the subordinate Courts warrant no interference. The appeal is, therefore, dismissed with costs.