' MUHAMMAD YUNUS SURAK.HVI, J.---This appeal by way of leave of the Court, is directed against the order, passed by the High Court on 1-6-1998, whereby the suit filed by the appellant, herein, in the Court of Additional District Judge, Muzaffarabad was transferred to the Court of Sub-Judge, Hattian.
2. The brief facts of the case are that according to the appellant he was owner in possession of suit land measuring 9 Kanals and 4 Marlas, alongwith a house constructed over the same. A gift-deed of the said property is purported to have been executed in favour of respondent No,1, Muhammad Hayat Khan, by the appellant on 15-8-1992. On the basis of aforesaid gift-deed respondent No,!, Muhammad Hayat Khan, executed a sale-deed in favour of Mst. Sanwar Jan, respondent No,2, for a consideration of Rs,80,000. The plaintiff-appellant, herein, challenged the said gift-deed on the basis of non-delivery of possession and fraud initially in the Court of District Judge, Muzaffarbad, who made it over to Additional District Judge, Muzaffarabad and sought the cancellation of the gift-deed and the sale-deed and also sought perpetual injunction that respondents should refrain from interfering in his possession. The respondents field a cross suit in the Court of Sub-Judge, Hattian. The learned Additional District Judge framed eight issues in the light of pleadings of the parties and after hearing the arguments on preliminary issues transferred the suit to the Court of Sub-Judge, Hattian, wherein the cross suit was sub judice holding that in view of jurisdictional value and as the suit was a declaratory one, it was triable by the Court of. Sub-Judge and not by the Additional District Judge. The appellant, herein, filed a revision petition in the High Court contending therein that the suit pending in the Court of Sub-Judge, Hattian should have been transferred to the Court of Additional District Judge and not the suit filed by the appellant to the Court of Sub-Judge. The High Court after hearing the parties observed that the suit filed by the appellant herein, was not a suit for declaration with consequential relief rather it was a suit for simple declaration and thus in view of its jurisdictional value it was to be heard by the Sub-Judge, Hattian and not by the Additional District Judge. It is the aforesaid order of the High Court, dated 1- 6-1998, which is the subject of controversy in the present appeal.
3. In support of appeal it was vehemently contended by Ch. Muhammad Ibrahim Zia, the learned counsel for the appellant, that the High Court committed an error in holding that the suit filed by the appellant was a suit for simple declaration. The learned counsel submitted that the suit was for a declaration with consequential relief and it was discretionary with the plaintiff to fix its jurisidctional value. The learned counsel pressed into service the submission that as the sale-deed executed by respondent No,1 in favour of respondent No,2 was for a consideration of Rs,80,000, the Additional District Judge had the jurisdiction to try the suit and not the Sub-Judge. The learned counsel in support of his contentions cited reported cases titled Muhammad Suleman and another v. Javed Iqbal and others (PLD 1985 SC (AJ&K) 1), Mst. Nasim Akhtar v. Muhammad Sabeel and another (PLD 1991 Azad J&K 66) and Ghulam Hussain Shah v. Hidayat Ullah Khan (PLD 1981 SC (AJ&K) 55).
4. In reply it was contended by Syed Mushtaq Hussain Gillani, the learned counsel for the respondents, that the suit filed by the appellant was for a simple declaration. The mere fact that out of the suit of declaration a consequential relief naturally flows, does not bring the suit outside the ambit of the declaration. By elaborating his point of view the learned counsel submitted that if the consequential relief automatically flows from the declaration, then such a relief cannot be termed as consequential relief and the suit would be deemed to be one for declaration only and not for a declaration with consequential relief. The learned counsel contended that the cases relied upon by the learned counsel for the appellant titled Muhammad Suleman and another v. Javed Iqbal and others (PLD 1985 SC (AJ&K) 1) and Mst. Nasim Akhtar v. Muhammad Sabeel and another (PLD 1991 Azad J&K 66) also support the contention of the respondents.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that in order to determine the proper court-fee payable on the plaint in a particular suit, the correct principle is that plaint as a whole should be looked at and it is the substance of the plaint and not its ostensible form which really matters. In the present case the plaintiff/appellant has sought a declaration to the effect that he is owner in possession of the suit land and a further relief that the gift-deed and the sale-deed on its basis are illegal, ineffective and inoperative as against his rights. The aforesaid reliefs flow from the declaration itself. Therefore, the suit falls under section 7(iv)(c) of the Court Fees Act read with Schedule II, Article 17(iii) of the Court Fees Act. In a case reported as Muhammad Suleman and another v. Javed Iqbal and others (PLD 1985 SC (AJ&K) 1) it was observed by Raja Muhammad Khurshid Khan, C.J. (as he then was), at page 27 of the report as follows:-- "Suits falling under section 7(iv)(c) of the Court Fees Act not being included in section 8 of the Suits Valuation Act, are governed by the general rules enacted by the section to the effect that in case of suits not specifically mentioned in the section, the value for the purposes of court-fees determines the value for the purposes of jurisdiction. The Court Fees Act was passed in 1870 while the Suits Valuation Act was enacted 17 years later. To me the object of section 8 of the Suits Valuation Act is to fix the value of the suits for the purposes of jurisdiction and not for the purposes of court-fees. In fact the section assumes that the value for the purposes of court-fees has been determined or is determinable; and this determines the value for the purposes of jurisdiction. The section has received this construction in a large number of cases including the Privy Council decision Sunderabai v. The Collector of Belgium (ILR 43 Born. 376)..."
' It was further observed at page 33 of the report as follows:-- "The principle is that the Court has to look at the substance of the plaint in each case to determine whether the suit is really one for a declaration with a consequential relief or is merely a camouflage attempt in words to disguise a specific relief claimed in the garb of a suit for declaration occupied with a consequential relief. With this proposition I may say with all respect that I entirely agree and hold that the suit was triable by the Sub-Judge."
6. The suits for declaration are regulated by section 42 of the Specific Relief Act. Under the aforesaid section the declaration sought for must relate to the title or to any legal character or to any right as to any property. The said suit shall fall under section 7(iv)(c) of the Court Fees Act read with Schedule II, Article 17(iii) of the Court Fees Act. Where the specific relief claimed in a declaratory suit is either surplusage or the consequential relief flows from the original relief of declaration, claimed in the plaint, the suit will fall under Schedule II, Article 17(iii) of the Court Fees Act, as mentioned above, but if the consequential relief is not the outcome of the original declaratory relief then the suit shall fall out of the ambit of the provisions referred to above. The High Court, while agreeing with the aforesaid view-point, has given an illustration in the following way:-- "The example shall clarify the position that if suit is filed for declaration with regard to any land wherein a declaration is sought for being owner in possession and a further relief in the shape of permanent injunction restraining the defendant from interfering in plaintiff's possession, is sought, the suit shall come under the aforesaid provisions of Schedule II, Article 17(iii) of the Court Fees Act.
Therefore, to ascertain the nature of the suit, it is necessary to see the averments made in the plaint taken as a whole. In the case where it is not necessary to get a declaration of any sort and the sole thing which is necessary for the plaintiff is to ask for possession, the suit will be one for possession and shall be dealt with under section 7(v)(d) of Court Fees Act and not for declaration and consequential relief for possession "
7. In the instant case as the plaintiff-appellant has asked for declaration to the effect that he is owner in possession of the suit land and prayed for a further relief that the gift-deed and sale- deed are illegal and uneffective on his rights, the aforesaid further relief, in our view, flows from the declaration. Therefore, the suit will, in our view, fall under section 7(iv)(c) of the Court Fees Act read with Schedule II, Article 18(iii) of the Court Fees Act. In a case reported as Mst. Nasim Akhtar v.
Muhammad Sabeel and another (PLD 1991 Azad J&K 66) the following observations were recorded at page 69 of the report:- ' In the present case, the plaintiff firstly has to prove that he had paid Rs,6 lacs to his father deceased Ghulam Rasool to purchase the suit land alongwith house for the plaintiff. He has also to prove that decree allowed in favour of Mst. Nasim Akhtar on October 9, 1986 with regard to the suit land on the admission of Ghulam Rasool deceased, was void, ineffective and inoperative against his rights, Without removing these obstacles, the decree for possession cannot be allowed in his favour. As held in the earlier part of this order the entire plaint has to be scrutinized in order to ascertain the real nature of the suit. In the instant case, the relief of possession is implicit in the relief of declaration. Therefore, under section 7(4)(c) where two reliefs; one for declaration and the other as consequential relief for possession, have been sought for, it would bring the case within the ambit of section 7(4)(c) of the aforesaid Act."
8. The other authorities referred to by the learned counsel for the parties need not be discussed in detail because of the points involved having been already decided by this Court as well as by the High Court of Azad Jammu and Kashmir.
9. As the counter-suit was also pending in the Court of Sub-Judge, Hattian, therefore, the present case was rightly transferred to the trial Court which had the jurisdiction to try the same and to decide them by consolidating both the suits.
10. The nutshell of the above discussion is that finding no force in this appeal, the same stands dismissed without any order as to costs.