' This petition for leave to appeal has been directed against the judgment passed by the High Court on 26-12-2003, whereby the appeal filed by Abdul Hameed, respondent No.1, was accepted and the judgments and decrees passed by both the Courts below were set aside.
2. The necessary facts, giving rise to the present petition for leave to appeal, are that the plaintiff- petitioner filed a suit for declaration cum perpetual injunction in the Court of Senior Civil Judge Bhimber. It was averred by him that total land of Khewat No.19, according to Jamabandi of 1967-68 was 69 Kanals, 15 Marlas, but the defendants, Abdul Hameed and others, with the connivance of the Revenue Department, got it inserted as 67 Kanals, 8 Marlas, in the recent settlement record. The land of defendant-respondents, Abdul Hameed and others, from Khewat No.2/1, according to Jamabandi of year 1967-68 was 2039 Kanals, 14 Marlas, but with the connivance of the Revenue Department in the recent settlement, it was enhanced to 2216 Kanals, 5 Marlas. The plaintiff- petitioner had purchased the land measuring 2 Kanals, 11 Marlas comprising Survey No.1074, Khewat No.22, Khata No.103/184 and also got possession of the same. Thus, it was in his ownership and possession. It was craved by him that the decree for declaration may be passed in his favour against the defendants and he may be declared the owner in occupation of the land measuring 2 Kanals, 11 Marlas, comprising Survey No.1074 and the defendants-respondents may be restrained from effecting any change in the Revenue Record.
3. The suit was resisted by the defendants. After the trial of the suit, the learned Senior Civil Judge vide his judgment and decree dated 25-10-2001 declared the plaintiff-petitioner owner of the said land but at the same time, he also held that the plaintiff has failed to prove his possession on the said survey number, therefore, Issue No.1 was decided in favour of the plaintiff-petitioner to the extent of ownership and it was held that the plaintiff has failed to prove that he was in ossession of the suit-land.
4. Feeling aggrieved from the aforesaid judgment and decree, the defendant-respondent No.1 filed an appeal in the Court of District Judge, Bhimber which was dismissed. The _second appeal was filed by respondent No.1 before the High Court which was accepted mainly on the ground that as both the Courts below have held that the plaintiff was not in possession of the suit-land, so the proviso of section 42 of the Specific Relief Act provides that no Court shall make any declaration, where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. It was further held that it was settled principle that declaration regarding ownership could not be passed where the plaintiff could have asked for relief of possession but failed to -do so. The suit of the plaintiff was therefore dismissed. Hence this petition for leave to appeal.
5. In support of petition for leave to appeal it was vehemently contended by Ch. Muhammad Yunus Arvi, the learned counsel for the petitioner, that the High Court committed a grave error by dismissing the suit of the plaintiff-petitioner. The learned counsel contended that the High Court accepted the appeal of respondent No.1 on the sole ground that under section 42 of the Specific Relief Act, no Court shall make any declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. The learned counsel also pressed into service the submission that it is wrong to suggest that the possession of the suit-land lies with the defendant- respondents. The learned counsel emphasized that the consequential relief in the shape of permanent injunction has been sought, by the plaintiff-petitioner in his plaint but this. Aspect of the case was not taken into consideration by the High Court. The learned counsel contended that a plaintiff may ask for a mere declaration of his right without claiming any relief under section 42 of the Specific Relief Act and every suit is not liable to be dismissed where the possession is not prayed for.
6. Controverting the arguments raised by the learned counsel for the petitioner, Ch. Jahandad Khan, the learned counsel for the respondents, categorically stated that the suit of plaintiff- petitioner without asking for possession as a consequential relief was liable to be dismissed and the same was rightly done so by the High Court. The learned counsel contended that as the plaintiff-petitioner simply craved for declaration and has not prayed for possession of the suit- land, therefore, under section 42 of the Specific Relief Act, his suit was liable to.Be dismissed. The learned counsel in support of his contentions relied upon the cases reported as Azad Government v. Zubair Ahmad Khan and 11 others 2001 SCR 464 and Sultan Habib and 10 others v. Mst. Walayat Begum and 10 others 2003 SCR 92. On the strength of these authorities the learned counsel contended that the suit filed by the plaintiff-petitioner has rightly been dismissed by the High Court for not seeking the prayer for consequential relief as provided under section 42 of the Specific Relief Ad.
7. I have given my due consideration to the arguments advanced at the Bar and perused the relevant record. The proviso of section 42 of the Specific Relief Act provides as follows:- "Bar to such declaration:---Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
The object of section 42 of the Specific Relief Act is to express in definite terms the kind of cases in which the specific relief of a declaration of right, apart from all further relief, may be granted. At the same time care has been taken to avoid multiplicity of suits and to prevent a person getting a declaration of right in one suit, and immediately after, the remedy already available in the other.
This is clear from provision of section 42 which refers to the status of plaintiff at the time of filing the suit. In the instant case both the parties agree that at the time of institution of suit, the possession of the suit-land was not with the plaintiff, therefore, his suit was liable to be dismissed on this sole ground.
8. In a case reported as Azad Government v. Zubair Ahmad Khan and 11 others 2001 SCR 464 it was held by this Court that a declaratory suit with regard to immovable property is not maintainable if the plaintiff does not seek consequential relief to which he is entitled; besides, he must have a legal right in the property. The proviso of section 42 of the Specific Relief Act is very clear on the point.
9. In Sultan Habib and 10 others v. Mst. Walayat Begum and 10 others 2003 SCR 92 the suit was dismissed on the ground that a declaratory suit without consequential relief was not maintainable under section 42 of the Specific Relief Act. This plea taken in the written statement was not refuted by filing replication by the plaintiffs.
10. The contention of Ch. Muhammad Yunus Arvi, the learned counsel for the petitioner, is that he has also sought a prayer for permanent injunction against the defendant-respondents, therefore, the suit could not have been dismissed summarily by the High Court. I am afraid that I cannot subscribe to the view of the learned counsel for the petitioner as the permanent injunction can only be granted in those cases in which the possession of property or the suit-land vests with the plaintiff but in the instant case, the possession of the suit-land vests in the defendant-respondents.
Therefore, this contention of the learned counsel for the petitioner stands repelled.
11. The authority cited by the learned counsel for the petitioner titled Fazal Ahmad and another v.
Naeem Akhtar and 2 others 1992 M LD 251 is distinguishable and is not applicable to the instant case. In the said authority it has been observed that the Courts below on the basis of evidence on record had rightly found the plaintiffs to be in possession of the property in question at the time of institution of the suit. It was further observed that in the alternative if possession of the plaintiffs was not upheld, the suit was not to be dismissed for their failure to ask for relief of possession as consequential 'relief flowing from the title of the plaintiffs was permissible to them. The suit was thus not to be dismissed but the Court in exercise of its discretion was empowered to grant consequential relief flowing from the main relief in the case.
12. In the above cited case the Courts below held and found the plaintiffs in possession of the property in question at the time of institution of the suit. However, it was observed that in the alternative if the possession was flowing from the title of the plaintiffs, then the Court was competent to grant consequential relief flowing from the main relief in the case. There is no quarrel with the principle laid down in the above cited authority but in the instant case it is an admitted fact that the petitioner was not in possession of the suit-land and as such a mere declaratory suit was not competent under law.
13. Another contention of the learned counsel for the petitioner is that he has averred in his plaint that the Court may grant the decree for declaration-cumperpetual injunction as well as any other relief which is permissible under law. His point of view seems to be that "any other relief" covers every type of relief. I cannot agree with the view of the learned counsel for the petitioner because to seek any other appropriate relief is a general type of prayer which does not include the prayer for getting the decree for possession.
14. In the light of what has been stated above, the plaintiff-petitioner has failed to make out any case for grant of leave; the same therefore stands dismissed in limine.