' This revision petition is directed against the judgment and decree, dated 8th of May, 2002 whereby a learned Additional District Judge, Lahore, has dismissed the petitioner-plaintiff 's appeal against the judgment and decree, dated 17th of June, 1998 rejecting the plaint in the suit for declaration and injunction. {{PAGE CUT}}
2. " Stripped of unnecessary details, the facts giving rise to this petition are that Muhammad Munawar Bajwa, petitioner herein, filed on 27th of April, 1991, a s Kanals, 8 Marlas comp Khatuni No,195, situate Khurd, Tehsil and Dist Ghulam Muhammad and died, leaving behind a wi daughters named Mst. Namely, Liaqat Ali, resp Ali deceased equal to one it averring that a piece of land measuring 3 ised in Khasra No,784/594, Khata No,89, within the revenue estate of Mauza Chuhng ict Lahore, was owned in equal shares by Rehmat Ali, real brothers; that Rehmat Ali ow by the name of Mst. Ghulam Fatima, two ani Bibi and Mst. Maryam Bibi and a son, ndent No,2 herein; that half share of Rehmat Kanal and 14 Marlas had devolved on his legal {{PAGE CUT}} heirs; that all the four legal heirs of Rehmat Ali had jointly sold 10 Marlas of land to one Mst. Nasreen Kausar through a sale-deed registered on 28th of January, 1980 who, in turn, had sold the same to one Zulfiqar Ali in whose favour a mutation had also been sanctioned; that out of the remaining land, the legal heirs of Rehmat Ali sold one Kanal of land in favour of the plaintiff-petitioner by means of a sale-deed, registered on 11th of May, 1980 and Mutation No,1175 was also sanctioned in his favour on 26-12-1981 which sale was also given effect to in the Record-of-Rights prepared for the subsequent years; that a few days before the filing of the suit when the petitioner resorted to laying foundations for raising construction on the land so purchased by him, respondent No,1, along with her husband suddenly emerged, and resisted raising of construction, claiming that she had purchased one Kanal and 10 Marlas of land, including the disputed piece of land measuring one Kanal, through sale-deed, dated 26th of March, 1984 from Liaqat Ali, respondent No,1; that the plea of the petitioner that after sales in favour of Mst. Nasreen Kausar and the petitioner, share of Liaqat AR in Khasra No,784/594 was only one Marla and, therefore, the alienation in favour of respondent No,1 being beyond his entitlement was void ab initio, fell flat on respondent No,1, which gave rise to the filing of the suit by him for declaration that the plaintiff was the lawful owner in possession of the suit-land; that the sale-deed, dated 11-5-1980 and consequent Mutation No,1175 in favour of the plaintiff-petitioner were valid and lawful, whereas the subsequent sale-deed, dated 26-3-1984 in favour of defendant-respondent No,1 being based on fraud, misrepresentation, without lawful authority and without consideration, was inoperative. As a consequential relief, the plaintiff-petitioner sought injunction restraining defendant-respondent No,1 from, in any way, interfering with his possession over the suit property.
3. The defendant-respondent No,1 in her written statement pleaded that immediately after purchase of the land by her, she got the property demarcated and raised a boundary wall to the height of 4 feet around her plot; that she was in exclusive possession of the suit-land; that the plaintiff-petitioner being not in possession, his suit for a mere declaration was hit by the first proviso to section 42 of the Specific Relief Act and thus not maintainable; that Liaqat Ali, defendant-respondent No,2 was a co-sharer with Ghulam Muhammad in the joint Khata measuring 91 Kanals, 10 Marlas; that Liaqat Ali was in exclusive possession of Khasra No,784/594, measuring 3 Kanals, 18 Marlas (wrongly mentioned as 3 Kanals, 8 Marlas by the plaintiff-petitioner); that he lawfully sold land measuring one Kanal, 10 Marlas to defendant-respondent No,1 and handed over possession thereof to her; that Liaqat Ali, defendant-respondent No,2 having inherited 7/32 share from the estate of his late father, Rehmat Ali, equal to 20 Kanals, 1 Marla of land from the joint Khata and having sold 18 Kanals, 6 Marlas through various transactions jointly and severally, was still owner in the joint Khata to the extent of one Kanal, 15 Marlas and thus the sale in favour of defendant-respondent No,1 being well within his entitlement was not open to exception. It was also pleaded that the suit property was of the value of rupees seventy eight lacs and neither the suit had been properly valued nor proper court-fee had been paid, besides the fact that the plaintiff- petitioner had no real cause of action for the suit.
4. Divergent pleas of the parties gave rise to the framing of the following Issues on 2-3-1992:-
(1) Whether the plaintiff is owner in possession of the property in dispute and as such entitled to the decree as prayed for? OPP.
(2) Whether the impugned sale-deed in favour of the defendant No,1, dated 26-3-1984 is illegal, void, inoperative and based on misrepresentation, fraud and without lawful authority and without consideration? OPP.
(3) Whether the suit is time-barred ? OPD
(4) Whether the plaint is not maintainable in its present form?
(5) Whether the suit is not maintainable and liable to be dismissed in view of the preliminary objection No,3 of defendant No,1 in the written statement?
(6) Relief.
5. Before the learned trial Judge could proceed with the suit on merits, defendant-respondent No,1 filed two applications, one under Order VI, rule 17, C.P.C. Seeking amendment of her written statement, and the other under Order VII, rule 11, C.P.C. For rejection of the plaint. Vide order, dated 3-7-1995, the application for amendment of the written statement was allowed whereas the one for rejection of the plaint was dismissed.
6. The contesting parties were then put to trial, and after recording their evidence, the learned trial Judge vide judgment and decree, dated 17-6-1998 by dealing with Issues 1, 4 and 5 together, held that the plaintiff-petitioner being not in possession of the suit property which was in possession of defendant-respondent No,1, first proviso to section 42 of the Specific Relief Act was attracted and the suit for mere declaration was barred, and not maintainable without seeking relief of possession.
In view of findings on Issues 1, 4 and 5, it was considered unnecessary to record findings on Issues 2 and 3. Consequently the plaint was rejected by observing as follows:-- ' "In nutshell suit is not maintainable. Further proceedings in this way would be sheer wastage of time. No relief thus can be granted to the plaintiff. Since I have not reverted to the aspect of ownership of the disputed land and the plaintiff's claims that sale deed in favour of defendant No,1 be declared as void and further that learned counsel for the plaintiff has not shown any inclination even at final stage towards making necessary amendments in the relief so as to seek possession.
Therefore, in such circumstances, I have come to the conclusion that suit is barred by law-thus rendering plaint as liable to be so rejected. The plaint thus stands rejected. No order as to costs."
' Feeling aggrieved, plaintiff-petitioner filed an appeal which was accepted by a learned Additional District Judge vide judgment and decree, dated 14th of April, 1999. After recording the findings that "it is not proved on record that respondent No,1 is not in possession of the land which she has purchased from Liaqat which means that she had installed boundary wall" and that "this is a suit for declaration without seeking possession of the land, whatever its extent or measurment may be" the learned Additional District Judge proceeded to remand the case to the learned trial Judge by observing as follows:-- ' "Sequel to above, leaving specific findings on each one of the issues particularly Issues Nos.1, 4 and 5, appeal is accepted and case is remanded to learned trial Court for demarcation of the land of the appellant and that of respondent No,1 in the first instance through Tehsildar, Lahore Cantt. In accordance with report of the Financial Commissioner recorded in the Rules and Orders of the Lahore High Court, Lahore. His report, (which shall be made by the Tehsildar Lahore Cantt. On the spot carrying demarcation with the help of his Revenue Staff, which must include a Girdawar/Qanungo,) shall also be subject to objections if any by the parties and the Local Commissioner also examined as C.W. After his report, question of possession of the parties on the suit land shall be determined and findings rerecorded not only on Issues Nos.1, 4 and 5, but also on Issues Nos.2 and 3."
7. Defendant-respondent No,1 challenged the aforementioned decision by means of Civil Revision No,972 of 1999 which was accepted on 7th of June, 2001 by a learned Judge of this Court, by holding as follows:-- ' "I have heard the learned counsel for the parties. Issues Nos.1, 4 and 5, relate to the maintainability of the suit filed by the respondent No,1 and it is specifically averred in the plaint that the plaintiff is in possession of the suit property, thus, no consequential relief for possession was sought. However, from the evidence on the record, the learned trial Court has reached to a conclusion that the respondent No,1 is not in possession, therefore, his suit is hit by the first proviso to section 42 of the Specific Relief Act. The learned Appellate Court has not adverted to this aspect of the matter, but for erroneous reasons, has gone beyond the scope of the controversy between the parties and has observed that the matter between them can be resolved through demarcation. In the instant case, the question of demarcation of the plot in dispute has no relevance. Towards the object to resolving the issue about the maintainability of the suit, it is evidence on the record, which was duly led by the parties, to be taken into consideration and to decide the relevant issues. It may not be out of place to mention here, that even it has not been the case of the respondent that the demarcation of the property, is required, though to ascertain the position of possession, a local commission was appointed by the trial Court, but it was not with an intent for the purpose of demarcation.
' In the light of above, the learned Appellate Court has committed a material irregularity and has erroneously exercised its jurisdiction in accepting the appeal of the respondent and remanding the case to the Court below. Therefore, this petition is allowed. The impugned judgment and decree is set aside. The case is remanded to the learned Court in appeal for decision on all the relevant issues on the basis of evidence on the record. No order as to costs".
Pursuant to above decision and the order of remand. a learned Additional District Judge, Lahore, vide his impugned judgment and decree, dated the 8th of May, 2002, dismissed the plaintiff- petitioner's appeal by holding that he had failed to prove Issues 1 and 2 inasmuch as the sale in favour of defendant-respondent No,1 was not in excess of the entitlement of the vendor in the joint Khata and, therefore, it was not open to any valid exception, and by finding Issues 4 and 5 in favour of defendant-respondent No,1, he has upheld the trial Court's finding that the suit of the plaintiff- petitioner was hit by the first proviso to section 42 of the Specific Relief Act, since the plaintiff- petitioner is not in possession of the suit land and the suit for mere declaration, without seeking the relief of possession, in the circumstances, was not maintainable. Hence this revision petition.
8. I have heard the learned counsel for the parties and have scanned through the record.
9. At the outset learned counsel for respondent No,1 raised objection to the maintainability of the revision petition by contending that concurrent findings of facts are not open to scrutiny in revisional jurisdiction. Reliance in support of the objection has been placed on Abdul Majid v. Khalil Ahmed PLD 1955 FC 38, Noor Muhammad v. Namdar PLD 1969 Lab. 105, Abdul Rehman Bajwa v.
Sultan PLD 1981 SC 522, Hussain Ali Chandio v. Secretary, Ministry of Communication 1985 SCMR 1735, Muhammad Bashir Ali v. Ghulam Mohy-ud-Din 1996 SCMR 813 and Jam Balli v. Mehar Khan 2003 SCMR 1013.
10. In Abdul Majid v. Khalil Ahmed PLD 1955 FC 38 an erroneous approach in appraising the evidence, unless resulting in a material mistaken assumption, was held not to justify interference in second appeal, let alone in revisional jurisdiction. In the cited case, it was authoritatively laid down at page 41 of the Report as follows:- ' "It is obvious that what the learned Judges intended to say was that for the reasons stated by them the Courts below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others [PLR (1954) 595] where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri ILR 18 Cal. 23 and Wald Muhammad v. Muhammad Bakhsh 11 Lah. 199 which lay down this proposition in clear and unmistakable terms. It is not suggested that there was in the present case any "error in the procedure provided by law", nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First Appeal which is the final Judge of facts. The circumstances that the sale deeds contained no recital as to necessity, that the alienations were old sales, that the alienee was dead at the time of the suit and that the vendor was leading the life of a country gentleman and not that of a debauch or wastrel, had all been duly considered by the Courts below in arriving at their conclusions, and assuming that the High Court did not agree with the lower Courts appreciation of the evidence, that could not be a ground for it to reverse the concurrent findings of fact of the lower Courts. In my opinion, the High Court had no jurisdiction to entertain the second appeal on this ground, and it exceeded its functions in interfering with those findings".
In Noor Muhammad v. Namdar PLD 1969 Lah. 105, a learned Single Judge of this Court, while seized of a revision petition arising out of an application under section 383 of the Successions Act, had observed as follows:-- ' "The Administrative Civil Judge has decided the questions of fact raised before him and whether he has decided the same rightly or wrongly, he had jurisdiction to decide the case and even if he has decided wrongly, no case is made out under section 115 of the Code of Civil Procedure. I, therefore, decline to interfere".
' In Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522 where an order of acquittal passed by a Magistrate was set aside by a learned Additional Sessions Judge in the exercise of his revisional jurisdiction, the order was challenged in writ jurisdiction, and a learned Judge of this Court, by accepting the writ petition, declared the order of the learned Additional Sessions Judge to be without lawful authority and of no legal effect, thereby restoring the order of acquittal. The order of this Court was challenged before the Hon'ble Supreme Court. It was in this background that the following observations were made in paragraph 11 of the judgment:-- ' "The question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction".
' While advancing the argument based on the cases of Noor Muhammad and Abdul Rehman Bajwa (supra), learned counsel for respondent No,1 has lost sight of the subsequent case reported as Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 where at page 452 of the Report the law has been declared in the following terms:-- ' "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction".
' Moreover, in Hussain Ali Chandio v. Secretary, Ministry of Communication 1985 SCMR 1735 by relying on an earlier decision reported as Nawaz v. Additional Settlement and Rehabilitation Commissioner PLD 1970 SC 39 it was held that even while exercising Constitutional jurisdiction the High Court is quite competent to interfere with a finding of fact if the same is "based on no evidence or is based on a cofnplete misreading of the evidence". In Muhammad Bashir Ali v.
Ghulam Mohy-ud-Din 1996 SCMR 813, it was held that "revisional powers under section 115, C.P.C.
Are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction" and that "ordinarily erroneous decisions of fact are not revisable, except in case where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom". In Jam Balli v. Mehar Khan 2003 SCMR 1013 leave was refused by observing that concurrent findings of fact by three Courts below including High Court did not suffer from any legal or factual infirmity or jurisdictional error".
11. A very lucid and clear statement of law about the limits of revisional jurisdiction of the High Court qua concurrent findings of facts recorded by lower Courts appears in the case reported as Abdul Hakeem v. Habibullah 1997 SCMR 1139 wherein it was inter alia held as follows:-- ' "Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. Cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. If the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. If the approach of the Court below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record".
' "This process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C. In our view, is neither permissible nor warranted by law. As earlier pointed out by us, interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Could only be justified if such finding is found to be suffering from misreading of evidence or non-consideration of important and material evidence or the finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. We may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its jurisdiction under section 115, C.P.C. Has to attend to the reasons given by the Court below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction".
12. Doubtless, wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference in the exercise of jurisdiction under section 115, C.P.C. The fact that a more persuasive, a more reasonable or a more convincing view of the evidence is possible is also not a valid ground for interference with a concurrent finding of fact recorded by the Courts below.
Reappraisal and reassessm ent of the evidence in the case cannot be made the basis for discarding a finding of fact, and the fact that another view of evidence is possible cannot also be a ground for interference with a concurrent finding of fact, but interference is permissible in revisional jurisdiction with a finding of fact if the finding is found to be suffering from misreading of evidence; or it has resulted due to non-consideration of important and material evidence; the finding is the result of perverse appreciation of evidence on record; it is based on no legal evidence, but on surmises and conjectures, it is based on inadmissible evidence; there is an error or defect in the procedure which has introduced an error or defect in the decision on merits; and the Courts below have acted illegally inasmuch as the decision rendered is against a particular provision of law, or a principle of law has been violated, or it is against the law declared by the superior Courts.
13. Keeping in mind, the afore-stated broad principles which may justify interference by this Court with concurrent findings of facts recorded by the Courts below, I proceed to examine whether there is any justification for interference by this Court with the concurrent findings of facts recorded by the Courts below. In support of his case, the plaintiff-petitioner produced Maqbool Ahmed (P.W.1) who admitted in the cross-examination that the plaintiff-petitioner had purchased land out of a Khasra number which was a part of joint Khata, though he denied the suggestions that Liaqat Ali was owner to the extent of 20 Kanals out of joint Khata, and that after all the alienations made by him, he was still the owner to the extent of one Kanal, 15 Marlas in the joint Khata. Farhat Munawar Bajwa (P.W.2) a son and a Special Attorney of the plaintiff-petitioner, conceded in the cross- examination that Ghulam Muhammad on the one hand, and Liaqat Ali, his mother and sisters on the other, were co-owners in the entire joint Khata, though he denied the suggestions that the joint Khata consisted of 91 Kanals, 10 Marlas of land, out of which Liaqat Ali had 7/32 share equal to 20 Kanals, 1 Marla and that Liaqat Ali had sold only 18 Kanals, 6 Marlas therefrom. The statement of Hafeez-ur-Rehman (P.W.3) is of no real consequence qua the controversy involved herein.
' On the other hand, defendant-respondent No,1 produced NaibTehsildar Fakhar Ahmed Khan (P.W.1) who had visited the spot and acted as Local Commission instead of Tehsildar who had, in fact, been appointed as Local Commission. According to him, Report (Exh.D.1) and site plan (Exh.D.2) were prepared by him whereas Chhant forming part of Exh.D.1 was prepared by the Patwari (who was Liaqat Ali and has appeared as D.W.3). According to the Chhant, the total area of Khewat No,35 was 91 Kanals, 10 Marlas. Ghulam Muhammad was owner of half equal to 45 Kanals, 15 Marlas, whereas the remaining half, being of his deceased brother Rehmat Ali, had devolved on his legal heirs. The following details given in the Chhant are relevant to decide the questions involved in the instant case:-- Name of owner.Share in Joint KhataLand as per shareAlienated Balance Excess sold, if any.
Ghulam Muhammad1/2 K-M 45-15K-M 47-02K-M 0-0K-M 1- 07 Mst. Fatima Bibi widow of Rehmat Ali.1/16 5-14 3-14 2- 00 0-00 Liaqat Ali son of Rehmat Ali.7/32 20-01 18-06 1-15 0-00 Mst. Rani daughter of Rehmat Ali.7/64 10-00 06-10 3-10 0-00 Mst. Maryam Bibi daughter of Rehmat Ali7/64 10-00 06-10 3-10 0-00 Indisputably, Rehmat Ali, predecessor of Liaqat Ali etc., being owner in equal share with Ghulam Muhammad was owner to the extent of 45 Kanals, 15 Marlas in the joint Khata, which had devolved on his legal representatives, including Liaqat Ali, defendant-respondent No,2 whose share in the joint Khata was 20 Kanals, 1 Marla, out of which he had sold away 18 Kanals, 6 Marlas, and was still left with 1 Kanal, 15 Marlas in the joint Khata. The alienations of 18 Kanals, 6 Marlas were inclusive of sale of one Kanal, 10 Marlas in favour of defendant-respondent No, 1 . Thus, the sale in favour of defendant-respondent No,1 cannot be said to be beyond the entitlement of Liaqat Ali, vendor.
14. The plaintiff-petitioner claims to have purchased plot of one Kanal through sale-deed, dated 10th of May, 1980. A perusal of the said sale deed shows that Mst. Ghulam Fatima, Liaqat Ali, Mst.
Maryam Bibi and Mst. Rani had sold one Kanal out of Khasra No,784/594-min, Khata No,89, Khatuni No,195. It is also stated in the sale-deed that possession had been delivered to the vendee by the said vendors. Based on the said sale-deed, Mutation No,1175 (Exh.D.3), was sanctioned in favour of the plaintiff-petitioner. The order of the Revenue Officer who sanctioned the said Mutation shows that out of Khasra No,784/594, measuring 3 Kanals, 8 Marlas, land measuring one Kanal had been sold. Needless to mention that in the sale deed no details of the land sold to the plaintiff-petitioner such as boundaries etc., were given. Similarly, the Mutation conspicuously omits any Tatima having been prepared thereon. On the other hand, so far as the sale in favour of defendant-respondent No,1 is concerned, it is of one Kanal, 10 Marlas out of the same Khasra No,784/594 and the purpose of sale is mentioned as {{URDU TEXT}} In the sale-deed (Exh.P.8) a sketch is drawn and it is clearly shown that the sale being made was of a plot measuring 100 feet from East and West and 67-1/2 feet from North and South, abutting Baidian Road on its South and bounded by the other property of vendor on East, West and North. It is also mentioned in the sale-deed that the possession of the plot sold had been handed over to the vendee. So far as oral evidence is concerned, there is a word against word, both the parties, i.e, plaintiff-petitioner and defendant-respondent No,1 claiming to be in possession. However, upon proper analysis of the evidence of the parties, both the Courts below have concurrently found that the plaintiff-petitioner is not in possession whereas the defendant-respondent No,1 is in actual physical possession of one Kanal, 10 Marlas of land out of Khasra No,784/594.
15. There is yet another important aspect of the matter and an additional factor to support the findings of the Courts below which has not been adverted to. In paragraph 6 of the plaint, the plaintiff-petitioner had himself pleaded inter alia as follows:-- ' "That the plaintiff, few days ago in order to raise construction over the land has purchased bricks and brought them to the spot and started excavating earth for laying foundation, suddenly defendant No,1 along with her husband came to the spot and thereafter approached the plaintiff and resisted him forcibly from raising construction over the land Defendant No,1, with the help of her husband, who hold, very influential position in the Government intended to dispossess the plaintiff, with the help of local police. Defendant No,1 restrained the plaintiff, forcibly from raising construction over the land in dispute."
Thus, according to the case of the plaintiff-petitioner, he had only brought the bricks at the spot but before he could raise any construction, defendant-respondent No,1 used force to restrain him from going ahead with any sort of construction activity at the site. But, when the spot was visited by the Naib Tehsildar on the 4th of July, 1993, he found that the land measuring one Kanal, 10 Marlas was surrounded by boundary wall which appeared to be old one; that the plot covered by the boundary wall was exactly the same as was shown in the sale deed in favour of the defendant- respondent No,1, and that the same was owned and possessed by her. It is not the case of the plaintiff-petitioner that the boundary wall was raised by defendant-respondent No,1 after he had filed the suit. There is overwhelming evidence against the plea of the plaintiff-petitioner that he is in possession of the suit property; rather possession of defendant-respondent No,1 stands established over land measuring one Kanal, 10 Marlas. Thus, the findings of the Courts below on Issues 1 and 2 are based on cogent evidence; neither misreading of any evidence nor non-reading of any material piece of evidence having been shown.
16. Liaqat Ali, vendor-respondent No,2 was one of the co-owners in the, joint Khata, along with his mother and two sisters. It is in evidence that he was their Attorney as well. Be that as it may, neither his mother nor sisters have till today voiced any grievance that the sale made by him in favour of defendant-respondent No,1 was in any manner unlawful or unauthorized. Similarly, Ghulam Muhammad, co-owner to the extent of half share in the joint Khata has not taken exception thereto. In fact, as per Chhant prepared by the. Patwari, Ghulam Muhammad had sold land measuring one Kanal and seven Marlas more than his entitlement. Khasra No,784/594, out of which both the contesting parties claim to have purchased their respective plots, was a part of joint holding. Since other legal heirs of Rehmat Ali (mother and sisters of Liaqat Ali) have not laid their claim so far as the suit property is concerned, nor they have taken exception to the sale thereof by Liaqat Ali, the claim of defendant-respondent No,1 that Liaqat Ali was in exclusive possession of the land measuring one Kanal, 10 Marlas sold to her, and that he had also handed over possession thereof to him, stands established.
17. Learned counsel for the petitioner, however, assailed as unlawful and unauthorized the sale made by Liaqat Ali by contending that the-total area of Khasra No,784/594 was three Kanals eight Marlas, out of which Ghulam Muhammad was owner to the extent of half; that half share of his brother Rehmat Ali was equal to 34 Marlas; that upon death of Rehmat Ali, his said share was inherited by all his legal heirs (a widow, two daughters and a son-Liaqat Ali); that all the legal heirs had jointly sold 10 Marlas in favour of Mst. Nasreen Akhtar and one Kanal in favour of the plaintiff- petitioner in the year 1980, leaving only 4 Marlas as share of all the legal heirs of Rehmat Ali in Khasra No,784/594 and that, therefore, the sale of one Kanal and ten Marlas by Liaqat Ali alone in favour of defendant-respondent No,1 out of the same Khasra No,784/594 was beyond his entitlement. While making this submission, learned counsel for the appellant has lost sight of the fact that Ghulam Muhammad, the other co-owner to the extent of half share has, as per Chhant of Khasra No,784/594 sold to one Mst. Shaista Hafeez land measuring one Kanal. Moreover, as per Chhant prepared by the Patwari of the entire joint Khata, Ghulam Muhammad had already sold one Kanal and seven Marlas in excess of his entitlement in the entire joint holding. Therefore, Ghulam Muhammad could not obviously lay claim to any portion of the remaining land of Khasra No,784/594. Calculating the sales made by all the co-owners, including Ghulam Muhammad out of the said Khasra, preceding the sale in favour of defendant-respondent No,1, the same come to two Kanals, ten Marlas (Ten Marlas to Mst. Nasreen Akhtar by all the legal representatives of Rehmat Ali, one .Kanal by Ghulam Muhammad to Mst. Shaista Hafeez and one Kanal again by all legal representatives of Rehmat Ali in favour of the plaintiff-petitioner). There was still one Kanal, 8 Marlas land available in Khasra No,784/594, its area being three Kanals eighteen marls as per Record-of-Rights for the year 1970-71 (Exh.D/6). The question, in the circumstances, arises whether the sale in favour of defendant-respondent No,1 can be held to be illegal and unlawful for the reason that it was two Marlas in excess of the area of Khasra No,784/594, although it was within the entitlement of Liaqat Ali, vendor, if his share in the entire joint holding is taken into consideration.
' While dealing with a similar question, in Syed Jamal Shah v. Abdul Qadir Shah and others PLD 1955 Pesh. 26, it was observed at page 30 of the Report as follows:-- ' "I consequently hold that a person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of the partition of the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation."
' In Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC. 9 the Honourable Supreme Court had declared the law thus:-- ' "The vendee of a co-sharer who owns an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers".
' A similar question came up for consideration before the Supreme Court of Azad Jammu & Kashmir in the case reported as Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 SC. (AJ&K)
75. The case-law was extensively reviewed at pages 77-79 of the Report, and it was observed as follows:-- ' "After careful examination of the law on the point and the facts of this case, we are of the view that a co-sharer in possession of specific field numbers can validly transfer such land, even if his share in such specific field numbers exceeds his share, provided it does not exceed his over all entitlement of the share in the whole land. Of course the vendees' rights will be subject to adjustment on partition. But such a sale cannot be legally challenged on the mere ground that the land sold exceeds the share of the vendor in the specific numbers.
'For this we may refer to AIR 1925 Lah.
518. In that case Mr. Justice Martineau, was confronted with the question whether a co-sharer in a Shamilat land on a transfer made by another co-sharer of land under his sole and exclusive possession, can prevent transferee from construction of building on such land. The learned Judge after discussing all aspect of the case answered the proposition in affirmative and stated that-- ' "Although Allandiya and Kimun not being the sole owners of the land could not sell the full proprietary rights, the sale by them nevertheless holds good to the extent of conveying the rights which they could sell including the right to retain possession till partition. It has been held in Muhammad Amin v. Karam Das, (1924 Lah. 293) in which various rulings on the point have been considered, that when a co-sharer has been long in possession of a portion of the Shamilat land no other co-sharer can oust him therefrom or even get joint possession with him as long as a partition of the Shamilat does not take place. The plaintiff has the same rights in the land that his predecessor in title had. He is entitled to undisturbed possession of the land as long as the Shamilat is not partitioned, and the defendants have no right to prevent him from building on the land".
' A similar point came up for decision before Lahore High Court in AIR 1938 Lah.
465. In that case, the point to be determined was whether, in a case of joint "Khata" where one co- sharer had been in exclusive possession for a long time of a portion of the joint land not exceeding his share in the entire holding, another co-sharer can dispossess him against his will from such land. Mr. Justice Tek Chand, relying on AIR 1924 Lah. 293 and AIR 1925 Lah. 518 observed:- ' "It is well-settled that in a case of joint Khata, where one co-sharer has been in exclusive possession of a portion of the joint land, which does not exceed his share in the entire holding, another co-sharer cannot dispossess him against his will from the portion of which he had been in possession".
' Again an identical question came for consideration before the Oudh High Court in AIR 1939 Oudh
243. In that case Plot No,2807 was jointly owned by Baldeo Singh and Ambika Prasad, along with 80 other defendants. They (Baldeo Singh and Ambika Prasad) had given two leases in respect of this plot one on 1 1 th of October, 1932 and the other on the 15th of November, 1932 in favour of defendant No,1. The leases were made subject of a regular suit. But it was held that Baldeo Singh and Ambika Prasad being in exclusive possession of the land at the time of the lease were competent to lease it out to defendant No,1 alongwith possession. Mr. Justice Radha Krishna, held that:- ' "The question, therefore, is whether a co-sharer, who has been in exclusive possession of a certain plot of land without ?Et or hindrance by other co-sharers, can transfer the plot to a third person subject to the right of other co-sharers to obtain a partition of the village. The law on the point in Oudh seems to me to be well-settled. In 21 OC 214 Lindsay, J.C. (later Lindsay, J.) held that the general rule regarding the enjoyment of joint property by the co-sharers is that one co-sharer has no right to appropriate specific portions of such property to the exclusion of his co-sharers except by means of a lawful partition. This rule, however, is subject to the qualification that where one co- sharer has been for a long time in peaceful possession of a portion of the joint property without hindrance or opposition by his co-owners the latter are not entitled to eject him except by means of a partition".
' In the case AIR 1927 Oudh 467 and AIR 1921 Oudh 106 were relied upon:-- ' "The question of entitlement of a co-sharer to transfer the specific land under his possession was once again adjudicated in a Division Bench case in AIR 1940 Lah.
473. The Bench consisted of Mr. Justice Tek Chand and Mr. Justice Bhide Judges. The learned Judge Bhide who wrote the principal judgment in the case, after discussing the case-law on the point, observed:- ' "As a result, it has been held that a co-sharer who is in such possession of any portion of a joint Khata, can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of partition. This view seems to be consistent with the principle embodied in section 44, T.P. Act, regarding transfers of their 'interests' in joint property by co-sharers'.
' In PLD 1955 Pesh. 26, a similar question was posed to be determined. It was held by Mr. Justice Muhammad Shafi, that:- ' "A person, who is in exclusive possession of a certain portion of a joint property, can alienate that property, but then the alienation will be subject to any adjustment which takes place at the time of the partition of the joint property, and the person, to whom that joint property is allotted, shall take that property free of such alienation".
' In PLD 1959 S.C. (Pak.) 9 (Full Court case), it was observed by Mr. Justice S.A. Rahman, who wrote the main judgment that:-- ' "Alienation of specific plot transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers."
Looked from another angle we come to the same conclusion. It is conclusively established that the possession of the vendor in the specific field numbers was due to family arrangement. It is true that such an arrangement does not extinguish the title of other co-sharers, but so far as the factum of such a possession and sale of the specific field numbers is concerned, it certainly debars other co- sharers to get back such possession or challenge the sale. This is, of course, subject to adjustment at the time of partition as would have been the case if the vendor had not sold the land. Section 115 of the Evidence Act comes to the aid of vendee in such a case. Mr. Justice Monir, formerly Chief Justice of Pakistan in his Principles and Digest of the Law of Evidence, Vol. II, Pakistan Edition, page 1296 says:-- ' "Family arrangements are arrangements between the members of a family for the preservation of its piece of property. The principles upon which such arrangements are enforced in England are stated in the case of Williams v. Williams. Such arrangements are constantly entered into in this country, and, where they have been acted upon and acquiesced, the Court will not look so much to the adequacy of the consideration as to the motives and conduct of the parties. In a settlement of a doubtful right truth may be on either side, but the essential effect of the settlement is that further trouble or investigation is put to an end and a settlement is concluded to restore harmony. The consideration for such a settlement is the mutual promise made, or forbearance shown, by one party to the other. In the absence of fraud or undue influence, it is not, therefore, open to either party to resile from it afterwards and the settlement is binding not only on the parties but on their sons and descendants. A family settlement is binding, even though a limited owner is a party to it.
Where parties settle a family dispute amicably, take a share of the property, enter into possession, and subsequently sell or mortgage the items allotted to them, they are estopped from questioning the settlement".
' AIR 1924 All. 63 may be referred as, an authority on point. In that case a person deliberately by his own conduct got the name of another person who had no right to inheritance to a property entered as owner of such property at the time of mutation. Later on he challenged the mutation. It was held by the Division Bench of the Court that he was estopped from subsequently pleading that he was the owner of the whole property".
' In view of this we hold that the appellants' suit is otherwise too hit by the doctrine of estoppel as because of the family arrangement they are precluded from claiming their shares in the specific field numbers in possession of the vendor".
18. The afore-quoted decision of the Supreme Court of Azad Jammu and Kashmir was cited, with approval, by the Hon'ble Supreme Court of Pakistan in Shah Hussain v. Abdul Qayyum and others 1984 SCMR 427 wherein it was further held as follows:-- ' "We have examined the contentions raised by the learned counsel and agree with the finding of the learned High Court Judge in principle i.e, the sale of specific field numbers by a co-sharer in possession can, for consideration, alienate the land in possession, and if his share in such specific field numbers exceeds his share, provided it does not exceed his over all entitlement in the land, the vendee's rights would be subject to adjustment on partition as held in the case cited by the learned Judge entitled Mustafa Khan and 3 others v. Muhammad Khan and another PLD 1978 S.C.
(AJK) 75".
' In Ch. Ghulam Abbas v. Barkat Ali and another 1999 YLR 2190, a learned Judge of this Court held in the following terms:- ' "Law is well-settled that a co-sharer, in exclusive possession of specific field number can alienate the entire field number provided the area of the said field number does not exceed the entitlement of the vendor in the entire joint holdings. The effect of this sale is that the vendee steps into the shoes of the vendor and can retain possession subject to adjustment at the time of partition".
Respectfully following the law laid down in the aforementioned decisions, I would hold that the sale in favour of defendant-respondent No,1 is not open to exception either on fact or in law, and she can retain possession of the suit-land till such time as an actual partition by metes and bounds takes place between the co-owners. The concurrent findings of facts recorded by the Courts below under Issues 1 and 2, being neither perverse or whimsical nor arbitrarily, do not call for interference.
19. Lastly, the learned counsel for the petitioner argued that the impugned decisions of the Courts below on Issues 4 and 5 are not sustainable inasmuch as the plaint could not be rejected on the ground that the relief of possession had been omitted by the petitioner although he has been found by the Courts below to be not in possession, and that the plaint could be allowed to be amended. So far as the legal position is concerned, the plaint could not be rejected on the sole ground that the plaintiff-petitioner had not asked for the relief of possession. In fact, he had been insisting throughout that he was in possession. However, when he failed to convince the learned trial Court about his alleged possession, the seeking of the relief by way of delivery of possession had become a necessary consequential relief which should have been claimed by way of amendment of the plaint. The plaintiff could be allowed to amend the plaint by adding the prayer for possession and to pay additional court-fee. Such an amendment would not have altered the nature of the suit. It would have been only in the nature of an additional claim which the plaintiff- petitioner should have asked for in the suit. In Karamat Ali v. Muhammad Yunus PLD 1963 SC 191, it was held as follows:-- ' "That this Court has the power to grant leave to amend even at the stage in which the matter is in the present case is not denied by the learned counsel appearing on behalf of the respondents, but it is not contended that this power should not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. It is pointed out that on the admission of the appellant Karamat Ali himself the respondents took possession of all but the homestead portion after the decision of the District Judge in the revision filed against the order of the Appellate Officer.
This was sometime in 1944-45 and, as such the claim of the appellants to possession has clearly become barred-by limitation.
' The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide: Md. Zahoor Ali v. Mst.
Thakooranee Rutta Koer 11 MIA 468 and Charan Das and others v. Amir Khan and others AIR 1921 PC
50. That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakooranee Rutta Koer.
' The present, in our view, is a case which comes within this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Ever since 1937, when they auction-purchased the properties in dispute they have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for Khas possession and to pay the additional court-fees as in a suit for possession but upon the condition that they should pay to the respondents appearing in this appeal their costs both in this Court as well as in the Courts below as a condition precedent".
' The case was remanded by the Hon'ble Supreme Court to the trial Court for enabling the plaintiff- appellant to make the necessary amendments to the plaint and thereafter for disposal of the suit in accordance with law. The following classic statement of law by late Justice B.Z. Kaikaus on the subject whether technicalities can, at all, defeat substantive rights or the same could be avoided, appears in the case reported as Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382:- ' "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless, it be essential to comply with them on grounds of public policy. The English system of administration of justice on which, our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his".
' The question whether a plaintiff who does not specifically ask for the relief of possession can still be granted the same, by allowing him to amend the plaint so as to add the prayer for possession, also came up for consideration in Ahmad Din v. Muhammad Shafi PLD 1971 SC 762 and was answered in the following terms:- ' "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it".
' In Mst. Ghulam Bibi v. Sara Khan PLD 1985 SC 345 while interpreting rule 17 of Order VI, CPC, it was held: "Once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment". However, a rider was attached to these all-pervading observations to the effect that "the nature of the suit insofor as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed, the suit itself would become different from the one initially filed". On the general question of technicalities of the civil procedure when the same are pressed into service so as to thwart rights and remedies, their Lordships quoted the afore-mentioned observations of late Justice B.Z. Kaikaus in Imtiaz Ahmed's case, and further held that "the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice". In Karam Ali v. Muhammad Nawaz PLD 1993 Lah. 49, a suit for declaration was dismissed on the ground that the plaintiff being not in possession, form of the suit was defective and as such declaratory suit was not competent. The decisions of the Courts below were reversed by this Court in the exercise of its revisional jurisdiction, by holding that the defect in the form of the suit should be allowed to be rectified by permitting the plaintiff to amend the plaint in accordance with law. Similar views were expressed in Muhammad Shafi v. L.D.A. 1993 CLC 2482 and it was further held that a declaratory suit on the basis of a title cannot be dismissed on the ground that the plaintiff is not in possession of the disputed property, and that proper course in such a case would be to allow him to amend the plaint and to ask for relief of possession. In Mst.
Zubaida Bibi v. Mst. Hashmat Bibi 1993 SCMR 1882 the petitioner sought permission for the first time from the Hon'ble Supreme Court to amend the plaint so as to seek the relief of specific performance of an agreement. The permission was allowed by observing: "**we find that the appellant is seeking this new relief entirely on the basis of the assertions already made in the plaint and thus the amendment will not change the nature of the suit. In the circumstances we allow the prayer for amendment". Relying on the aforementioned cases of Mst. Ghulam Bibi and Imtiaz Ahmed, a learned Judge of this Court in the case reported as Jane Margrete William v. Abdul Hamid Khan 1994 CLC 1437, after finding that the plaintiff was not in possession of the suit properties, and by observing that to do complete justice and to save the parties of further litigation, there is power in the Courts to allow the amendment of the plaint at any stage of the- suit, and that in case the relief of possession flows from the main relief of declaration of title and the case squarely falls under section 42 of the Specific Relief Act and section 7, clause (iv) (c) of the Court Fees Act, not only allowed the plaintiff, at appellate stage, to amend the plaint so as to ask for the relief of possession as a consequential relief, but simultaneously granted a decree for possession of the suit properties. In Muhammad Mian v. Shamimullah 1995 SCMR 69 by relying on the cases of Ahmad Din and Mst. Zubaida Bibi, (supra), application moved for the first time in the Hon'ble Supreme Court, seeking amendment of plaint so as to add the claim for possession, was allowed by holding as follows:-- ' "The application has been contested by the respondents. It has been stated that' the application has been filed after long delay. The suit was filed in the year 1979, but the relief of possession was not claimed, therefore, the application for amendment may not be allowed at this belated stage.
The amendment claimed by the petitioner will not alter the nature of the suit or relief. The relief of possession is a consequential relief for declaration. This relief arises out of the claim of the appellant. The amendment sought by the appellant is only of technical nature. No further evidence is required".
20. In the above view of the matter, I would have set aside the findings of the Courts below under Issues 4 and 5 and would have allowed the plaintiff-petitioner to amend the plaint seeking a decree for possession as a consequential relief, but for the reasons, firstly that I have held that the sale of the suit land in favour of defendant-respondent No,1 is not open to exception and her possession is lawful, and secondly because it is mentioned in the impugned judgment of the learned trial Judge that despite being conscious of the objection as to the frame of the suit, "learned counsel for the plaintiff insisted on plaintiff's possession and did not show any inclination of feeling necessity of making any amendment in the plaintiff's claim" whereas the learned Additional District Judge also observed that although the appeal had remained pending for a long time, yet no application for amendment of the plaint to add the prayer for relief of possession had been moved, and the revision petition filed in this Court also conspicuously omits any such prayer.
In Mst. Ghulam Bibi v. Sara Khan, (supra), though the contention that the plaintiff had "acted in a mala fide manner in not seeking the amendment before trial Court" was repelled by observing that the issue regarding non-maintainability of the suit had been decided in favour of the plaintiff, and that "it was the respondent-side which filed the appeal before the District Court" but the following weighty observations of their Lordships cannot be lost sight of:-- ' "If the appellants would have failed before the trial Court on this issue and they had filed the appeal before the District Court a question could have arisen as to why they did not at least ask for the amendment of the plaint as an alternative course of action".
The observations are squarely attracted to the facts and circumstances of the instant case because here the plaintiff-petitioner had failed on the Issue of the maintainability of the suit and had also filed the appeal as well as the present revision petition, but he has not asked for the amendment of the plaint so as to include the prayer for possession as a consequential relief.
Nevertheless, in view of the finding about ownership of the suit property by defendant-respondent No,1, the question regarding amendment of the plaint -to include the prayer for possession has become inconsequential.
21. Needless to mention that on the Issue regarding the suit being barred by time, neither party addressed any arguments.
22. For the foregoing reasons, this petition is found to be devoid of force and dismissed accordingly, leaving the parties to bear their own costs.