Preamble Specific Relief Act, 1877 Part 6
of inheritance on consideration of evidence on record. Petitioner had brought present suit
after 24 years of attestation of mutation, thus, his silence for so long would cast serious
doubts about his case. Matter stood concluded by concurrent finding of fact of Courts
below. No case was made out for interference. P.L.J.1999 Lah. 1753.
Plaintiff claimed to be owner of the suit property and alleged the defendant as only
Benamidar - Original title documents were produced in evidence through defendant‘s
witness - Factum of possession of suit property with defendant was not denied - Defendant
had earlier got the plaintiff evicted from the suit properly - Motive for Benami transaction
as alleged by the plaintiff was not believable - Effect - Plaintiff failed to plead in the plaint
to establish that he had purchased the property in the name of his daughter-in-law instead
of his own sons through Benami transaction - No blood relation existed between the
plaintiff and the defendant/Benamidar, except that the defendant was married to one of his
sons - Suit was dismissed in circumstances. PLD 2004 Kar. 17
Plaintiff had claimed that he was owner in the village and also co-sharer in Shamlat-Deh
and that he having not made any encroachment, demolition of construction raised by him
were illegal - Important issue in the case was as to whether plaintiff was entitled to decree
claimed for - Trial Court while deciding that issue proceeded on the premises that in
proceedings under S. 133, Cr.P.C it was found by Illaqa Magistrate that plaintiff had
encroached upon the land which was a public place - Said order was maintained by the
Appellate Court - Trial Court while deciding essential issue in the case did not discuss or
take into consideration copies of Revenue Record produced before it - Mere reliance upon
findings in an order passed by Illaqa Magistrate in proceedings under S. 133, Cr.P.C in
context of dispute and controversy, was not enough to rest the fate of civil suit thereon
and to dismiss the same for that reason - Approach of Trial Court to the matter was
somewhat inconsistent and irreconcilable inasmuch as it was found that plaintiff was owner
in village and disputed site was claimed by him as a co-owner in Shamlat Deh which had
not yet been partitioned - Judgments of two courts below suffering from illegality and
material irregularities, were unsustainable suffering from illegality and material
irregularities, were unsustainable in law - High Court set aside concurrent judgments of
Courts below with direction that suit filed by plaintiff be decided afresh in accordance with
law. PLD 2003 Lah. 197
Plaintiff had filed declaratory suit with consequential relief of possession alleging that gift
deed in question was got executed by defendant fraudulently. Plaintiff in his application for
amendment was seeking cancellation of sale-deed in question, on the ground that
respondent had got executed such document for consideration of specified amount out of
which he had paid more than half of such specified price. Courts below had found that
amendment sought to be introduced would change complexion of suit and would also
change its cause of action. Perusal of contents of plaint originally framed and amendment
application would show that facts which plaintiff was seeking to introduce by way of
amendment were tantamount to introduce altogether a different case from the one which
he had originally set up in his plaint. Documentary evidence is to be produced before first
hearing of suit or the same must be included in list of documents which party to suit
intends to produce in evidence to support bis plea. Plaintiff by seeking amendment not only
wants to introduce altogether a different case, but he seeks to bring on record sale deed
which was of doubtful authenticity. Order passed by trial Court and confirmed by High
Court refusing amendment to plaintiff does not suffer from any legal infirmity. P.L.J. 2000
SC (AJ & K) 281.
Maintainability of suit was questioned on the ground that mother of minor had not
submitted affidavit in respect of minors and power of attorney on behalf of major plaintiffs.
Effect. Suit had been filed for cancellation of sale deed and possession but there was no
prayer clause to the effect of cancellation of sale-deed. It would not be appropriate
however, not to grant relief of cancellation of sale-deed and possession thereof, merely on
the ground that plaintiff, had not paid Court-fee. Plaintiffs would be required to pay Court
fee, if any, on such relief at the time of execution of decree. Trial Court had rightly rejected
contention of defendants as to maintainability of suit on the ground that mother of minors
had not filed affidavit in respect of minors. Finding of Trial Court was Just and proper in
holding that such being simple irregularities plaintiffs could not be nonSuited on such
grounds. P.L.J.2000 Kar. 3.
Plaintiffs suit was decreed by trail Court but same was reversed in appeal. Statuts.
Property in suit having been purchased earlier by defendant, same did not vest in
predecessor of plaintiff from whom they alleged to have purchased the same. Such being
factual provision Appellate Court was Justified in reversing findings, recorded by it relating
to title these of. Judgement and decree of Appellate Court did not warrant interference in
circumstances.-P.L.J.1999 Lah. 121 = 1999 MLD 2195.
Suit for cancellation of power of attorney followed by suit for cancellation of sale-deed
executed on basis of such power of attorney - Omission to sue for cancellation of sale-deed
in earlier suit for cancellation of power of attorney - Bar contained in O.II, R.2(2), C.P.C. -
Applicability - Plaintiff claming to be owner of suit property filed earlier suit after coming to
know about use of her bogus power of attorney by defendant to get possession of her
property from tenant - Plaintiff at the time of filing earlier suit had no knowledge that
defendant had fraudulently conveyed her property to the other defendants - Held, plaintiff
had stated facts giving rise to separate causes of action and had filed two separate suits
warrant rejection of plaints under any principle of law - Both suits were, thus, maintainable
under Ss. 39 & 42 of Specific Relief Act, 1877 - Principles. 2004 M L D 227
Suit for declaration and injunction relating to land in question, to the effect that defendants
had sold. their rights i.e., Malik Malguzari and Chakdar Qasoor Khori to plaintiff,. against
consideration vide agreement of specified date, was decreed by Trial Court. Judgment and
decree of Trial Court was set aside by Appellate Court and the High Court affirmed findings
of Appellate Court. Validity. Perusal of contents, of agreement in question support oral
testimony of plaintiffs that predecessor of defendants, had sold rights of ownership to
predecessor of plaintiffs, for consideration and in receipt of consideration had transferred
possession of the same to plaintiffs, and that they were in possession thereof, till now.
Mutation of sale on the basis of agreement of sale was entered through the same could not
be sanctioned for the lapse of Rev. staff. Plaintiffs, through evidence, documentary and
oral, have successfully established there claim while no evidence to disprove claim of
plaintiffs, was brought on record by defendants. Judgment and decree of trial Court
decreeing plaintiffs, suit, was restored while those of Appellate Court and the High Court
were set aside.-P.L.J.2001 SC 124 = 2001 SCMR 593.
Suit for declaration and injunction to the effect that plaintiff was the owner in possession of
the suit land and that the transaction with regard to its sale in favour of defendants did not
materialize as the consideration was not paid, hence relevant mutation was liable to be
cancelled - Said suit was dismissed in toto by the High court - Validity - leave to appeal
was granted by the Supreme court to consider the contentions of the plaintiff that the suit
should not have been dismissed in toto by the High Court was on the defendants, who
made positive assertion that they made the payment after denial by the plaintiff and in
that connection evidence produced by the parties had not properly been assessed by he
First Appellate court and the High Court and that mutation was not sanctioned and
possession remained with the plaintiff as the sale consideration was not paid. PLD 2003
SC 362
Suit for declaration and permanent injunction filed by petitioners was dismissed by two
Courts below while parallel suit filed by respondent against petitioners was decreed by both
Courts below. Courts below have analysed evidence on record in its true perspective in,
recording its findings. High Court cannot substitute conclusions which were concurrently
and reasonably drawn by Courts below by proper appreciation of evidence. Where no error
of law or defect in procedure had been committed in coming to finding of fact. High Court
cannot substitute such finding merely because different finding could be given on that
material. Petitioners could not point out any illegality or irregularity warranting interference
in findings recorded by Courts below. Conclusion drawn by Courts below were not contrary
to law. Doctrine of adverse possession has been 'declared to be repugnant to injunctions of
Islam. S. 28 of Limitation Act as also Art. 144 there of have been omitted from the act. No
interference in findings of Courts below was warranted. P.L.J. 2000 Qta. 56 = PLD 2000
Qta. 42.
Suit for permanent injunction dismissed by trial court, reversed in appeal. Revision petition
failed in High Court. Whether co-owner in , excessive Hissadari possession of specific
khasra number in Joint holding could have been restrained from use of land. Question of.
Land in dispute was Joint and had not been partitioned between parties, appellant could
not unilaterally cut and sell trees growing or raise any construction thereon. Appeal
dismissed. P.L.J.1999 SC 177 = PLD 1998 SC 1509.
Trial Court while decreeing Plaintiffs suit did not give its findings on each issue in terms of
O.XX R. 5 CPC, therefore, Judgment and decree of Trial Court was liable to be set aside on
that sole ground. P.L.J.1996 Pesh. 307 = 1996 MLD 1389.
Vendor, however, had defective title, therefore alienation in question, was opposed to all
norms of fairness. High Court however, accepted claim of original owner who was declared
owner in possession to the extent of specified share in property in question. 'Judgment and
decree accepting claim of original owner having not been challenged before Supreme
Court, finality was attached to the same. Contention of petitioner as postulated in his
written statement, that sale transaction being matter between predecessors of petitioner
and respondents and that they were not responsible for the same, is forceless. Petitioner
was thus, bound to make good the loss suffered by respondents by the decree of High
Court inasmuch as successor steps into the shoes of his predecessor and was predominantly
subject to all liabilities with which his predecessor was saddled.-Sale Of specified area
by predecessor of petitioner to predecessor of respondent.Sale was complete in all respects and full
amount of purchased land was paid.Vendor (predecessor of petitioner) was thus, bound to have given
him entire purchased land.Subsequent loss or deduction from entitlement of vendor due to defective
title was required to be made good by vendor and after his death,his legal heirs were bound to redeem
such loss, failing which petitioner would be guilty of―Tatfif‖.Suit of respondent had, thus,,rightly been
decreed. P.L.J.2000 Pesh.199.Suit for declaration to the effect that purchaser of the property was benami
owner and in fact the real owner was the appellant-Suit was decreed ex-parte and the decree attained
finality-Ostensible owner,taking the exparte decree a fresh sale,brought a suit for possession of the land through pre-emption-Similar suit had been filed the respondent and both the suits were consolidated
and one of the issues was the effect as to whether ex parte declaratory decree amounted to a sale
and, therefore the suit for pre-emption was competent- Trail court had answered the said issue in the affirmative-Effect-Exparte decree in favour of the appellant did not amount to a sale in his favour;by
its declaratory decree the court had only determined the true nature of the transaction of sale and had
found that the appellant was the real owner-Effect Of Ex Parte decree was that the appellant was the real
owner-Effect of ex parte decree was that right from the beginning, the appellant became the owner-ordinary
ingredients of a contract of sale viz. proposal, acceptance and consideration were missing in the exparte
decree-No document of title having been executed in favour of the appellant in pursuance of the exparte
decree,mere mutation in the Revenue Record to implement the declaration,would not amount to sale in favour of the appellant,as mutation was never a document of title and only recorded a fact or an event Contention based on collusion with regard to exparte decree would not held the respondent as the said
decree had attained finality and its correctness could not be examined in the appellate proceedings andin
any case contention that decree was collusive would not amount to saying that ingredients of sale were fulfilled. PLD 2004
SC 147
Whether plaintiffs are entitled to declaration of their ownership under agreement to sell as
well as protection of their possessory rights. Proviso to Section 42 bars declaration where
plaintiff being able to seek further relief than mere declaration of title, omits to do so.
Agreement to sell executed by Defendant No. 1 in favour of plaintiffs does not by itself
create any right on interest in or any charge on property. Since plaintiffs are not entitled to
declaratory relief relating to ownership of property in suit, they would not be entitled to a
consequential relief of permanent injunction to protect their possession. Grant of
declaration under Section 42 and relief of injunction under Section 54 of Specific Relief Act
being equitable reliefs and discretionary with court, plaintiffs are not entitled thereto.
P.L.J.1996 Kar. 61 = PLD 1996. Kar. 210
Court Fee:-- Where suit is to obtain simple declaratory relief, court-fee payable in such suit
is under Art. 17(iii) of the Sched. II to the Court Fees Act, 1870--Not necessary by
implication for the plaintiff in suit for declaration to ask for consequential relief as
contemplated under S.39 of the Specific Relief Act, 1877--Where the plaintiff has not asked
for such consequential relief it cannot be held that he should have made a prayer for such
a relief but if a suit is framed as one for declaration that certain document is void and is to
be treated as one under S.39 of the Specific Relief Act, 1877, and partly under S.42 of the
Specific Relief Act, 1877, in such a case the plaintiff is liable to pay ad valorem court-fee
under S.7(iv)of the Court Fees Act, 1870. Suit for declaration and cancellation of
agreement to sell was filed by the plaintiff alleging the same to be void ab initio on the
ground that it was not executed by her but was an act of fraud--Defendant filed application
under O. VII, R.11, C.P.C. for the reJection of plaint as the plaintiff failed to fix ad valorem
court-fee-- Application was dismissed by the Trial Court but the Appellate Court allowed the
same and directed the plaintiff to affix the court-fee under S.7(iv)of the Court Fees Act,
1870--Validity--Where the plaintiff had asked for declaration under S.42 and for
cancellation of the document under S.39 of the Specific Relief Act, 1877, she was liable to
pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870-*Appellate Court had,
rightly exercised its Jurisdiction vested in it under the law and directed the plaintiff to affix
the requisite court-fees. 2002 C L C 1549 Daibakilal Basak v. Iqbal Ahmed Qureshi and
another PLD 1965 Dacca 439 distinguished. Abdul Harrild alias MD. Abdul Hamid v. Dr.
Sadeque Ali Ahmad and others PLD 1969 Dacca 357; Mst. Bhagan through L.Rs. v.
Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam Hussain Shah v. Hidayatullah Khan
PLD 1981 AJ&K 55; Mst. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 AJ&K 66
and Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 ref.
Value for purposes of Jurisdiction and court-fees-Plaintiff in such a suit would be entitled to
fix the notional value for purposes of Jurisdiction and court-fees subject to the condition
that value 'for purposes of Jurisdiction and court-fees must be the same. 1992 M LD 1301
Court-fee was not required to be paid ad valorem on market value of subject property-Plaintiff
could determine his own valuation about court-fee and Jurisdiction. 1998 CLC 27
In case of a suit for declaratory decree with consequential relief wherein a right or title to
immovable property was based on alleged sale, gift, exchange or mortgage thereof, same
has to be valued according to the value of property. 1991 M L D 437 Lal Din and another v.
Rasul Bibi PLD 1982 Lah. 615 and Bashir Ahmad v. Mushtaq Ahmad PLD 1985 Lah. 112 rel.
Question as to what should be the value of suit for purposes of court-fee and Jurisdiction
where in a suit for declaration and injunction plaintiff had claimed title on basis of sale and
if the court-fee was to be paid ad valorem on value then whether it should be the current
value at the time of filing of suit or the value as shown in sale-deed-Plaintiff's case was,
governed by provision of S.7(iv-a), Court Fees Act, 1870 and he had to pay ad valorem
court-fee stamp on basis of value of property in dispute, shown in the deed and not in
accordance with "market value" thereof. Section 7 (iv-a), Court Fees Act, 1870 added by Sindh Finance Act, 1974, and amended by
Sindh Finance Act, 1975 in the Court Fees Act, 1870 had intended the payment of court-fee
to be made on the basis of the value -as pertained to the "sale, gift, exchange or mortgage
thereof" while in the substituted clause (v) the intention was that the suit be valued
according to "market value". It is, therefore, obvious that in the first provision i.e, clause
(iv-a),.Court Fees Act, 1870 i, was not the intention of the Legislature that the suit was to
be valued in accordance with the market value but it was to be .in accordance with the
value as `provided in newly-added clause (iv-a) and the obvious inference therefore is that
it is to be the value as shown in the document of alienation. Present case was governed by
section 7 (iv-a) of the Court' Fees Act, 1870 and petitioners had to pay ad valorem courtfee
stamp
on
the
value
of
the
property
in
dispute,
a
house,
the
value
of
which
is
shown
at
Rs.
30,240
as
per
PTD
issued
to
him
by
Settlement
Authorities.
1991
M
L
D
437
Such suit for landed property has to be valued on its market price and would be covered by
provisions of S.7(iv), Court Fees Act, 1870. 1995 M L D 45
Value for purposes of Jurisdiction and court-fees-Plaintiff in such a suit would be entitled to
fix the notional value for purposes of Jurisdiction and court-fees subject to the condition
that value 'for purposes of Jurisdiction and court-fees must be the same. 1992 M LD 1301
Rama Singh v. Janak Singh AIR 1920 Pat. 63; Bhagwati Prasad v. Achhaibar Singh AIR
1923 Oudh 93; Chelasani Rattyya v. Anne Brahmayya AIR 1925 Mad. 1223; AIR 15 years
Digest (1951-1965); 1964 M P.L.J.(Notes) 130; Ala Baksa v. Majibal Haq AIR 1935 Cal.
739; Bhimangouda v. Sangappa Irappa Patil AIR 1960 Mys. 178; Sukumar BanerJee v.
Dilip Kumar Sarkar AIR 1952 Cal. 17; Becharam Choudhuri v. Purna Chandra ChatterJi AIR
1925 Cal. 845 and Nirbheram Fatte Kurmi v. Sukhdeo Kisun Kurmi AIR 1944 Nag. 307 ref.
Object and scope -- Suit property was owned by a firm and after the death of one of the
partners, the remaining partners sought title of the property - Partnership firm comprising
of more than two partners was still in operation and the same had not been dissolved -
plaintiffs claimed to be in possession of all the original documents of title of the suit
property and in undisturbed possession over a period of several decades - Defendant filed
application under O. VII, R.11, C.P.C for rejection of plaint on the ground that the plaintiffs
could not seek the relief as prayed for in the plaint and the suit was time-barred - Validity -
Object of rejection of plaint is not to shut out case where the plaintiff is in a position to
adduce evidence for a decision of his case on merits according to law nor to prejudge a
decision without affording an opportunity to the plaintiff to place evidence on record - Such
course would be opposed to the principles of natural justice - From the contents of the
plaint and its annexure a prima facie case in favour of plaintiffs had been made out - Merits
of the case were to be considered at the time of evidence when parties would be at liberty
to propose the relevant issues in support of their respective contentions--- Conditions
specified for exercise of power under the provisions of O.VII, R.11, C.P.C were to be strictly
construed and not to be resorted to unless these were satisfied.PLD 2003 Kar. 171
Plaintiffs application for interim injunction against specified resolution whereby he was
restrained to exercise powers of Chief Executive of company. Resolution by respondent
Directors was adopted in haste without recourse to law. Essentials for grant of interim
injunction being present in the suit, interim injunction was granted in favour of plaintiff
against defendants restrainmg them not to interfere in functions of plaintiff (Chief
Executive of Company) Nothing in such order would bar company to call fresh meeting,
according to law after giving proper notice and agenda. P.L.J.1998 Kar. 712 = 1998 CLC
237.
Temporary injunction by trial Court. _ Application for its vacation, moved by
respondent rejected. Order set aside by High Court. Validity. Suit is still pending, only stay
application has been decided. It has not yet been decided that there was no right of way.
Interim order issued by trial Court does not relate to right of way and order is to effect that
defendants shall not carry out any construction or alteration of property left behind by their
father. In present case respondent has demolished ancestral house without consent of
other co-Sharers. This is clear case in which property Jointly owned by heirs of "G" has
been allegedly damaged by respondent. Respondent cannot be allowed to change nature of
Joint property in manner which constitutes invasion on right of appellant. Even his
possession is not exclusive. Learned Judge was not right in observing that learned District
Judge was not competent to grant interim relief. Judgment of High Court vacated.
P.L.J.1999 SC(AJK) 244 = 1999 CLC 598.
Form of Suit:-- Transfer of property during pendency of suit. Property in _ question was
further transferred in names of defendants subsequently impleaded during trial of suit.
While impleading such subsequent defendants it was incumbent upon trial court to have
asked for amended plaint. Plaintiff has alleged in plaint that sale transaction was effected
through agreement to sell therefore, could only be implemented if suit for specific
performance was brought to court. Such transaction did not fall within ambit of S. 42
Specific Relief Act. Decree in suit in nature of declaration was not competent on that
account also and being not sustainable was set aside and case remanded. P.L.J.1996
Pesh. 307 = 1996 MLD 1389.
Inheritance:-- Suit for declaration and injunction claiming share in property of deceased
lady whom he claimed to be his wife. Plaintiffs suit was dismissed for lack of cogent
evidence as also his appeal against Judgment and decree of trial Court. Validity. Plaintiff
produced not a single independent witness. Witnesses produced by plaintiff besides being
relatives of plaintiff, expressed divergent version about alleged marriage, duration whereof
ranging from 1924, 1929, 1945 and 1984 AD.. Evidence of such witnesses was thus. false
and they were not .present at the time of alleged marriage. Witnesses were at variance
even on amount ofHaq Mehar. Admittedly consumation of marriage had not taken place
nor the same was alleged. No suit for restitution of conjugal rights had been filed from
plaintiffs, side. Trial Court had, thus, rightly concluded on basis of evidence on record that
alleged nikah was not proved. Statemet of real sister of deceased lady made before Rev.
officer as to factum of marriage having taken place was also of no help to plaintiff as she
was not cross-examined, and even, otherwise, decision based on that statement stood
cancelled on Rev. side against which no appeal was filed. Concurrent findings of Courts
below rightly found plaintiff to be not entitled to share of inheritence of deceased lady.
P.L.J.1999 Lah. 1547.
Exclusion from inheritance on account of gift deed in favour of other heirs excluding
plaintiff---Quantum of proof required for proof of gift deed was lacking---Effect---Document
required by law to be attested could not be used as evidence until at least two attesting
witnesses had been called for purpose of proving execution thereof, if they were alive and
capable of giving evidence--- No evidence had been produced by defendants (donees) that
scribe or attesting witnesses were not alive, therefore, presumption would be that they
were alive---Original gift deed was shown to have been executed on 29-11-1988 and date
of registration as shown by said document was 28-i1-1988---Such fact could not be
ignored and that anomaly could have been resolved by scribe of document who could
produce relevant register to settle the same---Defendants' failure to produce scribe of
document would render adverse presumption to be drawn against them---Gift deed having
not been proved in accordance with law, plaintiff who was daughter of deceased could not
be deprived of her inheritance from her father's property: 1995 M L D 1841
Word "property" :-- Question involved was entitlement/disentitlement to recover
specified amount of money. Word "property" as used in S. 42, could include "money". Suit
for declaration was, thus, competent.-P.L.J.1999 Kar. 234 = 1998 MLD 234.Deceased
was governed in matters of inheritance by Shariat Law. Mutations of inheritance on basis of
Custom were sanctioned in 1939 while suit for declaration was filed by daughters of
deceased in 1985, when payment of produce was stopped to by defendants. That being
first attack on their rights plaintiffs suit while counting time from that date was well within
time.-P.L.J.1997 Lah. 1183 = 1997 CLC 659.
Suit for declaration, injunction and accounts. Trial Court refused to admit suit on the
ground that suit was arbitrarily valued and subject-matter of suit, exceeded Rs. 1,00,000
which was maximum limit of pecuniary Jurisdiction of trial Court. Order was upheld by First
Appellate Court on the ground that consequential relief of possession was not sought, as
was requirement of S. 42 of the Specific Relief Act, 1877. Status. Suit either to be admitted
or rejected or returned. Order of the Courts below were set aside and suit was remanded
back for appropriate order. P.L.J.1999 Kar. 64 = 1998 CLC 1995.
Correction of date of birth:-- Suit for declaration whereby correction of date of birth was
prayed, was decreed ex-parte by trial Court and the same was affirmed by Appellate Court.
Defendants application for setting aside such decree was dismissed by Courts below.
Validity. Instead of framing issue on controversial point i.e., whether or not there was
sufficient cause for setting aside ex-parte decree and thereafter examining evidence of
parties, trial Court after hearing counsel came to conclusion that there was no sufficient
cause for setting aside ex-parte decree. Same view was taken by Appellate Court while
dismissing appeal. Important questions having been raised touching Jurisdiction of Court
and also that absence of defendant was not wilful or intentional trial Court should have
framed issue to settle such controversy but it did not do so and proceeded to dismiss
petition for setting aside, ex parte decree although affidavit was attached in support of
contents thereof, though there was no Such counter affidavit by plaintiff with his reply filed
to contest petition forgetting aside ex ^ parte decree. Even, otherwise, Court acted in
haste in disposing of suit ex-parte on same day without examining any evidence in proof of
claim made in suit itself. Law also requires that case should be decided on merits for which
parties should be given chance. No such chance was however, provided to contesting party
in present case. Impugned order passed by Courts below being arbitrary, capricious and
illegal was set aside. Sufficient ground was provided in terms of affidavit attached with
application for setting aside ex-parte decree to set aside the same. While setting aside ex
parte decree, case was remanded to trial Court for trial in accordance with law.-P.L.J.1999
Lah. 1758 = 1999 CLC 1377.
Whether consent decree can be challenged, Admittedly, order has been passed on
basis of compromise as is evident from its bare reading. Record reveals that after
submission of objections on report of local commission, parties kept seeking adjournment
from 10.12.1996 to 10.6.1997 as talks of compromise were going on. Thus impugned
order/decree was not passed abruptly and is result of due deliberation and consultation
which continued for about six months. It is also fact that authority given by
plaintiffs/petitioner to counsel who had signed compromise statement on their behalf had
never been revoked by them. Thus such compromise entered into by counsel on behalf of
party would bind such party. Section 115 C.P.C. applies to cases, involving illegal
assumption, non exercise or irregular exercise of Jurisdiction. Neither any such aspect has
been put forth or highlighted, nor is seemingly available so as to attract or entail provisions
of Section 115 C.P.C., which thus can neither, come into play nor pressed into service.
Consent Order/decree can only be challenged on ground ' of fraud. Judgments and decrees
now sought are unexceptionable as same neither appear to suffer from any infirmity or any
irregularity no perversity or arbitrariness. P.L.J.1999 Lah. 1051 = 1999 CLC 1287.
In-door management of a company:-- Suit by Chief Executive of -company against
some of Directors of company. Maintainability and pre*requisites for such an action. Courts
would not be competent to interfere in day-to-day working of any company on doctrine of
indoor management. Such bar, however, was not absolute and there were situations where
Directors or shareholders of a company could bring case before Court against company and
its Directors. Court would be Justified to interfere; where majority had acted in depriving
minority of their lawful and legitimate rights; acts complained of were ultra vires of
Memorandum and Articles of Association; Directors had acted mala fidely and against
interest of company; there was violation of principles of natural Justice; and acts
complained of amounted to fraud and misrepresentation. Plaintiffs suit that he, as Chief
Executive of Company, was entitled to perform his functions in accordance with law and
that curtailment of his power by impugned resolution was illegal and ultra vires of specified
meeting, was maintainable for plaintiff had no other remedy available to him under any
other law through which he could seek declaration as to his legal status in Board of
Directors after passing of resolution in question.-P.L.J.1998 Kar. 712 = 1998 CLC 237.
Settlement Dispute:-- Purchase of suit land by predecessor-in-interest of petitioners.
Entry in name of respondents on Rev. record. Petition before Settlement Officer by
predecessor-in-interest of petitioners dismissed on ground of limitation. Acceptance of
revision petition by Additional Commissioner, but set aside by Member Board of Rev Suit
for declaration and possession filed by petitioners dismissed by trial court and upheld in
appeal. From documentary evidence it appears that petitioners have failed to show that
same are in respect of suit land. Petitioners have failed to prove that possession and
ownership over property in dispute and had only filed suit for declaration without seeking
consequential relief. Even otherwise, suit filed by petitioners was hopelessly barred by
time, petitioners did not give any cogent reasons for not challenging Rev. entries within
prescribed period as they were very much present at time of final attestation by Settlement
Officer. Orders of Member of Rev. has obtained finality and respondents have acquired
vested right with passage of time. Impugned Judgment being unexceptionable, is
amenable to any interference in exercise of revisional Jurisdiction under Section 115 CPC.
Petition devoid of merits is accordingly dismissed.-P.L.J.1998 Qta. 279 - 1998 CLC
1794.
Joint Family Property. Predecessor-in-interest -of parties having died in 1957, plaintiffs
and defendants had carried on business together and also lived in parental house. Parties'
mother having died in 1993, defendants-tried to misappropriate Joint family property and
tried, to exclude plaintiffs from such property. Period of limitation for filing suit would, thus,
start run with effect from 1993 from refusal of defendants to allow plaintiffs to share Joint
family property. Defendant's objection that Art. 127, Limitation Act, 1908 was applicable to
Joint Hindu Family alone, as misconceived. Word "Hindu" which was used in Art. 127,
Limitation Act, 1871 was omitted "from Art. 127, Limitation Act, 1908, therefore, by such
omission, Art. 127, Limitation Act, 1908 was made applicable to persons of all faiths.
Defendants' claim that suit having been filed beyound period of limitation and that causes
of action in suit were multifarious, therefore, plaint was liable to be rejected in terms of
O.VII, R. 11, C.P.C, was of no consequence, for, suit was within time in terms of Art. 127,
Limitation Act, 1908 since causes of action Joined therein were neither dissimilar, nor
discordant. Even if causes of action were multifarious, Court could order separate trial but
plaint could not be rejected on that ground. Application for rejection of plaint was not
maintainable in circumstances.-P.L.J.1999 Kar. 2218 = 1998 CLC 1425.
Maintainability. Respondents were in possession of property in dispute thus suit for mere
declaration filed by respondents was maintainable. P.L.J.1999 Qta. 98 = 1999 MLD
2087 = NLR 1999 Rev. 99.
Misreading & non-reading of evidence. Grounds of attack. Sale-deed in favour of
plaintiff was in respect of disputed house was executed by original owner. It is also
established that defendant was brought in as tenant in house by father of plaintiffs. Stance
of two witnesses that original owner re-purchased house from father of plaintiffs is not
supported by any sale deed or any other evidence. Courts below, therefore, not read
evidence on record in its correct perspective and have also misread important evidence.
They have, therefore, legally erred in decision of case which resulted in miscarriage of
Justice. Plaintiffs are owners of house in question and defendant was first occupying it as
their tenant but later on denied their partnership. P.L.J.1999 SC 1114 = PLD 1998
SC.1502. Transaction of land on basis of consent decree. No evidence was available on record
to suggest that defendant had ever enJoyed fruits of sale of land in question. No body
came forward to say that defendant shared produce and no-tenant deposed that vendor
attorned him to defendant. Late execution of decree in Rev. record; constant refusal of
heirs, of vender to accept defendants, claims of ownership over land in question and deep
slumber and indifferent -attitude of defendant was not expected of real vendee. Vendor
never relinquished his claim or owned defendant as his /substitution relating .to land in
question. Vendor at the time of filing of declaration was quite alive to his title of land in
question. Challenge of ownership and possession was not reported in terms of Land Rev.
Act, 1967 to Patwari for period of at least five years. Preponderance of evidence would
suggest that Trial Court on basis there of had rightly decreed heirs suit against defendants
claim based on consent decree. First Appellate court did ,not advert to material on iccord
and had fallen in ignoratio elenchi by treating claiming defendant as apodictic as if she
spoke as an oracle. Plaintiffs also deserved same solemnity and their claim should have
been Juxta-posed in its true perspective. Finding of First Appellate Court resulting in
dismissal of plaintiffs suit, were set aside while that of Trial Court in decreeing suit was
restored. P.L.J.1999 Lah. 1364 = 1999 MLD 2783.
Withdrawal of powers of Chief Executive of Company by Directors. They called
meeting of Directors hastily without inviting nominated Directors of Company. Companies
which had nominated their representatives as Directors of Company in question were
repositories of huge amount of public funds which had been invested and advanced. No
proof was available on record that nominated Directors of Company were served notices of
meeting .of Directors. Even if it was presumed that notice of meeting was issued upon
nominated Director, it would have been impossible to attend meeting due to short notice.
Resolution adopted by Directors of Company in hastily summoned meeting, in absence of
nominated Director, was ultra vires' mala fide, and inoperative. P.L.J.1998 Kar. 712 =
1998 CLC 237.
Estoppels. Withdrawal, of appeal against order of ejectment by plaintiff on the ground,
that he would seek his remedy through civil suit. No objection by defendant. Plaintiff was
wrong in asserting that defendant was estopped from challenging Jurisdiction of Civil Court.
Jurisdiction of Court was conferred and regulated by law. There was no estoppel against
law nor there could be waiver against statute. Respondent being not entitled to relief
against order of ejectment passed by Rent Controller, his suit was barred by law and plaint
in suit was rejected. P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil 647.
Adverse possession--Proof--*Plaintiffs claimed ownership of land in question on the basis of
agreement of sale executed by predecessor-in-interest of defendants in favour of father of
plaintiffs and plaintiffs after death of their father remained in possession of suit land as its
owners for more than forty years without any interruption or interference by
defendants---Agreement of sale which had been challenged by defendants after about
forty-two years of its execution and which otherwise proved to be genuine, would be
presumed genuine document under Art. 100 of Qanun-e-Shahadat, 1984 being of more
than thirty years old---If in pursuance of an agreement to sell or under a defective title the
possession was handed over to transferee and they remained in possession of suit land for
more than 40 years considering themselves as owners to the exclusion of true owners,
their possession would become adverse. 2001 M L D 493 Khadim Hussain Khan and 9
others v. Mst. Sarwar Jan and 27 others 1999 MLD 824; Ahmed Khan v. Rasul Shah and
others PLD 1975 SC 311 and Gulzar Shaikh v. Bashirullah and 3 others Civil Appeal No.37
of 1987 ref.
AIR 1920 Pat. 63; AIR 1923 Oudh 93; AIR 1925 Mad. 1223; AIR 15 years Digest (19511965);
1964
M P.L.J.(Notes)130;AIR1935Cal.739;AIR1960Mys.178;AIR19$2Cal.
17;AIR 1925 Cal.845 nAIR 1944 Nag.307 ref.
Amendment weather wii change the nature:-- Plaintiffs subsequent application for
amendment of his plaint introducing therein prayer for possession was dismissed by Trial
Court as also by the High Court. Courts below had dismissed amendment sought on the
ground that the same would change nature of suit and was sought after considerable delay
from the date of objection raised by defendant in -his written statement that possession of
land was with him. Conversion of declaratory suit to suit for possession would not changenature
of
suit
in
substance,
in
as
much.
as
basically
plaintiffs
intend
to
annul
gift
deed
and
by
amendment
they
were
seeking
additional
relief
of
possession.
Amendment
could
not be
disallowed
merely
because
that
was
being
sought
after
expiry
of
period
of
four
years.
Orders
of
Courts
below
disallowing
amendment
of
plaint
were
set
aside
and
plaintiffs
were
directed
to
amend
their
respective
plaints
on
payment
of
specified
costs.
P.L.J.
2000
SC
(AJ&K)
237.
Grant of temporary injunction:-- Injunction that tenant in possession may not be
dispossessed otherwise than due process of law. Order of temporary injunction upheld in
appeal, prohibitory injunction was issued, 'whereby, petitioners/defendants were restrained
to take law into there own hands by evicting the respondent/plaintiff per force from land in
question, but were permitted to avail any legal remedy in appropriate forum. P.L.J.1999
Lah. 1060 = 1999 CLC 1415.
Burden to prove--*Claim of plaintiff was that house owned by her husband was orally
gifted in her favour followed by a memorandum of gift---After death of husband of plaintiff
house was transferred in favour of legal heirs of deceased vide mutation---Suit filed by
plaintiff was concurrently dismissed by Courts below holding that plaintiff could not produce
any evidence in support of oral gift made in her favour by her husband--*Plaintiff in proof
of her claim had produced marginal witnesses of memorandum of gift who fully proved its
execution---Both Courts below had not disbelieved said witnesses---By proving execution
of memorandum of gift, plaintiff had discharged her initial burden and it was for defendants
to establish that memorandum of gift was forged and anti-dated, but they could not
establish same by any evidence---Appellate Court after holding that execution of
memorandum of gift was duly proved, should not have looked for independent evidence of
oral gift--*Judgments and decree of Courts below were set aside and suit was decreed by
High Court. 2002 M L D 993 *Disputed mutation of inheritance was attested in the year,
1919,- while the same was assailed in the year, 1996---Trial Court dismissed the suit being
time-barred and the judgment was maintained by Appellate Court--*Validity---Onus to
prove factum of possession and suit being within limitation, was heavily placed on the
plaintiff but he had failed to discharge the same through reliable evidence---Solitary word
of the plaintiff did not rehabilitate his case---Mere assertion of the plaintiff that attestation
of suit mutation was a result of conspiracy between Revenue Officials and
predecessor-in-interest of the defendants and that the plaintiff had been receiving
usufructs, without a positive attempt on his part to substantiate the same, was of no
consequence---Both the Courts below had rightly found that the suit was clearly barred by
time---Both the Courts having properly dealt with the matter and dismissed the suit of the
plaintiff for valid reasons---High Court declined to interfere with the concurrent findings of
fact by the Courts. 2002 C L C 1704 *Transaction of property ---Pardahnashin lady---Good
faith---Onus to prove mutation of gift allegedly made in favour of defendant by the
plaintiff, who was a Pardahnashin lady---Defendant was brother of the plaintiff and onus to
prove such transaction was on the former---Trial Court decreed the suit while the Lower
Appellate Court reversed the judgment and dismissed the suit--*Validity---Where the
defendant failed to establish that such transaction was made in his favour out of free-will
and the disputed mutation was correct and genuine, judgment and decree of the Lower
Appellate Court was set aside and that of the Trial Court was restored. Inche Norih Binte
Muhammad Tahir v. Sahik Allie Bin Omar Bin Abdullah AIR 1929 PC 3 ref.. 2000 C L C 1131
Cancellation of document--* Execution of a registered sale-deed was disputed and the
plaintiff, denied its execution in favour of the defendant--*Plaintiff was old, illiterate and
of inheritance on consideration of evidence on record. Petitioner had brought present suit
after 24 years of attestation of mutation, thus, his silence for so long would cast serious
doubts about his case. Matter stood concluded by concurrent finding of fact of Courts
below. No case was made out for interference. P.L.J.1999 Lah. 1753.
Plaintiff claimed to be owner of the suit property and alleged the defendant as only
Benamidar - Original title documents were produced in evidence through defendant‘s
witness - Factum of possession of suit property with defendant was not denied - Defendant
had earlier got the plaintiff evicted from the suit properly - Motive for Benami transaction
as alleged by the plaintiff was not believable - Effect - Plaintiff failed to plead in the plaint
to establish that he had purchased the property in the name of his daughter-in-law instead
of his own sons through Benami transaction - No blood relation existed between the
plaintiff and the defendant/Benamidar, except that the defendant was married to one of his
sons - Suit was dismissed in circumstances. PLD 2004 Kar. 17
Plaintiff had claimed that he was owner in the village and also co-sharer in Shamlat-Deh
and that he having not made any encroachment, demolition of construction raised by him
were illegal - Important issue in the case was as to whether plaintiff was entitled to decree
claimed for - Trial Court while deciding that issue proceeded on the premises that in
proceedings under S. 133, Cr.P.C it was found by Illaqa Magistrate that plaintiff had
encroached upon the land which was a public place - Said order was maintained by the
Appellate Court - Trial Court while deciding essential issue in the case did not discuss or
take into consideration copies of Revenue Record produced before it - Mere reliance upon
findings in an order passed by Illaqa Magistrate in proceedings under S. 133, Cr.P.C in
context of dispute and controversy, was not enough to rest the fate of civil suit thereon
and to dismiss the same for that reason - Approach of Trial Court to the matter was
somewhat inconsistent and irreconcilable inasmuch as it was found that plaintiff was owner
in village and disputed site was claimed by him as a co-owner in Shamlat Deh which had
not yet been partitioned - Judgments of two courts below suffering from illegality and
material irregularities, were unsustainable suffering from illegality and material
irregularities, were unsustainable in law - High Court set aside concurrent judgments of
Courts below with direction that suit filed by plaintiff be decided afresh in accordance with
law. PLD 2003 Lah. 197
Plaintiff had filed declaratory suit with consequential relief of possession alleging that gift
deed in question was got executed by defendant fraudulently. Plaintiff in his application for
amendment was seeking cancellation of sale-deed in question, on the ground that
respondent had got executed such document for consideration of specified amount out of
which he had paid more than half of such specified price. Courts below had found that
amendment sought to be introduced would change complexion of suit and would also
change its cause of action. Perusal of contents of plaint originally framed and amendment
application would show that facts which plaintiff was seeking to introduce by way of
amendment were tantamount to introduce altogether a different case from the one which
he had originally set up in his plaint. Documentary evidence is to be produced before first
hearing of suit or the same must be included in list of documents which party to suit
intends to produce in evidence to support bis plea. Plaintiff by seeking amendment not only
wants to introduce altogether a different case, but he seeks to bring on record sale deed
which was of doubtful authenticity. Order passed by trial Court and confirmed by High
Court refusing amendment to plaintiff does not suffer from any legal infirmity. P.L.J. 2000
SC (AJ & K) 281.
Maintainability of suit was questioned on the ground that mother of minor had not
submitted affidavit in respect of minors and power of attorney on behalf of major plaintiffs.
Effect. Suit had been filed for cancellation of sale deed and possession but there was no
prayer clause to the effect of cancellation of sale-deed. It would not be appropriate
however, not to grant relief of cancellation of sale-deed and possession thereof, merely on
the ground that plaintiff, had not paid Court-fee. Plaintiffs would be required to pay Court
fee, if any, on such relief at the time of execution of decree. Trial Court had rightly rejected
contention of defendants as to maintainability of suit on the ground that mother of minors
had not filed affidavit in respect of minors. Finding of Trial Court was Just and proper in
holding that such being simple irregularities plaintiffs could not be nonSuited on such
grounds. P.L.J.2000 Kar. 3.
Plaintiffs suit was decreed by trail Court but same was reversed in appeal. Statuts.
Property in suit having been purchased earlier by defendant, same did not vest in
predecessor of plaintiff from whom they alleged to have purchased the same. Such being
factual provision Appellate Court was Justified in reversing findings, recorded by it relating
to title these of. Judgement and decree of Appellate Court did not warrant interference in
circumstances.-P.L.J.1999 Lah. 121 = 1999 MLD 2195.
Suit for cancellation of power of attorney followed by suit for cancellation of sale-deed
executed on basis of such power of attorney - Omission to sue for cancellation of sale-deed
in earlier suit for cancellation of power of attorney - Bar contained in O.II, R.2(2), C.P.C. -
Applicability - Plaintiff claming to be owner of suit property filed earlier suit after coming to
know about use of her bogus power of attorney by defendant to get possession of her
property from tenant - Plaintiff at the time of filing earlier suit had no knowledge that
defendant had fraudulently conveyed her property to the other defendants - Held, plaintiff
had stated facts giving rise to separate causes of action and had filed two separate suits
warrant rejection of plaints under any principle of law - Both suits were, thus, maintainable
under Ss. 39 & 42 of Specific Relief Act, 1877 - Principles. 2004 M L D 227
Suit for declaration and injunction relating to land in question, to the effect that defendants
had sold. their rights i.e., Malik Malguzari and Chakdar Qasoor Khori to plaintiff,. against
consideration vide agreement of specified date, was decreed by Trial Court. Judgment and
decree of Trial Court was set aside by Appellate Court and the High Court affirmed findings
of Appellate Court. Validity. Perusal of contents, of agreement in question support oral
testimony of plaintiffs that predecessor of defendants, had sold rights of ownership to
predecessor of plaintiffs, for consideration and in receipt of consideration had transferred
possession of the same to plaintiffs, and that they were in possession thereof, till now.
Mutation of sale on the basis of agreement of sale was entered through the same could not
be sanctioned for the lapse of Rev. staff. Plaintiffs, through evidence, documentary and
oral, have successfully established there claim while no evidence to disprove claim of
plaintiffs, was brought on record by defendants. Judgment and decree of trial Court
decreeing plaintiffs, suit, was restored while those of Appellate Court and the High Court
were set aside.-P.L.J.2001 SC 124 = 2001 SCMR 593.
Suit for declaration and injunction to the effect that plaintiff was the owner in possession of
the suit land and that the transaction with regard to its sale in favour of defendants did not
materialize as the consideration was not paid, hence relevant mutation was liable to be
cancelled - Said suit was dismissed in toto by the High court - Validity - leave to appeal
was granted by the Supreme court to consider the contentions of the plaintiff that the suit
should not have been dismissed in toto by the High Court was on the defendants, who
made positive assertion that they made the payment after denial by the plaintiff and in
that connection evidence produced by the parties had not properly been assessed by he
First Appellate court and the High Court and that mutation was not sanctioned and
possession remained with the plaintiff as the sale consideration was not paid. PLD 2003
SC 362
Suit for declaration and permanent injunction filed by petitioners was dismissed by two
Courts below while parallel suit filed by respondent against petitioners was decreed by both
Courts below. Courts below have analysed evidence on record in its true perspective in,
recording its findings. High Court cannot substitute conclusions which were concurrently
and reasonably drawn by Courts below by proper appreciation of evidence. Where no error
of law or defect in procedure had been committed in coming to finding of fact. High Court
cannot substitute such finding merely because different finding could be given on that
material. Petitioners could not point out any illegality or irregularity warranting interference
in findings recorded by Courts below. Conclusion drawn by Courts below were not contrary
to law. Doctrine of adverse possession has been 'declared to be repugnant to injunctions of
Islam. S. 28 of Limitation Act as also Art. 144 there of have been omitted from the act. No
interference in findings of Courts below was warranted. P.L.J. 2000 Qta. 56 = PLD 2000
Qta. 42.
Suit for permanent injunction dismissed by trial court, reversed in appeal. Revision petition
failed in High Court. Whether co-owner in , excessive Hissadari possession of specific
khasra number in Joint holding could have been restrained from use of land. Question of.
Land in dispute was Joint and had not been partitioned between parties, appellant could
not unilaterally cut and sell trees growing or raise any construction thereon. Appeal
dismissed. P.L.J.1999 SC 177 = PLD 1998 SC 1509.
Trial Court while decreeing Plaintiffs suit did not give its findings on each issue in terms of
O.XX R. 5 CPC, therefore, Judgment and decree of Trial Court was liable to be set aside on
that sole ground. P.L.J.1996 Pesh. 307 = 1996 MLD 1389.
Vendor, however, had defective title, therefore alienation in question, was opposed to all
norms of fairness. High Court however, accepted claim of original owner who was declared
owner in possession to the extent of specified share in property in question. 'Judgment and
decree accepting claim of original owner having not been challenged before Supreme
Court, finality was attached to the same. Contention of petitioner as postulated in his
written statement, that sale transaction being matter between predecessors of petitioner
and respondents and that they were not responsible for the same, is forceless. Petitioner
was thus, bound to make good the loss suffered by respondents by the decree of High
Court inasmuch as successor steps into the shoes of his predecessor and was predominantly
subject to all liabilities with which his predecessor was saddled.-Sale Of specified area
by predecessor of petitioner to predecessor of respondent.Sale was complete in all respects and full
amount of purchased land was paid.Vendor (predecessor of petitioner) was thus, bound to have given
him entire purchased land.Subsequent loss or deduction from entitlement of vendor due to defective
title was required to be made good by vendor and after his death,his legal heirs were bound to redeem
such loss, failing which petitioner would be guilty of―Tatfif‖.Suit of respondent had, thus,,rightly been
decreed. P.L.J.2000 Pesh.199.Suit for declaration to the effect that purchaser of the property was benami
owner and in fact the real owner was the appellant-Suit was decreed ex-parte and the decree attained
finality-Ostensible owner,taking the exparte decree a fresh sale,brought a suit for possession of the land through pre-emption-Similar suit had been filed the respondent and both the suits were consolidated
and one of the issues was the effect as to whether ex parte declaratory decree amounted to a sale
and, therefore the suit for pre-emption was competent- Trail court had answered the said issue in the affirmative-Effect-Exparte decree in favour of the appellant did not amount to a sale in his favour;by
its declaratory decree the court had only determined the true nature of the transaction of sale and had
found that the appellant was the real owner-Effect Of Ex Parte decree was that the appellant was the real
owner-Effect of ex parte decree was that right from the beginning, the appellant became the owner-ordinary
ingredients of a contract of sale viz. proposal, acceptance and consideration were missing in the exparte
decree-No document of title having been executed in favour of the appellant in pursuance of the exparte
decree,mere mutation in the Revenue Record to implement the declaration,would not amount to sale in favour of the appellant,as mutation was never a document of title and only recorded a fact or an event Contention based on collusion with regard to exparte decree would not held the respondent as the said
decree had attained finality and its correctness could not be examined in the appellate proceedings andin
any case contention that decree was collusive would not amount to saying that ingredients of sale were fulfilled. PLD 2004
SC 147
Whether plaintiffs are entitled to declaration of their ownership under agreement to sell as
well as protection of their possessory rights. Proviso to Section 42 bars declaration where
plaintiff being able to seek further relief than mere declaration of title, omits to do so.
Agreement to sell executed by Defendant No. 1 in favour of plaintiffs does not by itself
create any right on interest in or any charge on property. Since plaintiffs are not entitled to
declaratory relief relating to ownership of property in suit, they would not be entitled to a
consequential relief of permanent injunction to protect their possession. Grant of
declaration under Section 42 and relief of injunction under Section 54 of Specific Relief Act
being equitable reliefs and discretionary with court, plaintiffs are not entitled thereto.
P.L.J.1996 Kar. 61 = PLD 1996. Kar. 210
Court Fee:-- Where suit is to obtain simple declaratory relief, court-fee payable in such suit
is under Art. 17(iii) of the Sched. II to the Court Fees Act, 1870--Not necessary by
implication for the plaintiff in suit for declaration to ask for consequential relief as
contemplated under S.39 of the Specific Relief Act, 1877--Where the plaintiff has not asked
for such consequential relief it cannot be held that he should have made a prayer for such
a relief but if a suit is framed as one for declaration that certain document is void and is to
be treated as one under S.39 of the Specific Relief Act, 1877, and partly under S.42 of the
Specific Relief Act, 1877, in such a case the plaintiff is liable to pay ad valorem court-fee
under S.7(iv)of the Court Fees Act, 1870. Suit for declaration and cancellation of
agreement to sell was filed by the plaintiff alleging the same to be void ab initio on the
ground that it was not executed by her but was an act of fraud--Defendant filed application
under O. VII, R.11, C.P.C. for the reJection of plaint as the plaintiff failed to fix ad valorem
court-fee-- Application was dismissed by the Trial Court but the Appellate Court allowed the
same and directed the plaintiff to affix the court-fee under S.7(iv)of the Court Fees Act,
1870--Validity--Where the plaintiff had asked for declaration under S.42 and for
cancellation of the document under S.39 of the Specific Relief Act, 1877, she was liable to
pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870-*Appellate Court had,
rightly exercised its Jurisdiction vested in it under the law and directed the plaintiff to affix
the requisite court-fees. 2002 C L C 1549 Daibakilal Basak v. Iqbal Ahmed Qureshi and
another PLD 1965 Dacca 439 distinguished. Abdul Harrild alias MD. Abdul Hamid v. Dr.
Sadeque Ali Ahmad and others PLD 1969 Dacca 357; Mst. Bhagan through L.Rs. v.
Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam Hussain Shah v. Hidayatullah Khan
PLD 1981 AJ&K 55; Mst. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 AJ&K 66
and Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 ref.
Value for purposes of Jurisdiction and court-fees-Plaintiff in such a suit would be entitled to
fix the notional value for purposes of Jurisdiction and court-fees subject to the condition
that value 'for purposes of Jurisdiction and court-fees must be the same. 1992 M LD 1301
Court-fee was not required to be paid ad valorem on market value of subject property-Plaintiff
could determine his own valuation about court-fee and Jurisdiction. 1998 CLC 27
In case of a suit for declaratory decree with consequential relief wherein a right or title to
immovable property was based on alleged sale, gift, exchange or mortgage thereof, same
has to be valued according to the value of property. 1991 M L D 437 Lal Din and another v.
Rasul Bibi PLD 1982 Lah. 615 and Bashir Ahmad v. Mushtaq Ahmad PLD 1985 Lah. 112 rel.
Question as to what should be the value of suit for purposes of court-fee and Jurisdiction
where in a suit for declaration and injunction plaintiff had claimed title on basis of sale and
if the court-fee was to be paid ad valorem on value then whether it should be the current
value at the time of filing of suit or the value as shown in sale-deed-Plaintiff's case was,
governed by provision of S.7(iv-a), Court Fees Act, 1870 and he had to pay ad valorem
court-fee stamp on basis of value of property in dispute, shown in the deed and not in
accordance with "market value" thereof. Section 7 (iv-a), Court Fees Act, 1870 added by Sindh Finance Act, 1974, and amended by
Sindh Finance Act, 1975 in the Court Fees Act, 1870 had intended the payment of court-fee
to be made on the basis of the value -as pertained to the "sale, gift, exchange or mortgage
thereof" while in the substituted clause (v) the intention was that the suit be valued
according to "market value". It is, therefore, obvious that in the first provision i.e, clause
(iv-a),.Court Fees Act, 1870 i, was not the intention of the Legislature that the suit was to
be valued in accordance with the market value but it was to be .in accordance with the
value as `provided in newly-added clause (iv-a) and the obvious inference therefore is that
it is to be the value as shown in the document of alienation. Present case was governed by
section 7 (iv-a) of the Court' Fees Act, 1870 and petitioners had to pay ad valorem courtfee
stamp
on
the
value
of
the
property
in
dispute,
a
house,
the
value
of
which
is
shown
at
Rs.
30,240
as
per
PTD
issued
to
him
by
Settlement
Authorities.
1991
M
L
D
437
Such suit for landed property has to be valued on its market price and would be covered by
provisions of S.7(iv), Court Fees Act, 1870. 1995 M L D 45
Value for purposes of Jurisdiction and court-fees-Plaintiff in such a suit would be entitled to
fix the notional value for purposes of Jurisdiction and court-fees subject to the condition
that value 'for purposes of Jurisdiction and court-fees must be the same. 1992 M LD 1301
Rama Singh v. Janak Singh AIR 1920 Pat. 63; Bhagwati Prasad v. Achhaibar Singh AIR
1923 Oudh 93; Chelasani Rattyya v. Anne Brahmayya AIR 1925 Mad. 1223; AIR 15 years
Digest (1951-1965); 1964 M P.L.J.(Notes) 130; Ala Baksa v. Majibal Haq AIR 1935 Cal.
739; Bhimangouda v. Sangappa Irappa Patil AIR 1960 Mys. 178; Sukumar BanerJee v.
Dilip Kumar Sarkar AIR 1952 Cal. 17; Becharam Choudhuri v. Purna Chandra ChatterJi AIR
1925 Cal. 845 and Nirbheram Fatte Kurmi v. Sukhdeo Kisun Kurmi AIR 1944 Nag. 307 ref.
Object and scope -- Suit property was owned by a firm and after the death of one of the
partners, the remaining partners sought title of the property - Partnership firm comprising
of more than two partners was still in operation and the same had not been dissolved -
plaintiffs claimed to be in possession of all the original documents of title of the suit
property and in undisturbed possession over a period of several decades - Defendant filed
application under O. VII, R.11, C.P.C for rejection of plaint on the ground that the plaintiffs
could not seek the relief as prayed for in the plaint and the suit was time-barred - Validity -
Object of rejection of plaint is not to shut out case where the plaintiff is in a position to
adduce evidence for a decision of his case on merits according to law nor to prejudge a
decision without affording an opportunity to the plaintiff to place evidence on record - Such
course would be opposed to the principles of natural justice - From the contents of the
plaint and its annexure a prima facie case in favour of plaintiffs had been made out - Merits
of the case were to be considered at the time of evidence when parties would be at liberty
to propose the relevant issues in support of their respective contentions--- Conditions
specified for exercise of power under the provisions of O.VII, R.11, C.P.C were to be strictly
construed and not to be resorted to unless these were satisfied.PLD 2003 Kar. 171
Plaintiffs application for interim injunction against specified resolution whereby he was
restrained to exercise powers of Chief Executive of company. Resolution by respondent
Directors was adopted in haste without recourse to law. Essentials for grant of interim
injunction being present in the suit, interim injunction was granted in favour of plaintiff
against defendants restrainmg them not to interfere in functions of plaintiff (Chief
Executive of Company) Nothing in such order would bar company to call fresh meeting,
according to law after giving proper notice and agenda. P.L.J.1998 Kar. 712 = 1998 CLC
237.
Temporary injunction by trial Court. _ Application for its vacation, moved by
respondent rejected. Order set aside by High Court. Validity. Suit is still pending, only stay
application has been decided. It has not yet been decided that there was no right of way.
Interim order issued by trial Court does not relate to right of way and order is to effect that
defendants shall not carry out any construction or alteration of property left behind by their
other co-Sharers. This is clear case in which property Jointly owned by heirs of "G" has
been allegedly damaged by respondent. Respondent cannot be allowed to change nature of
Joint property in manner which constitutes invasion on right of appellant. Even his
possession is not exclusive. Learned Judge was not right in observing that learned District
Judge was not competent to grant interim relief. Judgment of High Court vacated.
P.L.J.1999 SC(AJK) 244 = 1999 CLC 598.
Form of Suit:-- Transfer of property during pendency of suit. Property in _ question was
further transferred in names of defendants subsequently impleaded during trial of suit.
While impleading such subsequent defendants it was incumbent upon trial court to have
asked for amended plaint. Plaintiff has alleged in plaint that sale transaction was effected
through agreement to sell therefore, could only be implemented if suit for specific
performance was brought to court. Such transaction did not fall within ambit of S. 42
Specific Relief Act. Decree in suit in nature of declaration was not competent on that
account also and being not sustainable was set aside and case remanded. P.L.J.1996
Pesh. 307 = 1996 MLD 1389.
Inheritance:-- Suit for declaration and injunction claiming share in property of deceased
lady whom he claimed to be his wife. Plaintiffs suit was dismissed for lack of cogent
evidence as also his appeal against Judgment and decree of trial Court. Validity. Plaintiff
produced not a single independent witness. Witnesses produced by plaintiff besides being
relatives of plaintiff, expressed divergent version about alleged marriage, duration whereof
ranging from 1924, 1929, 1945 and 1984 AD.. Evidence of such witnesses was thus. false
and they were not .present at the time of alleged marriage. Witnesses were at variance
even on amount ofHaq Mehar. Admittedly consumation of marriage had not taken place
nor the same was alleged. No suit for restitution of conjugal rights had been filed from
plaintiffs, side. Trial Court had, thus, rightly concluded on basis of evidence on record that
alleged nikah was not proved. Statemet of real sister of deceased lady made before Rev.
officer as to factum of marriage having taken place was also of no help to plaintiff as she
was not cross-examined, and even, otherwise, decision based on that statement stood
cancelled on Rev. side against which no appeal was filed. Concurrent findings of Courts
below rightly found plaintiff to be not entitled to share of inheritence of deceased lady.
P.L.J.1999 Lah. 1547.
Exclusion from inheritance on account of gift deed in favour of other heirs excluding
plaintiff---Quantum of proof required for proof of gift deed was lacking---Effect---Document
required by law to be attested could not be used as evidence until at least two attesting
witnesses had been called for purpose of proving execution thereof, if they were alive and
capable of giving evidence--- No evidence had been produced by defendants (donees) that
scribe or attesting witnesses were not alive, therefore, presumption would be that they
were alive---Original gift deed was shown to have been executed on 29-11-1988 and date
of registration as shown by said document was 28-i1-1988---Such fact could not be
ignored and that anomaly could have been resolved by scribe of document who could
produce relevant register to settle the same---Defendants' failure to produce scribe of
document would render adverse presumption to be drawn against them---Gift deed having
not been proved in accordance with law, plaintiff who was daughter of deceased could not
be deprived of her inheritance from her father's property: 1995 M L D 1841
Word "property" :-- Question involved was entitlement/disentitlement to recover
specified amount of money. Word "property" as used in S. 42, could include "money". Suit
for declaration was, thus, competent.-P.L.J.1999 Kar. 234 = 1998 MLD 234.Deceased
was governed in matters of inheritance by Shariat Law. Mutations of inheritance on basis of
Custom were sanctioned in 1939 while suit for declaration was filed by daughters of
deceased in 1985, when payment of produce was stopped to by defendants. That being
first attack on their rights plaintiffs suit while counting time from that date was well within
time.-P.L.J.1997 Lah. 1183 = 1997 CLC 659.
Suit for declaration, injunction and accounts. Trial Court refused to admit suit on the
ground that suit was arbitrarily valued and subject-matter of suit, exceeded Rs. 1,00,000
which was maximum limit of pecuniary Jurisdiction of trial Court. Order was upheld by First
Appellate Court on the ground that consequential relief of possession was not sought, as
was requirement of S. 42 of the Specific Relief Act, 1877. Status. Suit either to be admitted
or rejected or returned. Order of the Courts below were set aside and suit was remanded
back for appropriate order. P.L.J.1999 Kar. 64 = 1998 CLC 1995.
Correction of date of birth:-- Suit for declaration whereby correction of date of birth was
prayed, was decreed ex-parte by trial Court and the same was affirmed by Appellate Court.
Defendants application for setting aside such decree was dismissed by Courts below.
Validity. Instead of framing issue on controversial point i.e., whether or not there was
sufficient cause for setting aside ex-parte decree and thereafter examining evidence of
parties, trial Court after hearing counsel came to conclusion that there was no sufficient
cause for setting aside ex-parte decree. Same view was taken by Appellate Court while
dismissing appeal. Important questions having been raised touching Jurisdiction of Court
and also that absence of defendant was not wilful or intentional trial Court should have
framed issue to settle such controversy but it did not do so and proceeded to dismiss
petition for setting aside, ex parte decree although affidavit was attached in support of
contents thereof, though there was no Such counter affidavit by plaintiff with his reply filed
to contest petition forgetting aside ex ^ parte decree. Even, otherwise, Court acted in
haste in disposing of suit ex-parte on same day without examining any evidence in proof of
claim made in suit itself. Law also requires that case should be decided on merits for which
parties should be given chance. No such chance was however, provided to contesting party
in present case. Impugned order passed by Courts below being arbitrary, capricious and
illegal was set aside. Sufficient ground was provided in terms of affidavit attached with
application for setting aside ex-parte decree to set aside the same. While setting aside ex
parte decree, case was remanded to trial Court for trial in accordance with law.-P.L.J.1999
Lah. 1758 = 1999 CLC 1377.
Whether consent decree can be challenged, Admittedly, order has been passed on
basis of compromise as is evident from its bare reading. Record reveals that after
submission of objections on report of local commission, parties kept seeking adjournment
from 10.12.1996 to 10.6.1997 as talks of compromise were going on. Thus impugned
order/decree was not passed abruptly and is result of due deliberation and consultation
which continued for about six months. It is also fact that authority given by
plaintiffs/petitioner to counsel who had signed compromise statement on their behalf had
never been revoked by them. Thus such compromise entered into by counsel on behalf of
party would bind such party. Section 115 C.P.C. applies to cases, involving illegal
assumption, non exercise or irregular exercise of Jurisdiction. Neither any such aspect has
been put forth or highlighted, nor is seemingly available so as to attract or entail provisions
of Section 115 C.P.C., which thus can neither, come into play nor pressed into service.
Consent Order/decree can only be challenged on ground ' of fraud. Judgments and decrees
now sought are unexceptionable as same neither appear to suffer from any infirmity or any
irregularity no perversity or arbitrariness. P.L.J.1999 Lah. 1051 = 1999 CLC 1287.
In-door management of a company:-- Suit by Chief Executive of -company against
some of Directors of company. Maintainability and pre*requisites for such an action. Courts
would not be competent to interfere in day-to-day working of any company on doctrine of
indoor management. Such bar, however, was not absolute and there were situations where
Directors or shareholders of a company could bring case before Court against company and
its Directors. Court would be Justified to interfere; where majority had acted in depriving
minority of their lawful and legitimate rights; acts complained of were ultra vires of
Memorandum and Articles of Association; Directors had acted mala fidely and against
interest of company; there was violation of principles of natural Justice; and acts
complained of amounted to fraud and misrepresentation. Plaintiffs suit that he, as Chief
Executive of Company, was entitled to perform his functions in accordance with law and
that curtailment of his power by impugned resolution was illegal and ultra vires of specified
meeting, was maintainable for plaintiff had no other remedy available to him under any
other law through which he could seek declaration as to his legal status in Board of
Directors after passing of resolution in question.-P.L.J.1998 Kar. 712 = 1998 CLC 237.
Settlement Dispute:-- Purchase of suit land by predecessor-in-interest of petitioners.
Entry in name of respondents on Rev. record. Petition before Settlement Officer by
predecessor-in-interest of petitioners dismissed on ground of limitation. Acceptance of
revision petition by Additional Commissioner, but set aside by Member Board of Rev Suit
for declaration and possession filed by petitioners dismissed by trial court and upheld in
appeal. From documentary evidence it appears that petitioners have failed to show that
same are in respect of suit land. Petitioners have failed to prove that possession and
ownership over property in dispute and had only filed suit for declaration without seeking
consequential relief. Even otherwise, suit filed by petitioners was hopelessly barred by
time, petitioners did not give any cogent reasons for not challenging Rev. entries within
prescribed period as they were very much present at time of final attestation by Settlement
Officer. Orders of Member of Rev. has obtained finality and respondents have acquired
vested right with passage of time. Impugned Judgment being unexceptionable, is
amenable to any interference in exercise of revisional Jurisdiction under Section 115 CPC.
Petition devoid of merits is accordingly dismissed.-P.L.J.1998 Qta. 279 - 1998 CLC
1794.
Joint Family Property. Predecessor-in-interest -of parties having died in 1957, plaintiffs
and defendants had carried on business together and also lived in parental house. Parties'
mother having died in 1993, defendants-tried to misappropriate Joint family property and
tried, to exclude plaintiffs from such property. Period of limitation for filing suit would, thus,
start run with effect from 1993 from refusal of defendants to allow plaintiffs to share Joint
family property. Defendant's objection that Art. 127, Limitation Act, 1908 was applicable to
Joint Hindu Family alone, as misconceived. Word "Hindu" which was used in Art. 127,
Limitation Act, 1871 was omitted "from Art. 127, Limitation Act, 1908, therefore, by such
omission, Art. 127, Limitation Act, 1908 was made applicable to persons of all faiths.
Defendants' claim that suit having been filed beyound period of limitation and that causes
of action in suit were multifarious, therefore, plaint was liable to be rejected in terms of
O.VII, R. 11, C.P.C, was of no consequence, for, suit was within time in terms of Art. 127,
Limitation Act, 1908 since causes of action Joined therein were neither dissimilar, nor
discordant. Even if causes of action were multifarious, Court could order separate trial but
plaint could not be rejected on that ground. Application for rejection of plaint was not
maintainable in circumstances.-P.L.J.1999 Kar. 2218 = 1998 CLC 1425.
Maintainability. Respondents were in possession of property in dispute thus suit for mere
declaration filed by respondents was maintainable. P.L.J.1999 Qta. 98 = 1999 MLD
2087 = NLR 1999 Rev. 99.
Misreading & non-reading of evidence. Grounds of attack. Sale-deed in favour of
plaintiff was in respect of disputed house was executed by original owner. It is also
established that defendant was brought in as tenant in house by father of plaintiffs. Stance
of two witnesses that original owner re-purchased house from father of plaintiffs is not
supported by any sale deed or any other evidence. Courts below, therefore, not read
evidence on record in its correct perspective and have also misread important evidence.
They have, therefore, legally erred in decision of case which resulted in miscarriage of
Justice. Plaintiffs are owners of house in question and defendant was first occupying it as
their tenant but later on denied their partnership. P.L.J.1999 SC 1114 = PLD 1998
SC.1502. Transaction of land on basis of consent decree. No evidence was available on record
to suggest that defendant had ever enJoyed fruits of sale of land in question. No body
came forward to say that defendant shared produce and no-tenant deposed that vendor
attorned him to defendant. Late execution of decree in Rev. record; constant refusal of
heirs, of vender to accept defendants, claims of ownership over land in question and deep
slumber and indifferent -attitude of defendant was not expected of real vendee. Vendor
never relinquished his claim or owned defendant as his /substitution relating .to land in
question. Vendor at the time of filing of declaration was quite alive to his title of land in
question. Challenge of ownership and possession was not reported in terms of Land Rev.
Act, 1967 to Patwari for period of at least five years. Preponderance of evidence would
suggest that Trial Court on basis there of had rightly decreed heirs suit against defendants
claim based on consent decree. First Appellate court did ,not advert to material on iccord
and had fallen in ignoratio elenchi by treating claiming defendant as apodictic as if she
spoke as an oracle. Plaintiffs also deserved same solemnity and their claim should have
been Juxta-posed in its true perspective. Finding of First Appellate Court resulting in
dismissal of plaintiffs suit, were set aside while that of Trial Court in decreeing suit was
restored. P.L.J.1999 Lah. 1364 = 1999 MLD 2783.
Withdrawal of powers of Chief Executive of Company by Directors. They called
meeting of Directors hastily without inviting nominated Directors of Company. Companies
which had nominated their representatives as Directors of Company in question were
repositories of huge amount of public funds which had been invested and advanced. No
proof was available on record that nominated Directors of Company were served notices of
meeting .of Directors. Even if it was presumed that notice of meeting was issued upon
nominated Director, it would have been impossible to attend meeting due to short notice.
Resolution adopted by Directors of Company in hastily summoned meeting, in absence of
nominated Director, was ultra vires' mala fide, and inoperative. P.L.J.1998 Kar. 712 =
1998 CLC 237.
Estoppels. Withdrawal, of appeal against order of ejectment by plaintiff on the ground,
that he would seek his remedy through civil suit. No objection by defendant. Plaintiff was
wrong in asserting that defendant was estopped from challenging Jurisdiction of Civil Court.
Jurisdiction of Court was conferred and regulated by law. There was no estoppel against
law nor there could be waiver against statute. Respondent being not entitled to relief
against order of ejectment passed by Rent Controller, his suit was barred by law and plaint
in suit was rejected. P.L.J.1997 Kar. 1035 = 1997 CLC 1109 = NLR 1997 Civil 647.
Adverse possession--Proof--*Plaintiffs claimed ownership of land in question on the basis of
agreement of sale executed by predecessor-in-interest of defendants in favour of father of
plaintiffs and plaintiffs after death of their father remained in possession of suit land as its
owners for more than forty years without any interruption or interference by
defendants---Agreement of sale which had been challenged by defendants after about
forty-two years of its execution and which otherwise proved to be genuine, would be
presumed genuine document under Art. 100 of Qanun-e-Shahadat, 1984 being of more
than thirty years old---If in pursuance of an agreement to sell or under a defective title the
possession was handed over to transferee and they remained in possession of suit land for
more than 40 years considering themselves as owners to the exclusion of true owners,
their possession would become adverse. 2001 M L D 493 Khadim Hussain Khan and 9
others v. Mst. Sarwar Jan and 27 others 1999 MLD 824; Ahmed Khan v. Rasul Shah and
others PLD 1975 SC 311 and Gulzar Shaikh v. Bashirullah and 3 others Civil Appeal No.37
of 1987 ref.
AIR 1920 Pat. 63; AIR 1923 Oudh 93; AIR 1925 Mad. 1223; AIR 15 years Digest (19511965);
1964
M P.L.J.(Notes)130;AIR1935Cal.739;AIR1960Mys.178;AIR19$2Cal.
17;AIR 1925 Cal.845 nAIR 1944 Nag.307 ref.
Amendment weather wii change the nature:-- Plaintiffs subsequent application for
amendment of his plaint introducing therein prayer for possession was dismissed by Trial
Court as also by the High Court. Courts below had dismissed amendment sought on the
ground that the same would change nature of suit and was sought after considerable delay
from the date of objection raised by defendant in -his written statement that possession of
land was with him. Conversion of declaratory suit to suit for possession would not changenature
of
suit
in
substance,
in
as
much.
as
basically
plaintiffs
intend
to
annul
gift
deed
and
by
amendment
they
were
seeking
additional
relief
of
possession.
Amendment
could
not be
disallowed
merely
because
that
was
being
sought
after
expiry
of
period
of
four
years.
Orders
of
Courts
below
disallowing
amendment
of
plaint
were
set
aside
and
plaintiffs
were
directed
to
amend
their
respective
plaints
on
payment
of
specified
costs.
P.L.J.
2000
SC
(AJ&K)
237.
Grant of temporary injunction:-- Injunction that tenant in possession may not be
dispossessed otherwise than due process of law. Order of temporary injunction upheld in
appeal, prohibitory injunction was issued, 'whereby, petitioners/defendants were restrained
to take law into there own hands by evicting the respondent/plaintiff per force from land in
question, but were permitted to avail any legal remedy in appropriate forum. P.L.J.1999
Lah. 1060 = 1999 CLC 1415.
Burden to prove--*Claim of plaintiff was that house owned by her husband was orally
gifted in her favour followed by a memorandum of gift---After death of husband of plaintiff
house was transferred in favour of legal heirs of deceased vide mutation---Suit filed by
plaintiff was concurrently dismissed by Courts below holding that plaintiff could not produce
any evidence in support of oral gift made in her favour by her husband--*Plaintiff in proof
of her claim had produced marginal witnesses of memorandum of gift who fully proved its
execution---Both Courts below had not disbelieved said witnesses---By proving execution
of memorandum of gift, plaintiff had discharged her initial burden and it was for defendants
to establish that memorandum of gift was forged and anti-dated, but they could not
establish same by any evidence---Appellate Court after holding that execution of
memorandum of gift was duly proved, should not have looked for independent evidence of
oral gift--*Judgments and decree of Courts below were set aside and suit was decreed by
High Court. 2002 M L D 993 *Disputed mutation of inheritance was attested in the year,
1919,- while the same was assailed in the year, 1996---Trial Court dismissed the suit being
time-barred and the judgment was maintained by Appellate Court--*Validity---Onus to
prove factum of possession and suit being within limitation, was heavily placed on the
plaintiff but he had failed to discharge the same through reliable evidence---Solitary word
of the plaintiff did not rehabilitate his case---Mere assertion of the plaintiff that attestation
of suit mutation was a result of conspiracy between Revenue Officials and
predecessor-in-interest of the defendants and that the plaintiff had been receiving
usufructs, without a positive attempt on his part to substantiate the same, was of no
consequence---Both the Courts below had rightly found that the suit was clearly barred by
time---Both the Courts having properly dealt with the matter and dismissed the suit of the
plaintiff for valid reasons---High Court declined to interfere with the concurrent findings of
fact by the Courts. 2002 C L C 1704 *Transaction of property ---Pardahnashin lady---Good
faith---Onus to prove mutation of gift allegedly made in favour of defendant by the
plaintiff, who was a Pardahnashin lady---Defendant was brother of the plaintiff and onus to
prove such transaction was on the former---Trial Court decreed the suit while the Lower
Appellate Court reversed the judgment and dismissed the suit--*Validity---Where the
defendant failed to establish that such transaction was made in his favour out of free-will
and the disputed mutation was correct and genuine, judgment and decree of the Lower
Appellate Court was set aside and that of the Trial Court was restored. Inche Norih Binte
Muhammad Tahir v. Sahik Allie Bin Omar Bin Abdullah AIR 1929 PC 3 ref.. 2000 C L C 1131
Cancellation of document--* Execution of a registered sale-deed was disputed and the
plaintiff, denied its execution in favour of the defendant--*Plaintiff was old, illiterate and
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