PLJ 2012 Lahore 466
[Bahawalpur Bench Bahawalpur]
[Bahawalpur Bench Bahawalpur]
Present: Amin-ud-Din Khan, J.
Mst. SHARIFAN
BIBI--Petitioner
versus
MUHAMMAD SHARIF
and 5 others--Respondents
C.R. No. 187-D
of 2006, heard on 9.2.2012.
Civil Procedure
Code, 1908 (V of 1908)--
----O. 11, R. 2
& S. 115--Bar against plaintiff--Plaintiff claimed ownership and challenged
transaction--No specifically pleaded the ingredient of benami
transaction as well as not in knowledge of gift mutation till time of filing of
suit--Court could not grant relief because plaintiff had no prayed for
declaration of benami ownership of
defendant--Plaintiff was bound to prove the case but could not take benefit of
weak points--Missing from pleadings as well as from evidence produced by
plaintiff--Validity--If after filing of the first suit came to know about other
transactions, same could have been challenged through amendment in earlier
filed suit--Plaintiff had not pleaded about benami
transaction and gift made by father was also not challenged--Stance of
plaintiff that through mutation it was not visible that possession of gifted
land was transferred to donee--Pleadings were not upto mark in order to challenge a transaction of gift of
year 1985--Her statement before Court was not upto
standard, where onus of proof shifts on beneficiary of transaction because in
her statement, portion of which had been referred to by first appellate Court,
she had been admitted that the mutations were got sanctioned by her father and
defendants were cultivating suit land as owner--Plaintiff could not raise
objection with regard to transfer of possession under gift--Defect in prayer of
plaint was also fatal because plaintiff had made prayer that plaintiff be
declared owner and had prayed for possession of 1/3rd of suit property--Not
pray for declaring ownership with regard as benami
and not made prayer in suit for declaration that mutations be declared without
lawful authority or having no effect upon rights of plaintiff. [Pp. 470 & 471] A, B, C & D
Pleading--
----Parties were
bound by their pleadings and Courts below were not empowered to grant a relief
to parties even which was not claimed by them. [P.
471] E
Jurisdiction of
Civil Court--
----No defect,
misreading or non-reading in judgment and findings recorded by Appellate Court
except the view that Civil Court was not having jurisdiction to entertain and
try suit for partition with regard to suit property situated in rural area as
it was suit for declaration--Civil Court was having full jurisdiction to
entertain and try the suit. [P.
471] F
Malik Zulfiqar Ali, Advocate for Petitioner.
Mr. Qamar Hameed Hashmi,
Advocate for Respondents.
Date of hearing:
9.2.2012.
Judgment
Through this
civil revision, the petitioner-plaintiff has challenged the judgment and decree
dated 11.03.2006 passed by the Addl: District Judge, Haroon Abad, whereby the appeal filed by the respondents
was accepted and the judgment and decree dated 04.05.2005 passed by the Civil
Judge, Haroon Abad, decreeing the suit filed by the
petitioner-plaintiff was set aside and suit was dismissed.
2. Briefly, the facts of this case are that the
petitioner-plaintiff on 23.12.2002 filed a suit for declaration and for partition
with regard to the suit property mentioned in Para No. 3 ( ), ( ), and ( ) of plaint. As per story of plaintiff
that her father, namely, Qutab Din who was a Patwari in the Revenue Department and died on 14.01.1995 in
the age of 95 years at Chak No. 62/4-R, Tehsil Haroon Abad, District Rahawal Nagar, purchased property Measuring 174-kanals
during his service in Chak No. 174/9-L Tehsil Cheecha-Watni District Sahiwai, which was later on shown to have been gifted to
Defendant No. 1 Muhammad Sharif, real brother of plaintiff (only son of Qutab Din). The plaintiff is only daughter of said Qutab Din. She stated in the plaint that she filed a suit
for declaration in the Civil Court
at Cheecha Watni, which was
initially dismissed but the appeal was accepted on 21.11.2002. According to the
plaintiff, in written statement filed by the defendant in the above said suit,
she came to know about the properties mentioned in Para No. 3 of the plaint and
therefore filed this suit. According to Para No. 3 ( ) of plaint, property Measuring
200-kanals fully described in this Para has been stated to have been purchased
by her father but it was in the name of Defendant No. 1 as `benami',
whereas she challenged the mutation of Gift No. 395 sanctioned on 09.04.1985
with regard to the property mentioned in Para No. 3 ( ) of plaint. She also challenged the
transfer of Ahata-Jaat Nos. 35 and 104 measuring
03-kanals 14-marlas in favour of defendants.
The defendants
appeared and contested the suit by filing written statement. The trial Court,
out of the divergent pleadings of the parties, framed essential issues on
16.01.2004 and invited the parties to produce their respective evidence. The
plaintiff herself appeared in the witness box as P.W-1 and in documentary
evidence produced Ex.P-1 to Ex.P-10, whereas the defendants produced voluminous
evidence, oral as well as documentary. The trial Court vide judgment and decree
dated 04.05.2005 decreed the suit. Feeling aggrieved by the said decree, an appeal
was filed by the defendants before the first appellate Court, which was allowed
vide judgment and decree dated 11.03.2006 and the decree passed by the trial
Court was reversed. Hence, this civil revision.
3. Learned counsel for the petitioner-plaintiff
argued that the first appellate Court non suited the plaintiff on the basis
that father of plaintiff being Patwari could not
purchased one square of land; that when in Para No. 3 ( ) the pleadings were specific but
there were evasive denial on the part of defendants, so under the law the
Courts were bound to consider that evasive denial as admission on the part of
defendants, therefore, the first appellate Court fell in error while accepting
the appeal of the defendants. When confronted to the learned counsel for the
petitioner-plaintiff that even he has not made prayer for declaration of `Benami' entry with regard to the property mentioned in Para
No. 3( ) of the plaint, that it
was actually purchased by her father in the name of his son Muhammad Sharif.
Learned counsel states that when it was mentioned in Para No. 3, there was no
need to further make a prayer for declaration of that property to be a `Benami'.
Further states
that the portion of statement of petitioner-plaintiff was referred to by the
first appellate Court, which was to be read as conjunctive and not injunctive;
that Defendant No. 1 being beneficiary of Mutation No. 395 was bound under the
law to prove the valid attestation of mutation; that he has not proved the
ingredients of gift also, therefore, the suit was rightly decreed by the trial
Court. It has been further contended that in the judgment of first appellate
Court, the finding that Civil Court was not having jurisdiction by virtue of
Section 172 (2) (XVIII) of West Pakistan Land Revenue Act, 1967, to entertain
and try the suit with regard to the suit property being located in the rural
area, is against law. To this extent I agree with the learned counsel for
petitioner-plaintiff that the first appellate Court has wrongly viewed that Civil Court was not
having jurisdiction to entertain and try the suit because in the suit only
partition has not been claimed with regard to the agricultural land but it was
a suit for declaration also. Therefore, the finding of first appellate Court to
this extent is against the law.
4. On the other hand, learned counsel for the
respondents-defendants states that the plaintiff has even not specifically
pleaded the ingredient of `Benami' transaction as
well as her pleadings show that she was not in the knowledge of impugned gift
mutation till the time of filing of her suit. Further states that there is no
specific prayer in the plaint and when there is no specific prayer, the Court
cannot grant the relief because plaintiff has not prayed for declaration of `Benami' ownership of Defendant No. 1 with regard to the
property mentioned in Para No. 3 (
) of plaint. It has been further argued that the plaintiff was bound to
prove her case but she cannot take benefit of weak points on the part of
defendants; that the plaintiff has not even uttered a single word when she
appeared as P.W-1 as her own witness about `Benami'
transaction but she stated that she came to know about the ownership of her
father first time just before filing of suit. Lastly
contended that the findings recorded by the first appellate Court are in
accordance with law.
5. I have heard the learned counsel for the
parties at full length and also gone through the record with their able
assistance.
6. The petitioner-plaintiff has pleaded two
things in her plaint with regard to the property mentioned in Para No. 3 ( ). She stated that this property was
in the name of defendants as `Benami' and further
with regard to the properties transferred in favour
of Defendant No. 1, mentioned in Para No. 3 ( ) and
( ) of plaint claims that these transfers are fictitious. The facts are not denied that father of plaintiff Qutab Din was a Patwari and after retirement he was Lumberdar at the time of his death. The plaintiff and Defendant No. 1 being his daughter and son were the only legal heirs. After his retirement from service no became Lumberdar of Mouza. He died in the year 1995. The plaintiff has not specifically mentioned with regard to `Benami' transfer of property in the name of Defendant No. 1, even it is not on the record that how property claimed to be `Benami' in the name of Defendant No. 1 came in his ownership and who was the transferor of properly. All these things are missing from the pleadings as well as from the evidence produced by the plaintiff. Moreover, the transaction of gift and sale are of the year 1985, at least 10 years before the death of owner and as per claim of plaintiff herself that she came to know about these transactions just before filing of the suit i.e. in December, 2002, that Qutab Din died after 10 years of impugned mutation of gift in favour of his son and after more than 07 years of death of Qutab Din, suit has been filed.
( ) of plaint claims that these transfers are fictitious. The facts are not denied that father of plaintiff Qutab Din was a Patwari and after retirement he was Lumberdar at the time of his death. The plaintiff and Defendant No. 1 being his daughter and son were the only legal heirs. After his retirement from service no became Lumberdar of Mouza. He died in the year 1995. The plaintiff has not specifically mentioned with regard to `Benami' transfer of property in the name of Defendant No. 1, even it is not on the record that how property claimed to be `Benami' in the name of Defendant No. 1 came in his ownership and who was the transferor of properly. All these things are missing from the pleadings as well as from the evidence produced by the plaintiff. Moreover, the transaction of gift and sale are of the year 1985, at least 10 years before the death of owner and as per claim of plaintiff herself that she came to know about these transactions just before filing of the suit i.e. in December, 2002, that Qutab Din died after 10 years of impugned mutation of gift in favour of his son and after more than 07 years of death of Qutab Din, suit has been filed.
The previous
suit was filed at Cheecha-Watni with regard to the
other property, wherein plaintiff has claimed the ownership, and challenged the
transaction by her father in favour of his brother
(Defendant No. 1). Certainly Order II Rule 2 of the CPC is a bar against the
petitioner-plaintiff, us if after filing of first suit she came to know about
the other transactions, the same could have boon challenged through amendment
in the earlier filed suit. As I have earlier observed that plaintiff has not
specifically pleaded about the `Benami' transaction
and gift made by her father was also not challenged. The
stance of learned counsel for the plaintiff that through the impugned mutation
it is not visible that the possession of gifted land was transferred to the donee. In this regard I have noticed that in Column
No. 14 of the impugned mutation, there is a narration on the basis of Rappat recorded by Patwari before
entering mutation on behalf of donor that he has delivered the possession to
the donee, who has accepted the same. Learned counsel
for the plaintiff was questioned that whether any 3rd person can challenge any
mutation of gift on the basis that possession was not transferred under the
gift to the donee. Learned counsel replied that being
daughter of donor, who is claiming inheritance in the suit property, she can
raise the objection of transfer of possession. I do not agree with the
explanation given by learned counsel for the plaintiff in the circumstances of
this case.
In this case,
when as par claim of plaintiff that she came to know even about the ownership of
her father of suit property in December, 2002, just before filing of the suit
and her father died in the year 1995 and transaction is of the year 1985, in
these circumstances, the pleadings are not up to the mark in order to challenge
a transaction of gift of the year 1985. Her statement before the Court
as P.W-1 is also not up to the standard, where the onus of proof shifts on the
beneficiary of transaction because in her statement, the portion of which has
been referred to by the first appellate Court, she has even admitted that the
impugned mutations were got sanctioned by her father and that the defendants
are cultivating the suit land as owner and she has admitted that they were
taking benefits of production and they never paid any share of produce to her.
In these circumstances, she cannot raise objection only with regard to the
transfer of possession under the gift. Qutab Din was
not an ordinary person. He was X-Patwari as well as Lumberdar and Mutation No. 408 of land measuring 20-kanals
was sanctioned in the year 1986 at Chak No. 62/4-R Tehsil Haroon Abad by Muhammad
Sharif in favour of Qutab
Din. Admittedly this land is part of Mutation No. 395 which was previously
gifted by Qutab Din in favour
of his son Muhammad Sharif, therefore, this document
is not ignorable.
7. So far as, the objection raised by learned
counsel for the petitioner-plaintiff with regard to the evasive dental is
concerned. I have observed that if whole the pleadings of plaintiff and
defendant be considered entirely. There are specific denial
from the pleadings of plaintiff. The defect in the prayer clause of plaint is
also fatal in my view because plaintiff has made prayer that she be declared
the owner and she has prayed for possession of 1/3rd of suit property according
to her entitlement. She has not made prayer for declaring the ownership with
regard to the property mentioned in Para No. 3 ( ) as `Benami'
in the name of Defendant No. 1 and also has not made prayer in her suit for
declaration that the mutations mentioned in Para No. 3 ( ) and ( ) be declared without lawful authority
or having no effect upon the rights of plaintiff. Therefore, on this score the
plaint was defective one. No doubt, the parties are bound by their pleadings
and the Courts below were not empowered to grant a relief to the parties even
which was not claimed by them. In this view of the matter, the trial Court fell
in error while decreeing the suit, whereas the first appellate Court has taken
the correct view in accordance with law while setting aside the judgment and
decree passed by the trial Court. In my view, there is no defect, misreading or
non-reading in the judgment and findings recorded by the first appellate Court
except the view that Civil Court
was not having jurisdiction to entertain and try the suit for partition with
regard to the suit property situated in rural area, as it was a suit for
declaration. Therefore, the Civil
Court was having full jurisdiction to entertain
and try the suit.
8. The crux of above discussion is that I see no
illegality, infirmity, misreading or non reading in
the impugned judgment and decree on the part of first appellate Court.
Resultantly, this civil revision having no force is dismissed.
(R.A.) Revision
dismissed
