PLJ 2014 SC 835
HAZRATULLAH and others--Appellants
RAHIM GUL and others--Respondents
Civil Appeal No. 172 of 2005, decided on 7.1.2014.
(Against the judgment dated 28.4.2003 of the Peshawar High Court, Peshawar passed in Civil Revision No. 669 of 1994)
----S. 8--Civil Procedure Code, (V of 1908), O. IX, R. 13--Sale deed was not challenged in earlier suit--Ex-parte decree was valid having legal effects--Modes and mechanism for setting aside such decree never assailed through any direct proceedings--Validity--In a suit under Section 8 of Specific Relief Act, 1877, declaration of entitlement is an inbuilt relief claimed by plaintiff of such a case--Once plaintiff is found to be entitled to possession, it means that he/she has been declared to be entitled, which includes declaration of title of plaintiff qua property, and that is integrated into decree for possession; and when she had attained decree for possession and found entitled to possession in terms of Section 8, undoubtedly sale-deed irrespective of it not being directly challenged, would render sale-deed as nugatory and redundant; because title shall be valued on basis of judicial verdict i.e. decree, and sale-deed shall not be a hindrance in her way. [P. 837] A
Mr. Shakil Ahmed, ASC for Appellants.
Mr. M. Ismail Fehmi, ASC for Respondent No. 1.
Bakhtiar son of Respondent No. 7.
Date of hearing: 7.1.2014
Mian Saqib Nisar, J.--This appeal with the leave of the Court dated 3.3.2005 entails the facts:--that the appellants' side filed a suit for declaration claiming ownership of the suit land measuring 2 kanals and 10 marlas bearing Khasra No. 1143 situated in mouza Nodeh Bala on the basis that Qudratullah, the father of the appellants vide sale-deed dated 19.4.1938 had purchased 28 kanals and 9 marlas of land from Mst. Marjan, the original owner (the predecessor-in-interest of the respondents) having differentkhasra numbers including the khasra number mentioned above and a Mutation No. 566 dated 11.12.1944 was also sanctioned in his favour. This suit was contested by therespondents which was decreed by the trial Court. The first appeal of the respondents failed but in the revisional jurisdiction, the learned High Court by setting aside the two verdicts of the Courts below dismissed the appellants' suit.
2. The other important factual aspect of the matter is that Mst. Marjan filed a suit perhaps in the year 1939 for possession against Qudratullah and some others with regard to, inter alia, the land, subject matter of this suit. Qudratullah was proceeded ex-parte in this matter and the suit was decreed on 13.1.1940 to the following effect:
"This is a suit for possession of the land in suit on the objections that pltff is the owner of the land in suit and that defdts have taken illegal possession. Defdt 1 & admit their claim. Defdts No. 2 & 3 are ex-parte. From the evidence produced the claim is proved prima-facie as against them also. I therefore grant pltff a decree for possession of the land in suit with costs against defdt."
It may also be mentioned here that in an earlier round of litigation arising out of the present suit between the parties with respect to the suit land, the matter had come up before this Court in Civil Appeal No. 189-P of 1990 which was decided by this Court vide judgment dated 6th December, 1992. In the course of hearing of that appeal (CA.189-P/1990) which was filed by the respondents' side, who were the appellants therein, they wanted to place reliance upon the judgment dated 13.1.1940 (supra) to which objection was raised by the appellants of the present case (who were the respondents in that appeal), however, this Court considering the above aspect passed the judgment, the relevant operative part of which reads as below:
"Learned counsel for the respondents acting as much fairly as was possible for him stated that even if it is possible for him and his clients to admit the authenticity of the fresh documentary material brought before this Court, it could not be possible to finally dispose of the lis between the parties without affording them further opportunity of adducing evidence with or without amendment of pleadings. He therefore sought remand of the case to District Judge. Learned counsel for the appellant agreed to this proposal. We order accordingly. The appeal is allowed and the impugned judgment is set aside and the case is remanded to District Judge for the decision of appeal afresh after treating the fresh material placed before and admitted in evidence by this Court, as material before it. The parties shall also be afforded further opportunity to adduce evidence."
3. After the remand the appellate Court did not follow the noted judgment of this Court in letter and spirit and dismissed the appeal of the respondents, however the learned High Court in its revisional jurisdiction when invoked by the respondents has substantially relied upon the judgment dated 13.1.1940 and has reversed the two decisions of the Courts below. It has been argued by the learned counsel that in the suit for possession filed by Mst. Marjan culminating into the decree dated 13.1.1940, she had never challenged the sale-deed dated 19.4.1938 of the suit land in favour of Qudratullah, their predecessor-in-interest, therefore, such sale-deed is still intact and resultantly, the appellants are/shall be the owners of the property in question. It is further argued that the judgment dated 13.1.1940 was never produced in evidence by therespondents, therefore, the learned High Court has erroneously relied upon the said judgment.
4. Heard. As far as the second plea of the appellants' learned counsel is concerned which we take up first, suffice it to say that from the judgment of this Court dated 6.12.1992 (portion whereof has been reproduced above), it is clear that including all such documents which the respondents produced before this Court were made part of the evidence of the case and the matter was remanded to the first appellate Court to decide the same (the appeal of the respondents) afresh on the basis of such material, however, this Court also allowed opportunity to the parties to lead any further evidence, obviously if they so desired. The appellants did not adduce any further evidence to rebut the judgment dated 13.1.1940; it is also not controverted at any stage of the proceeding if Qudratullah was not a party to that matter; or that the subject matter of the decree dated 13.1.1940 was not in respect of the suit land (land involved herein), therefore the plea has no force. With regard to the other argument that the sale-deed dated 19.4.1938 was not challenged in the earlier suit filed by Mst. Marjan (the predecessor-in-interest of the respondents), coupled with the appellants' attack that the decree dated 13.1.1940 was ex-parte; it is held that an ex-parte decree is valid, having some legal effects and as good as a contested decree, with the exception that the modes and mechanism for the setting aside such decree may be more; in any case, after having attained the knowledge of that decree, the appellants never assailed it (decree dated 13.1.1940) through any direct proceedings, i.e. either under Order IX Rule 13, CPC or any other remedy available to them under the law, thus for all intents and purposes, the said judgment and decree had attained finality and would be binding upon the appellants.
As far as the plea that Mst. Marjan had never challenged the sale-deed dated 19.4.1938 in favour of Qudratullah in the suit, but only filed a suit for possession, it may be held that in a suit under Section 8 of the Specific Relief Act, 1877, the declaration of the entitlement is an inbuilt relief claimed by the plaintiff of such a case. Once the plaintiff is found to be entitled to the possession, it means that he/she has been declared to be entitled, which includes the declaration of title of the plaintiff qua the property, and this is integrated into the decree for possession; and when Mst. Marjan had attained the decree for possession and found entitled to the possession in terms of Section 8 (supra), undoubtedly the sale-deed dated 19.4.1938 in favour of Qudratullah irrespective of it not being directly challenged, would render the above sale-deed as nugatory and redundant; because the title of Mst. Marjan shall be valued on the basis of the judicial verdict i.e. the decree, and the sale-deed shall not be a hindrance in her way.
5. In view of the above, we do not find any merit in the pleas raised before us by the learned counsel for the appellants. Therefore, this appeal has no merit which is accordingly dismissed.
(R.A.) Appeal dismissed