MUHAMMAD AFZAL Versus Mst. MUSARRAT BEGUM

ORDER

KHALIL AHMAD, J.--- Respondent filed a suit for possession and permanent injunction of house mentioned in para.1 of the plaint claiming that she became the owner of said house under inheritance from her father and thereafter the same was constructed by her husband from his own funds. The suit was contested by petitioner who also filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint and claimed that house was owned by Bashir Ahmad and his sons and they had constructed the same and respondent had no concern with the said house. The learned Civil Judge on the pleading of the parties framed the following issues:---

(1) Whether the plaintiff is entitled for possession of the house? OPP

(2) Whether the plaintiff has no cause of action? OPP

(3) Whether the plaintiff has not come into the Court with clean hands? OPD

(4) Whether the suit is not maintainable? OPD

(5) Whether the suit is liable to be dismissed under Order VII, rule 11, C.P.C.?

(6) Whether the defendant is entitled to special cost under section 35-A, C.P.C.? OPD

(7) Relief.

The suit of the respondent was decreed vide judgment and decree, dated 6-5-2005. The petitioner filed an appeal which was dismissed by the learned Additional District Judge vide judgment and decree, dated 24-4-2008. Hence, this petition.

2. Learned counsel for the petitioner has argued that suit for possession without seeking declaration was not maintainable and as such the decree could not be passed. Reliance has been placed on the case of Muhammad Aslam v. Mst. Feroz and others PLD 2001 SC 213 and also stated that the judgments and decrees of the lower Courts are result of misreading or non-reading of evidence.

3. The learned counsel for the respondent has entered appearance and has vehemently opposed the petition and stated that the suit for possession without seeking declaration is maintainable. I am afraid in view of the law laid down by the august Supreme Court as mentioned in para.2 suit for possession without seeking declaration is not maintainable. The contention of the respondent is misconceived. For the foregoing reasons this petition is accepted and order of the learned Courts below are set aside.

A.M.R./M-315/L Revision allowed.