Mst. SAHAR BEGUM vs SALAHUDDIN

1. ' The brief facts of this appeal are that a suit was filed by the present appellant in the learned Court of the Ilnd Senior Civil Judge, Karachi West, which came to be numbered as Suit No,1900 of 1988.

2. The plaintiff sought declaration as regards title to the property bearing No,1155/A-3, Saeedabad, Baldia Township, Karachi West, as well as permanent injunction restraining the defendant from interfering with plaintiff's peaceful possession of the said property. The learned Trial Court rejected the plaint on the ground that the claim to title arose on a mere agreement to sell and on such basis alone a declaration in terms of section 42 of the Specific Relief Act, could not be made. In support of this Mr. Masood Ali, has referred me to a decision of the Lahore High Court in Muhammad Nawaz v. Mian Muhammad Anwar Abbasi, PLD 1982 Baghdad-ul- Jadid 33. Learned counsel has also relied on a Division Bench judgment of this Court in Supercon Limited v. Eastern Construction Limited 1987 CLC 1566 dealing with the concept of "settled possession" and holding that a trespasser, prima facie, is not entitled to the equitable relief of an interlocutory injunction restraining the owner of the property etc. The last mentioned case, obviously, has no relevance as no interlocutory injunction is being claimed at this stage nor is at issue here. Besides, the suit is not directed against superior title. From the side of the appellant Mr. S. Ziaul Hassan relies on the Supreme Court judgment reported as Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785, wherein it was found that even if one of the reliefs claimed in a suit was unavailable on account of a technical difficulty the other or others, if claimed and available, cannot be disallowed merely because of the bar which applied to the first. The situation in this case could be more or less analogous.

3. ' In the first place, I do not want to express any opinion as to the availability of the declaratory relief sought by the plaintiff-appellant in her suit. Whether or not what the plaintiff was claiming in the way of declaration was based entirely on a mere agreement to sell is a question, which would require further examination. Besides, whether a declaratory relief can be accorded purely on an agreement to sell is also a question which cannot be treated as beyond all manner of controversy.

4. Much may depend on the nature of the agreement, antecedent facts, character of the disputes and parties to the action. The case of Muhammad Nawaz ibid may, therefore, be distinguishable on facts. The ratio in that case may have been based on section 54 of the Transfer of Property Act which only explains that a contract of sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. The section goes on to postulate that such contract does not "of itself create any interest in or charge on such property". The phrase "of itself' is to be noted. The implications are obvious. The rule is that while a mere contract of sale of immovable property does not of itself create any interest in or charge on the immovable property which is its subject-matter there may be stipulated and inserted clauses in a given contract of sale that, in fact, would create interest in or charge on the property. For the purpose of declaratory relief under section 42 of the Specific Relief Act, therefore, it can always come up for examination whether the given agreement is a bare agreement of sale or therein are stipulations creating interest in or charge upon the property. In the latter class of cases the decision in Re: Muhammad Nawaz may not be attracted.

5. Correspondingly, what is equally clear is that if a person claims to be in peaceful possession, based on a semblance of title or even a mere lawful justification such a person can claim permanent injunction to protect his possession from being endangered except in due course of law. In such situations such a suit for such relief would clearly be maintainable, the proceedings being governed by section 54 of the Specific Relief Act and controlled by section 56 of that statute.

6. If this be so, the appellant/plaintiff cannot be non-suited by rejection of the plaint, at least on her own averments, even if any bar applied to the other reliefs sought therein. This is all the moreso because a plaint cannot be rejected in part and must stand or fall as a whole.

7. ' In view or the foregoing, while it would be open for the respondent-defendant to establish whatever has been averred by him in the way of defence and the appellant-plaintiff, for all one knows, may, ultimately, fail in establishing her case, when the suit goes to trial, I cannot uphold the rejection of the plaint. This appeal, therefore, succeeds but there will be no costs.