Specific Relief Act (I of 1877)

  1. S.   8 — See Civil Procedure Code (V of 1908), O.XLI, R. 31.  2012 SCR 60
  2. S. 8 — Civil Procedure Code, 1908, O. XX, R. 14 — Limitation Act, 1908, Art. 182 — AJK Interim Constitution Act, 1974, S. 41 — Suit for possession on basis of prior purchase — Decree for possession on basis of right of prior purchase was passed in favour of plaintiffs-respondents previously — An application for execution of decree is competent within a period of three years — Decree-holders/respondents filed application for execution of decree beyond period of limitation which was dismissed — Whether after dismissal of execution application, suit for possession on the basis of decree of prior purchase, which could not be executed, was maintainable and whether mutation could be sanctioned on basis of such decree? — Key proposition — Analysis — After depositing decretal amount on prescribed date in Court title of property had been transferred to decree-holders and they had become owners of land — On basis of said decree, mutation had already been sanctioned —- Plaintiffs-respondents claimed that through a private settlement they had taken possession of land and land was handed over to defendants for cultivation purposes because plaintiffs were out of country — There was no prescribed limitation for filing a suit for possession on basis of title — Suit for possession was competent — Mutation in question was sanctioned on basis of decree passed in favour of plaintiffs-respondents — Revenue authorities were under obligation to act upon the decree of Civil Court — Civil appeal was dismissed by Supreme Court. POSSESSION ON BASIS OF DECREE OF PRIOR PURCHASE — (Maintainability of suit) [Suit for possession on the basis of title may be filed at any time. Appeal was dismissed by Supreme Court]. Jalal-ud-Din v. Rozman and 31 others 2013 SCR  29 (B)
  3. Ss. 8 and 9 — A combined reading of these two sections show that if a person fails to avail the remedy provided in section 9 he is not debarred from pursuing his remedy under the C.P.C. — Under C.P.C read with Article 142 of the Limitation Act a suit for possession can be filed within twelve years. Muhammad Sabir  v. Ch. Muhammad Amin & others 1995 SCR 204 (B)
  4. Ss. 8, 31, 42 & 54 — Suit for possession, declaration, correction of record and perpetual injunction — Case of plaintiff was that survey in question, measuring one Kanal was in his ownership and possession; and that defendants who were entered as Ghairmauroos, had snatched the possession from him in the guise of some entry in Khasra Girdawary — Plaintiff was in possession of the land on the basis of gift-deed executed in his favour in the year 1989 by donor, who was owner in exclusive possession of the land — Gift had been made from a Khewat and no survey number was mentioned in it and land in question did not fall in said Khewat, but fell in another — No gift-deed in respect of land in question was executed, nor it was mentioned in the gift-deed that possession of the said survey number was handed over to the plaintiff — Gift-deed executed in favour of the plaintiff in circumstances, was not of specific survey number but was in respect of total share of owner/donor in the Khewat — Plaintiff had failed to prove his case that he was ever in possession of the specific survey number and that possession was snatched by the defendants from him — Suit was dismissed, in circumstances. M. Karim v. Kala and 4 others 2012 SCR 404 (A, C & E)
  5. S. 8 — See AJ&K Interim Constitution Act, 1974, S.42. Mst. Sardar Begum and others v. Muhamad Ilyas and others 2013 SCR (SC AJ&K) 433 (B)
  6. S.  8 — See AJ&K Interim Constitution Act, 1974, S. 42. Zahid Hissain Versus Afsar Din and 11 others  2013 SCR (SC AJ&K) 488 (B)
  7. S. 9 — Suit under section 9 relates to possession and not to title.- If it is proved that any party has been dispossessed from any land within six months prior to the filing of the suit the Court is bound under law to put the party back in possession irrespective of any title that may be set up in such a suit- issues framed in conformity to the requirements of a suit under S. 9-Parties led evidence accordingly the trial Court should not have disposed of the suit on the basis of title — S. 9 – No appeal lies against the judgment passed under S. 9- Only a revision lies to the High Court. Mst. Jhali & others v. Lal Khan & others 1993 SCR 53 (A, B & C)
  8. S. 9 — A suit under S.9 this section lies if a person is dispossessed otherwise in due course of law and such person may recover possession notwithstanding any title that may be set up in such suit — This section provides summary procedure for restoration of physical possession in case where one is dispossessed without his consent — The legislature has made it clear by providing in section 8 of the Specific Relief Act that a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the C.P.C. Muhammad Sabir v. Ch. Muhammad Amin & others 1995 SCR 204 (A)
  9. S. 9 — It has been asserted in the plaint that plaintiffs were dispossessed 2/3 years prior to the institution of the suit — A suit under section 9 of the Specific Relief Act, can be instituted within six months of dispossession. Rehmat and others v. M. Suleman and others 2000 SCR 217 (B)
  10. S. 9 — remedy of appeal and review — held: there is no second thought that remedy of appeal and review has been specifically barred under the said provision and the person against whom the judgment and decree is passed under section 9, the remedy of appeal and review is not available to him.  Abdul Karim v. Sain Muhammad & another 2014 SCR 859 (A)
  11. S. 9 — Civil Procedure Code. S. 115(2) — Although, no appeal lies from an order/judgment passed in the suit instituted u/s 9, and no review on such like order or decree is permitted,  but it does not mean that door is completely closed and no remedy against such order/decree is available and the person against whom such order/decree has been passed has become remediless. Held: to meet such eventuality, the law has provided the remedy and conferred the power to the appellate Court, to revise the order and decree u/s 115(2) of CPC.  Further held: such remedy cannot be treated like an appeal which is expressly barred by section itself as the main object behind section 9, of the Specific Relief Act seems to confer finality to the order and decree in the suit under this section.  Intention of the Legislature is to provide the quick and speedy remedy for recovery of the possession to a person who has been forcibly dispossessed from the immovable property without his consent. Abdul Karim v. Sain Muhammad & another 2014 SCR 859 (B)
  12. Section 9 — jurisdiction of appellate Court — Under section 9, the appellate Court has no jurisdiction to entertain and decide the appeal—held: the judgment passed in appeal can be ignored. Abdul Karim v.    Sain Muhammad & another 2014 SCR 859 (C) 1985 CLC 1925 rel.
  13. Section 9 — Civil Procedure Code Section 115(2) — suit for possession — appeal — maintainability — held: that only revision was competent, whereas, the learned High Court has decided the case while treating it appeal which was not competent. Abdul Karim v. Sain Muhammad & another 2014 SCR 859 (E) 2006 YLR 161 rel.
  14. Section 9 — suit for recovery of possession — limitation — if a person is dispossessed of the immovable property without his consent, he may file a suit within a period of 6 months for recovery of possession and it is not necessary to establish the title in the property for recovery of possession. It is sufficient that a person is successful in proving that he has been dispossessed from the land within a period of 6 months. Abdul Karim v. Sain & 11 others 2016 SCR 1321 (A)
  15. Section 9 — No appeal or review against judgment/order — No appeal shall lie from any order or decree passed in any suit instituted under this section. The said section also bars a review. Abdul Karim v. Sain & 11 others 2016 SCR 1321 (B) 
  16. Section 9 — suit for possession — essential to prove — A plaintiff suing for possession has to prove that; (A) he was in possession of the land; (ii) he has been dispossessed by the defendant; (iii) the dispossession is not in accordance with law and; (iv) the dispossession has taken place within a period of 6 months. Abdul Karim v. Sain & 11 others 2016 SCR 1321 (C)
  17. —section 9—suit for possession—by person dispossessed from immovable property without consent—-principle for seeking remedy defined —A perusal of the statutory provision reveals that if a person is dispossessed of his immovable property without his consent, he can approach the Court for redress of his grievance, irrespective of the of the fact whether any title is involved or not. It is sufficient to prove that the person claiming possession was disposed from the land without his consent. M. Arif Khan v.  Mst. Shabina Kousar & 24 others 2020 SCR 165 (A) 
  18.  —section 9—suit for possession—by person dispossessed of immovable property—remedy against final order and decree passed in such suit—no appeal or review is competent—the statutory provision in clear terms provides that against any order or decree passed in such suit, no appeal shall lie. Moreover, the review from any order or decree so passed is also barred. Held: as the appeal before the District Judge was incompetent, hence, High Court has not disregarded the legal provision. M. Arif Khan v.  Mst. Shabina Kousar & 24 others 2020 SCR 165 (B)
  19. —Section 9—suit for recovery of possession—the Court has to remain within the four ingredients i.e., (i) person suing must have been dispossessed; (ii) such dispossession must be from immovable property; (iii) dispossession should be without consent; and (iv) dispossession should be otherwise than in due course of law. Aftab Ali v. District Judge Bhimber &others 2022 SCR 66 (A)
  20. Section 12 — Suit for cancellation of gift-deed and specific performance of contract as consequential relief without prayer for possession — Held: It is not necessary to make a prayer for possession in the suit for specific performance of agreement-tosell because the relief by way of delivery of possession of the suit property in the suit for specific performance springs out of the contract of sale and it is incidental to the main relief of specific performance granted in the suit, even though such relief has not been prayed for in the plaint. Mst. Zohra Bibi & others v. Ashiq Hussain & others 2015 SCR 1552 (D) 2005 CLC 1144 rel.
  21. Section 12 — Code of Civil Procedure — Order II, Rule 2–Suit for specific performance of agreement to cell — without prayer for possession — held: The omission in the plaint for grant of possession — the executing Court is not debarred from granting the plaintiff the possession of the property as well — Further held: There would be no bar under Order II, rule 2, CPC, if the plaintiff opts to file subsequent suit for possession based on the sale-deed executed in pursuance of the decree for specific performance of contract in the first suit because this cause of action in the suit for possession will be distinct from the earlier suit. Mst. Zohra Bibi & others  v. Ashiq Hussain & others 2015 SCR 1552 (E) AIR 1950, Allahabad 415, PLD 1959 (W.P) Lah. 932, 2001 UC245, PLD 1964   Dacca   202   &   1970   SCMR  816.  ref.
  22. sections 12 to 30 — contracts which cannot be specifically enforced — joint property — dwelling house constructed on land — agreement-to-sell only of land of ten marla — no mention of house constructed thereof — the legal statutory provisions which deal with such eventualities as mentioned in Chapter 2 of the Specific Relief Act, 1877, consisting of section 12 to 30. Section 21 is also one of these statutory provisions which speaks that there are certain contracts which cannot be specifically enforced. One of such contracts is mentioned in clause (B) of section 21, which speaks of the discretion of the Court that “ — otherwise from its nature is such, that the Court cannot enforce specific performance of its material.”As in the instant case, the alleged contract speaks of agreement-to-sell of 10 marla plot but there is no mention of house constructed on it, thus, according to its nature the specific performance in material terms cannot be enforced. Imtiaz Inqlabi v. Mst. Fatima Begum & 2 others 2016 SCR 1577 (B)
  23. S. 31 — See Specific Relief Act (1 of 1877), S.8. Muhammad Karim v. Kala 2012 SCR 404 (A)
  24. Section 31 — rectification of instruments —  when through fraud or mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute a suit to have the instrument rectified. Muhammad Rasheed Khan & 7 others v. Muhammad Ayub Khan & 6 others 2016 SCR 1278 (A)
  25. Ss. 35 & 39 — S. 35 deals with rescission of contract — Only a party to contract may avail remedy under this section — The section provides remedy in case a decree has been made in a suit — Section 39 deals with cancellation of instrument which is voidable — A person who is not a party to a document, cannot claim relief under section 39. Mumtaz Rasool Mir v. Tariq Mir & 6 others 2011 SCR 299 (C)
  26. Ss. 39 & 42 — Transfer of Property Act (IV of 1882), S.122 — Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42 — Suit for declaration and cancellation of gift-deed — Plaintiffs in their plaint had averred that alleged gift-deed in respect of suit property was obtained by the defendant fraudulently, secretly and without delivery of possession of the gifted property — Plaintiffs had alleged that defendant/alleged donee, kept the alleged gift-deed secret till the death of the donor; and after almost 14 years’ period, the mutation on the basis of that alleged gift-deed in favour of the defendant was got entered and attested in the Revenue Record — Trial Court decreed the suit, but Appellate Court below, set aside the findings of the Trial Court — High Court, on remand from the Supreme Court, through impugned judgment, accepted the appeal of the plaintiffs by setting aside the judgment of the Appellate Court below, while cancelling the gift-deed declaring the same to be ineffective due to non-delivery of possession — Validity — Witnesses produced by the plaintiffs had unanimously stated that the plaintiffs and the donor, were inter-related— Plaintiffs through oral and documentary evidence, had established the fact that they being descendants of the true grandfather of the deceased donor, were legal heirs — Descendants of true grandfather according to Sharaih Law would inherit as residuaries — One of the plaintiffs being real sister of deceased donor, was entitled for one half as sharer, whereas the other plaintiffs in whose favour decree had been passed by the High Court being the descendants of true grandfather, were entitled for one half of inheritance of deceased, as residuaries — Alleged gift-deed was registered in 1970, but the defendant donee for the first time in the year 1984, after death of the donor, after a period of almost 14 years got entered and attested mutation regarding said gift-deed — Such conduct of the defendant/donee, was sufficient to create preponderance of probability that the fact of execution of gift-deed had been intentionally kept secret till the death of the donor — Trial Court and High Court had rightly treated the suit of the plaintiffs with limitation — Defendant/donee’s possession relating to the suit property had never been recorded — Findings recorded by the High Court and the Trial Court on the delivery of the possession, were well reasoned according to the facts and record of the case — Well reasoned and comprehensive judgment of the High Court, could not be interfered with, in circumstances. Sub Retd. Muhammad Aziz Khan v. Muhammad Hanfi and others 2012 SCR 115 (A,B,C,D,E,F,G,H,J & L)  Dhamn and others v. Ghulam Sarwar and others 1985 SCMR 947; 2010 SCR 231; 1982 CLC 1309 and PLD 1981 SC (AJ&K) 118 rel.
  27. Section 39 — confers a right to a person to approach the competent Court for cancellation of a instrument about which he apprehends that such instrument, which is otherwise void or voidable, if remains operative, the same may adversely be used against him. Mst. Zohra Bibi & others v. Ashiq Hussain & others 2015 SCR 1552 (B)
  28. —Section 39—An instrument can be avoided and got cancelled by filing a suit u/s 39, if such instrument, if left outstanding, may cause serious injury to any person. Sairan Begum & others v. Sakeena Begum & others 2017 SCR 1093 (B)
  29. —Section 39—cancellation of gift-deed—registered document— presumption of truth is attached to it —strong evidence required for cancellation of same— —admittedly the giftdeed is a registered document and under law presumption of truth is attached with it and for cancellation of the same strong evidence is required. Muhammad Aslam  v.Muhammad Farooq & others 2019 SCR 200 (A)
  30. Sections 39 & 42 — Comparison of — Under section 39 there is no such condition as of praying for further or consequential relief in the plaint which is required to be prayed under section 42 when a declaration is sought — The suit for cancellation of a deed or instrument is filed under section 39, which confers a right being independent of the provisions of section 42 — Held: Under section 39,  the plaintiff was not bound to pray for possession along with the prayer for cancellation of gift-deed purported to be made to defeat his right. Mst. Zohra Bibi & others v. Ashiq Hussain & others 2015 SCR 1552 (C)
  31. Suits for declaration are regulated by Sec. 42 — Declaration sought for must relate to title or to any legal right as to any property — Said suit shall fall u/s 7(iv) (C) of Court Fees Act read with Schedule-II, Article 17(iii) of Court fees Act — Where the specific relief claimed in a declaratory suit in either surplusage  or the consequential relief flows from the original relief of declaration, claimed in the plaint, the suit will fall under Schedule-II Article 17(iii) of Court Fees Act, but if consequential relief is not the outcome of original declaratory relief then suit shall fall out of the ambit of the provisions referred above. M. Afzal Khan v. M. Hayat Khan 1999 SCR 454 (B)
  32. Section 42 — A declaratory suit with regard to immovable property is not maintainable if the plaintiff does not seek consequential relief to which he is entitled; besides, he must have a legal right in the property the proviso of this section is very clear on the point. Azad Govt. v. Zubair Ahmad Khan and 11 others 2001 SCR 464 (A)
  33. S. 42 — The suit was dismissed also on the ground that a declaratory suit without consequential relief  was not maintainable. Sultan Habib and others v. Walayat Begum 2003 SCR 92 (C)
  34. S. 42 — The object of this section is to express in definite terms the kind of cases in which the specific relief of a declaration of right, apart from all further relief, may be granted — Care has been taken to avoid multiplicity of suits and to prevent a person getting a declaration of right in one suit, and immediately after, the remedy already available in the other — Provision of section 42 refers to the status of plaintiff at the time of filing the suit. Abdul Aziz v. Abdul Hameed and 10 others 2004 SCR 203 (A)
  35. S. 42 — There is a specific bar provided under the section that “no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so” — Mere declaration could not afford any relief to the petitioners unless they sought possession or joint possession. M. Arif and another  v. Mehdi Khan  2006 SCR 167 (B)
  36. S. 42 — See Civil Procedure Code (V of 1908), S.11. Punoo Khan v. Iqbal Begum 2012 SCR 196 (A)
  37. S. 42 — See Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2, & 4. Muhammad Qasim v. Razia Begum 2012 SCR 350 (B)
  38. S. 42 — Monetary claim — Suit for declaration — Maintainability point — A suit for declaration can only be filed if a person is entitled to any legal character or to any right as to any property — Instant suit was in respect of handling charges arising out of terms of agreement which was a monetary claim — It was not a right or legal character in a property — Suit was not in respect of a legal character or right in the property — Enforcement of terms of agreement with pecuniary liabilities could not be considered as legal character or right in the property. Azad Govt. of State of J&K through its Chief through v. Neelum Floor Mills, Asgharabad, Muzaffarabad 2013 SCR (SC AJ&K) 16 (C)
  39. S. 42 — See Civil Procedure Code, 1908, O.II, R. 2, S. 11. Muhammad Najeeb v. Muhammad Javed and 4 others  2013 SCR(SC AJ&K) 172 (F)
  40. S. 42 — Shamlat Deh — Right of adverse possession — Improvements — Factual/legals aspects — It was contended that appellants were in  possession of land in dispute for last more than 60 years and they had acquired right of adverse possession, therefore, a decree should have been passed in their favour — Validity — Said contention had no force — Disputed land was ‘Shamlat Deh’ land which had not partitioned as yet — Under the law, every inhabitant of the village is owner of ‘‘Shamlat Deh’’ according to his proportionate share — On basis of possession over ‘‘Shamlat Deh’’ no decree for adverse possession could be passed — Supreme Court agreed with finding of High Court as improvements were made by appellants in good faith, therefore, they were entitled to costs of improvements which had been rightly awarded — High Court had rightly held that relief can be awarded according to the changed circumstances of the case — Civil appeal was dismissed by Supreme Court. SHAMLAT DEH — (Right of adverse possession) Muhammad Bashir and 6 others v. Azad Govt. and 27 others 2013 SCR (SC AJ&K) 185 (B)
  41. S. 42 — Limitation Act, 1908, S. 28, Art. 144 — Claim of adverse possession — Respondents filed a suit for declaration to the effect that their adverse possession in land in dispute had matured into ownership and they were entitled for decree on ground of adverse possession — Suit of respondents was decreed by Trial Court, however, Appellate Court below setting aside judgment/decree of Trial Court dismissed suit — High Court accepted appeal, set aside judgment/decree of first Appellate Court and restored that of Trial Court — Analysis — After amendment, a suit for possession of immovable property after the period of limitation is barred but the right of ownership is not extinguished and a decree for declaration on the ground of adverse possession can only be passed after the defendant/owner admits the claim of adverse possession of the plaintiff — Held: Defendant/owners had not admitted adverse possession of respondents, therefore, suit for declaration was not maintainable and a decree could not be passed — Said decree in favour of respondents was nullity — Impugned judgment/decree of High Court was not maintainable which was set  aside by Supreme Court —- Civil appeal accepted. PLEA OF ADVERSE POSSESSION — (Declaration) [Since appellants/defendants had not admitted claim of plaintiffs, declaratory decree on ground of adverse possession was nullity. Supreme Court allowed appeal]. Muhammad Maroof Khan and 3 others v. Mansoo Khan and 2 others 2013 SCR (SC AJ&K) 250 (C)
  42. S. 42 — Suit for declaration — Maintainability — The declaration of status or right is a discretion of the Court and a suit can only be instituted against any person denying or intended to deny the title of the plaintiff to such character or right. Pervaiz Khan and 27 others v. Adalat Khan and 217 others 2013 SCR (SC AJ&K) 262 (C)
  43. S. 42 — Civil Procedure Code, 1908, O. VIII, R. 4 — AJK Interim Constitution Act, 1974, S. 42 — Co-sharers — Remedy — Pleadings —- If the defendant fails to specifically deal with each allegation of fact, it will amount to admission — Contestant parties were co-sharers and owners in suit land — In presence of such state of affairs, there remained no controversy for declaration of right of any one of parties — Defendants had neither denied nor interested to deny title and right of plaintiffs — In that state of affairs, proper course for plaintiffs-appellants had rightly been proposed by High Court in impugned judgment to approach Revenue authorities under law for partition of immovable property — Appeal was dismissed by Supreme Court. CO-SHARERS — (Remedy) Pervaiz Khan and others v. Adalat Khan and others 2013 SCR (SC AJ&K) 262 (D)
  44. S. 42 — See Criminal Procedure Code, 1898, S. 133. Dr. Karamat Hussain Versus Shams-U-Din and others  2013 SCR (SC AJ&K) 554
  45. S. 42 — See AJK Interim Constitution Act, 1974, S. 42. Mehmood Hussain Shah and 5 others Versus Muhammad Hanif and 2 others  2013 SCR (SC AJ&K) 732
  46. S. 42 — See AJK Interim Constitution Act, 1974, S. 42. Shabina Kousar Versus Nargis Khatoon and 11 others  2013 SCR (SC AJ&K) 866 (B)
  47. S. 42 — See AJK Interim Constitution Act, 1974, S. 42. Noordad and 6 others Versus Muhammad Sadiq and 40 others  2013 SCR (SC AJ&K) 1168 (B)
  48. S. 42 — See AJK Interim Constitution Act, 1974, S. 42. Ghulam Qadri and 3 others Versus Satar Din and 28 others  2013 SCR (SC AJ&K) 1218 (B)
  49. Section 42 — Proviso — declaratory decrees — The proviso clearly imposes an embargo on grant of mere a decree for declaration if a plaintiff fails to pray for consequential relief in his plaint, which he is otherwise able to pray for — Suit for declaration without prayer for consequential relief, shall definitely face dismissal — u/s 42, declaration prayed for must relate to legal character, title or right as to any property — if one prays for mere declaration but does not opt to pray for the consequential relief, the one which he was able to pray for, the prayed declaration shall not be granted. Mst. Zohra Bibi & others v. Ashiq Hussain & others 2015 SCR 1552 (A)
  50.  Ss. 42/8 — See Civil Procedure Code, 1908, O.XIII, Rr. 1, 2. Rashid Mehmood and another Versus Sardar Begum and 6 others  2013 SCR (SC AJ&K) 200 (C)
  51. Ss. 42, 12 — See AJK Interim Constitution Act, 1974, S. 42. Azad Govt. of State of J&K through its Chief Secretary, Civil Secretariat, Muzaffarabad and 2 others v. Neelum Floor Mills, Asgharabad, Muzaffarabad, through Mufti Kafit Hussain Naqvi  2013 SCR 725
  52. Ss. 42, 12 —- See AJK Interim Constitution Act, 1974, S. 42. Dilnawaz Begum and another v. Muhammad Akbar Khan Afridi and 4 others  2013 SCR (SC AJ&K) 1184 (C)
  53. Ss. 42, 22 — Limitation Act, 1908, Art. 14 — AJK Interim Constitution Act, 1974, S. 41 — Monetary claim  — Enforcement breach of terms of agreement — Suit — Competence — Limitation point — Issues —Said agreement was signed by the Director Food Department on behalf of the Government — Director Food as assignee of the Government and the Government was acting through him — Director Food had jurisdiction to pass the order and the order passed by him was legal order, therefore, limitation for filing  suit was one year — Whether limitation could be condoned because plaintiff remained litigating on wrong forum with bona fide intention? — Moot point — It was urged that plaintiff remained acting under the advice of counsel, therefore, he       was entitled for condonation of delay Held:   Plaintiff who had available the services of a Senior Advocate, was not entitled to condonation of delay on ground that he had been litigating at a wrong forum — Plaintiff failed to chose the forum with due care and caution – Suit to that extent was time-barred and liable to be dismissed — Suit to the extent of remaining part was competent — Plaintiff was entitled for payment of handling charges and refusal of payment of handling charges was a continuing wrong and every refusal furnished him a fresh cause of action, therefore, suit to extent of remaining relief was within limitation — Civil appeal was partly accepted by Supreme Court. MONETARY CLAIM — (Relief –limitation) [Plaintiff had availed services of Senior Advocate, therefore, delay in filing suit could not be condoned on ground that he had been litigating at wrong forum].  AJK Govt. of State through its Chief through v. Neelum Floor Mills, Asgharabad, Muzaffarabad 2013 SCR 16 (D)
  54. Ss. 42/39  — See AJK Interim Constitution Act, 1974, S.42. Mst. Aziza Begum and 6 others v. M. H.  Khan (Deceased) through represented by legal heirs and 32 others 2013 SCR  563 (H)
  55. Ss. 42 & 54 — Suit for declaration and perpetual injunction — Plaintiff alleged encroachment on his land by the defendants, praying that defendants be ordered to remove the material piled up by them on the suit land — Commissioner was appointed with consent of parties, who after spot inspection, prepared his report, recorded the statements of the parties, wherein both the parties stated that they accept the demarcation made by the Commissioner on the spot — Trial Court on the basis of due appreciation of evidence and in the light of report of the Commissioner, decreed suit for possession of land encroached by the defendants — Said decree was upheld upto the High Court — Validity — All the three courts had recorded unanimous findings and had also analysed the evidence brought on record — Factum of encroachment having stood proved from the evidence brought on record, courts below while recording findings, had neither made any misreading, non-reading or wrong reading of the evidence — Concurrent findings recorded by the courts were upheld and there was no justification to interfere with — Defendants having no claim over the suit land, ownership of the plaintiff was admitted — Defendants having failed to make out any case for interference of Supreme Court, appeal was dismissed, in circumstances. Muhammad Ramzan v.    Muhammad Latif & 34 others 2012 SCR 420
  56. Ss. 42, 54 — Encroachment — Suit for declaration and perpetual injunction — Spot inspection report — Issues — Pleadings and evidence — Relief — Whether the relief was granted against the principle of law and pleadings despite failure of the plaintiff to prove his claim? — Moot point — Most relevant legal evidence was the inspection report of the Commissioner and the statements of parties recorded by him — It had been clearly reported that no confirmation was found in the encroached piece of land rather only on the north corner of suit land, some bricks had been stocked — Preparation of report and recording of statements of parties stood established beyond any iota of doubt — Appellant-defendant neither disputed not registered said piece of evidence and nothing contrary to that had been brought on record — Factum of encroachment stood proved from evidence brought on record — While recording findings the Courts below had neither made any misreading, non-reading or wrong reading of evidence  — Admitted facts need not be proved — For the ends of justice if the relief, which flows from the pleadings and also proved from the evidence, the Courts are empowered to mould and grant the same —Appellant had failed to make out any case for interference of Supreme Court — Civil appeal dismissed. ENCROACHMENT — (Evidence) [Factum of encroachment stood proved from evidence brought on record. Courts below had concurrently rendered the decree — Supreme Court dismissed appeal]. Muhammad Ramzan v. Muhammad Latif  and 34 others 2013 SCR (SC AJ&K) 326 (B)
  57. Ss. 42/54 — See AJK Interim Constitution Act, 1974, S. 42. Muhammad Saleem Khan and 4 others Versus Muhammad Fayyaz Khan and 15 others 2013 SCR (SC AJ&K) 990 (B)
  58. S. 54- Suit for perpetual injunction by a trespasser where the settled possession of the immovable property extending over year maintainable — He cannot be evicted by force. Bashir Ullah  v. M.Qasim 1992 SCR 69 (C)
  59. S. 54 paras 1, 2 and 3 -Distinction. If a right to or enjoyment of property is invaded or threatened the plaintiff may be granted a perpetual injunction subject to the conditions laid down therein. Bashir Ahmad v. M. Qasim 1992 SCR 165 (C)
  60. S. 54 para 3. If forcible dispossession by owner is recognised it would likely result in multiplicity of proceedings-which would be violative of the objects of perpetual injunction. Bashir Ahmad  v. M. Qasim 1992 SCR 165 (E)
  61. S. 54 — See Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2. Abdul Ghafoor and 4 others v.  Muhammad Azam and another 2012 SCR 65
  62. S. 54 — See Specific Relief Act 91 of 1877), S.8. Muhammad Karim v. Kala 2012 SCR 404 (A)
  63. S. 54 — See Civil Procedure Code, 1908, O.VI, R.17, O.1, R.10. Parveen Akhter v. Administrator, Municipal Corporation, Mirpur and 4 others  2013 SCR (SC AJ&K) 139 (A)
  64. S. 54 — See Civil Procedure Code, 1908, O.XXXIX, Rr. 1, 2. Qaiser Sadiq and another v. Shahroom and 4 others  2013 SCR (SC AJ&K) 61 (C)
  65. S. 54 — See Civil Procedure Code, 1908, O.IX, Rr. 8, 9. Sawar Khan v. Banaris Khan and another 2013 SCR (SC AJ&K) 229 (D)
  66. S. 54 — See AJK Interim Constitution Act, 1974, Ss. 42 & 44. Nazir Ahmed and 6 others v. Riaz Ahmed and 5 others 2013 SCR (SC AJ&K) 1069 (B)
  67. S. 54-A Trespasser who is evicted forcibly — Can sue for recovery of possession under section 9 of the Specific Relief Act. Bashir Ullah  v. M.Qasim 1992 SCR 69 (D)
  68. Ss. 54 & 55 — Power of attorney — Suit for perpetual and directory injunction, filed through attorney — Attorney in the present case, had been empowered to look after the case, if it was already instituted   — No authority had been conferred upon the attorney to file suit on behalf of the plaintiff — Attorney, in circumstances, was not empowered to file suit on behalf of the plaintiff — Contention of the plaintiff that said point was neither raised by the defendant in written statement nor taken in the memo of appeal in the High Court, High Court was  not justified in resolving the said point, carried no weight because it was a pure legal question, whether the attorney was authorized to institute suit on behalf of the plaintiff, or not — Legal question could be raised at any time — Attorney was not empowered to institute suit on behalf of the plaintiff — Suit unauthorizedly field, was rightly dismissed by the High Court. Manzoor Begum v. Fazal Ellahi 2012 SCR 70 (C, D & E) T.S.P.L.S. Thinnappa Chettiar by Agent A.S. Arunachalam Chettiar v. Putti Krishna Rao and others AIR 1941 Mad. 6 and Muhammad Yousaf Khan v. Jehan Bahadur and another 1985 CLC 2214 rel.
  69. S. 55 — See Specific Relief Act (I of 1877), S.54. Manzoor Begum v. Fazal Ellahi 2012 SCR 70 (C)
  70. The Scheme of Specific Relief Act does not stipulate the forcible dispossession of a tresspasser by force. Bashir Ahmad v. M. Qasim 1992 SCR 165 (D)
  71. —Section 12—Suit for specific performance of an agreement to sell—no prayer made for alternate relief i.e., recovery of consideration amount of plot as mentioned in the agreement to sell—alternate relief, consideration amount was granted while exercising inherent powers under constitution. See caption Kamran Zaib v. Khadim Hussain & others  2022 SCR 1114 (C)
error: Content is protected !!