Suit No.628 of 2009
Date of hearing: 18.7.2011, 3.8.2011 & 11.11.2011
1. For hearing of C.M.A No.5702/2009
2. For hearing of C.M.A NO.4502/2009
3. For hearing of C.M.A NO.5703/2009
Plaintiff: Ilyas Ahmed.
Defendants: Muhammad Munir & others
Mr. Asim Iqbal Advocate for the Plaintiff
Mr.Nadeem Akhtar Advocate for the Defendant No.1
Mr.Naeem Iqbal Advocate for the Defendant No.5 to 11
MUHAMMAD ALI MAZHAR,J.- This is a Suit for Declaration, Cancellation and Injunction. The plaintiff has prayed as under:-
a. “Declaration that the defendants No.1 and 4 to 11 have no rights or entitlement in the said Property namely plot bearing Survey No.4, Survey Sheet No.SB-6 (old Survey No.9, Survey Sheet No.F-16) admeasuring 1410 Square Yards with building thereon situated on Abdullah Haroon Road, Karachi.
b. Declaration that the defendants No.1 has no right/entitlement to receive any income or benefit whatsoever from the said Property.
c. Cancellation of conveyance deed dated April, 2005 executed between the defendant No.1 and defendants’ No.4 to 11 registered with the Sub-Registrar T-Div-1-A Karachi at Registered No.1268, Book No.1, Dated 08.04.2005.
d. Cancellation and removal of mutation entry in the name of defendant No.1 and defendants No.4 to 11 from the Registrar of Properties maintained by the Mukhtiarkar, Saddar Town, Karachi.
e. Injunction restraining the defendant No.1 from representing himself to have any right or entitlement in the said Property or any part thereof and claiming any income, rent or benefit therefrom and from transferring any right in the said property to any other person”.
2. The facts forming the back ground of this case are that the plaintiff’s father Shaikh Fazal Ellahi, the plaintiff and his step brother Saeed Ahmed had jointly purchased a plot Survey No.4 Survey Sheet No. SB-6 admeasuring 1,410 Sq.yards vide registered conveyance deed dated 22.07.1959. It is further contended that the said property was purchased with the intention that it would be the foundation stone of unity and harmony between the children of Shaikh Fazal Ellahi.
3. It is further stated that after the death of Saeed Ahmed, the defendant No.1, who is a stranger attempted to intrude into the plaintiff’s family and incited the defendant No.4 and defendant No. 5 to 11, who are mother, sons and daughters of late Saeed, Ahmed to sell out their 1/3rd share to the defendant No.1 against the sale consideration of Rs.50 (M) and also executed registered conveyance deed on 08.04.2005. The said sale transaction was also mutated in the record of rights of Mukhtarkar, Saddar Town, Karachi. Just after six months of the execution of conveyance deed, the defendant No.1 entered into an agreement to sell with the sons of plaintiff namely Tariq Ilyas, Khalid Ilyas and Sajid Ilyas for the sale of same undivided 1/3rd part of the said property in the sum of Rs.17,00,00,000/-.
4. It is further asserted that the plaintiff came to know about the conveyance deed when he was served with a notice of Suit No.1422/2006 filed by the defendant No.1 in this court for declaration and specific performance against co-owners including plaintiff, which was withdrawn, thereafter, he instituted another Suit No.259/2007, which is pending in this Court. The cause of action is stated to be accrued in the month of November, 2006 when the Defendant No.1 instituted Suit No.1422/2006.
5. The defendant No.1 has filed this Application (C.M.A No. 5702/2009) under Order 7 Rule 11, CPC for the rejection of plaint on the ground that the plaintiff has sought cancellation of conveyance deed executed in favour of defendant No.1 on 08.04.2005 but the suit has been filed in the month of May, 2009, which is time barred. It is further contended that the defendant No.1 is the lawful owner of 1/3rd undivided share in the property in question and the plaintiff has no legal character to challenge the defendant No.1 undivided share, therefore the suit is also barred under Section 42 of the Specific Relief Act.
6. In response to this application, plaintiff has filed objections, in which he reiterated that he came to know about the conveyance deed in the month of November, 2006. It was further stated that Haji Fazal Ellahi purchased the suit property with his own money. The property was purchased by him in his name and in the name of his two sons i.e. the plaintiff and deceased Saeed Ahmed and entire sale consideration was paid by Haji Fazal Ellahi. In the same objections it was stated that deceased Saeed Ahmed was only entitled to the share of 14/122 which was devolved upon the defendant Nos.5 to 11. He further submitted in the objections that co-sharer is the owner of every inch of the property in question and the same can not be transferred to an outsider. The suit is not barred under Section 42 of the Specific Relief Act.
7. It is pertinent to point out that on 16.09.2010, the Advocate for the plaintiff had also filed a statement along with which he filed three affidavits of defendant No.4 (Jameela Khatoon) in which she stated that whatever acts done by defendant No.5 and other heirs of late Saeed Ahmed with regard to the assets/properties/share, left by late Saeed Ahmed has been done by obtaining her signature on blank documents by way of misrepresentation and concealment of fact. Defendant No.1 has filed his objections to the affidavits of Jameela Khatoon and stated that two affidavits are only in respect of Aluminum Company of Pakistan Industries (Pvt.) Ltd. and third one is in respect of Kushtiwala Agricultural Farm which was allegedly filed in Suit 1178/2006. No affidavit was filed in relation to any alleged fraud in connection with the property in question. On the contrary, it was stated by the defendant No.1 that Jameela Khatoon herself appeared in person before the Sub-Registrar and executed the conveyance deed along with other legal heirs of Saeed Ahmed. I have seen the affidavits filed by Mst.Jamila Khatoon (defendant No.5) but in the affidavits, nothing has been said in relation to the property in question rather the conveyance deed executed in favour of defendant No.1 clearly shows her signature and photograph that she appeared before the sub-registrar along with other vendors and also endorsed her thumb impression in presence of witnesses. Even otherwise, nothing has been said in the plaint that she did not appear before the sub-registrar at the time of execution and registration of conveyance deed nor does any case appear to have been filed by Jamila Khatoon for the redress of her alleged grievance in relation to her share in the property in question.
8. In order to thrash out the bone of contention, it would be advantageous to refer to other pending suits, which have direct impact and germane not only to the parties but also to the property in question. One Suit No.259/2007 has been filed by Muhammad Muneer (who is defendant No.1 in the present suit) against Ilyas Ahmed (who is plaintiff in the present Suit) and others. Suit No.259/2007 is for Partition, Rendition of Accounts, Mesne Profits, Damages and Injunction in which Muhammad Muneer has prayed for a decree for partition of the property in question, he has also prayed for the appointment of receiver, preliminary decree, mesne profits, damages and permanent injunction. In Suit No.259/2007, the defendant Nos.1, 2, 3 and 10 have filed their written statement and in Paragraph No.2 of the written statement, the defendants have admitted that the plaintiff is entitled to 1/3rd undivided share in the suit property and the same defendants further stated that the plaintiff has neither requested them to pay their 1/3rd rents being received by owner of the suit property more particularly the plaintiff has agreed to sell and transfer his 1/3rd interest in the suit property in favour of Mr.Tariq Ilyas, Mr.Khalid Ilyas and Mr.Sajid Ilyas for valuable consideration in terms of the agreement to sale dated 28.10.2005. The plaintiff in the present suit has prayed for cancellation of conveyance deed while the same person being defendant No.1 in Suit No.259/2007 has admitted in his written statement that Muhammad Muneer is the owner of 1/3rd undivided share in the suit property and he came to know about the conveyance deed in the month of June/July 2005.
9. Suit No.582/2009 has been filed by Tariq Ilyas, Khalid Ilyas and Sajid Ilyas, all sons of Ilyas Ahmed for Specific Performance, Declaration and Injunction against Muhammad Muneer. The gist of this suit is that vide agreement to sale dated 28.10.2005, the defendant No.1 (Muhammad Muneer) had agreed to sell out his 1/3rd undivided share in the property in question to the Plaintiffs against the sale consideration of Rs.170 (M). In this suit, the defendant Muhammad Muneer has filed an Application under Section 151 CPC (CMA No.4635/2009), in which he agreed to perform and undertook to execute the sale deed in favour of plaintiffs subject to payment of balance sale consideration.
10. The learned counsel for the defendant No.1 argued that under Article 91 of the Limitation Act, for the purpose of cancellation of instrument under Section 39 of the Specific Relief Act, limitation is three years when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. The conveyance deed was registered in the year, 2005 and the Suit was filed in the year, 2009, therefore, it is time barred. He further referred to a certified true copy of written statement filed by the plaintiff in Suit No.259/2007 which is available on record, in which, the present plaintiff himself admitted that he came to know the registration of conveyance deed in the month of June/July, 2005. The learned counsel argued that the plaintiff has admitted in Paragraph No.2 of the written statement in Suit No.259/2007 that the defendant No.1 is the owner of 1/3rd undivided share of the property in question, therefore, the plaintiff is estopped to challenge the conveyance deed. He further argued that the suit is also barred under Section 42 of the Specific Relief Act as plaintiff has no right or legal character to challenge the sale of 1/3rd undivided share of the property in favour of defendant No.1. The persons who have sold their share to the defendant No.1 have no grievance against the defendant No.1. In support of his arguments, the learned counsel for the defendant No.1 relied upon the following case law:-
a. PLD 1978 Lahore 113 (Abdur Rehman Mobashir v Syed Amir Ali Shah Bukhari). In this case the learned division bench of Lahore High Court discussed in detail the applicability of Section 42 of the Specific Relief Act and held that Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it can not apply to a case where only the entitlement to the legal character or the property of the defendant is denied by the plaintiff. Section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved the Suit is not maintainable. The Suit must be one which must bring benefit to him in regard to these two rights, no suit involving any other right, hypothetical or abstract would be competent under that Section. The Court will not therefore entertain Suits in which no benefit accrues to the plaintiff or where the plaintiff sets-up, merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 can not be invoked in the matters of mere sentiments which have no concern with the vindication of the plaintiff’s title to status and property.
b. AIR 1961 Calcutta 411 (Sanat Kumar Mitra v. Hem Chundra and Dey). In this case it was held that where a suit is instituted by the plaintiff not for a declaration or of his own right to property or his right to a legal character but to challenge the defendant pretension to a legal character and to right to property. Such a Suit does not come under Section 42.
c. 2003 SCMR 50 (Rehmatullah Khan v. Government of Pakistan). In this case, the honorable Supreme Court held that in the event of non-creation of any vested right no relief can be sought under Section 42 of the Specific Relief Act. In the circumstances the petitioners were rightly non-suited by the two Courts below.
d. PLD 1965 SC 83 (M.A. Naser v. Chairman Pakistan Eastern Railways). In this case while dilating upon Section 42 of the Specific Relief Act the honorable Supreme Court held that under the provisions of Section 42 of the Specific Relief Act a person entitled to any legal character or to any right to property can institute a Suit for declaratory relief in respect of his title to such legal character or right to property. Section 42 does not contemplate a Suit for declaration that a catering, contract between contractors and Railway administration to supply refreshments in refreshment room of the Railway and to run their buffet cars was still subsisting.
e. PLD 1967 Dhaka 190 (Burmah Eastern Limited v Burmah Eastern Employees Union). In this case the court while considering Order 7 Rule 11 CPC held that it is the duty of the court to reject the plaint if on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw courts’ attention to the same by way of an application. The principles involved are two-fold. In the first place it contemplates that a still born suit should be properly buried, at its inception so that no further time is consumed on a fruitless litigation. Secondly it gives plaintiff a chance to retrace his steps at the earliest possible moment, so that, if permissible under law, he may found a properly constituted the case. Order 7 Rule 11 CPC enumerates certain categories under which the court is called upon to reject a plaint but it is obvious that they are not exhaustive. It appears from the language of Rule 11 of Order 7 that it requires that an incompetent suit should be laid at rest at the earliest moment so far no further time is wasted over what is bound to collapse as not being permitted by law. In the same judgment the learned bench has also discussed Section 42 of the Specific Relief Act and held that a suit for mere declaration aliunde is not permissible under the law except in the circumstances mentioned in Section 42 of the Specific Relief Act. Thus a mere declaration can be asked for breach of proprietary right or for declaration of legal character. The expression, legal character has been understood as synonymous with the expression status. Section 42 does not permit an unrestricted right of instituting all kinds of declaratory suit at the will and pleasure of the parties, right is strictly limited.
f. 2007 SCMR 85 (Rasool Bux v Muhammad Ramzan). In this case it was held that under Section 49 of the Registration Act, the registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness. Such document is not only binding on the parties in the documents but is equally applicable to third party.
11. On the contrary, the learned counsel for the plaintiff argued that the plaintiff came to know about conveyance deed in November, 2006 when the defendant No.1 instituted Suit No.1422/2006, therefore, the suit was instituted within time. He further argued that Haji Fazal Ellahi purchased the property in question from his own money and it is no where stated that any amount was contributed by the plaintiff or the deceased Saeed Ahmed nor any specific partition of share was made. It was further averred that the co-sharer of the property is the owner of every inch and the same can not be transferred to an outsider unless the joint property is properly partitioned. He further argued that under Section 44 of the Transfer of Property Act, co-sharer can not sell out their share without the consent plaintiff and since the plaintiff is co-sharer, therefore, he has legal character to challenge the conveyance deed in question.
12. The learned counsel referred to one of the clauses of conveyance deed in question and argued that it is mentioned in it that possession of the alleged 1/3rd share has been delivered to the defendant No.1, which is a wrong statement. According to the learned counsel, it is a case of ostensible ownership and entire sale consideration of the property was paid by Haji Fazal Ellahi, therefore, the legal heirs of deceased Saeed Ahmed would only be entitled to share of 14/112 in the suit property and not the 1/3rd share. The learned counsel also referred to Section 4 of the Partition Act, 1893, which provides that where a share of dwelling house belonging to an undivided family, has been transferred to a person, who is not a member of such family, the transferee sue for partition, court shall if any member of the family being a share-holder, shall undertake to buy the share of such transferee, make valuation of such share in such manner as thinks fit and direct sale of such share to such share-holder and may give all necessary and proper directions in that behalf. He further referred to Section 44 of the Transfer of Property Act and argued that without the consent of plaintiff/co-sharers, other co-owner/co-sharer could not sell the property to the defendant No.1.
13. The learned counsel further argued that under Section 231 of Mohammadan Law, plaintiff being a co-owner can claim pre-emption as the right of pre-emption rises out of a valid, complete and bona fide sale and he further referred to Section 230 of Mohammadan Law, which provides three classes of persons who are entitled to claim pre-emption out of which the first category relates to a co-sharer of the property who is called Shafi-i-Sharik. So far as the question of limitation is concerned, the learned counsel argued that since he has challenged the sale transaction and sought the declaration, therefore, Article 120 of the Limitation Act is applicable, which provides six years limitation for filing the Suit. In support of his contention, the learned counsel referred to following case law:-
i. AIR 1990 SC 867 (Dorab Cawasji Warden v. Coomi Sorab Wardon). In this case Section 44 of the Transfer of Property Act was discussed and held the appellant/plaintiff and his brother holding disputed dwelling house belonged to an undivided family. Property not divided by metes and bounds. Appellant’s brother dying intestate. Transfer of brother’s share by a widow and sons, would come within mischief of second paragraph of Section 44. Vendee taking possession of house. Irreparable injury likely to be caused to the plaintiff. Interim injunction against the vendors and vendees regarding possession can be issued.
ii. AIR 1958 Calcutta 614(Paresh Nath Biswas v Katnal Kirishna Choudhury). In this case also Section 44 was under discussion and the court went on to hold that upon a transfer to stranger of an undivided share of family dwelling house by a co-sharer of it, the other co-sharer can maintain a suit for injunction for restraining the stranger transferee from exercising any act of joint possession in respect of the share transferred.
iii. AIR 1971 Orissa 198 (Bhim Singh v Ratnakar). In this case again Section 44 of the Transfer of Property Act was discussed and the court held that this Section prevents intrusion of strangers into the family residence, which is to be enjoyed by members of the family alone in spite of transfer of share therein to stranger. Stranger transferees who are thus debarred by law from exercising right to joint possession should therefore be kept out.
iv. 2000 CLC 1138 (Noor Rehman v Muhammad Yousuf). In this matter the court discussed the partition of joint property and held that where no regular partition has taken place between the contesting parties, co-sharer has a right in each and every number of the Khasra of the suit land irrespective of quantity and quality. Co-sharer who is in exclusive possession of the specific portion of a joint property can not alienate, transfer, or change the same unless a regular partition takes place between the co-sharer.
v. 1989 SCMR 130 (Ali Gohar Khan v. Sher Ayaz). In this matter, it was held that in case of joint immovable property, each co-sharer deemed to be interested in every inch of subject matter irrespective of quantity of his interest. Co-sharer in possession cannot change nature of property in his possession unless partition takes place.
vi. 2001 SCMR 1062 (Sarfraz v. Muhammad Aslam). In this case, it was held that claimants would be entitled for the enforcement of their rights under the Mohammedan Law, like the provinces of Sindh and Balochistan where no statutory laws governing pre-emption suits are applicable.
vii. 1989 CLC 1922 (Maulaedino and others v. Matloob Hussain). In this case, it was held that in the province of Sindh unlike the provinces of Punjab and NWFP in absence of any statute on pre-emption, right of pre-emption was enforceable under the Mohammedan Law through civil courts of competent jurisdiction.
viii. PLD 1995 Karachi 608 (Iftikharuddin v. Jamshed K.A. Marker). In this case it was held that while there is no statutory law on pre-emption as far as provinces of Baluchistan and Sindh are concerned, therefore, in those provinces including Karachi law of pre-emption would be governed, if there was an established custom, of according to Islamic Law.
ix. 2000 SCMR 1058 (Laloo v. Ghulaman). In this case, it was held that under Article 120 of the Limitation Act, one can challenge the transaction of sale within six years of the sale of the land, which of course is the date of knowledge thereof.
x. 2004 SCMR 1502 (Rehman v. Yara). In this case, it was held that provision of Section 42 of the Specific Relief Act and Article 120 of Limitation Act would be applicable whereby the suit for declaration as to the right or interest in immovable property and suit could be filed within six years from the date on which right to sue accrued.
xi. 2006 YLR 599 (Kaleem Haider Zaidi v. Mahmooda Begum). In this case, it was held that suit for declaration with regard to an exclusive claim to a property on the basis that it was purchased as benami was to be brought in court within six years.
xii. 2007 YLR 2134 (Dhani Bux v. Ali Sher). In this case, it was held that in the suit for declaration, right to sue accrues when the right in respect of which the declaration is sought is denied or challenged by the defendants and the time would only start running when such rights are actually interfered with.
xiii. 2006 MLD 1429 (Mst. Sara Bai v. Iqbal). It was held that suit for which no period of limitation is provide elsewhere in the schedule can be filed under Article 120 of the Limitation Act within six years when the right to sue accrues.
xiv. 2009 CLC 39 (Dr. Khusro Kamal Zia v. Dr. Zehra). In this case, office had raised the objection that suit was barred under Article 91 of the Limitation Act as the same was filed after lapse of three years. Said objection was resisted by the plaintiff on the ground that documents pertaining to the suit property having been sought to be declared as benamdar therefore Article 120 of the Limitation would be applicable in the case.
xv. 2009 CLC 824 ( Farooq Inayat v. Haji Abdul Sattar). It was held that plaintiff relied upon applicability of Article 120 and not Article 91 of the Limitation Act on the premises that he came to know about order regarding cancellation of PTD in some proceedings before Evacuee Trust Board. Applicability of question of limitation being mix question of law and facts and which required evidence.
14. Malik Naeem Iqbal Advocate appeared and filed a statement on behalf of defendant No. 5 to 11, he supported the defendant No.1 and also adopted the arguments of Mr.Nadeem Akhtar Advocate advanced by him in support of his application moved under Order 7 Rule 11 C.P.C. He further argued that defendant No. 5 to 11 have lawfully executed the conveyance deed in favour of defendant No.1 and the plaintiff has no right and authority to challenge the conveyance deed in question.
15. The learned counsel for the plaintiff raised many pleas, which have not been raised or set up in the plaint such as plea of pre-emption, Shafi-i-Sharik, ostensible ownership and or relief within the ambit or parameters of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act. It is settled principle of law that the parties are bound by their pleadings and the plea which has not been raised, can not be taken subsequently in the arguments. Reference can be made to PLD 2007 SC 460 (Fateh Muhammad v Muhammad Adil), in which, the honorable Supreme Court held that the parties are bound by their pleadings. In PLD 2007 SC 582 (Zulfiquar v Shahadat Khan), the honorable Supreme Court held that unless a case is set up in the pleadings, the decision of the case can not based on such plea. This has been the consistent law with a rational that other party is not to be taken by surprise. In this case also the plaintiff can not substantiate and prove a case beyond the scope of pleadings and even if any evidence is brought on the record outside the purview thereof, this can be ignored and overlooked by the Court. It is manifestly clear that this is not a suit for pre-emption and plaintiff has not claimed any relief in connection with his alleged right of pre-emption as provided under Section 230 and 231 of Mohammadan Law, or within the scope and ambit of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act. Nothing has said in the plaint that the property in question is a dwelling house, therefore, the same can not be transferred/sold out by the co-sharers, unless partition is made. I have no hesitation to hold in absence of pleadings, no such plea can be raised or argued. Even if the evidence is allowed to be led, no issue can be framed by the court beyond the scope of pleadings of the parties.
16. It is another important aspect that under the Mohammadan Law, the demand for pre-emption can only be made after complying with the requisite conditions provided under Section 235 which imposes a pre-condition that no person is entitled to the right of pre-emption unless he has declared his intention to assert his right immediately on receiving information of sale which formality is called the Talab-i-Mowasibat. Nothing has been mentioned in the plaint that the plaintiff ever expressed his demand and even fulfilled the Talab-i-Mowasibat on receiving information of the sale. The Talab-e-Mowasibat is spoken of first demand and Talab-i-Ishhad is the second demand and the third demand consists of institution of the suit for pre-emption which lacks in this case. The Talab-i-Mowasibat and Talab-i-Ishhad are conditions precedent to exercise of the right of pre-emption. It is stated in the Hedaya (Page-550) that the right of Shuffa (pre-emption) is but feeble right as it is the disseizing of another of his property merely in order to prevent apprehended inconveniences hence the formalities must be strictly observed, and there must be a clear proof of their observance. Omission of pre-emptor to make express reference of Talab-i-Mowasibat at time of making Talab-i-Ishhad is fatal to claim of pre-emption. Mowasibat or jumping demand must be as soon as pre-emptor was informed of the fact that the property in which he was claiming right of pre-emption has been sold away and has been followed by Talab-i-Ishhad. (Reference can be made to principle of Mohammadan Law authored by Sir Dinshah Fardunji Mulla, revised by M. Hidayatullah, Pakistan Edition 2007, Mansoor Book House Page 372 and 373).
17. Though the applicability or implication of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act is not a part of pleadings, even then, I would like to point out that later part of Section 44 of the Transfer of Property Act provides that where transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this Section, shall be deemed to entitle him to join possession or other common or part enjoyment of the house. This particular Section does not impose any condition by itself restraining the co-owners to transfer their share of such property or any interest therein but the condition imposed in the later part only relates to a transferee of a share of a dwelling house belonging to a undivided family and rider has been added that if a transferee of a share in dwelling house is not a member of undivided family nothing in this Section shall be deemed to entitle him to joint possession or common enjoyment of the house. The true and proper construction of second paragraph of Section 44 of Transfer of Property Act is that the transferee of a share of a dwelling house belonging to a undivided family, who is not a member of the family shall not be entitled to joint possession. The dwelling house is one which is being used or is capable of being used as a dwelling house. The plaintiff in paragraph 2 of the plaint has himself provided the particulars of various tenants operating their business in the building which clearly shows that building in question is commercial property. and not a dwelling house. The plaintiff in the same paragraph mentioned the rental income and further stated that entire property is fully occupied by the tenants and never been in a physical vacant possession of the parties. Section 44 permits transfer of share in the property by one of two or more co-owners of immoveable property subject to the conditions mentioned in the Section and its Proviso in absence of any statutory bar the co-owners can not restrain other co-owner from selling, transferring their respective share in the property. No substantive law was shown by which the restriction is imposed upon the co-sharer of the property from selling their respective shares without the consent of other co-owners.
18. So far as Section 4 of the Partition Act is concerned, it also speaks about that where a share of a dwelling house belonging to an undivided family has been transferred to a person, who is not a member of such family and such transferee sue for partition, the court shall if any member of the family being share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as thinks fit and direct sale of such share to such share-holder and may give all necessary and proper directions in that behalf. But again no relief has been claimed that the plaintiff is ready to buy out the share of transferee. In Paragraph No.11 of the plaint, it is stated that the property is un-partitioned and in order to keep the said property intact and to keep interest of family integrated the plaintiff and other family members are ready and willing to refund, re-pay to defendant No.1, the amount if paid by him to the defendant Nos.4 to 11 which plea could be taken by the plaintiff in the Suit No.259/2007 filed by the defendant No.1 against the plaintiff and other co-sharers for partition of his 1/3rd share. Even otherwise, no undertaking or willingness has been shown by the plaintiff in the present suit that he is interested to buy the 1/3rd share transferred to defendant No.1.
19. It is an admitted position that the plaintiff came to know about the conveyance deed in the month of June/July, 2005 and the present suit for cancellation has been filed in the month of May 2009 which is beyond the period of three years. For the purposes of cancellation of documents three years of limitation is provided under Article 91 of the Limitation Act and time begins to run when the fact entitling the Plaintiff to have instruments cancelled or set-aside become known to him. The argument of the learned counsel for the plaintiff that in this case Article 120 of the Limitation Act applies is without any force. Article 120 is a residuary Article for the Suits for which no period of limitation is provided elsewhere in the Schedule of Limitation Act and limitation of six years begins when the right to sue accrues. The relief claimed in the suit for cancellation of sale deed absolutely comes within the ambit and scope of Article 91 of the Limitation Act, hence the present suit is time barred under Article 91 of the Limitation Act.
20. So far as the relief of declaration is concerned, it has been claimed by the plaintiff in a negative form and not to safeguard his legal character or right to property, which entitlement is denied by the defendant but the plaintiff has prayed for declaration that the defendant No.1 and 4 to 11 have no right or entitlement in the suit property, which is not permissible. Being fortified by the dictums referred to by the learned counsel for the defendant No.1 supra, I have reached to an irresistible conclusion that in the event of non-creation of any vested right no relief can be sought under Section 42 of the Specific Relief Act. Under the provisions of Section 42 of the Specific Relief Act a person entitled to any legal character or to any right to property can institute a suit for declaratory relief in respect of his title to such legal character or right to property. The expression, legal character has been understood as synonymous with the expression status. Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it can not apply to a case where only the entitlement to the legal character or the property of the defendant is denied by the plaintiff. Section 42 would be attracted to a case in which the plaintiff approaches the court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved the suit is not maintainable. In the present suit, the plaintiff has not approach this court for a declaration of his own right to property or his right to a legal character but has challenged the defendant pretension to a legal character and to right to property. Section 42 does not permit an unrestricted right of instituting all kinds of declaratory suit at the will and pleasure of the parties, right is strictly limited. Suit for mere declaration aliunde is not permissible under the law, except in the circumstances mentioned in Section 42, therefore, the suit in question is also barred by Section 42 of the Specific Relief Act.
21. The case law relied upon by the learned counsel for the plaintiff are distinguishable to the facts and circumstances of the case. Mostly focused and related to right of pre-emption and or applicability of Section 44 of the Transfer of Property Act. Neither the prerequisites required to be fulfilled prior filing suit for pre-emption have been fulfilled as discussed supra nor it is a case for pre-emption. So far as the applicability of Section 44 of the Transfer of Property Act or Partition Act is concerned, the points raised orally are beyond the pleadings. Even otherwise, the plaint has not been drafted in such a way to bring the suit within the parameters and ambit of aforesaid sections where the court can grant any appropriate relief. So far as case law related to Limitation Act is concerned, the same are also not helpful to the case of the plaintiff as in most of the cases, limitation of suit for declaration had been discussed and not the cancellation of document under Article 91, except in one case reported in 2000 SCMR 1058 in which only mutation entry was challenged on the ground of fraud and misrepresentation and honorable Supreme Court held that transaction can be challenged within a period of six years. No case of cancellation of registered indenture of conveyance deed was involved in the case before honorable supreme court. In the judgment reported in 2009 CLC 824, the learned division bench of this court held that applicability of Article 91 or Article 120 is a mix question of law and fact hence requires evidence. This observation was made because in this case, a plea was taken that plaintiffs came to know about the cancellation of PTD in some proceedings before Evacuee Trust Board. This case is distinguishable. In the case in hand, certified true copy of written statement filed by the plaintiff in Suit No.259/2007 clearly shows that he came to know the factum of sale deed in the month of June/July 2005, therefore, on the basis of firm admission, the question of limitation in this case is not a mix question of law and facts and no evidence is required to be recorded. On the contrary, the case law referred to by the learned counsel for the defendant No.1 in relation to the guiding principles to claim and award declaratory relief and the rejection of plaint are attracted and germane to the facts and circumstances of this case.
22. Order 7 Rule 11 CPC enumerates certain categories under which the Court is called upon to reject a plaint but it is obvious that they are not exhaustive. It appears from the language that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse not being permitted by law. It is necessary incidence that in the trial of judicial issues i.e. suit which is on the face of it incompetent not because of any formal, technical or curable defect but because of any express or implied embargo imposed upon it by or under law should not be allowed to further encumber legal proceedings. If as a result of proceedings of law, the suit is barred, it would be based under the law, although, strictly speaking, it may not be specifically barred by law in express terms. The court should in such a case reject the plaint under its inherent powers. While deciding an application under Order 7 Rule 11 C.P.C, besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint. It is also settled proposition of law where the plaintiff concealed the material facts from the Court in the contents of the plaint, in that events material produced by way of filing written statement or along with application under Order 7, Rule 11, C.P.C could also be kept in mind for rejecting the plaint. Generally, Court has to consider averments made in plaint while rejecting such plaint, however, it can also look into the contents of written statement and other material on record and reject plaint summarily to secure ends of justice or to prevent abuse of the process of Court. Apart from contents of plaint, material produced in defence can also be kept in mind for rejecting a plaint. Reference can be made to PLD 1967 Dhaka 190, 2002 SCMR 338, 2000 CLC 1633, 1989 CLC 15, 1994 MLD 207, 1994 SCMR 826 and 2011 SLJ 1530.
23. For the foregoing reasons, Civil Misc. Application No.5702/2009, moved under Order 7 Rule 11 C.P.C is allowed. Plaint is rejected. Since the plaint has been rejected, all other pending applications are dismissed being infructuous.