Haji Muhammad Naeem Sajid vs Chairman Baldia Tehsil Hasilpur etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH,

BAHAWALPUR

JUDICIAL DEPARTMENT

Civil Revision No. 80-D of 2021/BWP

Haji Muhammad Naeem Sajid vs Chairman Baldia, Tehsil Hasilpur, District Bahawalpur etc S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 29.11.2023. Mr. M.M.A.R. Anjum, Advocate.

The petitioner, Haji Muhammad Naeem Sajid, has filed this petition to challenge the order dated 16.03.2020 and judgment dated 26.01.2021 respectively passed by the Civil Judge and Additional District Judge, Hasilpur, whereby the plaint of suit for Declaration filed by the petitioner has concurrently been rejected under Order VII Rule 11 of Code of Civil Procedure, 1908 (“CPC”). Learned counsel for the petitioner claims that both the courts below have not properly appreciated the facts of the case and law on the subject while passing the impugned orders, which are not sustainable and it is prayed that by setting the same aside the matter may be remanded to the trial court for decision of the suit, afresh.

2.The claim of the petitioner in his suit for Declaration is that he is the owner in possession of suit property which comprises of a shop in survey No.36 measuring 05 sarsahi, situated on Disposal Road, Hasilpur and he claims title of the said property on the basis of an agreement No. 856 dated 12.04.2003 executed in his favour by respondent No.6 against consideration of Rs. 1,00,000/- and that private respondent Nos. 5 and 6 have no concern with the suit property and seeks an injunctive order against Tehsil Municipal Committee i.e.

CR No. 80-D of 2021/BWP Dated 29.11.2023.

respondent Nos. 1 to 4 to transfer the suit property to the petitioner.

3.The suit property is owned by Municipal Corporation, Hasilpur. The petitioner holds possession of the same. In aforementioned suit for declaration petitioner is claiming title of the said property by stating that said property was allotted to respondent No.5/Muhammad Munir (“respondent No.5”) on 23.03.1985 who transferred the same to respondent No.6/Tariq Rauf (“respondent No.6”), from whom the petitioner had purchased the property through agreement to sell dated 12.04.2003 and on the basis of said agreement, he claims title of said property. The Municipal Committee, Hasilpur contested the said suit by claiming that although the shop in question had been incorporated in survey in the name of respondent No.5 on 23.03.1985 but he did not deposit the price of landed property as well as other dues of Municipal Committee and ownership was, therefore, not transferred to his name, which still vests with the Municipal Committee hence, he could not convey title to respondent No.6 from whom petitioner claims to have derived the title of the suit property on the basis agreement to sell executed in his favour against consideration of Rs. 1,00,000/-. In view of the afore-referred facts, plaint filed by the petitioner was rejected under Order VII Rule 11 CPC by the trial court vide order dated 16.03.2020 and appeal filed by the petitioner was also dismissed vide judgment dated 19.12.2020 on the basis of same facts and the claim of the petitioner is that both the courts below have not appreciated facts of the case and law on the subject and seeks declaration of title in his favour.

4.The aforesaid claim of the petitioner for seeking declaration of title is based on an agreement to sell, for enforcement of which he never filed any suit for specific performance of the said agreement for seeking transfer of

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property in his name and has straightaway filed a suit for seeking declaration of title in his favour. It is settled by now that an agreement to sell does not create a title and on the basis of a sale agreement, no legal character or right can be established to prove the title of the property unless the title is transferred pursuant to such agreement to sell, but in case of denial or refusal by the vendor to specifically perform the agreement despite the readiness and willingness of the vendee, a suit for specific performance may be instituted in the court, but suit for declaration on the basis of a mere sale agreement is not the solution for appropriate relief. Reliance is placed on Rao Abdul Rehman (deceased) through legal heirs Versus Muhammad Afzal (deceased) through legal heirs and others (2023 SCMR 815). In view of the above the instant suit for Declaration on the basis of agreement to sell was not maintainable.

5.Furthermore, the petitioner claims to have derived title from respondent No.6 who himself is stated to have purchased the same from respondent No.5, to whom Municipal Committee never transferred the title of the suit property for the reason that he did not comply with the conditions precedent such as making payment of sale price, etc., for transfer of title to him. Hence as the title was not vested in respondent No. 5, he could not have transferred the said title to respondent No. 6, who has executed agreement to sell in favour of the petitioner. It is settled law that no one can transfer a better title than he himself had in the property and transferee stepping into shoes of transferor, who was not lawful owner of property, would not get a better title for the reason that despite continuous possession of property by such transferor, the same would not improve his title by efflux of time. Reliance is placed on Abdul Hameed through L.Rs. and others versus Shamasuddin and others (PLD

2008 SC 140).

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6.It is pertinent to mention here that the petitioner is seeking declaration of title and mandatory injunction against the Municipal Committee, Hasilpur to transfer suit property to his name on the basis of continuous possession of property for many years in terms of agreement to sell executed in his favour by the respondent No. 6, who is stated to have derived title from respondent No. 5, whose name although appears in the survey report of the Municipal Committee yet the title was never transferred to him, therefore, the petitioner does not have any direct agreement against respondent Nos. 1 to 4 for transferring the property to him and there was no privity of contract between the parties, in the absence thereof, plaintiff possessed no legal character to maintain suit against defendants and suit filed by plaintiff was not maintainable in law and the plaint was liable to be rejected in the present circumstances. Reliance is placed on Pak American Commercial (Pvt.) Ltd. through Director versus Humayoun Latif and 7 others (PLD 2008 Karachi 540).

7.Another aspect of the matter is that a decree can be sought for declaration of an already existing legal right or title and declaration cannot be sought for creation of fresh title. Reliance is placed on Muhammad Jameel and others versus Abdul Ghafoor (2022 SCMR 348), wherein it has been laid down that for seeking a declaration under Section 42 of the Specific Relief Act, 1877 through a declaratory decree, a pre-existing right could be declared by the Court but a new right could not be created. When the plaintiff/petitioner claimed a declaration of title, without a pre-existing right, suit for declaration was not competent and the courts should not grant a declaratory decree when no pre-existing rights were available with the plaintiff/petitioner in the suit property. Besides in the said case it has also been held that no one could confer a better title in property than he

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himself possessed. In terms of the principles laid down in the afore-mentioned judgment the suit of the petitioner seeking fresh creation of title through decree for declaration was not maintainable.

8.In view of what has been discussed above, plaint failing to show any cause of action for issuing a declaration of title on the basis of an agreement to sell in favour of the petitioner merited to be rejected under Order VII Rule 11 CPC and has rightly been rejected by both the courts below, which well-reasoned order and judgment do not suffer from any misreading, non- reading, illegality or jurisdictional defect for this Court to warrant interfere in the same.

9.For what has been discussed above, this petition being devoid of any force is dismissed. However, it is observed that the afore-mentioned observations recorded by this Court were not be treated as an impediment against the petitioner for seeking enforcement of any other right available to him under the law through appropriate proceedings.

(MUZAMIL AKHTAR SHABIR)

JUDGE

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