MAQBOOLAN BIBI VS MUHAMMAD AKRAM
2012PTD996
2012PTD996
[Lahore High Court]
Before Tariq Javaid, J
MAQBOOLAN BIBI and 5 others
versus
MUHAMMAD AKRAM and another
Civil Revision No.1661 of 2010, decided on 21/10/2010.
(a) Specific Relief Act (I of 1877)---
----S. 54---Contract Act (IX of 1872), S. 51---Limitation Act (IX of 1908), Art. 115---Suit for permanent injunction-Maintainability--Concurrent dismissal of suit---Contention of the plaintiff, inter alia, was that the defendant had failed to perform their part of the agreement relating to suit land, and the plaintiff was therefore not bound to offer the right of way to the defendant under said agreement---Validity---Agreement between the parties was an admitted document---If the promise had failed to perform his part of the agreement, then the promisor, the predecessor-in-interest of the plaintiffs, was within his rights to repudiate the said agreement within the limitation period prescribed under the law---Plaintiff could not assail the breach of agreement after expiry of almost 25 years during which the suit land was used as a right of way by the defendants without any interruption---Perusal of record revealed that the said ' passage had been used by the plaintiffs for the last many years and such use was fully acknowledged by the agreement between the parties---Contention of the plaintiff that the defendant filed suit for permanent injunction without seeking declaration would have been relevant if the right of way could not be established by the defendants---Right of way was established by the defendants by reason of the agreement between the parties, hence suit for perpetual injunction was rightly held to be maintainable---Orders of courts below did not suffer from any illegality---Revision was dismissed.
(b) Contract Act (IX of 1872)---
----S.51---Limitation Act (IX of 1968), Art.115---If the promise had failed to perform his part of the agreement, then the promisor was within his rights to repudiate the said agreement within the limitation period prescribed under the law---Not open for the plaintiff to assail the breach of agreement after expiry of almost 25 years.
Mian Shah Abbas Iqbal for Petitioners.
Iftikhar Ullah Malik for Respondents.
ORDER
TARIQ JAVAID, J.---This revision is filed against the concurrent finding of facts by both the courts below. A consolidated judgment and decree was passed by the learned trial Court on 2-10-2009 whereby suit filed by the petitioner was dismissed and the suit filed by the respondents was decreed. On appeal by the petitioner, the judgment and decree passed by the learned trial Court was maintained.
2. The petitioner filed suit for permanent injunction wherein if was pleaded that the petitioner was owner in possession of the agricultural land measuring 8 Kanals comprising of Khewat No.26/26, Khatoni No.101, .Khasra No.34/25, situated in Chak No.42/2-L, Tehsil and District Okara. The land of the petitioner is adjacent to the land of the respondent. It was pleaded that the respondent was bent upon to dispossess the petitioner from 10 Marlas out of the 08 Kanals of land owned by the petitioner and use the same for a 'way' or access to his land.
3. The pleas of the petitioner were controverted by the respondents and it was maintained that the said right of `way' was in use of the respondents since last 50 years. The respondents .also filed suit for possession of the `way' with permanent injunction as a consequential relief. It was also pleaded that on 23-11-1981, a consent order was passed whereby said land measuring 10 marlas was given to the respondents as a right of 'way' which has been forcibly repossessed by the petitioner on 19-11-2006.
4. On the basis of the pleadings as many as 10 issues were framed and the learned trial Court after recording the evidence oral as well as documentary, produced by the parties, 'heard the arguments and proceeded to dismiss the suit of the petitioner. And decreed the suit filed by the respondents. The appeal filed by the petitioner was also dismissed.
5. The learned counsel for the petitioner argued that the issues were not properly framed; that suit for possession could not be decreed unless declaration was not prayed by the respondents in their suit and that the impugned judgment and decree would not be passed as under section 51 of the Contract Act if promisee fails to perform his part of the agreement then the promisor cannot be forced to perform his part. According to the learned counsel for the petitioner, under agreement dated 20-11-1981, the predecessor in interest of the petitioner agreed to give 10 Marlas of the aforementioned property owned by the petitioner to the predecessor in interest of the respondents against 10 Marlas to be given by the predecessor in interest of the respondents out of their land to the predecessor in interest of the petitioner. The said 10 Marlas were never given to the predecessor in interest of the petitioner by the predecessor in interest of the respondents, as such the petitioner was entitled to repossess his land.
?
6. Heard. Record perused.
7. The agreement dated 20-11-1981 is an admitted document. If the promisee had failed to perform his part of the agreement then promisor, the predecessor in 'interest of the petitioners was within his rights to repudiate the agreement within the limitation period prescribed under the law. It is not open for the petitioner to assail the breach of agreement A after expiry of almost 25 years during which the land was used as a right of way by the respondents without any interruption until 19-11-2006. The perusal of- record also reveals that the same passage has been used by the respondents since last many years and such user is fully acknowledged by the above referred agreement as well.
8. Regarding the maintainability of the suit suffice it to say that after having an established right of way, the respondents did not choose to seek for' any declaration, rather the respondent prayed for perpetual injunction. The contention of the learned counsel would have been relevant if the right of way could not he established by the respondents. By reason of the agreement dated 20-11-1981, his right stood established hence his suit for perpetual 'injunction was rightly held to be maintainable. The objections raised by the learned counsel for the petitioner regarding framing of issues do not appear to be correct. The issues appear to have been framed out of the pleadings of the parties. No such objection was raised before the courts below. Nor any prejudice caused to the petitioner has been pointed out. The impugned judgments do not suffer from any illegality. The petition is dismissed in limine.
K.M.Z./M-149/L???????????????????????????????????????????????????????????????????? Revision dismissed???.