P L D 1994 Karachi 81 (PLP)

The suit was resisted by the Defendants and M/s. Popular Engineering Works claimed to be the tenants of the property in dispute under Custodian Evacuee Property as they were paying rent to that authority. The Trial Judge on the basis of the pleadings of the parties framed following four issues: (1) Are the Defendants trespassers on the suit plot and are liable to be ejected therefrom? (2) Are the Plaintiffs entitled to recover mesne profits from the Defendants? If so, at what rate and for what period? (3) Whether the suit is barred by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 and this Court has no jurisdiction in the matter? (4) What relief? Both the parties led evidence both oral and documentary and ultimately the Civil Judge on 30-i1-1981 passed judgment in the suit dismissing the suit with no orders as to the costs. She dismissed the suit primarily because, according to her, the Defendants were the tenants and the suit was barred by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 and according to her Plaintiffs could seek relief through the Rent Controller. In the meantime some of the parties had expired therefore legal heirs were impleaded as representatives in the suit. The legal representatives of the Plaintiffs being aggrieved by the judgment passed by the trial Judge preferred an appeal which came to be heard by IIIrd Additional District Judge, Karachi and decided by him by his judgment passed on 4-3-1984. The Appellate Judge reversed the findings on all the four issues decided by the Trial Judge and decreed the suit. It is against the last judgment and decree that the present application under section 115, Civil Procedure Code has been filed by the legal representatives of Muhammad Saeed and M/s. Aslam Oil Traders and Naseem Book Stall out of the Defendants in the original suit. Mr. Abdul Matin, Advocate appearing for the Applicants in this revision application, pointed out that the Appellate Court had wrongly determined that the Defendants in the suit were trespassers and not tenants and decreed the suit. He referred to the case reported in AIR 1950 Assam

119. Mr. Nisar Ali, Advocate for Respondents Nos. 1 to 6, 13 to 15 and 18, mainly contended that Applicants Nos.6 and 7, as is clear from the evidence on record, are transgressors who were inducted by M/s. Popular Engineering Works and decree against them be maintained while decree against representative of Muhammad Saeed be set aside. He referred to the case reported in PLD 1985 SC (AJ&K)

69. The building site under dispute admittedly was jointly transferred to 5 persons including Muhammad Saeed. Every transferee, therefore, will have equal share in the undivided property. Out of them Muhammad Saeed had permitted M/s. Popular Engineering Works to continue to occupy the portion in dispute. Applicants Nos.6 and 7 herein derived their right through M/s. Popular Engineering Works. In the portion of building site in dispute Muhammad Saeed had an equal share and was impleaded as a Defendant in the suit. Without going into the details of this case the suit patently is barred under section 42 of the Special Relief Act, 1877 as the other four co-owners did not seek relief for partition of the property to the extent of their ' A entitlement and the entitlement of Muhammad Saeed. I had, therefore, by my short order passed on 1-4-1992 accepted the revision application with no orders as to the costs and ordered that the suit filed in the original Court be dismissed. AA/K-337/K Revision accepted.