1992 PLP 798 (CLC)

(h) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.VII, R.11‑‑‑Rejection of plaint‑‑‑Plaintiff could not establish that plaint disclosed cause of action and it had fully been proved that suit was filed with mala fide intention without any basis‑‑‑Plaint was rightly rejected. Muhammad Afzal Qureshi for Petitioner. Mahfooz‑ul‑Haq for Respondents Nos.1 to

5. Nemo for Respondents Nos.6 and

7. Date of hearing: 20th November, 1991. This judgment will also dispose of Civil Revisions Nos.2421/89, 1910/90 and 1279/90 as all these relate to the same property in which common questions of law and facts have been raised.

2. The dispute relates to a room (servant quarter) and a Garage in bungalow _No.20‑B, Model Town, Lahore. This bungalow was an evacuee property. The Deputy Settlement Commissioner through order dated 3‑12‑1959 transferred 1/3rd portion of this bungalow to Mst. Shehr Bano deceased the predecessor‑in‑interest of the respondents and the other 2/3rd portion was transferred to one Afaq Ali Baig. One Muhammad Iqbal feeling aggrieved filed appeal against this order before the Additional Settlement Commissioner in which he claimed that he was entitled to the transfer of outhouses and servant quarters of this bungalow. The Additional Settlement Commissioner through order dated 21‑11‑1969 accepted this appeal and transferred the said outhouses and the servant quarters claimed by Muhammad Iqbal to him. It is common ground between the parties as admitted by their learned counsel during arguments that these outhouses and servant quarters are different from the room (servant quarter) and a Garage which is now in dispute and subject‑matter of this litigation. However, Mst. Shehr Bano since also claimed the said outhouses and the servant quarters transferred to Muhammad Iqbal, was held to be not entitled to the same, who feeling aggrieved challenged the order of transfer of the said out houses and servant quarters to Muhammad lqbal filed W.P. No,84‑R‑61 before this Court which was dismissed through judgment dated 3‑4‑1961. She filed L.P.A. No.117/61 which was also dismissed on 17‑4‑1962. Permanent Transfer Deer! was issued in favour of Mst. Shehr Bano regarding 1/3rd portion of the bungalow transferred to her.

3. A dispute arose regarding transfer of the excess open land i.e. plinth area of this bungalow between Muhammad lqbal and Mst. Shehr Bano on the settlement side. Through order dated 29‑8‑1975 Mst. Shehr Bano was given excess land by the D.S.C. Muhammad lqbal challenged this order by filing W.P. No.957‑R/75 before this Court which was dismissed by order dated 17‑12‑1976. Mst. Shehr Bano in the year 1970 filed applications before the Martial Law Authorities complaining that the present petitioner was given possession of room in dispute and Garage on sympathetic consideration and he was continuing his possession therein forcibly and when asked refused to vacate the same. These applications were rejected by the Martial Law Authorities. Mst. Shehr Bano filed an ejectment petition against the petitioner on 16‑1‑1978 before the Rent Controller. The petitioner contested this ejectment petition and denied the existence of relationship of landlord and tenant between him and Mst. Shehr Bano. The petitioner's plea throughout had been that the room and the garage in question was not transferred to any of the transferees of the property and the same was an undisposed of portion of the said bungalow. The Rent Controller through order dated 10‑7‑1982 evicted the petitioner after holding that relationship of landlord and tenant existed between the parties. The petitioner challenged this order by filing appeal before the learned Addl. District Judge, Lahore, which was accepted. through order dated 13‑1‑1983. It was held on the basis of the above mentioned two applications made by Mst. Shehr Bano before the Martial Law Authorities that there was no relationship of landlord and tenant between the parties. No finding was given by the learned Addl. District Judge that Mst. Shehr Bano was not the owner/transferee of this property. Mst. Shehr Bano challenged this order through W.P. No.911/83 filed before this Court which was dismissed on 7‑4‑1984.

4. Mst. Shehr Bano thereafter on 17‑4‑1984 riled a civil suit for recovery of possession of the room (servant quarter) and garage in dispute on the basis of her title being the transferee of the property from the Settlement Department. Her case was that the said room and the garage was part of that portion of bungalow which was transferred to her by the Settlement Authorities. This suit was contested by the petitioner who raised a plea that he had become owner of property by way of adverse possession and that the suit was also barred by time. His case was that the room and the quarter in dispute was not transferred to any of the transferees of bungalow and the same was an undisposed of portion of the said bungalow. The learned trial Court through judgment dated 22‑11‑1987 decreed the suit. The petitioner challenged this decree by filing appeal before the learned Addl. District Judge, Lahore which was also dismissed through judgment dated 28‑5‑1989. The judgments and decrees passed by the trial Court on 22‑11‑1987 and by the learned Add,. District Judge on 28‑5‑19.89 in this suit have been challenged in this revision petition i.e. C.R. No.1118/89.

5. The respondents also filed a separate suit for recovery of compensation on account of use and occupation of the said room and garage by the petitioner. This suit was also contested on the same grounds. The suit was decreed in favour of the respondents for an amount of Rs.21,

000. The petitioner filed appeal against the said judgment and decree before the learned lower appellate Court which has also been dismissed by consolidated judgment dated 28‑5‑1989 as aforementioned. The judgment and decree passed in this suit has been challenged in C.R. No.2421/89.

6. The petitioner on the settlement side made an application before the D.S.C. (Residual) for transfer of the room and garage in dispute being available for transfer as the same was undisposed of portion of the said bungalow. The D.S.C. (Residual) through order dated 2‑1‑1978 held that the said room and the garage had already been transferred to Ms t. Shehr Bano being part of 1/3rd portion of the bungalow transferred to her, therefore, the application filed by the petitioner was dismissed. The petitioner challenged this order by filing revision petition before the Settlement Commissioner (Residual) was dismissed through order dated 8‑5‑

78. The petitioner challenged both these orders' by filing a suit on 5‑7‑1979. The learned trial Court through order dated 7‑11‑1979 decreed the suit on the technical ground. that the defendants in the suit failed to file fard patta with the written statement. An appeal was filed by the respondents against the said order before the learned lower appellate Court which was accepted through order dated 30‑5‑1982 and the case was remanded to the learned trial Court for disposal on merits. The petitioner challenged this order by filing a revision petition before this Court which was dismissed. The learned trial Court through judgment dated 22‑11‑1987 dismissed the said suit filed by the petitioner. The petitioner filed appeal against the said judgment and decree before the learned lower appellate Court which was dismissed through judgment dated 28‑5‑1989 by the learned Addl. District Judge, Lahore. C.R. No.1910/90 has arisen from this ‑ suit which was filed on 27‑8‑1 9X).

7. The petitioner during the pendency of his aforementioned suit also filed another suit on 22‑4‑1986 seeking declaration, that Mr. Mansoor Malik , Deputy Settlement Commissioner was never appointed as DSC, as such, order dated 29‑8‑1975 passed by him regarding transfer of excess land in favour of Mst. Sliehr Bano and demarcation of the property was forged and fictitious and as such order passed in W.P. No.957‑R/75 dated 17‑12‑1976 by this Court being based on the said fabricated and forged order was also illegal. The learned trial Court through order dated 22‑11‑1987 rejected the plaint. This' order was challenged by the petitioner by filing appeal which was dismissed on 28‑5 1989 by the learned Addl. District Judge. C.R. No.1279/90 has arisen from the said suit.

8. The main burden of argument presented by the learn ed counsel for the petitioner in support of this revision petition was that the room in dispute (servant quarter) and the garage was not transferred to any of the transferees of the main bungalow, therefore, it was uptil now an undisposed of portion of the said bungalow, as such, the respondents were not entitled to decree for recovery of possession of the same as also for recovery of any amount as compensation for use and occupation of the same and that the petitioner was entitled to its transfer being its occupant as residual evacuee property which is available for transfer.

9. I have examined the documentary as well as oral evidence produce d by the parties, the certified copies of which have been placed on the record. Order dated 3‑12‑1959 passed by the D.S.C. which is the basic order regarding transfer of the bungalow of which room and the garage in dispute is the part was produced in evidence as Exh.P.11. This order shows that bungalow as a whole was divided into two portions and 1/3rd portion was transferred to Mst. Shehr Bano and the other 2/3rd portion was transferred to the other claimant namely Afaq Ali Baig. No portion of the bungalow was left undisposed of Learned counsel for the petitioner when questioned as to how he could say that this order left any portion undisposed of, argued that because it was not expressly mentioned in this order that the disputed room and the garage had also been transferred to any of the two transferees of the main bungalow, as such it is still undisposed of.

10. I am afraid the argument in my opinion is plainly unsound. 1/3rd portion of whole of the bungalow was transferred to Mst. Shehr Bano and the other 2/3rd to Afaq Ali Baig, therefore, no portion was left undisposed of. In appeal filed by Muhammad Iqbal he was held to be entitled to outhouses and garage claimed by him which were transferred to him. The said portion was separated from 1/3rd portion transferred to Mst. Shehr Bano and her claim that she was entitled to the transfer of the same was not accepted. In the result it can safely be held that the Settlement Authorities divided the main bungalow into three portions. Anyhow both the learned counsel for the parties admitted that these outhouses and the garage are different from the room and the garage in dispute. The dispute arose about the disposal of the excess land i.e. plinth area. The D.S.C. through order dated 29‑8‑1975 disposed of the plinth area between the transferees of the bungalow and in order to indicate the allocated plinth area to the portion of bungalow transferred to Mst. Shehr Bano site plan was prepared by the D.S.C. duly signed by him in which 1/3rd portion transferred to Mst Shehr Bano was demarcated by letters AFEDGH alongwith the plinth area transferred to her. This site plan was produced in evidence as Exh.P.2. If shows that the room and the garage in dispute is the part of 1/3rd portion transferred to Mst. Shehr Bano. The demarcation order dated 29‑8‑1975 was challenged by Muhammad lqbal in W.P. No.957=R/75 which was dismissed and the said order was upheld by this Court. The application of the present petitioner that the room and the garage be transferred to him as undisposed of portion of the said bungalow was dismissed by the D.S.C. (Residual) after holding that the same had already been transferred and was not available property which was upheld in revision filed by the petitioner before the Settlement Commissioner. In view of this documentary evidence no doubt can be entertained that the room and the garage m dispute was part of the portion of the bungalow transferred to Mst. Shehr Bano and was not at any point of time available property being undisposed, of portion of the said bungalow. In this view of the matter, Mst. Shehr Bano was entitled to seek possession of the room and the garage being the transferee of the same as owner thereof.

11. Learned counsel for the petitioner argued that the petitioner's possession from 1970 when the respondents made application before the Martial Law Authorities complaining that the petitioner was not vacating the same when asked became adverse, therefore, the petitioner became owner of the same by adverse possession and the suit filed in the year 1984 was barred by time.

12. I am afraid the argument in the facts and circumstances of this case is not tenable. In order to claim ownership of a property through adverse possession, the claimant has to establish that his possession was open and hostile to the original owner to his knowledge as held in judgments reported as Fazal Dad Khan and 5,others v. Mst. Hazrat Jan and others 1966 CLC page 545 and Syed Muhammad Ali v. Dr. Muhammad Sultan Zakaria 1984 CLC page 2351. In the present case the petitioner had throughout been claiming that the property in question was still undisposed of and was part of compensation pool and available for transfer, therefore, no question of his hostile and open possession against the respondent arose. Even otherwise the case of the respondent was that the room and the garage in dispute was given to the petitioner on sympathetic consideration. In the written statement filed by the petitioner in the ejectment petition he claimed that he was occupying the room and the quarter as `GHAR DAMAD of Mst. Shehr Bano. Learned counsel for the petitioner admitted that the petitioner is married to the niece of Mst. Shehr Bano. He admitted in the said written statement that his possession was with the permission of Mst. Shehr Bano. The argument of the learned counsel for the petitioner that the contents of the said written statement were not confronted to the petitioner and the said document could not legally he admitted in evidence and exhibited without such confrontation. I am afraid the objection regarding mode of proof of document has to be raised before the document is admitted in evidence. No such objection was raised when the certified copy of the said written statement was produced in evidence and admitted and exhibited. The right to occupy the premises by the petitioner had throughout been objected to by the respondent who sought his eviction firstly from the Martial Law Authorities and then by filing ejectment petition and thereafter when it was held that there was no contract of tenancy between the parties, the respondent then sought possession of the property through a civil suit based on title. The continuous hostile uninterrupted possession of the petitioner for prescribed period to mature the same into ownership by way of adverse possession is not established. The suits filed by the respondent for possession of the room and the garage and also for recovery of compensation for use and occupation of the same were rightly decreed. Learned counsel for the petitioner failed to pursuade me that the concurrent findings of facts recorded by both the Courts below on various issues suffer from any misreading, misconstruction or non‑reading of material piece of evidence.

13. Learned counsel for the petitioner argued that the civil suit filed by the respondent for recovery of possession of the property was barred by principle of res judicata. His ‑argument was that in the ejectment proceeding since it was held that the relationship of landlord and tenant did‑not exist between the parties, therefore that finding was final between the parties and the question of title of the respondent in the property in dispute could not be re‑agitated through civil suit. Reliance has been placed on judgment reported as Mir Salah‑ud‑Din v. Qazi Zaheer‑ud‑Din PLD 1988 SC 221.

14. The fallacy of this argument consisted in assuming erroneously that in the ejectment proceedings, a finding was recorded that the respondent was not the owner of the property to claim landlordship. I have gone through the orders passed in the ejectment proceedings and in the writ petition arising from those proceedings and find that the finding regarding non‑existent of relationship of landlord and tenant between the parties was recorded simply on the basis of two applications filed by the respondent before the Martial Law Authorities in which the petitioner was alleged to have been delivered possession of the room and the garage in dispute on sympathetic consideration on the basis of which it was held that the relationship of landlord and, tenant did not exist. It was not held in those proceedings that the respondent did not have the title in the property to base his claim to be the landlady. In this view of the matter, the rule laid down in the reported judgment, relied upon by the learned counsel for the petitioner is not attracted. For the foregoing reasons C.R. Nos. 1118/89 and 2421/89 arising from the suits for recovery of possession and compensation for use and occupation respectively have no force which are dismissed with no order as to costs.

15. Coming to C.R. No. 1279/90 suffice it to say that the orders by the Settlement Authorities regarding dismissal of applications of the. petitioner seeking transfer of the room and the garage as undisposed of and available G portion of the main bungalow were final under the settlement laws ,and could not be challenged in a civil suit on merits. I have also come to the conclusion after examining the evidence that the said room and the garage in dispute was not available for transfer as undisposed of portion of the bungalow. The suit filed by the petitioner was rightly dismissed, therefore, C.R. No.1279/90 arising from the said suit has also no force which is also hereby dismissed.

16. Learned counsel for the petitioner faintly argued that in this suit decree was passed in the previous round of litigation for the failure of the respondent for filing Fard Patta which was assailed in appeal filed by the, respondent before the learned Addl. District Judge, Lahore, which was accepted through order dated 30‑5‑1982 and the case remanded, but in this appeal the respondent did not implead the other defendants who were joined with her in the suit who were the other transferees, therefore, the said appeal was not properly constituted for want of necessary parties, therefore, the learned lower appellate Court had no jurisdiction to accept the same and remand the case.

17. The argument has no substance. Admittedly the said order dated 30‑5‑1982 of remand was challenged by the petitioner by riling revision petition before this Court which was dismissed and the remand order was maintained. After the remand the suit was dismissed by the learned trial Court which was challenged by filing appeal which was also dismissed. In Revision Petition No.1279/9n no ground has been taken that the previous appeal was not properly constituted. I am not inclined to entertain this objection at this stage. This objection even otherwise has no force because the dispute regarding room and garage was exclusively between the petitioner and the respondent and it is nobody's case that anybody else of the other transferes was claiming the same to be the part of that portion of bungalow transferred to them. Even if the other transferees were impleaded as pro forma defendants in the suit, the appeal so far as it was between the petitioner and the respondent was properly constituted for determination of the dispute between them. The objection is repelled.

18. The suit filed by the petitioner seeking declaration that Mr. Mansoor Malik, D.S.C. who passed demarcation order was never appointed, as such, the order of demarcation passed by him was fictitious and forged was rightly disposed of by passing an order for rejection of plaint. Learned counsel for the M petitioner has not been able to pursuade me that the plaint disclosed cause of action. The order passed by the D.S.C. was upheld by this Court in W.P. No.957‑R/75 through judgment dated 17‑12‑1970. The petitioner appears to have filed the said suit with mala fide intention without any basis. C.R. H No.1910/90 has no force which is also dismissed. H.B.T./Y‑5/L Petitions dismissed.