2011 PLP 1282 (YLR)

TUFAIL H. IBRAHIM, J.

Vide order dated 29-9-2009 the plaintiff was directed to argue on the question of maintainability of suit and to produce all original title documents in his possession on the next date of hearing. Again vide order dated 15-10-2009 the plaintiff was directed to produce the certified copies of lease dead and sale-deed in favour of defendant No. 1 and the plaintiff was also directed to (a) obtain Property Extract/Mutation Letter from the concerned Mukhtiarkar Karachi and/or City. District Government Karachi and (b) produce the said documents within 15 days, failing which the suit of the plaintiff will be dismissed except for his claim of damages against defendant No.

1. Learned counsel for the plaintiff has failed to produce any property extract/ mutation letter or any other document title of the suit plot in favour of defendant No.1. Learned counsel for the plaintiff requests for adjournment and seeks further time to produce the said documents. This strongly opposed by the learned counsel for defendants Nos. 3 and 5 on the grounds that more than enough opportunities have been given to the plaintiff. The brief facts of the case are that the Plaintiff had filed this suit against defendant No. 1 for declaration, specific performance, permanent injunction and damages. It has been alleged that the plaintiff had agreed to purchase all that land measuring 25 acres out of Survey Nos. 71, 72, 73, 74, 75 and 76 and Survey No.2 situated at Deh Bahrano Taoo Mangopir (North Karachi Township), Karachi, ("suit plot") from defendant No. 1 in anticipation/ presumption that the suit plot would be decreed in favour of defendant No.1 in Suit No.209 of 1980 pending initially before Court II, Senior Civil Judge, Karachi Central. It appears that from the record that the Suit No. 209 of 1980 did not proceed for various reasons and the plaintiff filed, present suit against defendant No.1 only. It also appears from the record that the Suit No.209 of 1980 pending and subsequently transferred in the Court-IV, Senior Civil Judge, Karachi Central was dismissed vide order dated 13-11-2001. Without disclosing the dismissal of the aforesaid suit the plaintiff and defendant No. 1, manipulated to obtain judgment and decree in this suit vide judgment dated 29-5-2002 whereby the parties were directed to approach D.C.O. Revenue who after checking and verifying the records would pass necessary orders for mutation and transfer of 25 acres of the land in the record of rights. The said 'Order/Judgment and decree dated 29-5-2002 was challenged by Messrs Usman and Company, by way of filing application No. JM-48/2002, under Order XII, Rule 2, C.P.C. which application was allowed vide detail order dated 9-2-2004 and the Order/Judgment and decree dated 29-5-2002 was set aside and in terms of orders passed therein, Messrs Usman and Company along with K.D.A. were impleaded as defendants Nos.3 and No.5 in this suit. The learned Counsel of defendant No. 3 has pointed out that in the said JM No.48 of 2002, K.D.A. had filed a statement with documents showing that the suit plot along with other properties had been acquired by K.D.A. under proceeding of Land Acquisition Act, 1894, vide Notification dated 9-12-1961. After payment of compensation to the private land owners the possession of the entire land was taken over by the Land Acquisition Officer from Tapedar/ Mukhtiarkar on 18-10-1962 and the Mukhtiarkar duly recorded said acquisition in favour of K.D.A. in the record of rights and Form VII was issued in favour of K.D.A. The learned counsel of defendant No.3 has argued that the said Acquisition in favour of K.D.A. has not been questioned or challenged in further states that the suit is collusive between the plaintiff and defendant No.1 to unlawfully grab precious land and to usurp the rights of K.D.A. and its allotees by playing fraud. The imaginary and whimsical claim of defendant No.1 over the suit plot have been completely dismissed in Suit No.209 of 1980 Civil Appeal No.132 of'2001 and Revision Application No. 214 of 2003, and therefore the same claim of the plaintiff in this suit which is based on the claim of defendant No. 1 cannot be re-agitated and therefore the suit is not maintainable and the suit should be dismissed with costs. In view of the aforesaid facts borne from proceedings/records of various courts and arguments of the learned counsel of defendants Nos.3 and 5, which have remained un-rebutted, it has been sufficiently established that the alleged claim of defendant No.1 in respect of entitlement of the suit plot has been finally adjudicated against defendant No.1. The plaintiff seeking relief for specific performance against defendant No.1 in respect of the suit plot cannot get a better title than what defendant No.1 has. Since defendant No.1 has no right, title or interest in the suit plot in any manner whatsoever, more particularly the claim of defendant No.1 has been dismissed in all the previous litigation therefore the claim of the plaintiff against defendant No.1 for specific performance and declaration also stands defeated. The claim of the defendant No.1 through this suit cannot be re-agitated and therefore this suit is not maintainable on the grounds of res judicata and within the meaning of sections 42 and 56 of Specific Relief Act. The conduct of the plaintiff cannot be said to be clean, bona fide and free from collusion with defendant No.1. In such circumstances the suit of the plaintiff is not maintainable, and hence the suit of the plaintiff with all pending applications are hereby dismissed with cost amounting to Rs.40,000 to be paid equally to defendants Nos. 3 and

5. H.B.T./B-3/K Suit dismissed.