1989 PLP 4107 (MLD)

I intend to dispose of the above two revision applications by this common judgment as the facts and law involved in these revision petitions are the same. The facts leading to the filing of the above civil revision are that the petitioner filed suit for declaration and permanent injunction against the respondents. The case of the petitioner as set out in the plaint is that the petitioner is lessee/allottee of respondent No.2 in respect of an open space measuring 26 x 12' situated at Shahdadpur Road, Mohallah Issarpura, Nawabshah. It is the further case of the petitioner that the petitioner had raised construction on the above plot consisting of two rooms, latrine, bathroom and courtyard. He had got electricity fitted in these premises. He is in occupation of these premises since the partition of Indo-Pak. In these circumstances the petitioner sought a declaration that the space of land measuring 26 x 12' in occupation of the petitioner is not the property of respondent No.1 but of the respondent No.2 and the respondent No.1 has no legal right to get executed writ of possession as against this property which does not belong to him. The petitioner further sought permanent injunction against respondent No.1 restraining him from either by himself or through his agents, assignees or any authority interfering with the possession of the petitioner over the property described in para.2 of the plaint. The facts leading to the filing of the above civil revision are that the petitioner filed suit for declaration and permanent injunction against the respondents stating therein that he was in occupation of the premises which was an open space measuring 24 x 40' belonging to respondent No.2 since last more than 22 years and he had raised construction on it consisting of two rooms, bath?room, latrine and a courtyard. It is the further case of the petitioner that he was paying ground rent to the respondent No.2 for use and occupation of the above space of land and that he got the electricity fitted and also got the water supply connection with the permission of respondent No.2. In these circumstances the petitioner sought a declaration to the effect that the space of land measuring 24 x 40' in occupation of the petitioner is not the property of respondent No.1 but of the respondent No.2 and that respondent No.1 has no legal right to get executed writ of possession as against this property which does not belong to him. The petitioner further sought permanent injunction against the respondent No.1 restraining him from interfering either by himself or through his agents, assignees or any authority in any manner whatsoever with the possession of the petitioner over the property. After service of summons the respondent No.1 in both the cases filed applications under Order 7 rule 11 C.P.C. for rejection of the plaints. The petitioners in both cases filed counter-affidavits. The trial Court while allowing the applications observed that he would have dismissed the applications for rejection of plaints but there was only one reason for allowing those applications, i.e. the petitioners had failed to give description of the properties in which they claimed to be in possession in their own rights. The learned trial Court further observed that the petitioners had not mentioned the city survey numbers or the custodian numbers of the properties. So also the petitioners failed to produce any certificate from any competent authority to show that any property was in possession of the petitioners, which may be separated from the property owned by respondent No.1. Those applications were allowed by orders dated 29-7-1981. The petitioners in both the cases being aggrieved against the said orders dated 29-7-1981 filed separate civil appeals bearing Nos.5 and 6 of 1982 in the Court of District Judge, Nawabshah. Ultimately the appeals were heard by IInd Additional District Judge, Nawabshah. The learned appellate Court after taking into consideration the arguments advanced by the learned counsel for the parties, dismissed the appeals and affirmed the orders of the trial Court. The appellate Court while dismissing the appeals observed that the petitioners had simply mentioned that they were occupying the area of 26 x .12' and 26 x 40' respectively situated in Issarpura Mohallah of Nawabshah. The petitioners did not give any city survey numbers nor they mentioned description of the properties sufficient to identify the properties. As such the plaints did not fulfil the requirements of Order rule 11 C.P.C. Obviously in absence of the above particulars, the plaints did not show specifically the properties in respect of which reliefs of declaration and injunctions were sought. In this view of the matter the appeals were dismissed. The petitioners being aggrieved have filed the present revision petitions. I have heard Mr. Muhammad Ali Shah in support of the petitions and Mr. S. Faique Hussain, Advocate for respondent No.1 and perused order of the trial Court as well as judgment of the appellate Court. It is not in dispute that the petitioners have not disclosed and/or mentioned description of the properties and/or boundaries of the premises in the wits. It is advantageous to reproduce Order VII Rule 3 C.P.C. which reads as follows:-- "(3)????? Where the subject-matter of the suit is immovable property.--Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers." A perusal of Order VII Rule 3 would show that where the subject-matter in the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers, in a record of settlement of survey, the plaint shall specify such boundaries or numbers. The emphasis in this rule is on the identification of the property and it has never been held that a suit should be dismissed or plaint should be rejected on account of alleged description. This point was considered by Mr. Karam Elahi Chohan, J. (as he then was) in the case of Fazal Hussain and others v. Abdul Hameed PLD 1971 Lah.

89. Mr. Karam Elahi Chohan came to the conclusion after giving cogent reasons, which arc fully supported by the various authorities discussed by him in the said judgment, that if in the plaint or in any deed, there is an inconsistency between the description by the boundaries or by the areas, then that which is more certain and least likely to have been mistaken and which sufficiently identifies the land, should prevail. It was further held that the emphasis in Rule 3 of Order VII is on the identification of the property and it has never been held that a suit should be dismissed or a plaint should be rejected on account of any alleged "insufficient description". This decision was followed in the case of Mst. Bhawan and 7 others v. Hazoor Bux and 2 others PLD 1973 Quetta

24. I am in respectful agreement with this decision of Mr. Karam Ali Chohan, J. (as he then was) for the reasons given by him in the said judgment which was allowed by Mr. Khuda Bux Mari, J. (as he then was) in the above-noted Quetta case and as such I am of the opinion that the judgment and decree dated 29-7-1981 and 31-1-1984 passed by the trial Court and appellate Court cannot be sustained and consequently I set aside the same. The two Courts below have acted in the exercise of jurisdiction illegally or with material irregularity. I remand the suit to the Senior Civil Judge, Nawabshah to dispose of the same on merits according to law. The petitioners are directed through their counsel to file amended plaints in both the suits on or before 13-4-1989. The respondent No.1 is directed to file the amended written statements in both the suits if he so desires on or before 27-4-1989. The parties through their counsel are directed to appear before the learned Senior Civil Judge on 29-4-1989 when he will frame the issues in the above two suits and fix the date for evidence of the parties. The trial Court is directed to dispose of the suits on merits according to law within four months from 29-4-1989. H.B.T./B-119/ Revision petitions accepted.