2001 PLP 370 (CLC)

"(1) Whether the suit is not maintainable? (2) Whether this Court has no jurisdiction? (3) Whether the suit is barred under sections 42 and 56 of Specific Relief Act? (4) Whether the plaintiff has undervalued the suit? (5) Whether the. plaintiff has no cause of action to file the present suit? (6) Whether the plaintiff is in occupation of disputed house or the same was constructed by defendant No. l and is in physical possession of defendants Nos. 1, 2 and 3? (7) Whether the structure of disputed house was purchased by (plaintiff from one Mgt. Sara wife of Gul Muhammad in the year 1979 in consideration and after its purchase the plaintiff raised construction as stated in the plaint? (8) Whether the defendant No. l in the year 1987 approached the plaintiff for giving him temporary shelter in the disputed house and plaintiff allowed him temporary shelter with defendants Nos.2 and 3? (9) Whether defendants managed to obtain N.O.C. from Deputy Director, Water and Sewerage Board, Karachi, by fraud and misrepresentation of facts and defendant No. l also tried to obtain lease fraudulently from ZMC and defendants are trying to get the disputed house regularized in their favour? (10) Whether the plaintiff is entitled for the relief claimed? (11) What should the‑decree be? In the trial Court, respondent No.l/plaintiff examined himself and produced photostat copies of agreement dated 22‑6‑1978 and several other documents as Exhs.P.3 to P.6. He also examined Abdullah and Muhammad Saleem, father and brother respectively of applicant No.l as his witnesses. He also examined his brother Rahim Bux. All of them were duly cross-examined by the Advocate for applicants/defendants Nos.l, 2 and

3. Applicants/defendants Nos.l, 2 and 3 examined themselves in Court but did not produce any witness on their behalf. Respondents Nos.3 and 4/defendants Nos. 5 and 6 did not lead any evidence. The counsel for the parties had submitted written arguments in the trial Court, who on the basis of the evidence adduced before it and the written arguments submitted therein decided the aforesaid issues as under:‑‑ Issue No. l ,????? In negative??????? Issue No.2?????? In negative. Issue No. 3????? In negative??????? Issue No.4?????? In negative. Issue No: 5?????? In negative??????? Issue No.6?????? As under. Issue No. 7????? As under????????? Issue No.8?????? As under. Issue No.9?????? As under????????? Issue No. 10??? As under. On the basis of its findings on the aforesaid issues, the trial Court decreed the suit filed by respondent No.l/plaintiff. Feeling aggrieved and dissatisfied with the judgment and decree of the trial Court, applicants/defendants Nos. l, 2 and 3 filed an appeal in the Court of District Judge, Karachi (West), which was dismissed by the IInd Additional District Judge, Karachi (West) by his impugned judgment upholding the judgment and decree of the trial Court. Again feeling aggrieved and dissatisfied with the order of the Appellate Court, applicants/defendants Nos. l, 2 and 3 have challenged the same by way of this revision application. I have heard the arguments of Messrs Muhammad Hanif Kashmiri and Muhammad Ashraf Kazi, the learned counsel for the parties and have perused the material on record as well as the relevant provisions of law. Respondent No. l/plaintiff has filed a suit for possession and permanent injunction. The prayers sought by respondent No. l /plaintiff in his suit has already been produced hereinabove. Prayer at clause (a) related to handing over of vacant peaceful possession of the demised premises constructed on Plot bearing No.240, measuring 240 sq. yards, Ghousia Baloch Colony, Sector 11‑I/2, Orangi Town, Karachi. Prayer at clause (b) was for restraining the applicants /defendants, their agents, relative and/or any other person acting on their behalf from getting the said property leased, mutated, transferred in their name or in the name of any other person. It is pertinent to note that the plot in dispute together with the construction thereon is situated in a Katchi Abadi. According to his own admission the respondent No. l/plaintiff had purchased the property in dispute from one Mst. Saira for a sum of Rs.8,

000. There is nothing on record as to what title, interest or right Mst. Saira had in respect of the property in dispute. Obviously she was also an encroacher or a usurper of the plot in dispute and whatever construction had been raised by her was also illegal and without any lawful authority. The alleged sale made by her in favour of respondent No.l/plaintiff could not confer on him title right or interest in the demised property better than she herself had, which was that of an encroacher or a usurper. Unauthorised occupation or any encroachment over a property or any other property does not provide a right to the encroacher or a trespasser either for the transfer of the said property or for claiming himself to be the owner/title‑holder of the said property. In this connection reliance has been placed on the case of Abdul Ghafoor v. Settlement Commissioner and others reported in 1968 SCMR 1286. The Supreme Court in the case of Anjuman Araian, Bhera v. Abdul Rashid and others reported in PLD 1982 SC 308, observed that an encroacher was neither entitled to any relief nor he could be said to be an affected or aggrieved person if the land in his possession was allotted, transferred or taken away by another person. It was further observed that illegal and unauthorised possession had no legal sanction and cannot have the blessing of any law. Lahore High Court in the case of Sabir Hussain v. Gulzar Begum reported in 1989 MLD 3084 made a pronouncement that a suit for possession in relation to land which was included in Katchi Abadi and was transferred as Katchi Abadi was not competent. Upon the above discussion I find that the trial Court Judge as well as the Appellate Court Judge did not apply their minds in decreeing the suit filed by the respondent No. l/plaintiff. None of them took into consideration the fact that respondent No. l/plaintiff failed to establish that he had any legal right or entitlement in respect of the ownership of the plot of land or in respect of the possession. Both the trial Court as well as the Appellate Court also failed to take into consideration the provisions of section 8 of the Specific Relief Act, which clearly provide that suit for possession can be filed where a person is dispossessed of his legal and rightful possession of a specific immovable property. I am satisfied beyond any doubt that the judgments and decrees of the trial Court as well as of the First Appellate Court are not in accordance with the provisions of law and they cannot be sustained as they were arrived at not only due to illegality committed by the two Courts below in ignoring the provisions of law thereby they illegally exercised the jurisdiction vesting in them. Accordingly this revision application is allowed. The judgment and decree of the Appellate Court is set; aside and the suit filed by respondent No. l/plaintiff is dismissed. Parties are directed to bear their own costs. Q.M.H./M.A.K./A‑80/K ??????????????????????????????????????????????????????? Revision allowed