2006 PLP 1213 (CLC)

MUHAMMAD SADIQ LEGHARI, J.

The private parties to this revision are disputing over Government Plots Nos.562, 563 and 567 situated in Ward "C", Ratodero (hereinafter referred to as "the plots" or "the disputed plots"), which originally belonged to evacuees. The applicants Habibur Rehman and his brother Hafeezur Rehman filed suit (F.C. Suit No.90 of 1991 subsequent No.22 of 1996) in the Court of II Senior Civil Judge, Larkana pleading therein that the plots are in their possession and they have installed hand-pump therein. That Rohal, Samandar Khan and Muhammad Malook (the original defendants later on succeeded by their legal heirs) are illegally claiming to be the owners of the plots and threatening them of dispossession through Assistant Commissioner, Ratodero and S.H.O., Ratodero on the basis of forged entries arranged by them in their favour in City Survey Record fraudulently. They prayed as under: (a) That this Honourable Court may be pleased to declare that the entries in the City Survey Record with respect to the property in suit in the names of defendants are bogus and manipulated one and the defendants are not the owners of the suit property. (b) That this Honourable Court be pleased to grant permanent injunction restraining the defendants not to dispossess the plaintiff illegally and unauthorizedly from the suit property. (c) Costs of the suit be given. (d) Any other relief which the Honourable Court deems fit may kindly be granted. After service upon them the original defendants filed written statement pleading therein that they were owners in possession of the plots on the basis of sale-deeds executed by their Hindu owners during B 1941 and 1946. They further pleaded that on the basis of those deeds mutation in the record of city survey was also made in their favour. They also challenged the maintainability of the suit and raised other legal objections. The Government defendants did not resist the suit. On the basis of the pleadings, the trial Court framed the issues and invited the contesting parties td adduce evidence. After recording the evidence the learned Senior Civil Judge, dismissed the suit by judgment, dated 23-12-2002 holding therein that the suit filed by the plaintiffs/applicants was not maintainable being barred by section 42 of the Specific Relief Act, as they had not sought any declaration about their title and legal right and had directly sought C negative declaration in respect of the documents in favour of the private respondents. The judgment was followed by decree dated 28-12-2002. The decision was attacked through Civil Appeal No.30 of 2003 and the learned Appellate Court i.e. IInd Additional District Judge, Larkana recorded its decision on all the issues and dismissed the suit as well as the appeal on 17-2-2004. Both those decisions have been assailed through present revision application. Mr. Moohanlal K. Makhijani, Advocate appearing for the applicants contended that although it was not mentioned in the plaint of the applicants that on account of their possession over the plot they required legal right to get the plot transferred in their favour under section 3 of Evacuee Property and Displaced Persons Act but that is understood from the pleadings. According to him the applicants could not be non-suited for the omissions to mention in the plaint that they are entitled to get the plots allotted in their favour. Coming on the evidence Mr. Moohanlal further argued that there is oral evidence of Habibur Rehman and Khuda Bakhsh on the question of applicants' possession over the plots. Further is the evidence of Zaheer Ahmed, Clerk from the office of Sub-Registrar, Larkana which proves the entries in favour the respondents to be fraudulent. Zaheer Ahmed has expressly. deposed that the sale-deeds, on the basis whereof entries were kept in the record in favour of respondents Samandar Khan, Rohal and Muhammad M'alook were not in existence. The witness clarified that the sale-deeds referred to in the entries pertain to some other transaction in respect of agricultural land. That on the basis of that evidence the suit, of the applicant should have been decreed. Mr. Gul Hassan Solangi, Advocate representing the contesting respondents defended the impugned decisions. He mainly contended that the two Courts below rightly held the suit filed by the applicant to be not maintainable. Elaborating his contention he argued that neither the applicants claimed title over the plots nor did they plead expressly that they were entitled to get the plots allotted in their favour. Also they did not make any such prayer in the suit. Instead they made prayers against the entries made in favour of the contesting respondents and injunction in respect of possession, therefore, the suit was not maintainable. In support of his arguments he referred to the decisions in the case of Gulshan v. Amir Ali PLD 1997 Kar. 292; Muhammad Hamdan Shaikh v. Chairman, Board of Secondary Education PLD 1998 Kar. 59 and Sultan Mahmood Shah v. Muhanunad Din 2005 SCMR 1872. He did not argue the merits of the matter. Looking to the nature of the matter and the rival claims of the contesting parties I consider it proper to discuss and decide the question of maintainability of the suit and the rights of the parties over the plots. First of all, I must mention straightaway that the applicants do not claim ownership over the plots. As regards the possession' undisputedly there is no construction on the plots. Even the applicants/ plaintiffs themselves claim that at present no compound wall is available at site. They only say that they had installed one hand-pump there. If it is accepted that the applicants had installed the hand pump that by itself does not prove their physical possession over all the plots. Even with the hand-pump the plots are lying open and unoccupied. In such case the presumption about possession' will be in favour of the owner i.e. the Government Department. The case of Noorali Pir Muhammad v. Patricia Dinshaw PLD 1974 Kar. 235 can be referred to in support of D this view. Moreover, the applicants even did not plead in their plaint that on account of their so-called possession that have become legally entitled to get the plots transferred in their favour under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958. In absence of such plea and proof their suit only for declaration against the respondents was rightly declared to be not maintainable. As concerns the plea of the respondents, they are claiming title over the plots through their predecessor-in-interest, namely, Rohal, Samandar Khan and Muhammad Malook but the evidence on record proves the entries in favour of those three persons to be manipulated and fraudulent. It is in the evidence of Zaheer Ahmed a Clerk from the office E of the Sub-Registrar that the registered sale-deeds referred to as the basis of these entries relate to the transactions of the agricultural lands and not the plots in dispute. The respondents could not produce any sale-deed in respect of the plots. Thus, the entries in favour of Rohal, Samandar Khan and Muhammad Malook were fraudulent and those persons had no right or title over the plots. In view of the above neither the applicants nor the respondents have any legal right over the plots. Obviously the plots being evacuee property have to be protected and dealt with by the authorities concerned in accordance with the law. The Revenue Authorities are advised to initiate the legal action/prosecution of all the persons responsible of the forgery of the entries in the record and use thereof. Consequently, the revision application fails and is dismissed. The suit and appeal filed by the appellants deserved to be dismissed. The decision of the two Courts below stands merged in this order. H.B.T./H-13/L???????????????????????????????????????????????????????????????????????????????????? Revision dismissed.