1989 PLP 500 (CLC)

Case of the plaintiff Khursheed Begum in Suit No.396/82 is that she is successor‑in‑interest of Iqbal Begum the original lease‑holder of Plot bearing NoA‑60/1, Block 3 Drigh Township. Originally Plot No.106 in Landhi Township was allotted to Iqbal Begum in 1958 by the former Rehabilitation Department. Subsequently this Plot was resumed and an alternate Plot No.45/5 of Drigh Township was‑allotted to lqbal Begum in 1971. She applied that the Plot No.54/5 was not suitable and accordingly Plot No.A‑00/1, Block 3 measuring 423 sq. yds. was allotted to her in lieu of Plot No.54/5. Thereafter it was leased out in 1972 and physical possession was delivered to her. On 15‑12‑1972 Iqbal Begum died and after two days of her death plaintiffs husband Sultan Muhammad Khan also died. Muhammad Jahandar Khan, Muhammad Rafiq, Mst. Zubeda Begum, Mst. Moazzam Begum and Sultan Muhammad Khan inherited the said property. The said L.Rs. surrendered their rights in favour of the plaintiff and executed the documents on 2‑5‑1973. Thus the plaintiff became owner of the property. Plaintiffs husband had raised boundary wall and constructed a small room on the Plot. In June 1973 when the plaintiff went to the site she found that defendant Allauddin had trespassed into the premises having occupied a portion thereof unauthorisedly. The plaintiff therefore lodged report with the. police and the case was challaned. The defendant filed quashment application against the same but it was dismissed. The defendant also filed a writ petition, but that was also disposed of. The plaintiff then gave a notice to the defendant to vacate the premises and on his failure to do so filed this suit. The suit was initially filed in the Court of XVIth Civil Judge, Karachi but then it was returned for presentation to this Court for want of pecuniary jurisdiction.

2. The defendant has contested the suit and has filed written statement wherein he has denied almost all the pleas taken by the plaintiff. He has alleged that the suit is‑ time‑barred and is not maintainable according to law. He has denied that the plaintiff is successor‑in‑interest of Iqbal Begum. He has also alleged that the title of Mst. lqbal Begum herself is defective. She was allotted Plot No.106 at Landhi and then Plot No.5/54 at Drigh Colony. She was not allotted this plot at all. She had written to K.D.A. that Plot No.5/54 was not suitable to her and that plot in suit be allotted to her. This Plot was developed by defendant who had built a house over it after spending a huge amount and was residing in it and thus it was not available. lie has denied that physical possession of the Plot was ever given to lqbal Begum. He has also denied that the husband of lqbal Begun had constructed the boundary wall. The defendant had been in possession of this Plot which was lying undeveloped and he had requested for allotment of the Plot in his favour. He has further stated that he was acquitted from the criminal case under section 448, P.P.C. He has further stated that the constitutional petition filed by him was decided in his favour.

3. The defendant in this case was plaintiff in Suit No.305/84. His case in that suit is that he had occupied Plot No.3/60 A‑1 which was undeveloped. He occupied the same and developed it. He then built a boundary wall and a house with amenities. He approached K.D.A. for allotment of the Plot and the same was allotted to him. His possession over the Plot was also confirmed. Subsequently, he came to know that the said Plot was allotted to defendant No.2 who filed a criminal case against him and also a constitution petition, which were disposed of in his favour.

4. The defendant No.l in this suit is K.D.A. It has also contested the suit and filed a written statement wherein it has denied the plaintiff's case and has pleaded that it is time‑barred and not maintainable according to law. It was pleaded that the suit was barred for want of notice under section 131 of K.D.A. Order 1957. Defendant No.2 also filed a written statement in which she has stated that the Plot in suit was allotted to her predecessor‑in‑interest Mst. lqbal Begum. Thereafter regular lease deed was executed. The plaintiff had trespassed into the said Plot unauthorisedly and occupied the boundary wall and the room constructed by the defendant No.2 who spent a huge amount thereon. Thereafter a criminal case was filed by defendant No.2 against the plaintiff and a constitution petition was also filed, as shown above. On the pleadings of the parties following issues were framed in Suit No.396/82: (1) Is the plaintiff not entitled to the property in suit? (2) Is the defendant not a trespasser on the suit property? (3) What should the decree be? Following issues were framed in Suit No.305/84: (1) Whether the suit is maintainable? (2) Whether the suit is not misconceived, frivolous and barred by time? (3) Is the suit incompetent and bad in law for want of statutory notice as required under Article 131 of the D.K.A. Order (President's Order No.5 of 1957)? (4) Whether the plaintiff developed the suit land? (5) Whether the defendant No.l ordered the transfer of the suit land to plaintiff? (6) Whether the defendants were competent to exchange the Plot of defendant No.2 bearing No.5/54? If so its effect. (7) Whether this suit is counterblast action inrelation to defendant's suit bearing No.396/82 pending in this Hon'ble Court? (8) Whether the plaintiff is entitled to any enforcible right against the defendants? (9) Whether any cause of action accrued and/or continues in favour of the plaintiff for this suit? (10) What should the decree be?

5. ISSUES NOS.1 & 2 OF SUIT N0.396/82 AND ISSUES NOS.5. 6. 7. 8 & 9 OF SUIT N0305/84: On these issues Sarfaraz Muhammad Khan son of the plaintiff has been examined as P.W.1 and Exh.l. He has repeated the case of Khursheed Begum as it was given in the plaint of Suit No.396/82 and the written statement in Suit No.305/84 already given above and the same need not to be reproduced. The first document produced by this witness is an allotment order Exh.l. It reads as under:‑‑ "With reference to your application under reference on the subject noted above, the undersigned is directed to inform you that an alternative residential Plot bearing No.A‑60/1, Block No.3, measuring 422.22 sq.yds. of Drigh Township is hereby given to you in lieu of your previous Plot bearing No.5/54 measuring 423 sq. yds. of Drigh Township allotted to you vide letter No.F.21 (5/54) 66‑Resett/P&C/3945, dated 15‑10‑1966 under the terms and conditions of the previous allotment order. You are, therefore, requested to please take over the physical possession of the Plot in question from the Executive Engineer Drigh Malir Division within 15 days hereof." The next document is acknowledgement of possession Exh.2 dated 8‑4‑1972 in favour of lqbal Begun. The third document is lease‑deed Exh.3 executed by K.D.A. in favour of lqbal. Begum dated 17‑6‑1972. The fourth document attached with it is the site plan. All these documents pertain to Plot No.A‑60/1, Block 3 measuring 423 sq.yds. The lease deed is registered with Sub‑Registrar. Then there is affidavit given by heirs of lqbal Begun dated 2‑5‑1973 whereby they have declared that they have surrendered their shares and rights and interest in the said Plot in favour of Khursheed Begun. The next document is mutation order Exh.5 in favour of Khursheed Begum dated 10‑10‑1983. The next document is certified copy of the Constitution Petition No.887/73 dated 13‑9‑1977 Exh.6. The next document is a certified copy of the order of this Court in Criminal Misc. No.1283/76 wherein this Court had refused to quash the proceedings. Para. 9 of this order is reproduced as under:‑‑ "

9. The factual position is admitted that the Plot in question was allotted to Mst. Iqbal Begum on 17‑3‑1972. Its vacant possession was delivered by the K.DA. to her on 8‑4‑1972 and the lease‑deed was handed over to her on 17‑6‑1972. In his application to the then Minister for local bodies, the applicant had contended to have been in occupation of a Plot adjacent to the Plot No.3/60‑A, and not the Plot in question. Therefore there is no force in the contention of the applicant that he was permitted by the Minister and the K.D.A. to occupy the Plot No.3/60‑A, which is the subject‑matter of this case. The applicant, as is clear from the application to the Minister, was in occupation of the Plot which is adjacent to‑the Plot No.3/60‑A and not this Plot itself. In the Constitutional Petition, the main question contested was whether the unauthorised construction raised on the Plot by the applicant, could be dismantled by the K.DA., when the initial show‑cause notice was only for his eviction from the Plot. Therefore, the impugned order passed by the K.D.A. dated 7‑3‑1973, was set aside, as of no legal effect. It was also observed in the said judgment that nothing stated therein, would prevent the K.D.A. to take such action as they may be entitled to in law, for removal of unauthorised construction." Mst. Khursheed Begum filed acquittal appeal against the same but she had withdrawn the same. While allowing withdrawal this Court had made the following observations:‑‑‑ "As regards the effect of the judgment of the learned Magistrate in the criminal case, it is not necessary to make any observation as it is obvious that the civil suit will be decided on the basis of the evidence produced in that suit and any observation made in the judgment of the learned Magistrate will have no bearing on the merits of the civil suit."

6. Exh.8 is an application made by Allauddin to the Minister of Rehabilitation foe allotting a Plot of 120 sq.yds. adjacent to Plot No.7/60‑A in Drigh Colony. In this application it is stated that Allauddin had occupied the said Plot as he had no other Plot in his possession in Pakistan and has prayed that the same may be allotted to him. Exh.9 is the letter of the Minister ordering an enquiry on the application of Allauddin. Exh.10 is a notice of the Advocate of Mst. Khursheed Begum to Allauddin. Exh.ll is the copy .of the legal notice. Exh.12 is an envelope containing a notice which has been returned undelivered. Exh.13 is order of the Civil Judge whereby the plaint was returned. Exh.14 is certified copy of the judgment of Additional District Judge against the order of returning the plaint for presentation to the proper Court. Exh.15 is certified copy of the order of this Court on the acquittal Appeal No.95/82 dated 31‑2‑1984.

7. It would therefore appear that the Plot in suit was allotted to Iqbal Begum by the Director Housing Management on 17‑3‑1972. The possession of the Plot was given to her on 10‑4‑1972. Registered lease was executed in her favour by K.D.A., a site plan was also given to her. Thus it would appear that the title of Iqbal Begum is complete and free from any doubt whatsoever. Mst. Khursheed Begum is the widow of Sultan Muhammad Khan the son of Iqbal Begum. Sultan Muhammad Khan had died two days after the death of her mother and therefore Khursheed Begum inherited, though small fraction of the share, from Iqbal Begum, of this property through her husband. Affidavit Exh.4 shows that there was a family settlement or a gift whereby the other heirs of Iqbal Begum namely Jahandar Khan, Muhammad Rafiq Khan, Zubeda Beguin and Moazzam had voluntarily surrendered their rights in favour of Khursheed Begum on 2‑5‑1973. Consequently this property was mutated in the name of Khursheed Begum as appears from Exh.5. The documents on record clearly establish that Haji Allauddm Bhatti Gad never been allotted or transferred Plot in suit. According to his own admission in the. application made by him to Minister of Housing and Town Planning on 28‑10‑1972 it has appeared from its certified copy Exh.8 that he had claimed to be in unauthorised possession of a Plot measuring 120 sq.yds. bearing No.3/60‑A, Drigh Colony, which is only the Plot in suit. It is also clear from the document Exh.9 that the Minister had only ordered an enquiry and had not allotted this Plot to Allauddin at any time. Hence the possession of Allauddin with respect to this Plot is of a rank trespasser.

8. Mrs. Salima Nasiruddin's first contention was that Khursheed Begum's suit suffers from laches. In this connection it may be pointed out that Allauddin trespassed into the property in suit in 1973. Khursheed Begum immediately lodged F.I.R. against him before the police. He was challaned by the police under Section 448, P.P.C. Allauddin filed a quashment application before this Court but the same was dismissed. The trial Court however acquitted Allauddin. Khursheed Begum filed acquittal appeal against Allauddin Bhatti. The acquittal appeal was disposed of with the observation that the observations of the criminal Court will have no bearing on the merits of the civil Court. Judgment in this acquittal appeal was passed on 31‑1‑1984. The plaintiff had filed this suit before XXVIth Civil Judge Karachi on 24‑1‑1979. The plaint was however returned for presentation to proper Court under Order 7 Rule 10, C.P.C. and was presented in this Court on 30‑5‑1982. It would therefore, appear that Khursheed Begum's suit does not suffer from laches. The suit was filed within the period of limitation. Khursheed Begum has proved her title in the property in suit while Allauddin has failed to show any title whatsoever in his favour. His possession is that of a rank trespasser. An owner of a property can file a suit for possession if he is dispossessed within a period of 12 years. Not only an owner but even a co‑owner can file such a suit. Reliance was placed in this connection on the following cases:‑‑ (1) P L D 1955 Lah. 31‑‑Habib and others v. Mst. Hakam Bibi and others where it was held that: "One of the co‑sharers may sue to eject a trespasser and claim compensation for use and occupation:" (2) A I R 1932 Sind 220‑‑Pitamberdas v. Bhawanilal where it was held that: "A single co‑sharer or tenant‑in‑common may institute a suit for ejectment against a trespasser or other co‑sharer or tenant‑in‑common without impleading the other co‑sharers or tenants‑in‑common as parties to the suit." (3) A I R 1926 Lah. 545‑‑Budha Singh v. Sant Singh where it was held that: "A single proprietor is entitled to maintain a suit for ejectment against a trespasser on the village abadi who is not a proprietor. The decree given in favour of one of the proprietors under such instances would be for the benefit of the entire body of the proprietors." (4) A I R 1927 Lah. 663‑‑Lachhman Singh v. Mst. Chattar Kaur where it was held that: "One of several co‑sharer can lodge a suit without making the other co sharers parties thereto, against trespasser on common property:" (5) A I R (33) 1946 Oudh 221‑‑Ambika v. Rameshwar where it was held that: "A co‑sharer is entitled to a share in every inch of land comprised in the property. if a trespasser interferes with his possession, he is certainly entitled to bring an action against him in order to defend his right of possession. In such cases no question of right of other co‑sharers and the plaintiff who claims to be sole owner falls to be determined. The only point that has to be determined is whether the plaintiff is entitled to retain possession of the property in dispute against the defendant who is a rank trespasser. His claim to eject the trespasser cannot therefore be affected by the failure to implead other co‑sharers.

9. The result is that I decree the Suit No.396/82 with costs and declare that plaintiff Khursheed Begum is the owner of premises A‑60/1, Block‑3 Drigh Township and that the defendant is a trespasser I, therefore, order that the defendant Allauddin should deliver the possession of the said premises to Khursheed Begum. I also allow mesne profit at the rate of Rs.100 per month for 3 years prior to the riling of the suit. I also allow mesne profit from the date of the filing of the suit up to the delivery of the possession at the same rate. I dismiss Suit No.305/84 with costs. These are the reasons for short order dated 2‑11‑1988. AA./K‑126/K Suits decreed.