2009 PLP 515 (MLD)

GULZAR AHMED, J.

Plaintiffs have filed this suit for declaration, injunction and specific performance in respect of Plot No.E-180, measuring 1340 Sq. Yards in Balouch Goth, Deh Orangi, Taluka Karachi-West (the suit property). Plaintiffs claim to have purchased the suit property from defendant No.4 on the basis of an agreement, dated 2-5-2006. The document of ownership of suit property is stated to be an undated SANAD (P/1), which is stated to be issued by the Mukhtiarkar, Sindh Gothabad, Karachi-West. On 27-11-2008, the plaintiffs counsel was asked to satisfy the Court on the maintainability of the suit, as under section 3 of Sindh Gothabad (Housing Scheme) Act, 1987, (the Act) the maximum land, that can be allotted, is two Ghuntas (Approximately) 240 Sq. Yards). The matter was adjourned to 18-12-2008 on which date plaintiffs counsel sought adjournment on which it was fixed today. Learned counsel for the plaintiffs has submitted that suit property was owned by defendant No.3, from whom it was purchased by defendant No.4, and the plaintiffs have purchased it from defendant No.4 by making payment of huge consideration of Rs.2,750,

000. He states that plaintiffs while purchasing the suit property had no apprehension about Sanad. Mr. Ahmed Pirzad, Advocate appearing for defendants 1 and 2 has contended that Sanad is fake being contrary to section 3 of the Act and suit property is situated in Urban area, to which the Act has no application and Sanad could not have been issued. He has further contended that the land granted under the Act is free of cost and is for housing purpose only, and it is being used as factory which is violation of the Act. He has contended that the Sanad filed with the plaint is illegal and plaint is liable to be rejected, as the plaintiffs have no cause of action for filing of the suit. Counsel for defendant No.3 has contended that defendant No.3 is the owner of suit property, who has rented out the same to defendant No.4 and the plaintiffs were the sublettee and agreement of sale made by plaintiffs is a fake document. Counsel for defendant No.4 has stated that plaintiffs were his sublettee, where the plaintiffs are running a marble factory and that the amount shown in the plaint is of rent paid by the plaintiffs to defendant No.4. I have considered the submissions made by learned counsel for the parties. Section 3 of the Act is as follows:- "

3. Allotment of land.-- Subject to other provisions of this Act, District Officer (Revenue) may, on the recommendations of Allotment Committee, allot land, not exceeding two Ghuntas, for construction of a house to a deserving person in the Union Council in which he ordinarily resides free of cost in such manner and on such terms and conditions as may be prescribed." The reading of this section shows the maximum area, which can be allotted for construction of a house to a deserving person is two Ghuntas only. The Sanad (P/1), which has been filed by the plaintiff, shows allotment of land of 1340 Sq. Yards. Such claim of the plaintiff is altogether denied by defendants Nos. 1 and 2 who have argue that there cannot be a legal Sanad exceeding two Ghuntas, which approximately comes to 240 Sq. yards only. The Sanad (P/1), relied upon by the plaintiff to show the title of the suit property, altogether goes contrary to the provision of section 3 of the Act, on which no justifiable claim of ownership of land could be based. The claim of defendant No.3 that he has purchased the suit property from original allottee Ali Bux is also not sustainable in law for the same reason. Under the Act, the land is allotted for construction of a house free of cost. Plaintiffs admittedly are running a marble factory on the land which is contrary to the scheme of the Act. Be that as it may, as the claim to suit property is based upon the document, which is patently illegal, an agreement based upon it will not only be void on the ground of mistake as to the legal existence of its corpus but will also be void on the ground that its object is not lawful inasmuch as it implies usurpation of Government property. Such an agreement will not be legally enforceable no right on it could be based and no cause of action on it can legally be founded to maintain a suit. The plaint thus is liable to be rejected under order VII Rule 11, C.P.C. Apart from the relief of declaration, injunction and specific performance, plaintiff has claimed no other relief. Consequently, the plaint is rejected under Order VII Rule 11 C.P.C. and all pending applications are also disposed of. These are the reasons for the short order passed today. S.A.K./M-13/K?????????????????????????????????????????????????????????????????????????????????????????????? Suit rejected.