1989 PLP 1526 (CLC)

M. Munir Piracha for Respondents. Date of hearing: 3rd April, 1989. This revision calls into question the judgment and decree dated 11‑5‑1981 passed by Civil Judge, Rawalpindi by which the petitioner's suit for declaration and permanent injunction in respect of land measuring 5 kanals and 4 marlas comprising Khasra No.8063/3452 situated in Mahal Rawalpindi was dismissed by rejection of plaint as also the judgment and decree dated 2‑4‑1984 passed by the learned Addl. District Judge, Rawalpindi whereby the above judgment was upheld and the appeal filed by the petitioner was dismissed.

2. Briefly stand, the facts are that Mst. Shahnaz Begum petitioner instituted a suit for declaration and permanent .injunction overing, that she was owner in possession of land measuring 20 kanals and 13 marlas bearing Khasra Nos.3452/1295, 1291, 1292, 1293 and 1294 situate in Rawalpindi, that her father Ch. Abdullah Khan had acquired on lease the land measuring 48 kanals and 12 marlas bearing Khasra Nos.3452/1295, 2509/1287, 1288, 1289, 1290, 1293, 2512/1294 from its evacuee owner which was later confirmed by the learned Additional Custodian Evacuee Property. Out of that 20 kanals of land was transferred in favour of her father as brick‑kiln and the remaining area was to be disposed of in accordance with law. Her father applied for its transfer but during the pendency of his application land measuring 5 kanals 4 marlas bearing Khasra Nos.8063/3452 was allotted to Mst. Zulekha, Bibi respondent. Her father applied to the Additional Settlement Commissioner for the cancellation of allotment made in favour of Mst. Zulekha Bibi but failed. Later he transferred all his rights to the petitioner on which transfer order dated 3‑11‑1976 was issued in her favour. Since Mst. Zulekha Bibi respondent transferred the land allotted to her in favour of respondents Nos 2 to 6, therefore, they were also impleaded as defendant‑respondents. The petitioner made the. following prayer..,:‑‑ "That the allotment of 5 kanals and 4 marlas of land out of Khasra No.8063/3452 in favour of respondent No.1 (Mst. Zulekha Bibi) was illegal, ultra vires, void and of no legal effect on the proprietary rights of the petitioner and as a consequential relief for permanent injunction restraining the defendants from interfering with the petitioner's ownership or possession of the suit land in any manner whatsoever."

3. Alongwith the suit she also filed an application for temporary injunction. The respondents resisted the suit and the application. The jurisdiction of the Civil Court to question the allotment/settlement of land made in favour of Mst. Zulekha Bibi was also challenged. The locus standi of the petitioner to bring the suit was also questioned. The maintainability of suit for declaration and injunction was challenged in view of respondents Nos. 2 to 6 being in possession of the suit land in pursuance of sale for consideration in their favour by respondent No.l.

4. Learned Civil Court while disposing of the application for temporary injunction rejected the plaint under Order VII, Rule 11, C.P.C. for the reason that the petitioner had no locus standi to bring the suit, the plaint did not disclose any cause of action and that the suit was barred by law. Feeling aggrieved she filed an appeal which was also dismissed.

5. It is contended that the Courts below assumed jurisdiction not vested in. them by law, misread the plaint and took into consideration material foreign to the plaint.

6. The learned Civil Court observed that Mst. Zulekha respondent had been transferred a separate piece of land alongwith possession as early as 1968 and there was no question of the petitioner's possession over it. The plaint did not reveal any right of the petitioner to the said land. Her predecessor‑in‑interest had already exhausted his remedies before the Settlement and Rehabilitation Authorities against the transfer of the disputed land in favour of respondent No.l before coming to the Civil Court. While disposing of the appeal the learned Additional District Judge observed that the plaint did not show that the disputed piece of land was ever allotted to the petitioner or to her father. The petitioner had not alleged in the plaint that she had any right whatsoever regarding the disputed piece of land i.e. Khasra No.8063/3452. Her father Abdullah Khan had filed appeals before the Settlement Authorities against the allotment of land in dispute in favour of respondent No.l (Mst. Zulekha Bibi) but failed which attained finality in view of the provisions of Displaced Persons (Land Settlement) Act, 1958. No document was produced to show that the disputed portion of land belonged to her or that she was ever in its possession. According to the averments of the plaint, land measuring 20 kanals and 13 marlas only as mentioned in para. No.l of the plaint was transferred to her father.

7. The petitioner's case is that her father Ch. Abdullah Khan had made an application for transfer of the remaining portion of land which was in his possession as a lessee but the Settlement Authorities did not accede to his request and transferred it to respondent No.l. In the plaint no right to the transfer of disputed piece of land is shown up nor has any allegation been made that the transfer of the said land in favour of respondent No.l was mala fide. The petitioner has failed to show the basis of her entitlement to the transfer of the disputed land. The mere fact that she is transferee of some land by the Settlement Authorities will not entitle her to claim transfer of other evacuee land regarding which her father had already unsuccessfully applied to the Settlement Authorities. It had, therefore, been rightly held by the Courts below that the petitioner had no locus standi to challenge the transfer in favour or respondent No.l or to seek the relief as claimed by her. Since an absurdity of claim/relief appeared on the face of plaint it could have been rejected under Order VII, Rule 11, C.P.C. No document has been produced by her to show her possession over the land in dispute. On the other hand, copy of the order dated 6‑5‑1953 passed by the Additional Custodian Evacuee Property, Punjab produced by her shows that the lease in favour of her father Abdullah as a tenant had already expired when the said order was passed. The P.T.O. in favour of Abdullah, father of the petitioner was issued on 3‑11‑1976 while the allotment in favour of Mst. Zulekha was made in the year, 1968 and the suit was filed in March, 1981. It is not denied that Abdullah had unsuccessfully applied to the Settlement Authorities for the cancellation of allotment made in favour of Mst. Zulekha. The subsequent transfer of his right in the land allotted to him would not confer a fresh right on the transferee (Mst. Shahnaz) to challenge the transfer in favour of Mst. Zulekha No.l. Order VII, Rule 11, C.P.C. requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law. It was held in Burmah Eastern I Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 that a suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of Rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to l saying that Order VII, rule 11 is not exhaustive. In the circumstances discussed above the Courts below do not appear to have acted legally i.e. in breach of some provisions of law or with material irregularity, by committing some material error of procedure that may have I affected the ultimate decision. The Courts below acted within jurisdiction and the impugned orders do not justify interface by this Court in revision. Consequently the same is dismissed with costs. AA./S‑343/L Revision dismissed.