P L D 2009 Karachi 186 (PLP)

GULZAR AHMED, J.

In terms of the order dated 15-10-2008 the matter was fixed today for hearing arguments of the Advocates of the parties on the maintainability of the suit. Mr. Rana Muhammad Khan, learned counsel for the plaintiff has argued the matter at substantial length. Mr. Nafees Ahmed Usmani, A.A-G. Sindh stated that as the matter relates to the Land Utilization Department. Mr. Ahmed Pirzada, who is its standing counsel will argue the matter. Mr. Tahwar Ali Khan as well as Mr. Ahmed Pirzada Advocates argued the matter. I have considered the submission made by the learned counsel. The question of maintainability of the suit arose from the fact that plaintiff claims himself to be the owner of 10 plots bearing Nos.3, 4, 5, 6, 7, 29, 30, 31, 32 and 33 each measuring 150 Sq. Yards in Survey No.189 Deh Drigh, Tappo Drigh Road in project Gosha-e-Affiat. Drigh Colony, Karachi, by virtue of ten separate lease deeds for 99 years each all dated 27-5-1989, which are said to have been executed and registered by one Haji Muhammad Umar Memon in favour of the plaintiff on the basis of Deh Form-VII. The question is what right is conferred by Deh Form-VII and whether it could be transferred by 99 years lease in favour of the plaintiff. Learned counsel for the plaintiff took me through Deh-Form-VII, annexure P/25 and stated that this document shows that lessor Haji Muhammad Umar Memon was the owner of the plots and was competent to sign and execute the lease deed for 99 years in favour of the plaintiff. He stated that the Mukhtiarkar (Revenue) Shah Faisal Town, Karachi, in his report, dated 8-5-2006 submitted in this suit, has admitted the title of Haji Muhammad Umar and also referred to its annexure and that this fact is also admitted in the written statement of defendants Nos.2 and

3. He further argued that annexure P/27, which is letter dated 12-2-1974 of KDA, addressed to Messrs. Tehseen Construction Company, has allowed subdivision pf plots of Survey No.189 and that the .plots were being allotted by the said company. He argued that the matter requires evidence as disputed facts are involved and the plaint is not liable to be rejected. He argued that in the case of lease the title of the lessor is not material and in this respect made reference to section 105 of Transfer of Property Act and further contended that in terms of section 42 of Specific Relief Act, a suit can be filed even if plaintiff has no perfect right and title to the suit property. He contended that as the plaintiff has a lease of 99 years, he is entitled to use the plots without interference by any one and that under sections 2 & 4 of West Pakistan Urban Immoveable Property Tax Act, the lessee is defined as a perpetual owner. He argued that record of right is assumed to be true and that the matter needs to be decided on merits. In support of his submissions he has relied upon PLD 1998 Lahore 233, 1987 MLD 305, 2003 YLR

233. AIR 1960 SC 1373, PLD 1964 SC 106, PLD 2004 Karachi 269, 2003 YLR 1491, PLD 1971 SC 114, 2002 CLC 1464, PLD 1967 DACCA 145, PLD 1979 SC 890, 2005 MLD 13, 2005 MLD 986, 1982 CLC 473, 1993 MLD 2464, 2000 CLC 623, PLD 1975 Karachi 979 and 2003 CLC 1498. Mr. Ahmed Pirzada learned counsel for defendant No.1 contended that plaintiff has no right to maintain the present suit as Haji Muhammad Umar Memon is nowhere shown to be the owner of the suit plots and Deh Form-VII did not confer right to execute lease of 99 years as entries reflected in form are merely for revenue purpose and is not a title document. He stated that whole land of Survey No.189 was acquired by Government and that no entry from Ghat Wadh Register nor from Takrari Registrar nor of Foti Khata has been filed and the leases of 99 years relied upon by the plaintiff are all fabricated documents. Mr. Tahwar Ali Khan, learned counsel for defendant Nos.2 and 3 contended that the plaintiff is claiming land, which is a Green Belt and that such aspect is mentioned in para. 7 of the plaint which describes cause of action and that Deh Form VII does not create right to grant lease of 99 years. I have considered the submission made by learned counsel for the parties and have gone through the relevant record. For considering the question of the maintainability of the suit in terms of Order VII, Rule 11, C.P.C, primarily, Court is required to examine the contents of the plaint to find out that the facts stated therein taken in totality, provides a cause of action to the plaintiff on the basis of which the suit can be maintained. Plaintiff counsel during the course of his arguments has contended that plaintiff's right to the property and to maintain the suit may be determined also by looking into the admission that defendants have made in their reply to the plaint. Though the law does not mandate such exercise and the plaintiff has to sustain its claim on the strength of its own plaint and documents filed with it, however as the learned counsel has stated that the replies of the defendants contain admissions, therefore in order to meet the ends of justice such admissions will be referred to in the discussion. As regards the first limb of the question as to what right is conferred by Deh Form-VII, incidentally, learned counsel for the plaintiff was unable to make any submission nor cited any law except that he merely stated that right of the ownership of lessor is presumed. In the first place the Deh Form-VII as is filed by the plaintiff needs a closure examination. Plaintiff counsel during his arguments has heavily relied upon purported admission made in the report of Mukhtarkar as well as the written statement of defendant Nos.2 &

3. In the report of Mukhtarkar so also in the written statements of defendants Nos.2 &

3. It is mentioned that according to Entry No.1237 in VF Form-VII Survey No.189 was in the name of Haji Muhammad Umar. The annexure to the report of Mukhtarkar shows Entry No.1237 in the name of Umar son of Khair Muhammad. As against this, the photocopy of Deh Form-VII filed by the plaintiff as annexure P/25 shows Entry Nos.82 and 83 in the name of Umar Khair Muhammad Umar son of Khair Muhammad respectively. In Entry No.83 reference to Survey No.189 has been made. Learned counsel for the plaintiff was asked to explain this inconsistency in the entry number, he was unable to give any reply to it. Therefore, so far, the admission is concerned, it is of no help to the plaintiff as it relates to Entry No.1237 and not those mentioned Deh Form-VII relied by the plaintiff. Column No.2 of Deh Form-VII requires mentioning of date of entry which is left blank. Column No.3 requires mentioning of name of transferor which is left blank. Column 5 requires mentioning of nature of holding in which against Entry No.82 it is mentioned that on inheritance after death of Khair Muhammad. Mst. Sakina Howji got it as "BAKHSHISH" and as against Entry No.83 it is mentioned that through inheritance on death of Khair Muhammad to legal heir and share from Sakina Howji as "BAKHSHISH". Column 7 contains certification by Mukhtiarkar Karachi (East) dated 25-7-1975. The document Deh Form-VII in the first place is in conflict as regards the entry number mentioned in the replies of the defendants. Secondly, the material facts as to the date of entry, the name of transferor have been left blank and nature of holding has not been described. The certification by the Mukhtarkar in Column No.7 is apparently not true as on 25-7-1975 there was no existence of Karachi (East) as District (East) of Karachi was created in the year 1985. The other major aspect is that except for Deh Form-VII no other independent document has been filed by plaintiff to show ownership of the plots in the name of the lessor. Learned counsel for the plaintiff categorically stated that plaintiff has no other document to support its claim in the suit except Deh Form-VII and lease deeds filed with the plaint. In the case of Bahadur Khan v. Qabool Ahmed (2005 CLC 1937) it was observed that "Right of ownership of any property depends entirely on the title i.e. source of the acquisition of the right while entry in the Revenue Record is not the conclusive evidence of the right of ownership. It may be noted that entry .in the Revenue Record can only be used for fiscal purposes and is not a title deed." 'As noted above. Deh Form-VII as relied upon the plaintiff does not mentioned the nature of holding of land by Umar son of Khair Muhammad. Even, it does not mention the nature of holding of deceased Khair Muhammad. This aspect of the matter is pivotal for had Umar son of Khair Muhammad been an owner, there would have been such entry in column 5 of the Form which is not there. There. is no other independent document of ownership of plots by Umar son of Khair Muhammad. Deh Form-VII as it reads does not create right of ownership of plots or any other right in favour of Umar son of Khair Muhammad. In making lease or sub-lease of 99 years which is perpetual, lessor has to have with him similar right of lease or perpetual ownership to transfer it by lease or sub-lease to the lessee. Deh Form-VII does not show any right to the plots in question to be existing in favour of Umar son of Khair Muhammad or in the lessor. Therefore, the lease deeds of 99 years of the ten plots claimed in the plaint, are of no value as they will not confer any right in the plaintiff of whatsoever nature because none was possessed by the lessor. In view of above state of things as appearing from the record, all other arguments of learned counsel for the plaintiff loose force and even do not require consideration. The case-law that has been cited by plaintiff counsel relates to arguments which needs no consideration for the reason as noted above. Plaintiff having failed to make out a case of ownership of ten plots on the basis of Deh Form-VII and lease deeds which are the only documents that have relied upon by plaintiffs to substantiate their cause of action, the plaint fails. It may be noted that plaintiff has filed an application C.M.A. No.9943 of 2008, which is listed for orders, seeking amendment in the plaint for adding of words "of lease hold right in perpetuity of 99 years" in prayer clause (a) of the plaint. The plaintiff otherwise in para 2 of the plaint has claimed himself to be the lawful owner of ten plots by virtue of lease hold rights of 99 years and in prayer clause (a) had sought declaration of lawful and rightful owner of ten plots. Mere omission of mentioning of the lease in the prayer clause will be of little significance as fact of lease is already mentioned in the plaint. The application looked in the context of the contents of plaint seems to be inconsequential and the same is also rejected. After the hearing the learned counsel for the parties, by a short order dated 31-10-2008 the plaint and listed application were rejected. Above are the reasons for the said short order. S.A.K./M-214/K Plaint rejected.