1992 PLP 1748 (MLD)

The facts giving rise to the present Revision are that applicant Allah Rakha filed a suit (Suit No.1622/78) in the Court of the IInd Senior Civil Judge, Karachi for declaration that he was exclusively entitled to the grant of lease in respect of the plots Nos.923 and 924 with construction thereon situated at Baghdadi, Lyari Quarters, Karachi and was entitled to possession thereof. The applicant also sought a declaration against respondents Nos.1 to 7 to the effect that they had obtained a lease in respect of the said plots in their favour from the Karachi Metropolitan' Corporation (Respondent No.8) by fraud and misrepresentation. A decree for cancellation of the said lease deed in favour of the respondents Nos.1 to 7 was also sought by the applicant. The suit was resisted by the respondents who filed their respective written statements. The case of respondents Nos.1 to 7 before the learned Civil Judge was that the applicant was their tenant in respect of Plot No.923 and his brother Isa was a tenant in respect of Plot No.924. According to the said respondents, the actual owner of the said plots was one Saifuddin who was their grandfather and the applicant had been inducted into possession by him as a tenant and was also paying rent. The stand taken by respondent No.8 was that the plot in question was in unauthorised possession which had been regularised subsequently in favour of respondents Nos.1 to 7 and a lease of 99 years was executed by the said respondents in their favour. The regularisation was made by the Lease Committee of the respondents on the merits of the case. The learned trial Court on the basis of the aforesaid pleadings of the parties framed as many as eight issues in the case. However, the learned counsel before me have pressed only Issues Nos. 5 and 7 which are as follows: "

5. Whether plaintiff was tenant of defendants 1 to 7?

7. Whether plaintiff is in possession of the disputed property in his own right?" Both the aforesaid issues were taken up by the learned trial Court together and on the basis of the evidence respectively adduced before it, it was held that although respondents Nos.1 to 7 were the owners of the suit property but since 1968 the applicant was in possession of the said property and had openly acted as its owner and consequently, he had acquired adverse possession in respect thereof. As regards the plea that the applicant had been inducted into said property as tenant, the learned trial Court found that the same had not been sufficiently established from the evidence adduced by the respondents Nos.1 to

7. Consequently, the suit was decreed in favour of the applicant and it was held that the applicant was entitled to regularisation of the disputed plot and the order of respondent No.8 cancelling such regularisation dated 1‑7‑1976 was held to be illegal. The lease granted in favour of the respondents Nos.1 to 7 was also declared to be cancelled in view of the circumstances of the case. Respondents Nos. 1 to 7 being aggrieved by the said judgment appealed before the learned Vth Additional District Judge, Karachi who allowed the appeal and set aside the judgment of the trial Court. It was held by the learned Appellate Court that the documents produced in evidence did not confer any right or ownership to the disputed land in favour of the applicant and it was further held that the suit could not be based on the plea of adverse possession, as such plea could only be taken in defence by a party. I have heard Mr. Moinuddin, learned counsel for the applicant. Mr. Syed Saeed Akbar, learned counsel for respondents Nos.1 to 7 and Mr. Muhammad Yaseen Kiyani, learned counsel for respondent No.8. Although the plea taken by Mr. Moinuddin was that the regularisation was undertaken by the Government of Sindh and respondent No.8 on the basis of the possession and occupation of the said plot, and admittedly the applicant was in possession of the said plot since 1968, but the contention of Mr. Syed Saeed Akbar and Mr. Kiyani,_ however, was that lease had been executed in favour of respondents Nos.1 to 7 by virtue of powers vesting in respondent No.8 under section 42 of the Sindh Peoples Local Council Government Ordinance, 1972. Learned counsel invited my attention to subsection (5) to the said section which empowers a Council to sell and lease out the land at the rate to be fixed with the consultation of the Government and paragraph 3 of the said subsection further empowers a Council to further extend a lease after expiry of its original term. Consequently, according to the learned counsel, action was taken by respondent No. 8 under the said provisions of law. No controversy has been raised before me in regard to the findings arrived at by the learned Courts below that the said predecessor of respondents Nos. 1 to 7 was the original lessee of the said property. In fact the applicant had only claimed regularisation of the said property in his name on the ground of his undisturbed possession. No doubt Rule 13 of the Sindh Peoples Local Council (Land) Rules, 1975 authorises a Local Council to regularise unauthorised possession of plots after preparing a lay‑out plan in that regard etc. but Mr. Moinuddin has not been able to show that respondent No. 8 was not empowered in the present case to have extended the lease in favour of the said respondents by virtue of exercise of powers under section 42 of the Sindh Peoples Local Council Government Ordinance. No doubt, the learned Appellate Court has not concurred with the findings of the learned Civil Judge by holding that the occupation and possession of the disputed premises was not undisturbed or unchallenged but, in my view, it is not necessary to go into the said question. Since the power of respondent No. 8 to act under section 42 is not under challenge, the applicant was not entitled to a decree in his favour on the basis of his mere possession of the property. On the other hand, it has been pointed out that the Lease Committee of Respondent No. 8 decided the case purely on merits. Since there is nothing to show that respondent No. 8 had acted illegally in the matter, 1 find no reason to interfere with the judgment of the learned Appellate Court. This Revision is, therefore, dismissed. A.A./A‑1192/K Revision dismissed.