1986 PLP 2985 (MLD)

Nemo for Respondents. Date of hearing: 3rd April, 1986. This revision application is directed against an order of the trial Court, dated 4‑1‑1984, rejecting the plaint of the applicant under Order VII, rule 11, C.P.C., and against the judgment and decree, dated 8‑1‑1986, passed by the learned First Additional District Judge, West, Karachi, dismissing the appeal of the applicant against the said order of the trial Court. Heard Mr. Zahir Hussain Chishti. The applicant had filed a suit for declaration that the defendants had no right over the land in possession with the plaintiff and for injunction restraining them from ejecting him. Learned trial Court held that the applicant, who claims to be in possession of the disputed land since 1973, has no legal character or right over the land so as to seek any relief and that the suit was barred under sections 42 and 56 (1) of the Specific Relief Act. Learned appellate Court has concurred with the finding of the trial Court. Learned counsel for the applicant admitted that the petitioner/ applicant had no other right over the land, except that he is in possession since 1973. The land in question is admittedly Government land and therefore, adverse possession for less than 60 years would not create any right. It was further submitted that this plea was not raised by the respondents in the written statement filed on 15‑10‑1978, but was raised only in the application under Order VII, rule 11, C.P.C. on 28‑5‑1983. It was, therefore, contended, that the respondents were estopped from raising this plea. I am afraid, I cannot agree with this contention of the learned counsel for the applicant, because when the applicant was seeking relief from Court for declaration and injunction, it was for the applicant to show that he had legal character or right over the land in question. His plaint is liable to be rejected even without this plea being raised by the respondents as plea raised in the plaint do not prima facie disclose any such right of the applicant. It is also argued by the learned counsel for the applicant that he had raised plea of mala fide against the action of respondent in ejecting him, therefore, the plaint could not be rejected but issues had to be framed. He has placed his reliance on 1983 C L C

457. The facts of the reported case are altogether different from those of the instant case. In the reported case the appellant, who was being ejected, was in occupation with official permission of the concerned authority and as such it was held that plea of mala fide raised against authorities, who were ejecting him, had to be inquired into by the Court and the plaint could not be rejected. In. the instant case, admittedly the applicant is in unauthorised possession of land .in question. Reliance was also made on P L D 1965 S 'C

352. The Trustees of the Port of Chittagong and Muhammad Islam v. River Steam Navigation Co. Ltd., Chittagong. The, facts of the reported case are also not applicable to the present case. Trustees could waive notice prescribed by section 109(10) of the Chittagong Port Act, and therefore, it was held that their conduct in raising this objection after one and half years of the institution of the suit estopped them from saying that they did not waive notice. In the instant case even from pleadings in the plaint it is clear, that the applicant has no legal character or right over the land in question and as such orders passed by the learned lower Courts are absolutely proper and legal and do not call for any interference by this Court in exercise of the revisional jurisdiction. The revision application is therefore, dismissed in limine. S. Q. Application dismissed.