1990 PLP 1543 (CLC)

Khalid Humayun for Respondent. Date of hearing: 3rd December, 1989. Civil Revision Applications Nos. 169/89 and 170/89 involve common respondents. Counsel for both sides, are also common and, besides questions of fact and law agitated are also, more or less, similar. As such, these Revision Applications were heard and allowed together, on 3‑12‑1989, for reasons to be recorded later on. These reasons are herein incorporated. The two sets of applicants in these proceedings riled their respective suits in the Court of the Senior Civil Judge, Thatta. Plaints in each of these suits were rejected. Appeals preferred also failed, giving rise to these Revision Applications. The common factual premises of each of the referred suits, bearing Nos. 11 /87 and 12/87 of the Court of the Senior Civil Judge, Thatta, arc that the suit plot is said to be situated within the jurisdiction of the Court, such plot belonged to a Hindu owner. Plaintiff, in each of these suits is in occupation of the relevant plot, application was made to the Deputy Commissioner, Thatta, for allotment of the same by relevant plaintiff, but the matter has lingered on. On the other hand another property was transferred to Niaz Ahmad, prodecessor of the respondents, Nos.3 to 12, through P.T.O. issued under allegedly doubtful circumstances. However, fraudulent entry was made in respect of the plot in ' occupation, in either of these cases, on the basis of the Transfer Order in favour of Niaz Ahmed, even after a decade of such transfer when no such entry could be made, as the Transfer Order did not pertain to the property of the applicants in each of these cases. Declaration was sought in each of the cases that such entry was mala fide, forged and of no legal effect and void. Cancellation of the same was sought. Permanent Injunctions against disturbing the relevant plaintiff from possession were also claimed. The contentions raised for the respondents in these Revision Applications, which have prevailed with the learned two Courts below, are that the matter of transfer cannot be questioned by way of proceedings in a civil suit, that mere possession confers no right arid that the property transferred to tile predecessor, of the private respondents is the same which is disputed in the two Suits. Manifestly, the plaint is to be rejected on the basis of what is stated in the plaint itself and if on averment in the plaint tire suit is barred by law or does not disclose due cause of action or the pliaint is otherwise liable to be rejected undo, Order VII, Rule 11, C.P.C. such recourse can be taken. Whether there is a Final Transfer order in favour of the private respondents pertaining to the same property is a question which, by no means, can be treated to be concluded on the basis of the averments in the plaint. As to possession, whether the consequences of such possession and whether or not it confers any right in the property, which is claimed to be different from that transferred to the predecessor of the private respondents is again a question, which can be decided only when the suits proceed for trial. For the purposes of Order VII, Rule 11, C.P.C. on the lictas in the plaint, it must be presumed that the property of which the plaintiff is in possession in either suit, is different from that which the private respondents claim to have been transferred in favour of predecessor, This must be taken as such for the purpose of Order VII, Rule

11. On evidence the plaintiff may fail in proving the pleas taken by them but that event must await trial It was also faintly urged that the declaration of the kind, claimed in each the suits, could not be granted and, as such, as well either suit was barred. This may or may not be so but clearly, if an erroneous or even unlawful entry was made in the survey record, contrary to the entitlement of the private respondents, cancellation thereof can be ‑sought. Likewise, Permanent Injunction, seeking protection of possession, allegedly, lawfully entered into duly sought to be regularised car, also be claimed. There are residuary prayers also. It is settled law that even if one of the prayers in a plaint is within the scope of law, be that even residuary prayer, the plaint on that score cannot be rejected, for no rejection the plaint can come about in a piece‑meal manner and if rejected, the plaint be rejected only as a whole. In support is cited the opinion of Zahoorul Haq, in this jurisdiction itself in the case of Qazi Bashir Muhammad and others v. 11ar Ali Shah and others (1985 C L C 2883). In that the learned two Courts below have erred in rejecting the plaints material beyond the plaints themselves and on misreading and to some extent, misinterpreting the relevant averments in the plaint, they have exceeded their jurisdiction . Resultantly, the orders of the learned two Courts below are set aside and the matters are remanded for the suits to proceed to trial in the ordinary course. There will be no costs, however, in these Revision Applications. In conclusion, Mr. Abdul Khaliq Humayun for the respondents, requested that definite time frame be provided, within which the two suits should be disposed of by the trial Courts. That is a fair request. Let such suits be disposed of within one year of the date of communication of the orders in these Revision Applications. Order accordingly. AA./M‑1132/K Revision granted.