2003 PLP 334 (MLD)

ABDUL SHAKOOR PARACHA, J.‑‑‑This appeal impugns the judgment and decree, dated 4‑5‑1991 passed by the Civil Judge, Lahore, whereby the application under Order. VII, rule 11, C.P.C. filed by Muhammad Alamgir etc., respondents herein for rejection of the plaint was accepted and the plaint of the suit filed by the appellant Ghulam Mustafa was rejected.

2. The dispute relates to the area of 1.75 Marlas of the property known as 138 Anarkali, Lahore, being part of 19 Marlas containing Chilla, Hazrat Mian Mir Sahib, Masjid, graves, shops and houses hearing Property No.138 situated in Anarkali, Lahore, owned by the respondents Alamgir etc., was taken under the control and management of the Auqaf Department under section 6 of the West Pakistan Waqf Properties Ordinance, 1961, vide Notification No.3(536) Auqaf‑60 dated 18‑4‑1961, issued by the Chief Administrative of Auqaf. The respondents challenged the above said Notification by filing petition under section 7 of the Ordinance (ibid) before the learned District Judge Lahore. The case of the respondents was that no property in dispute was in Waqf and that they and their ancestor held it as owners thereof. The said petition was resisted by Auqaf Department. The petition filed by the respondent was accepted by the learned District Judge maintaining that the property in dispute was not covered by the definition of the term "Waqf property" as embodied in section 2(d) of the Ordinance. Appeal No.99 of 1970 of the Waqf Department was dismissed by the High Court on 8‑7‑1980. On the basis of above‑stated judgment, the respondents filed ejectment petition against the occupants/tenants and succeeded up to the High Court and in consequence thereof, took possession of the property.

3. Ghulam Mustafa appellant filed suit for possession and permanent injunction against the respondents Muhammad Alamgir etc., on 13‑10‑1984. In the plaint, it was asserted that the appellant purchased the shop under the name and style of M/s. English Tailors and M/s. Lahore Sports covering the area of 1.75 Marlas of the property known as 138‑Anarkali, Lahore, through sale‑deed dated 10‑7‑1982 registered with the Sub‑Registrar, Lahore City vide document No.8340, Volume No.1181, dated 13‑7‑1982 in consideration of Rs.2,03,000 and in consequence of the sale‑deed, the appellant is the owner of the suit property. It is further alleged that the ejectment order was obtained by the respondents without impleading the appellant as party.

4. During the pendency of the suit, the respondents moved an application under Order VII, rule 11, C.P.C. for the rejection of the plaint on the ground that title of the property has been decided by the Hon'ble Supreme Court, thus the same cannot now be assailed on the basis of absolute void and illegal document, which can be ignored and the suit is thus, barred by law; in any case, as the suit has been filed on the basis of the sale‑deed, which is void ab initio and there is no cause of action in favour of the plaintiff. The appellant in the written reply asserted that another suit title Akbar Ali v. Muhammad Alamgir is pending adjudication in the Civil Court and the possession has been obtained through fraud and misrepresentation.

5. The learned Civil Judge on the basis of the averments in the plaint and the sale‑deed dated 10‑7‑1982 relied by the appellant observed that the respondents/defendants had been declared as owners of the Property No. 138 Anarkali, Lahore as reported in case of The Chief Administrator, Auqaf, West Pakistan, Lahore v. Sh. Muhammad Jahangir and another (1981 CLC 886). How the alleged sale‑deed, dated 10‑7‑1.982 came into existence? The respondents/plaintiffs have not disclosed in the plaint the name of the vendor, but it may be said that the said vendor sold something, which did not belong to him. Consequently, the learned Civil Judge proceeded to accept the application under Order VII, rule 11, C.P.C. filed by the respondents/plaintiffs aria rejected the plaint vide his order dated 4‑5‑1991.

6. Before us, the learned counsel for the appellant has contended that in accordance with the established law, averments of the plaint alone determine the applicability of Order VII, rule 11, C.P.C. Further contends that the pleas and documents An support of the defence can only be considered after parties had an opportunity, to produce evidence; the registered sale‑deed in favour of the appellant prima facie disclosed title in favour of the appellant and, therefore, the suit of the appellant could not be summarily thrown away.

7. Conversely, the learned counsel for the respondents has argued 'fiat the appellant had no cause of action to file the suit on the basis of sale‑deed dated 10‑7‑1982, as the title of the respondents qua the property No. 138‑Anarkali, Lahore was decided finally by the Hon'ble Supreme Court of Pakistan. It is further argued that alleged sale‑deed dated 10‑7‑1982 does not show the name of the vendor and, therefore, the appellant/plaintiff had no cause of action to file the suit on the basis of sale‑deed.

8. It is admitted position on the record that the land measuring 19 Marlas containing Chilla Hazrat Mian Mir Sahib, Masjid, graves, shops and houses bearing No. 138 situated in Anarkali, Lahore was declared under section 6 of the West Pakistan Waqf Properties Ordinance, 1961, under the administrative control and management of the Auqaf Department and the application under section 7 of the Ordinance, filed by the respondents was accepted by the learned District Judge. Appeal filed by the Auqaf Department was dismissed. It is also admitted fact that ejectment order was passed against the occupants of the property bearing No.138 situated in Anarkali, Lahore. We have noted that the name of the, vendor of the sale‑deed dated 10‑7‑1982 on the basis of which, the appellant has filed the suit for possession, has not been mentioned in the deed itself. The learned Civil Judge was right in observing that how the alleged sale‑deed dated 10‑7‑1982, came into existence. We have noted that the property in dispute has been sold by one Muhammad Iqbal Ansari son of Muhammad Ismail in favour of Ghulam Mustafa appellant. The said vendor Muhammad Iqbal Ansari son of Muhammad Ismail himself had no title in the property, therefore, he had no right to sell the same in favour of the appellant. The objection of he appellant that another suit titled Akbar Ali v. Muhammad Alamgir is pending, is not well‑founded, because the learned Civil Judge refused to reject the plaint of the above said suit and the matter came in Civil Revision No.443 of 1987 before the High Court. The civil revision was accepted on 30‑1‑2002 and the plaint of the suit titled Akbar Ali Muhammad Alamgir was rejected under Order VII, rule 11, C.P.C.

9. The learned Civil Judge rightly accepted the application under Order VII, rule 11, C.P.C. filed by the respondents. No exception can be taken to the judgment and decree dated 4‑5‑1991 of the learned Civil Judge accepting the application filed by the respondents and rejecting the plaint under Order VII, rule 11, C.P.C. Resultantly, this appeal fails and is dismissed with costs. H.B.T./G‑224/L Appeal dismissed.