2002 S C M R 338

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

S.M. SHAM AHMAD ZAIDI though Legal Heirs‑‑‑Petitioner

versus

Malik HASSAN ALI KHAN (MOIN) through Legal Heirs‑‑‑Respondent

Civil Petition No. 81‑K of 2001, decided on 4th October, 2001.

(On appeal from the judgment dated 22‑12‑2000 of High Court of Sindh, Karachi
passed in H.C.A. No.238 of 1999).

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.VII, RAI ‑‑‑Rejection of plaint‑‑‑Material available on record‑‑ Intrinsic value

of‑‑‑Scope‑‑‑Besides averments made in the plaint, other material available on record
which on its own strength was legally sufficient to completely refute the claim of the
plaintiff, could also be looked into for the purpose of rejection of the plaint‑‑‑Not
necessary that other material would be taken as conclusive proof of the facts stated
therein but it actually moderated that other material on its own intrinsic value to be
considered alongwith the averments made in the plaint.

(b) Specific Relief Act (I of 1877)---

‑‑‑‑S.9‑‑‑Civil Procedure Code (V of 1908), O.VII,‑R.11 ‑‑‑ Constitution of Pakistan

(1973), Art. 185(3)‑‑‑Suit for possession of immovable property‑‑ Rejection of
plaint‑‑‑Title of plaintiff was not clear‑‑‑Government gave the suit land to cooperative
society and the latter surrendered the same back to the former‑‑‑Predecessor‑in‑interest
of the petitioners had no independent right and if he had any right, that was through the
Society, and the title ceased to exist before it became perfect and enforceable in
law‑‑‑Plaint was rejected by Single Judge of High Court on the ground that the title of
the plaintiff was not clear and the order was maintained by Division Bench of High
Court‑‑‑Validity‑‑‑Suit for possession could not be filed unless the plaintiff had a clear
title‑‑‑Requirement of law was that incompetent suit should be buried at its
inception‑‑‑Such practice was in the interest of litigating parties and judicial
institutions itself‑‑‑Rejection of plaint would save the time and expenses of the parties
and the Courts could get more time to devote if for the genuine causes‑‑‑Findings of
Single Judge and of Division Bench were based upon material available on record and
no legal infirmity had been pointed out‑‑‑Plaint was rightly rejected by both the
Courts‑‑‑Leave to appeal was refused.

Syed Nasir Hussain Jafri, Advocate Supreme Court for Petitioners.

Muhammad Shafi, Advocate Supreme Court and M.S. Ghaury, Advocate‑on‑Record

for Respondents.

Date of hearing: 4th January, 2001.

JUDGMENT
NAZIM HUSSAIN SIDDIQUI, J.‑‑‑The petitioners, herein have impugned the order,
dated 12‑12‑2000 of a learned Division Bench, High Court of Sindh, Karachi, passed
in H.C.A. No.238 of 1999, whereby the order, dated 6‑7‑1999 passed by a learned
Single Judge, High Court of Sindh rejecting the plaint (Suit No.316 of 1995) of the
petitioners, under Order VII, Rule 11 C&P.C., was maintained.

2. The case of the petitioners, in brief, is that S.M. Shafi Ahmed Zaidi, who was their
predecessor‑in‑interest was a Member of Chief Commissioner Secretariat Employees
Cooperative Housing Society Ltd., Karachi, hereinafter referred to as "the 'society". On
23‑9‑1959, the then Collector Karachi with prior approval dated 16‑2‑1959 of the
Commissioner, Federal Territory, Karachi, allotted an area of 15.5 acres of land to the
society on lease for 99 years in perpetuity i.e. Plot No.570, Garden East, measuring
7.50 acres at Jehangir Quarters, and adjoining plot of 8 acres at Jamshed Quarters,
Karachi. The Society divided the Plot No.570 G.R.E, into several plots, which were
marked as JS2, JS3, JS4, and so on and allotted the same to its members. According to
the petitioners, Plot No.JS2 measuring 1360. Square Yards out of said Survey No.570,
was allotted to the abovenamed predecessor‑in‑interest of the petitioners, as per
allotted letter, dated 2‑11‑1972 and its possession was also handed over to him, who
paid its full price to the Society.

3. The petitioners have claimed t at in the year 1975 a portion of said plot was
encroached upon by some unauthorized persons, but later on the local administration
removed those encroachers and its possession was again handed over to their
predecessor‑in‑interest. Above was done on the order, predecessor‑in‑interest to
maintain status quo and not to raise further construction on said plot.

4. It is alleged that in the year 1984 the respondents Nos. l to 4 herein again
encroached upon said plot and on complaint made to the Minister for Revenue, the
Home Department of Sindh issued directions to remove the encroachments and restore
its possession to its owner vide Letter NO.LU‑11/7‑1‑78‑G(K)1/8751, dated
11‑6‑1984.

5. It is alleged that later on the entire land viz. said Survey No.570, including the plot
of the predecessor‑in‑interest of the petitioner, was declared and notified as Katchi
Abadi by the Director‑General Sindh, Katchi Abadi by Notification
No.SK.AA/NOT/KAR/87, dated 31‑12‑1987.

6. Above Notification was challenged before High Court impleading the respondents
herein in C.P. No.D‑900 of 1999, and by judgment dated 18‑8‑1992 the aforesaid
Notification was declared without lawful authority and this finding was maintained by
this Court as per order, dated 16‑12‑1992, passed in C.P.L.A. No.513‑K of 1992.
Thereafter, according to the petitioners, the respondents filed Suits Nos.844, 935, 936
and 937 in the year 1988 before the Court of Vth Senior Civil Judge, Karachi for
declaration and injunction. Declaration was sought to the effect that their rights were
protected, under MLO 110, and also under Sindh Katchi Abadis Authorities Act and
sought injunction against Deputy Commissioner and others to restrain them from
demolishing their alleged construction on the suit properties and evicting them
therefrom otherwise than in due course of law etc., the petitioners got themselves
impleaded as respondents in above suits, which now are pending for decision before
High Court.

7. The petitioners state that respondent No.1 Malik Hasan Ali Khan (Moin) obtained
lease from KMC on 4‑9‑1998 of the plot in question, which according to them is illegal
and contrary to the various orders passed in these matters.

8. The petitioners, therefore, filed Suit No.316 of 1995 in High Court (Original Civil
Jurisdiction) and prayed for reliefs, amongst others, that the lease dated 4‑9‑1988
granted by KMC in favour of said Hasan Ali Khan (Moin)) in relation to, and affecting
the rights of ownership of the petitioner on Plot JS‑2 of said Survey No.570 is ab
initio; void and of no legal effect. Injunction was also prayed in this regard. '

9. The respondents herein filed an application under Order VII, Rule 11, C.P.C., which
was allowed by learned Single Judge and the plaint was rejected. Above order was
challenged before a learned Division Bench, and the appeal was dismissed by the
order, which has been impugned in this petition.

10. It is contended on behalf of the petitioners that while exercising jurisdiction under
Order VII, Rule 11 the Court has to confine itself to the averments made in the plaint
and it is not supposed to travel beyond the same and also not to consider other
material, the authenticity of which is disputed. Learned counsel also argued that the
case of the petitioners is based on the allotment order of said plot and not only its
entire cost was paid, but even their predecessor‑in‑interest was inducted into
possession. Learned counsel also submitted that High Court seriously erred in law by
placing reliance on an order, dated 8‑4‑1975 passed in C.P. No.585 of 1975,
concerning the Society. Learned counsel also argued that High Court failed to
appreciate the facts in their true perspective and having examined entire facts should
have reached the conclusion that neither KMC nor Government was the owner of said
plot and it exclusively belonged to their predecessor‑in‑interest.

11. As against above, Mr. Muhammad Sharif, learned counsel for the respondent No.1
contended that suit of the petitioners was not maintainable under section 54 of the
Transfer of Property Act and that for that the propose of deciding the application under
Order VII, Rule 11, C.P.C. other material than the contents of the plaint could be
looked into. For this purpose he placed reliance on various cases, which have been
quoted in the impugned order.

12. Having taken into consideration various pleas raised on behalf of the parties,
learned High Court reached the following conclusion:‑‑

"In the instant case when examined shows claim of the appellant is based on a
provisional allotment without identification of piece of land, even permanent allotment
has not been made nor admittedly lease had been executed in his favour. It has come
on record that the Society itself surrendered entire land to the Government of Sindh on
5‑10‑1976 and it was resumed by the Government of Sindh on 29‑10‑1975 and same
was handed over to KMC as recorded in C.F. No.588 of 1975. Secondly that, the PT(I)
issued in his favour was cancelled by the Excise and Taxation Officer on 25‑6‑1988
which order was maintained by the Appellate Authority vide order, dated 26‑11‑1988
to which no exception was taken by the appellant Despite challenge to his title and
right to property the appellant has, chosen not to seek a declaration as to his right or
title in the property. Under the circumstances it was rightly held by the learned Single
Judge that the provisional allotment which was subject to the final allotment and lease
does not confer any right or title in the property which society itself had surrendered to
the Government of Sindh, as the Society itself was bereft of any right or title. No title
could possibly pass on to the appellant by it. "

13. With the assistance of learned counsel for the parties, we have examined the record
of this case.

14. Besides, averments made in the plaint other material available on record which on
its own strength is legally sufficient to completely refute the claim of the plaintiff, can
also be looked into for the purpose of rejection of the plaint. It does not necessarily
mean that the other material shall be taken as conclusive proof of the facts stated
therein, but it actually moderates that other material on its own intrinsic value be
considered alongwith the averments made in the plaint.
15 The judgment delivered in C.P. No.585 of 1975 is enough for non suiting the
petitioners. According to this judgment, Hafiz Syed Muhammad Ishaq, the then
Chairman of Society, surrendered the portion of land granted to Society situated on
Plot No.570, to the Government and requested for equal land elsewhere alternatively.
On the basis of statement of the Chairman of the Society, the Government cancelled 8
acres of Plot No.570 and 7.7 acres on Jamshed Quarter of the Society and allowed it 13
plots measuring 260 sq. yard each and one plot of 280 sq. yards, which were in
possession of its members. Thus, it is evident that the plot in question was surrendered
by the Society and was handed over to the Government. The above order also
unequivocally postulated that the Government had withdrawn order made during 1956
regarding resumption of Plot No.570 from KMC and further ordered for its re‑handing
over to KMC for its regularisation in favour of occupants All along the petitioners
claimed the title of the plot on the basis of alleged allotment in favour of their
predecessor‑in‑interest when the society delivered back the land in question to the
Government the said allotment order lost its sanctity, if any, and no longer any
proceedings could be initiated on its strength.

16. From Government the land had gone to KMC and to various persons, who now
claim their title over it on the basis of their possession. Learned counsel for the
petitioners before us conceded that since 1986 the petitioners were not in possession of
said plot. Mr. Muhammad Sharif learned counsel for the respondent No.1 on this point
submitted that in fact never possession was delivered to the predecessor‑in‑interest of
petitioners and no reliable evidence was available on record to substantiate this plea.

17. Provisional transfer order does not, ipso facto, confer absolute title over the
property. Admittedly, this case is not governed by section 9 of the Special Relief Act.
Without clear title the suit for possession could not be filed. The Government gave the
land to the Society and the latter surrendered it back to the former. The
predecessor‑in‑interest of the petitioners had no independent right. His right, if any,
was through the Society, and it ceased to exist before it became perfect and enforceable
in law. It is the requirement of law that incompetent suit shall be buried at its inception.
It is in the interest of the litigating parties and the judicial institution itself. The parties
are saved with their time and unnecessary expenses and the Courts get more time to
devote it for the genuine causes. The findings of learned Single Judge and of Division
Bench are based upon material available on record and no legal infirmity has been
pointed out. Under the circumstances, the plaint was rightly rejected.

18. In consequence, leave to appeal is refused and the petition is dismissed.

Q.M.H./M.A.K./S‑142/5 Petition dismissed.

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