' ALI SAIN DINO METLO, J.- The plaintiffs have filed this suit for demarcation, possession and permanent injunction. Their case is that in the year 1992 plaintiff No, 1 obtained five Acres of land is Sector 17-B of KDA's scheme No,33, from the Government of Sindh, on lease for 99 years, at the rate of Rs,100 per square yard, in relaxation of general ban on the disposal of State land as well as the condition of open auction, and sold it to plaintiff No,2 at the rate of Rs,400 per Square Yard.
However, according to them, defendants 7(a) to (f) and several others persons had unlawfully occupied a very big area of State land in Sector 17-B, which included the land granted to the plaintiff No,l. They have further contended that in spite of their depositing entire amount of lease money i.e, Rs,2,420,000, the Government of Sindh and its functionaries, including defendant No, 6, were not prepared to demarcate the land and on the contrary an area of three acres in the same sector was subsequently granted, to the defendant No,8 in 1995, though, according to them, no excess area was available for such grant. They have, therefore, prayed for directing the defendant No,6 to demarcate the land granted to the plaintiff No,l and to put them in possession thereof by ejecting defendants Nos. 7(a) to (f) or any other person found in possession. They have also prayed for permanent injunction to restrain defendants Nos. 1 to 5 from issuing agreement of lease and possession order in favour of defendant No, 8.
2. While making the above prayers on the basis of lease in favour of the plaintiff No,l, they have also pleaded that defendants 7(a) to (f) and some other villagers, had attempted to get their unauthorized occupations regularized by filing a constitutional petition bearing No,CPD-1088 of 1994 against the Government and some other persons which was ultimately withdrawn on 6-12- 1995 on the ground that they wanted first to approach the concerned authorities for the regularization of the village. The plaint also mentions that thereafter they had filed a Civil Suit bearing No, 126 of 1996 and obtained an order of status quo on 15-12-1996 so as to avert an anti- encroachment drive started by the Government. The suit was ultimately dismissed for non- prosecution on 16-10-2003.
3. In their written statements separately filed one by defendant 3 and adopted by defendants 1, 2, 4, 5 and 6, other by defendants. 7(a) to (f) and the third by defendants No,8-maintainability of the suit as well as entitlement of the plaintiffs have been challenged on various grounds including the illegality and invalidity of the lease in favour of the plaintiff No,l. It has been further contended that the land granted to the defendant No,8 was a different piece of land and the plaintiffs had nothing to do with it and that the land in occupation of defendants 7(a) to (f) belonged to an old village and could not be granted to the plaintiff No, 1.
4. The following issues, proposed by plaintiffs' counsel, were adopted by the Court: ~
(1) Whether the suit is barred by limitation?
(2) Whether the suit is bad for joinder of causes of action?
(f) Whether the defendants Nos.7(a) to along with other encroachers have illegally and malafidely encroached upon and are trying to get regularised their illegal possession on the suit-land? If so, to what effect?
(3) Whether the plaintiffs are entitled to the demarcation of suit-land by the defendant No,6(5) in terms of possession order dated 20-9-1992 issued by Deputy Commissioner, Karachi (East)?
(4) Whether the plaintiffs are entitled to possession of five acres of suit- land being situated in Sector 17-B Scheme No, 33, Karachi from defendants Nos.7(a) to (f)?
(5) Whether the plaintiffs are entitled to the grant of permanent injunction as prayed for against defendant No,8?
(6) What should the decree be?
5. From the side of the plaintiffs only one witness, namely, Muhammad Haroon, attorney of plaintiff No, 1, was examined. He produced copy of letter dated 15-12-1991 of the Secretary, Land Utilization Department of the Government of Sindh addressed to the Deputy Commissioner, Karachi (East) intimating him that the Government of Sindh, with the prior approval of the Chief Minister, had been pleased to lease out five acres of land in. Sector 17-B of Scheme No, 33, to the plaintiff No,l for 99 years at the rate of Rs,100 per square yard for residential-cum- commercial purposes in relaxation of Condition No, 14 of the Statement of Conditions of 1975 (which is for the disposal of land by open auction) as well as the then existing ban. He also produced copies of the paid up challans under which the lease money was paid to the Government, possession letter, copy of entry regarding lease in favour of the plaintiff No, 1 made in the Revenue Register-II of Deh Songal, agreement of sale made by the plaintiff No, 1 in favour of the plaintiff No,2, receipts issued by the plaintiff No,l regarding receiving price from the plaintiff No,2, and copies of orders regarding withdrawal of CPD- 1088/94 and dismissal of Suit No, 126 of 1996 for non-prosecution. No evidence was produced from the side of the defendants, and nobody from their side appeared to argue, except Mr. Muhammad Qasim Mir Jat, A.A.-G.
6. The material issues involved in the suit are Issues Nos.4, 5 and 6 and, therefore they are taken up first for discussion. As they are closely connected and evidence about them is common, they are discussed together.
7. Issues Nos. 4, 5 and 6.-The entire claim of the plaintiffs is based upon the lease of land made by the Government in favour of plaintiff No,
1. All the three prayers for demarcation, possession, and permanent injunction claimed in the suit depend upon the validity of the lease. On the face of it, the grant of lease in favour of the plaintiff No, 1 is an illegal and corrupt act. There was general ban on the disposal of State land in Sindh. No reason has been disclosed for lifting the ban for the plaintiff No,l. He was neither hit by any calamity nor the land was granted to him for shelter purpose. Indeed, five acres of land in an urban area of city like Karachi is far more than a mere shelter for one person. The huge area was leased out to him both for residential as well as commercial purposes at throw away price for making money and not for any public welfare.
8. According to the Statement of Conditions for the disposal of State land issued on 13th May, 1975 under section 10(2) of the Colonization of Government Lands Act, 1912, which owing to statutory sanction, have the force of law, as well as according to the Sindh Disposal of Plots Ordinance, 1980, lease of State land within urban areas in the Province was to be made by open auction and that too after making appropriate plotting. No reason has been assigned for leasing out such a huge unspecified area without demarcation to the plaintiff secretly at a very low price of Rs,2,420,000.
Before execution of lease agreement in his favour and as a matter of fact before making any payment by him, the plaintiff No,l sold the land to the plaintiff No,2 for Rs,9,680,000 on first March, 1992 i.e, within three months of the issuance of allotment letter. The entire lease money amounting to Rs,2,420,000 was deposited by the plaintiff No,2 and the plaintiff No,l had simply sold the letter of allotment for Rs,7,260,000. This is clear from the agreement of sale between the plaintiff No,l and the plaintiff No,2 and other Annexures of the plaint.' It was undoubtedly an unlawful benefit and favour to the plaintiff No,l at the cost of colossal loss to public revenue caused by the government functionaries by brazen misuse of public power. It is a clear case of corruption and corrupt practice.
9. We are a civilized society, governed by laws and not by men. Our Constitution and other laws provide a very good system of checks and balances. The country or for that matter a Province is not fiefdom of any person howsoever high he may be. Everybody is under the law. Nobody is above it. Indeed, all public power is a trust and has to be exercised fairly, honestly and in the interest of public.
10. As mentioned above, a big area of five acres without demarcation was granted to the plaintiff No,l at throw away price in utter violation of law only for the purpose of making unlawful gain. It was clearly an illegitimate act incapable of conferring title or any right. The Court cannot legitimatize it on any principle. There is also no justification or reason for condoning the illegality.
11. The so-called lease in favour of the plaintiff No,l, which even otherwise, in view of the above discussion, did not confer title or any right upon him, also stood cancelled by section 3 of the Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000. The plaintiffs have not challenged such cancellation. According to Mr. Khalil-ur-Rehman, learned counsel for the plaintiffs, they have not challenged the cancellation because they were trying to get the lease regularized by making payment of differential amount. However, according to Mr. Muhammad Qasim Mir Jat, learned Additional Advocate General, the land which pertained to an old village and in occupation of the villagers was not likely to be regularized in the name of the plaintiff No,l. Be that as it may, the event which has not taken place cannot be taken into consideration. The request of Mr. Khalil-ur-Rehman for decreeing the suit subject to acquisition of title by the plaintiffs is also not tenable. There is no provisions logical p or legal for passing such conditional decrees. A decree can be passed on the basis of existing rights of the parties and not on the basis of future rights which they may or may not acquire.
12. In view of the facts and circumstances of the case discussed above, it is clear that the plaintiffs, having not acquired any right or title to the property in suit, are not entitled to its possession or get it demarcated. For the same reason, they are also not entitled for injunction against the defendant No,8, notwithstanding the fact that he has also obtained lease in the same illegal manner. A party has to succeed on the strength of its own case and not on the basis of weakness of defence. Where both the parties are equally at fault, it is the plaintiff who shall suffer.
13. Issue No,l.-As regards the period of limitation for filing the suit, it may be mentioned that the plaintiffs, claiming possession on the basis of possession letter dated 20-9-1992, have alleged their dispossession and according to Article 142 of the First Schedule to the Limitation Act, 1908, a suit for possession can be filed within 12 years of dispossession. In such circumstances, the suit which was filed within four years of the possession letter cannot be said to be time-barred, notwithstanding its failure on merits. The issue is, therefore, answered in negative.
14. Issue No,2.- The entire case of the plaintiffs and all the relief claimed by them are based upon the lease granted to the plaintiff No,l. Thus, there is no multifariousness and the suit cannot be said to be bad for misjoinder of causes of action. Accordingly, the issue is answered in negative.
15. Issue No,3.-This issue is unnecessary and any finding on it will have no bearing on the result of the suit. As stated above a party has to succeed on the strength of its own case and not on the weakness of the defence. Even an affirmative finding on the issue will not bring success to the plaintiffs and will simply create complications and multiplication of litigation by forcing defendants 7(a) to (f) and other persons not party to the suit to tile appeals against such finding. In such circumstances, the proper course will be to leave the issue undecided being unnecessary.
16. Issue No,7.-In view of he above discussion and findings on Issues Nos. 4, 5 and 6, the suit is dismissed. However, in J the circumstances on the case, the parties shall bear their own costs.
17. Before parting with the judgment, it may be observed that in the event of acquisition of valid title by the plaintiffs, hey shall be at liberty to file fresh suit.