1. ARSHAD NOOR KHAN, J.--- The plaintiff has filed the present suit for declaration and permanent injunction, stating therein that the plaintiff is the President of Welfare Association known as Shah Nawaz Khan Shar Baloch Goth Residence Welfare Society, Karachi, registered properly vide Registration No,1542. The said Goth is situated on piece of land bearing Survey No,1 of Deh Songal Tappo Gojro, vide Scheme No,33, Sector 24-A, Gulshan-e-Iqbal, Karachi. The said land is in use and occupation of the plaintiff and other residents of the area who have built their houses on it. The Goth is consisting upon 600 houses excluding Mosque, Madressa and Graveyard and residence of the villagers have been constructed besides the school and other educational institutions. The said Goth is existing since last 30 years and the residents of that Goth are residing there in their individual capacity as well as through the Welfare Association. They through their Welfare Association had approached to the defendants for regularization of their said Goth for getting their rights of occupancy guaranteed in their favour. It is further stated in the plaint that the defendants are under obligation to issue Sanad under Goth Abad Scheme to them including the Goth in Katchi Abadies as announced by the Government, as such, the said Goth falls within the ambit of Katchi Abadi. It is further stated in the plaint that the defendants as well as other land grabbers so many times tried to dispossess the plaintiff as well as other residents of the Goth without otherwise than due course of law, therefore, they have also lodged the F.I.R. Under section 188, P.P.C. It is further stated in the plaint that the plaintiff had also approached to the Minister, 'Local Government Authorities as well as Chief Minister for regularization of their Goth but without any fruit. The plaintiff has, therefore, filed the present suit with the following prayer:--
(a) To declare that the plaintiff as well as other residents along with their families of the plaint are in possession of their houses which are situated in said Goth, they are legally and lawfully entitled to be regularized of the said land like many other Goths in Karachi by the defendants under the name of Shah Nawaz Khan Shar Goth.
(b) To direct the defendant No,5 to enlist the said Shah Nawaz Khan Shar Goth in the list of villages which are declared under the Katchi Abadies.
(c) To direct the defendants Nos.1 to 4 and other any competent officer under the control of defendant No,1 to issue Sanad or allotment in favour of the plaintiff as well as other residents of the said Goth.
(d) To restrain the defendant by granting permanent/temporary injunction not to dispossess the plaintiff as well as other residents of the Goth by force without due course of law and also restrain them not to interfere with the peaceful possession of the plaintiff and other residents of the plots without due course of law and not to interfere in their peaceful possession.
(e) Cost of the suit.
(f) Any other relief and relief(s) as deemed fit and proper under the circumstances.
2. The defendants were served and have also filed written statement which is available on record.
3. Though the legality and validity of the written statements is under cloud, however, vide order of this Court, dated 27-2-2006 the plaintiff was directed to argue the matter on the point of maintainability of the suit. The order passed by this Court is reproduced hereinbelow in extenso for the purpose of convenience:- "Mr. Manzoor Ahmed has filed a statement on behalf of defendants Nos.2 and 3 adopting the written statement of defendant No,4. Such statement is taken on record. The record shows that defendant No,4 was debarred from filing written statement on 14-12-2004. Mr. Manzoor Ahmed states that written statement of defendant No,4 is available on his file. Mr. Pirzada states that he is going to take steps having the written statement of defendant No,4 filed on the record. He further states that the written statement of defendant No,4 will be adopted by defendants Nos.1 and 5 also.
4. At the same time he states that the plaintiff has no cause of action nor any legal right in respect of the land in question and the suit is not maintainable while the defendant's counsel are allowed to take steps for bringing on record the written statement, office is directed to fix the matter for hearing of the arguments on the point of maintainability of the suit on the next date."
5. After passing the aforesaid order, the learned counsel for the plaintiff did not argue the matter despite several opportunities afforded to them including last chance. Today also, he has not appeared since morning, therefore, I propose to hear Mr. Tahawwar Ali Khan, Advocate for the defendants and with the assistance of the learned counsel for the defendants I have gone through the contents of the plaint. From the Perusal of contents of the plaint, it reveals that the plaintiff possess no legal character to maintain the present suit, as under section 42 of the Specific Relief Act, the plaintiff is required to establish his legal character to maintain the suit for declaration and injunction. Admittedly, the land in possession of the plaintiff and other residents of the said village falls within the domain of Government as such admittedly, the Government is the owner of the property in possession of the plaintiff.
6. The plaintiff has impliedly claimed the possession over the Government land to be adverse possession as according to him the plaintiff and other residents of Goth are residing there since more than .Thirty years, which shows that the plaintiff has attempted to raise plea of adverse possession over the Government land. The rule of adverse possession is based on the principle of "Might is Right". The use of might or force results in usurpation, ravishing, rapacity and destruction. The concept of adverse possession is obviously adverse to the principle of justice, equity and good conscience. It, therefore, shows that the plea of adverse possession, is a plea which is raised to deprive of a legitimate owner of the property from his lawful right over his property. The term "adverse possession" is nowhere defined in any other law for the time being enforced, except under section 28 and Article 144 of the Limitation Act. The said term "adverse possession" has been examined by the Federal Shariat Court in the case of Maqbool Ahmed v.
7. Government of Pakistan reported in 1991 SCM R 2063 and after consideration of scope of section 28 of Limitation Act, with reference to the claim of adverse possession, the learned Shariat Bench was pleased to declare section 28 of Limitation Act repugnant to the Injunctions of Islam as such section 28 of the Limitation Act has been struck down by the Shariat Bench with direction to the Government to struck down section 28 from the Statute by a target date viz. 31-8-1991 and after the said target date the operation of section 28 (ibid), shall cease to have effect. In pursuance of the direction of the learned Shariat Bench, the Government struck down section 28 and Article 144 of Limitation Act by way of an Act II of 1995 as such after the target date fixed by the Honourable Shariat Court viz. 31-8-1991 and promulgation of Act II of 1995, the provision of section 28 and Article 144 of Limitation Act have been omitted from the Limitation Act as such the said plea of adverse possession is no more the part of statute and is also not available to the plaintiff to claim their possession hostile and adverse to the Government so as to protect their rights. The said proposition also came for consideration before the Lahore High Court in the case of Muhammad Aslam v. Malik Muhammad Sarfraz reported in 1996 M LD 1216 and it was observed that provisions of section 28 of Limitation Act after ceasing to have effect, a decree on the plea of adverse possession could not be passed. The observation made in the aforesaid case of Muhammad Aslam (supra), is usefully quoted hereinbelow, for the sake of convenience:-- "Section 28 and Article 144 of the Limitation Act were declared to be repugnant to the Injunctions of Islam. Rule of acquisition of ownership title through adverse possession was resultantly struck down, as being no longer the law of the land. It is to be borne in mind that the Civil Court had awarded the disputed decree in favour of Malik Sarfraz Khan on 22-12-1991. The Supreme Court had fixed 31-8-1991 as the terminus a quo, with a command to the Government to amend the law accordingly, failing which the aforesaid provision of Limitation Act would become invalid and ineffective. This Court, in exercise of its writ jurisdiction can straightaway declare the decree to be void and inoperative, but there may be other grounds, having been invoked by the judgment- debtors and others, in assailing the decree, and the matter should better be adjudicated upon by the Civil Court concerned."
8. In the case of Zainab Bibi v. Muhammad Sharif reported in 2004 YLR 1395, the learned Division Bench of Lahore High Court was also pleased to observe that after declaration of section 28 of Limitation Act repugnant to the Injunctions of Islam by the Honourable Supreme Court of Pakistan, the same ceased to have effect as such it is by now well-settled principle of law that no decree could be passed on the ground of adverse possession after the target date viz. 31-8-1991 fixed by the Honourable Shariat Court and promulgation of Act II of 1995. In view of aforesaid legal proposition, I am of the considered opinion that implied plea raised by the plaintiff to have a decree on the basis of adverse possession is no more available to the plaintiff to protect their illegal and hostile possession over the Government land.
9. The plaintiff also admitted in his plaint that the land falls within the ambit of Katchi Abadi and for the purpose of regularization of the Katchi Abadi, the procedure envisaged in Sindh Katchi Abadi Act, 1987 and The Sindh Katchi Abadis Authority (Regularisation, Improvement and Development)
10. Regulations, 1993 are to be followed by the Katchi Abadis Authorities and without following the procedure contained in the Katchi Abadi Act, a Katchi Abadi could not be legally regularized by the Government. The prayer made by the plaintiff in his plaint seems to be completely against the section 42 of the Specific Relief Act and without any lawful status or character over the property in dispute. His claim, therefore, could not be acceded or decreed.
11. The contents of the plaint also show that the suit has been filed in the capacity of representative suit but the requirements of representative suit as envisaged under Order I, rule 8, C.P.C. Have also not been fulfilled by the plaintiff which seems to be an inherent defect in the suit.
12. For all the aforesaid reasons and circumstances, I find that the suit filed by the plaintiff is not maintainable and the same is hereby rejected under Order VII, rule 11, C.P.C. With no order as to costs.