1. ' NADEEM AZHAR SIDDIQI, J.- The office has raised objection that the suit is hit by Article 120 of the Limitation Act. The other objection is that the suit is not maintainable under sections 42, 54 and 56 of the Specific Relief Act.
2. ' Learned counsel for the plaintiff states that since the encroachment on the adjacent plot is prejudicial to the interest of the plaintiff, which is a continuance wrong and Article 120 of the Limitation Act will not apply. Regarding second objection the learned counsel submits that the provisions of section 42 of the Specific Relief Act is not exhaustive and for seeking any declaration it is not necessary that the plaintiff should possess the title of the suit property.
3. ' Learned counsel for defendant No,l submits that the plaintiff has no right in the adjacent plot and cannot claim the allotment as a matter of right. He then submits that in view of the rules of defendant No,l the plots can -only be transferred by way of public auction and the plaintiff is also at liberty to participate in the said auction as and when the same was put to auction after removal of the encroachment. He then submits that the plot transferred to the plaintiff is in his possession and it has constructed a building and is peacefully running the school. He further submits that the plot of the plaintiff is facing Main Rasheed Turabi Road and is not affected by .Any encroachment.
4. ' The officer of defendant No,l who is present in Court states that out of the two plots claimed by the plaintiff for allotment one has already been allotted to Maqbool-e- Aam Educational Society in 1972 and inspite of their best efforts as well as the efforts of the allottee the possession could not be taken over from the encroachers. He then referred to the Nazir's report and submits that on the date of inspection more than 50/60 persons have hindered into inspection and did not allow the Nazir to complete the inspection. He then submits that in past also efforts were made for removal of the encroachment but the authorities could not succeed due to creation of law and order situation in the area. He then submits that as and when the City District Government Karachi will be able to remove the encroachment they will do the needful and will put the plot for public auction and the plaintiff if interested can participate into the auction. He, however, showed his inability to give specific time for removal of encroachment.
5. ' Mr. Shahenshah Hussain, learned counsel for the plaintiff, states that presently the plaintiff is not pressing for allotment of the plot but the removal of the encroachment from the adjacent plots. He submits that since the encroachment is hindering the plaintiff in enjoyment of its lawful acquired property the plaintiff has every right to ask the defendant No,l to remove the encroachment and to that extent the suit is maintainable and cannot be attacked under section 42 of the Specific Relief Act.
6. ' I have perused the contents of the plaint and the prayer clause. There is not cavil with the proposition that a suit for declaration can be filed in respect of right to any property and it is not necessary that the plaintiff possess title of the same. The removal of the encroachment is the obligation and public duty of the defendants and the plaintiff can ask the defendants to discharge their public duties by filing suit. The relief which has not been claimed can be given to the plaintiff by molding the relief which is available to the plaintiff under the circumstances of the case.
7. ' In the report case of Abdul Razzak Khamosh v. Abbas Ali and others (PLD 2004 Karachi 269) a learned Division Bench of this Court has held that section 42 of the Specific Relief Act does not require existence of title in favour of the plaintiff but a declaration with respect to any right as to any property could be sought. In the same case it was further held that it could not, therefore, be urged that unless the title has been perfected the suit could not have been filed. In the other reported case of Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd. (1991 MLD 284) it has been held that it is not requirement of section 42 of the Specific Relief Act that declaration in respect of right to any property can be sought only if the party seeking declaration is owner of the same.
8. ' Mr. Shahenshah Hussain, learned counsel for the plaintiff, submits that the Court can mould the relief keeping in view the circumstances of the case and requests that the defendants may be directed to remove the encroachment and to put the remaining plot for auction.
9. ' Learned counsel for the plaintiff states that the plaintiff will be satisfied if the defendant No,l is directed to make efforts for removal of the encroachment from the adjoining area of the plot of plaintiff and will not allot the plot to anyone without public auction and will > allow the plaintiff to participate into the said auction proceeding.
10. ' Mr. Manzoor Ahmed has no objection for disposal of the suit in the terms suggested by the learned counsel for the plaintiff and requests that no time frame for removal of encroachment may be fixed.
11. ' The office objections are overruled. The office to register the suit and assign number to it.
12. ' In view of the above, the suit is disposed of along with the pending application with the direction to the concerned officers of City District Government Karachi to make all possible efforts for removal of the encroachment from the adjoining area of the plot of plaintiff and after removal of the encroachment the said plot will not be allotted to any one and be put to public auction and the plaintiff is at liberty to participate into the said auction.