'ARSHAD NOOR KHAN, J.---By C.M.A. No, 6234/06 under Order VII, Rule 11, C.P.C. The defendant No,1 seeks rejection of the plaint on the ground that the suit filed by the plaintiff is barred by the law of limitation as well as under section 4 of Sindh Katchi Abadis Act, 1987.
2. The facts giving rise to the filing of the present application, in brief, are that the plaintiff filed suit for declaration, permanent injunction, possession, mesne profits and damages against the defendants stating therein that the plaintiff trust is the owner of plot No,29/6. Firdous Cooperative Housing Society, admeasuring 987 sq. Yards out of which 575 sq. Yards is residential and 412 sq.
Yards is commercial area which is located on the main road within the area of Gulbahar Karachi, which was leased out to the plaintiff by Firdous Co-operative Housing Society vide Indenture of Form 'A' dated 17-7-1969. The said plot remained vacant for a considerable time and on 8-8-1996 the plaintiff served a notice on the Firdous Cooperative Housing Society requesting therein to arrange the lease of the said plot between the Government of Pakistan and the plaintiff and the Society by its reply dated 24-12-1996 intimated that the Society was ready to help him in all respects provided the building is constructed thereon after approval of the building plan from the concerned authorities with no objection of the Society. The plaintiff also found the defendant No,1 in possession of 412 sq. Yards area of the aforesaid plot duly encroached by defendant No,1 which is commercial portion of the plot facing on the road side where he was carrying on business. The plaintiff asked him to vacate the said portion of the plot and to pay Rs,500 per day as mesne profits for the last three years from the date of the said notice till handing over of possession of the said plot to him, whereupon the defendant No,1 through his counsel sent a reply claiming the ownership of the plot in question which reply was refuted by the plaintiff by serving on him another notice dated 14-5-1999. It is further stated in the plaint that in the year 1999 the plaintiff on his visit to the aforesaid plot found that defendant No,1 has encroached much area of his plot than 412 sq.
Yards which was already in his possession for which he has no right or title to possess the said plot, as such he is only an encroacher and is liable to pay mesne profits. It is further stated in the plaint that defendant No,1 instigated the defendant No,2 to file C.P. No, D-772/2004 in the High Court wherein the plaintiff filed application under Order I Rule 10, C.P.C. To implead him as a party. The said petition was withdrawn on 15-7-2004, as some distorted facts were stated by defendant No,2 in his petition. It is further stated in the plaint that the plot in dispute was originally allotted to one Azizur Rehman Alvi, the father of defendant No,2 in terms of a compromise in Suit No,8 of 1964 and subsequently the said Azizur Rahman surrendered the sub-license in favour of the plaintiff which was also followed by a Deed of Rectification dated 18-4-1970. It is further stated in the plaint that the cause of action to file the present suit against defendant No, 1 accrued in April, 1999 when a legal notice was served on him wherein he was asked to handover the possession of the said plot to the plaintiff.
3. The defendants have been served with the notice of the suit. The defendant No,2 filed written statement, inter alia, admitting the claim of the plaintiff and prayed to decree the suit as prayed.
4. The defendant No,1 has filed written statement denying the claim of the plaintiff and has also filed the present application for rejection of the plaint. The plaintiff has been served with the notice of this application but he did not file objections to this application.
5. Today the plaintiff and his counsel called absent since morning though on 11-8-2008 when the case was fixed before this Court, on the request of the plaintiff it was adjourned, however, it was clarified that the matter is being adjourned as a last chance and that no further adjournment shall be allowed on the next date of hearing. Despite such clear direction, the plaintiff and his counsel called absent since morning as such after interval the matter has again been called but the plaintiff and his counsel are called absent. No intimation has been received on their behalf, as such on the insistence of the counsel for defendant No,1 I have heard him on this application.
6. The learned counsel vehemently contended that the suit filed by the plaintiff is barred by the provisions of Limitation Act as by virtue of Article 120 of the Limitation Act, a declaration may be sought within six years from the date of alleged act and the suit is also barred under section 4 of the Sindh Katchi Abadis Act, 1987 as the Government has declared the whole area wherein the plot in question is situated as Katchi Abadi. He further contended that at the time of consideration of the application under Order VII Rule 11, C.P.C. The Court can take into consideration the allied material as well as written statement for decision of the application under Order VII Rule 11, C.P.C. In support of his contention he has relied upon the cases reported as S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan (Moin) (2002 SCMR 338), Ume Aiman and 43 others v. Muhammad Yousuf and 10 others (2002 CLC 1620), Messrs Mateen Corporation v. Messrs Plasticrafters (Pvt.) Limited (PLD 2006 Karachi 621), Messrs Sign Source v. Messrs Road Trip Advertisers and another (2005 CLC 1982) and Abdul Zahir v. Mir Muhammad and others (1999 CLC 246).
7. I have considered the arguments advanced on behalf of defendant No,1 and have gone through the relevant law on the subject. Along with the written statement the defendant No,1 has filed copy of a notification issued by the Director-General, Sindh Katchi Abadis Authority, Government of Sindh, to contend that the whole area of Firdous Colony has been declared as Katchi Abadi by the Government, Perusal of the said notification shows that the said land has been occupied unauthorisedly since before 23-9-1985 and whereas the said land has been transferred in favour of Sindh Katchi Abadis Authority, Government of Sindh on payment of price/lease money as and when fixed by the Government of Sindh and by virtue of section 19(1) of the Sindh Katchi Abadis Act, 1987, the Firdous Colony coupled with Jamhoria Colony, Siraj Colony Ferozeuddin Colony and Musarrat Colony have been declared as Katchi Abadis. The area of Firdous Colony admeasuring 10-00 acres is, therefore, included in Katchi Abadi. The plaintiff has not controvertered the said notification issued by the Director-General, Katchi Abadis Authority by filing of any objections, nor has challenged it before any competent forum, as such the legality and validity of the notification thereby declaring the Firdous Colony as a Katchi Abadi remained undisputed. Since the Firdous Colony wherein the property in dispute is situated has been declared as Katchi Abadi by the Government and the said fact was also brought on record by the K.B.C.A. In C.P. No,D-772/04 filed by defendant No,2 wherein affidavit was filed by the officer of K.B.C.A. Namely Muhammad Aslam Qureshi, Deputy Controller of Buildings, Liaquatabad Town, Karachi, wherein he in well words has stated that plot No,29/6,, Firdous Colony, Karachi is situated in Katchi Abadi, as such the plaintiff neither could be treated as sub-licensee or lessee of the property in dispute.
8. There is no dispute to the fact that Firdous Colony falls within the ambit of Katchi Abadi as such declaration sought by the plaintiff in his suit in any way could not be granted for the reason that the plaintiff himself does not possess any legal character A over the property in dispute as required under section 42 of Specific Relief Act, to claim its ownership unless it has been allotted to him by the Government under the provisions of Katchi Abadis Act, 1987. The plaintiff in Para. 12 of the plaint has also stated that the said plot was leased out in his favour as sub-licensee and he called upon the Society by service of notice on them to execute lease deed in between him and Government of Pakistan which also shows that the said plot in any way was not leased out to him by the competent authority.
9. In the case of S.M. Shafi Ahmed Zaidi, supra, the Honourable Supreme Court while considering the scope of Order VII Rule 11, C.P.C. Was pleased to observe that provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Specific Releif Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered in back to the former. The predecessor-in-interest of the petitioner 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 within their time and unnecessary expenses and the Court get more time to devote it for the genuine causes.
10. In the case of Ume Aiman, supra, this Court also was pleased to observe that the contents of written statement/affidavit, in appropriate cases, can be looked into when considering an application under Order VII Rule 11, C.P.C. The remaining case-law also supports 'the version of the learned counsel for defendant No,1.
11. Admittedly the plaintiff has filed the suit on behalf of Alvia Tabligh Trust being Managing Trustee of the said trust. The said trust admittedly is also registered. In para 2 of the trust deed the name of Anisur Rahman Alvi, Attaur Rehman Alvi, Mujeebur Rehman Alvi, Dr. Arifur Rahman Alvi and Iffatun Nisa Begum have been mentioned as trustees and by virtue of sub-clause (3) of clause 4 of the trust deed the Managing Committee of the trust was competent to take any legal action against .Any party or to defend the interest of the trust in any Court of law or authority as may be deemed proper and beneficial for the trust. The managing trust may delegate this power to any trustee or Secretary to the Board. Thus, it is clear that the managing committee can take any legal action in pursuance of the trust deed and the managing trustee may delegate any power to any other trustee or Secretary of the board. Whereas clause S of the trust deed speaks that all the business of the trust shall be looked after and managed by Dr. Elahi Alvi, the managing trustee during his life time and after his death one of his sons named in Para.2 of the trust deed shall be elected as managing trustee by the board at a properly convened meeting with due notice in writing. This election of the managing trustee shall be held after a trustee in place of the deceased one has already been made and the meeting cannot be considered as valid unless all the cotrustees are present. Thus, by virtue of the said trust deed, it was incumbent upon the trustees to elect any one sons of the original trustee.Namely Dr. Elahi Alvi as managing trustee after his death but the plaint is completely silent to show that when the original trustee Dr. Elahi Alvi had expired and when the meeting/election of the toard of trustees was held and in what manner the 'present managing trustee. Anisur Rahman Alvi was elected as managing trustee of the said trust. It is, therefore, not clear that he . Was legally elected as managing trustees in pursuance of Para 5 of the trust deed. In the absence of such material regarding election of Anisur Rahman Alvi being managing trustee, it could not be observed that he is lawful managing trustee of the plaintiff trust. On this score also it is observed that Anisur Rahman Alvi was not competent to sign and verify the plaint on behalf of Alvia Tabligh Trust. l2. For the above reasons, I am of the opinion that the suit tiled by the plaintiff is not maintainable.
The application is, therefore, allowed and the plaint is rejected under Order Vll Rule 11, C.P.C, with no order as to costs.
Plaint rejected.