1. 'KHAWAJA NAVEED AHMED, J.---This revision application has been filed by applicant Muhammad Yaqoob, who died during the pendency of this revision application and through amended title presented on 19-12-2007 legal heirs had stepped into his shoes and were joined as party in the capacity of applicants.
2. 'This revision application was directed against the judgment/order dated, 31-7-2007, passed by the VII Additional District Judge Karachi South in Civil Appeal No,100 of 2005, and order, dated 31-5- 2005 passed by IV Senior Civil Judge Karachi, in Suit No,1065 of 2004. There are concurrent findings of both the courts below.
3. 'The brief facts of the case, as narrated in the memo of revision application are that Muhammad Yaqoob was tenant of ground floor of the Premises bearing No,G-IV of Plot No,TL-2/50, PIIA-30, situated at North Napier Road, Karachi, measuring 366 sq yards. It is an old tenancy. It is stated that the applicant is running a factory under the name and style of Metro Rubber Manufacturer Factory in the said premises. He has stated that he was in tenancy of Evacuee Trust Property Board at the rate of Rs,250 per month. In the year, 1963 the property was sold through auction and one Muhammad Usman being highest bidder had purchased the said property. The applicant has stated that in the year, 1977 respondent No,1 Abdul Razzaq had filed Rent Case No,3806 of 1977 for ejectment of the applicant from the rented premises on the ground of default.' The present applicant had taken the plea 'that no relationship of landlord and tenant exists between him and Abdul Razzaq and as such ejectment application was dismissed. An another ejectment application was filed by auction purchaser late Muhammad Usman viz. Rent Case No,366 of 1985 (Old No,73 of 1981). That rent case was disposed of as compromised and the applicant had agreed to pay rent to Muhammad Usman at the rate of Rs,250 per month. It is stated that respondent No,1 had tried to get the building demolished through KBCA but could not succeed due to the order passed by this Court in C.P. No,D-326 of 2006. It is further mentioned in the memo. Of revision application that respondent No,1 had filed three cases for ejectment against tenants namely, Mairajuddin, Batool and Muhammad Yasin: Respondent No,1 succeeded and subsequently Execution Applications Nos.6 of 1999, 7 of 1999 and 8 of 1999 were filed by respondent No,1 who had received possession of the premises.
4. 'It has further been asserted that respondent No,2 Muhammad Usman had died on 1-9-2000 and thereafter the applicant had started paying rent to the son of Muhammad Usman at the rate of Rs,500 per month. The applicant had filed Suit No,1065 of 2004 in which respondent Nb.1 had filed application under Order VII rile 11, C.P.C., which was allowed. The applicant preferred appeal against the said order and the learned appellate Court was pleased to maintain the order of learned IV Civil Judge Karachi South, passed in Suit No,1065 of 2004.
5. 'Learned counsel for the applicant has argued that the impugned judgments/ orders passed by both the courts below are erroneous and are not maintainable under the law and are liable to be set aside, as the learned trial Court as well as appellate Court have not applied their minds, while recording the facts and findings in respect of the above mentioned suit as well as appeal. Learned counsel for the applicant has stated that the applicant had no knowledge about the pendency of Suit No,22 of 1981 and judgment in that suit.
6. 'The learned counsel for Respondent No,1 has argued that respondent No,1 has purchased the building wherein tenement in question is situated on 5-9-1977 under the registered sale-deed from previous owners thereof and his name has 'been mutated in the record of Settlement Department.PT-1 is also in his name. He applied for approved plan before the K.B.C.A for demolishing the building and re-construction thereof. The registered sale deed, mutation letter/extract, PT-1 are on record attached to the counter affidavit. He has asserted that there were five tenants in the building against whom the respondent No,1 initiated eviction proceedings. His ejectment application against all the five tenants was dismissed by the learned Rent Controller on 6-12-1981 and the respondent No,1 preferred appeal bearing F.R.A. No,35 of 1982 before this Honourable Court which was disposed of on 16-1-1985 by his lordship Mr. Justice Zahoor-ul-Haq ("the then he was"). It was partly allowed and case was remanded back to the Rent Controller.
7. 'Learned counsel has argued that the case was remanded back to the learned Rent Controller but the respondent No,1 could not succeed and the same was dismissed on 24-11-1987 on legal point that notice under section 30 of the Displaced Persons Act has not been served. Such eviction proceedings were initiated by him. The respondent No,2 preferred appeal against all the tenants including applicant vide F.R.A. Nos.151 of 1998 to 155 of 1998 which appeal was allowed by the Honourable High Court vide order, dated 15-9-1992.
8. 'He has stated that one Muhammad Usman, the respondent No,2 in the present case came forward and filed a Suit No,22 of 1981 before this Honourable Court for Declaration and Injunction on the ground that he is owner of the building and that he be declared owner thereof. The said suit was contested by the respondent No,1 and ultimately on 18-9-1996 by the decree, it was dismissed, as such ownership of the respondent No,1 was further confirmed.
9. 'The said judgment/decree was not challenged by the respondent No,2 before any higher forum, as such it attained finality. He has further stated that thereafter K.B.C.A demolished the major portion of the building being dangerous. The father of the present applicants vacated the same. Rest of the four tenements were in possession of Muhammad Yasin, Mst. Batool and Miraj-ud-Din. Mst. Batool sublet the portion to one Abdul Aziz, who was running his hotel there. There were only three tenants against whom the rent case was pending in 1985. The ejectment applications against said three tenants were allowed by the learned Rent Controller and all those three tenants were evicted with police aid in consequence of the execution proceedings. Out of those three, two tenants namely Muhammad Yasin and Miraj-ud-Din filed their F.R.A. No,123 of 2004 against the execution order which was dismissed on 22-9-2004.
10. 'He has argued that after the eviction the father of the present applicants as well as applicant Muhammad Khalid by committing the act of trespass, occupied the portion of the building and subsequently he filed a Suit bearing No,1065 of 2004 for declaration and injunction by alleging therein that he is tenant of respondent No,2 and is paying him rent regularly. The applicants and their father completely denied the ownership as well as relationship of landlord and tenant with respondent No,1.
11. 'He added that it is pertinent to point out that in earlier all the litigation, the father of the applicants never set up his case, as set up in the Suit No,1065 of 2004. During the course of proceeding on 12- 10-2004, the present applicant Muhammad Khalid appeared before the Court of learned Rent Controller and made his statement in Execution No,06 of 1999 which was pending against Muhammad Yasin. He appeared before the learned Judge wherein on query of the Court he has admitted that he has filed the Suit No,1065 of 2004. In reply to question he frankly admitted that he is not the tenant nor in possession of the premises in question.
12. 'Learned counsel has stated that the plaint of Suit No,1065 of 2004 filed by the applicants has been rejected under 0. VII, Rule 11, C.P.C. With the clear observation that the suit is obviously barred by the provisions of section 42 Specific Relief Act. The learned appellate Court upheld the said order and further observed that status of the applicant is of trespasser only. The father of the applicants (original plaintiff in Suit No,1065 of 2004) in earlier round of litigation never stated that the respondent No,2 is owner of the premises and he is paying him rent. He admitted the ownership of the respondent No,1 in earlier round of litigation. The respondent No,2 never made any objection on ejectment proceedings which were initiated by the respondent No,1 in the year, 1982 and remained pending till 2004. The three tenants were ejected. The major portion of the building was demolished by the KBCA. Being dangerous but the said respondent No,2 never came forward claiming ownership of the building nor he made any application to become party in all five rent cases initiated in 1982 and thereafter in the various appeals filed before the Honourable High Court.
13. 'I have heard both the learned counsel for the parties and have perused the case-law produced by the learned counsel for the respondent No, 1 .
14. 'The main arguments of Mr. Muhammad Safdar, learned counsel for the applicant is that the entire case is to be reconsidered and it needs appreciation by this Court as both the courts below have ignored/failed to consider the material facts of the pleadings, relevant record and have relied upon unfounded allegations made by respondents No,1 in application under Order VII rule 11, C.P.C. Which requires evidence to prove or disprove. He has argued that the story narrated in the application under Order VII rule 11, C.P.C. Is a fabricated one and a baseless story. He has further stated that for deciding application under Order VII, rule 11, C.P.C. Court only has to see the averments of plaint and nothing else. He has finally argued that the orders/ judgments of courts below are liable to be set aside.
15. 'Mr. Ilyas Tanoli, learned counsel for respondent No,1, in support of his arguments has relied upon the following authorities:--
(1) 2008 SCM R 452, Abdul Ghafoor and others v. Kallu and others
(2) 2004 SCM R 1111, Muhammad All v. Mahnga Khan
(3) 2003 CLC 799, Allauddin and 17 others through legal heirs v. District Manager Waqf Properties, Mirpurkhas, Sindh and 3 others.
(4) 2002 SCM R 338, S.M.Shafi Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs.
(5) 2002 CLC 1620 Ume Aiman and 43 others v. Muhammad Yousuf and 10 others.
16. 'In the first case reported in 2008 SCM R 452, Abdul Ghafoor and others v. Kallu and others, the Honourable Supreme Court has observed as under:-- "The trial Court as well as the first Appellate Court had correctly appreciated the evidence of the parties. The learned High Court seems to have fallen into error in reversing the findings of the both the Courts below in exercise of revisional power conferred by section 115, C.P.C. By re-appreciation of evidence without there being non-reading and misreading of material evidence on the part of the courts below. In our view, the impugned judgment of the High Court is not sustainable at law."
17. 'The second case reported in 2004 SCM R 1111, Muhammad All v. Mahnga Khan, is on the point of title of the property wherein it has been observed as under:-- "(6) I have considered the submissions made by the learned counsel for the parties. The registered sale-deeds prima facie, establish title of the respondent to the land in dispute. Unless it was displaced, it could not be said that the petitioner had a prima facie case. The petitioner had filed the suit on 30-9-1997 after more than 26 years of the first registered transaction and more than 24 years after the last registered transaction. The inaction on the part of the petitioner was also taken to be a circumstance going against the petitioner. I am in agreement with the observation of the learned First Appellate Court that mere possession did not entitle in the petitioner to the interim injunction. I see no ground to interfere. This petition is, accordingly dismissed."
3. The third case relied upon by the learned counsel for respondent No,1 is reported in 2003 CLC.
18. 799, Allauddin and 17 others through legal heirs v. District Manager Waqf Properties, Mirpurkhas, Sindh and 3 others, wherein learned Single Bench of this Court has observed as under:-- "Requirement of section 42. Specific Relief Act for the grant of declaration is the existence of a legal character or a legal right. The applicants have not based their suit on legal character or legal right.
19. In absence thereof the discretionary relief of declaration cannot be granted. Moreover the Courts are also required to look into the conduct and behaviour of the parties while considering the prayer for declaration. In present case the applicants stopped payment of rent at their own and then involved their landlord into litigation with the sole object to avoid the payment of rent. It is not so that they started paying the rent to the Government after stopping the payment to Auqaf Department. Their conduct, therefore, is not fair and bona fide. That factor also stands in the way of discretionary relief of declaration."
4. The fourth case is reported in 2002 SCM R 338, S.M. Shafi Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs, wherein the Honourable Supreme Court has discussed on the point of rejection of plaint, which reads as under:-- "Besides, averments made in the plaint other material available on 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 along with the averments made in the plaint."
5. The fifth case reported in 2002 CLC. 1620 Ume Aiman and 43 others v. Muhammad Yousuf and 10 others is on the issue of Order VII rule 11, C.P.C., the learned Single Bench of this Court has observed as under:-- "As regards the cases cited at the Bar by learned counsel for the defendants, there is no cavil with the same as it is settled law that in appropriate case even the contents of written statement/affidavits may be looked into when considering application under Order VII, rule 11, C.P.C."
20. 'I have perused the order passed by the learned VII Additional District Judge Karachi South, the learned Judge while upholding the order of learned Civil Judge has observed as under:-- "In the aforesaid suit the Appellant sought declaration and permanent injunction, which falls under section 42 of the Specific Relief Act, which says as under:-
42. Discretion of Court as to declaration of status of right any person entitled to any legal character, to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
21. 'Bar to such declaration: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title, omits to do so.
22. 'From the bare reading of the aforesaid section it reveals that the scope of section 42 Specific Relief Act, 1877 is very wide. Any person entitled to any legal character or to any right as to any may constitute a suit against any person denying or interested to deny his title to such character or right, and the Court may in its discretion make therein a declaration that he is entitled and the plaintiff not in such suit asked any further relief. While considering a suit under section 42 of the Specific Relief Act, the first ingredients of section 42 SRA is the title of the plaintiff to legal character or property. The second essential ingredient of this section Is that there must be an infringement or threaten invasion of title to such legal character or property. In the case in hand, the appellant himself has admitted that he is in possession since long and claiming that the respondent No,2 is the owner of the said property, but it is a matter of record that he impleaded him only as a pro forma defendant, which means that the respondent No,2 has no concern with the property in dispute and he has been made pro forma defendant in order to take shelter and keep possession of the property in question. The learned trial Court has rightly observed that the appellant has no cause of action at all being an illegal trespasser and it is a well settled proposition of law that declaratory suit is not competent by a person having no title at all. A suit by a trespasser seeking declaration is not maintainable in the eyes of law. In the case in hand, the status of the appellant is nothing but a trespasser.
23. 'For the above foregoing reasons and discussion, I am of the considered view that the learned trial Court has rightly rejected the plaint under Order VII Rule 11, C.P.C. The impugned order is based upon overwhelming findings and suffer no illegality or irregularity, which calls for no interference.
24. Thus, the impugned order passed by the learned trial Court stands upheld and the appeal in hand is dismissed with cost."
25. I have also perused the order of the trial Court. Both the orders of courts below are neither fanciful nor absurd. Sound reasons have been mentioned in the orders.
26. 'I am in agreement with the contention of the learned counsel for the applicant that the High Court has power to set aside the concurrent findings of courts below in revisional jurisdiction. However, in the present case I do not find any ground to upset the orders or interfere with it, as the order of both the courts below are based on correct factual position as well as they have appreciated the provision of law applicable in the suit. The trial Court has rightly rejected the plaint and learned appellate Court has also rightly upheld the order of the trial Court. This revision application has no force and as such is dismissed in limine.