1. ' NADEEM AZHAR SIDDIQI, J.--- 1. By this application the plaintiff has prayed for amendment in the plaint.
2. ' Learned counsel for the plaintiff states that due to some human error prayer of possession of the land has not been included in the plaint. He then submits that clause (d) may be allowed to be added in the prayer clause of the suit which contains direction to the defendants to handover the possession of the suit-land of the plaintiff. He further submits that the ' amendment in the plaint will not change the nature and complexion of the suit and the prayer of possession is a consequential relief and is arising out of the same cause of action. He also submits that from the reports of the Mukhtiarkar and Nazir of this Court it is clear that the plaintiff is not in possession of the suit property and being the lawful lessee the Government of Sindh is entitled to the possession of suit property.
3. ' Learned counsel for the defendants Nos.1, 2 and 4 has opposed the instant application and submits that from the reports of Mukhtiarkar as well as Nazir of this Court it is clear that the defendants Nos.1, 2 and 4 are not in possession of the suit property and that the defendants Nos.6 and 7 are in possession of the suit property.
4. ' Learned A.A.-G. And Mr. Ahmed Pirzada submit that the plaintiff was never in possession of the suit property and at this stage, he is not entitled to claim the possession by way of amendment in the plaint.
5. ' I have heard the learned counsel for the parties and perused the record of this case very carefully.
6. ' It is not disputed that the land was allotted to one Mst. Nusrat Jehan from whom the plaintiff has acquired the said land with permission of the District Officer (Revenue). The amendment in the plaint can be allowed if it will not change the nature and complexion of the suit and will not change the cause of action. The amendment can be allowed to avoid multiplicity of proceedings and to determine the real matter in controversy.
7. 'The plaintiff is claiming declaration as to the right and title in the suit-land and prayer of possession appears to be a consequential relief in relation to the declaration of the right in the property. The proposed amendment will not change the nature and complexion of the suit and the cause of action.
8. ' In view of the above, this application is allowed. Amended plaint be filed within 15 days with advance copy to the learned counsel appearing in this matter before the next date.
2. By this application the plaintiff has prayed for restraining order against the defendants from creating any third party interest in the suit property.
9. ' The plaintiff claims that he is lessee of the land and was illegally dispossessed from the suit-land by the defendants, who are now in possession of the suit property and the plaintiff apprehends that during pendency of the suit they will encumber or create any third party interest in the suit property to frustrate the suit.
10. ' Counter-affidavit to the said application has been filed by the defendant No,1 stating therein that the claim of plaintiff is false and the plaintiff has failed to make out a prima facie case in his favour.
11. It was further stated in the counter-affidavit that the land was allotted in favour of Ali Naveed, minor son of the defendant No, 1 .
12. ' Learned. A.A.-G. And Mr. Ahmed Pirzada have opposed this application on the ground that the plaintiff was never in possession of the suit property and has violated the terms and conditions of the lease by not using the said property for the purpose of poultry farming and the lease is liable to be cancelled.
13. 'From the perusal of the record it appears that the official defendants have not disputed the allotment of the land to Mst. Nusrat Jehan from whom the plaintiff has acquired the suit property for the remaining period of lease. Original lease was granted in the year 1987-88 and till date no action for cancellation of the said lease on the ground of violation of terms and conditions of the lease has been initiated by the Government of Sindh.
14. ' From the documents annexed with the plaint, which are not disputed, it appears that the plaintiff has made out a prima facie case, as the land was allotted to him.
15. 'The contention of learned A.A.G. That the plaintiff was never in possession of the suit property is matter of evidence and at this stage, no findings can be given in this regard. As far as the contention of learned counsel for the plaintiff that till such time lease exists in favour of the plaintiff the defendants cannot re-allot the land to someone else has force.
16. 'For granting an injunction the plaintiff has to make out a prima facie case and to show that in case the injunction is not granted he will F suffer irreparable loss. No doubt the plaintiff is not in possession of the suit property, but he has the right to claim the possession of suit property on the basis of the documents annexed with the plaint and in case the G land is further encumbered or alienated the same will create problems in executing the judgment and decree which may be passed in this matter. Even otherwise, during pendency of proceedings the corpus of the H litigation is to be preserved.
17. ' In view of the above, this application is allowed and the defendants are restrained from creating any third party interest in the suit property.
3. By this application the defendants Nos.1, 2 and 4 have prayed that their names may be struck off from the array of the defendants.
18. ' Learned counsel for the defendants Nos.1, 2 and 4 submits that the defendants Nos.1, 2 and 4 have no concern with the land in question and has referred to the Nazir's report dated 14-12-2006 and the report of Mukhtiarkar dated 26-8-2006 and submits that from the above two reports it is clear that the defendants Nos.6 and 7 are in possession of the suit property and the defendants Nos.1, 2 and 4 have no concern.
19. ' Learned counsel for the plaintiff has opposed the application and has referred to para.5 of the plaint in which the allegations have been levelled against the defendants Nos.1, 2 and 4 that they used to visit the suit-land and attempted to put cement and Bajri on the suit-land. He then refers to the prayer clause (b) in which specific relief has been sought against the defendants Nos.1, 2 and 4.
20. He also refers to para.3 of the written statement of the defendant No,1 in which the defendant No,1 has stated that the claim of plaintiff is totally based on fraud and the suit property was in the name of minor son of the defendant No,1 since 2-2-1997 and the defendant. No,1 was in possession of the suit property.
21. ' From the contents of the written statement it is clear that the defendant No,1 is claiming right and interest in the suit property and the contentions of learned counsel for the said defendants appear to be against the contents of the written statement of the said defendants.
22. ' In view of the specific allegations and prayer it cannot be said that the defendants Nos.1, 2 and 4 are not necessary and proper party to the proceedings.
23. ' Since the claim of defendant No,1 is that the property exists in the name of his minor son he appears to be necessary and proper party to the proceedings, hence this application is allowed to the extent that the name of defendant No,1 be deleted from the array of the defendants and instead of him, his son Ali Naveed be impleaded as defendant No, 1 . Learned counsel for the plaintiff wile filing amended plaint may add Ali Naveed as defendant No, 1 .
24. ' Before proceeding further, it will be appropriate that the Government of Sindh may enquire into the matter of transfer of land to Naseem Akhtar and its further transfer to Ali Naveed son of Tahir Naveed. The matter is referred to Mr. Nazar Muhammad Leghari, Special Secretary, Land Utilization Department, Government of Sindh for conducting such inquiry himself or through some of his honest and competent subordinate officer.
4. Deferred.
25. ' Adjourned to a date in office.