' MUHAMMAD ALI MAZHAR, J.---The plaintiff has filed this suit for declaration, permanent injunction and possession with the following prayers:--
(a) Declaration that the plaintiffs are the allottees of the agricultural land measuring 30 Acres as per Allotment Order dated 25th January, 1977, (Annexure 'A') made by Assistant Commissioner, Settlement Department, Karachi, East, as per demarcation plan (Annexure '13') situated at Union Council-5, Deh Nagan, Tapo Songal, known as Rozi Goth, adjacent to Khuda-ki-Basti.
(b) Declaration that the defendant No,1 is mere trespasser of the Agricultural land measuring 30 Acres allotted to the plaintiffs as per Allotment Order dated 25th January, 1977, (Annexure 'A') made by Assistant Commissioner, Settlement Department, Karachi, East, as per demarcation plan (Annexure '13') situated at Union Council-5, deh Nagan, Tapo Songal, known as Rozi Goth, adjacent to .Khuda-ki-Basti.
(c) Declaration that the plaintiffs have vested right in the agricultural land/garden, measuring 30 Acres situated at Union Council-5, Deh Nagan, Tapo Songal, known as Rozi Goth, adjacent to Khuda-ki-Basti as per demarcation plan (Annexure `B') being allotted to the plaintiffs under Allotment Order dated 25th January, 1977 (Annexure 'A') and developed by the Plaintiffs as garden with vegetable crops and fruits and other trees (Annexure `G').
(d) Permanent Injunction restraining the Defendant No,1 from alienating, demarcating, allotting, raising construction, selling and handing over the possession to any third party of the said agricultural land measuring 30 Acres allotted to the plaintiffs under Allotment Order dated 25th January, 1977, (Annexure 'A' made by Assistant Commissioner, Settlement Department, Karachi East, as per demarcation plan (Annexure B').
(e) Permanent injunction restraining the Defendants Nos.2 and 3 from cancelling the allotment order dated 25-1-1977 (Annexure `A') in favour of the plaintiffs and allotting the said Agricultural land measuring 30 Acres as per demarcation plan (Annexure B') to the defendant No,1 or any other person.
(t) Possession of Agricultural land measuring 30 Acres allotted to the plaintiffs under the Allotment Order dated 25th January, 1977, (Annexure 'A') made by Assistant Commissioner, Settlement Department, Karachi, East, as per demarcation plan A (Annexure `B').
(g) Any other relief(s) deemed fit may also be granted.
(h) Cost of the suit.
' Along with the plaint, the plaintiffs have filed an allotment order dated 25-1-1977 issued by the Assistant Commissioner, Karachi along with Demarcation Plan. On 19-1-2009, only the learned Assistant Advocate General and Mr. Ahmed Pirzada Advocate for the defendant No,2 were present.
In absence of plaintiff's counsel, the learned counsel for the defendants raised objections that the allotment letter of the plaintiff is fake document, the Assistant Commissioner has no power to sign the allotment letter, the plaintiffs are not in possession and as per their own admission, the lease of land was valid for 30 years which has expired in the years 2006-2007. On the basis of these objections, this court had called upon the plaintiff to satisfy the maintainability of the suit. To address the issue of maintainability in view of the order dated 19-1-2009, the learned counsel for the plaintiffs argued that the objections raised by the defendants require evidence and unless the proper issues are settled and parties are allowed to adduce evidence, the controversy cannot be resolved.
' Mr. Khizer Asker Zaidi, learned Assistant Advocate General along with Mr. Muhammad Yousuf Abbasi, Mukhtiarkar Gadap Town present in court has invited my attention to the written statement submitted by the defendant No,3 in which a plea has been taken that the land in question was never allotted to Rozi Khan and the documents annexed as Annexure 'A' to 'H' are forged, bogus and self-created documents. The land involved in the suit is a government land and plaintiffs unlawfully utilizing the same. The encroachers are liable to be removed from the government land.
Similar objections have been taken in the written statement filed by the defendant No,8 that the land in question admeasuring 30 Acres is government property and falls in Deh Nagan, Naclass No,30. Perusal of Ijazatnama produced in this court shows that it was leased out for "Yaksalo" lease basis for one year only. The suit has been filed only to usurp the Government land. The Entry No, 129 is fraudulent and manipulated. Finally it was submitted that the plaintiffs have no cause of action to file the present suit as they have no right and character in respect of the suit land.
' After hearing the arguments of learned counsel, I am of the view that question of maintainability of suit at initial stage appears to be patently barred by some law and on the face of it is not maintainsible or triable or without any justifiable cause of action. In the judgment reported in PLD 1977 Lahore 1243 (Abdul Rahman v. Wahid Bakhsh), the work "cause of action" has been discussed which means a bundle of facts which if traversed, a suitor claiming relief is required to prove for obtaining judgment. Nevertheless, it does not mean that even if one such fact, a constituent of cause of action is in existence, the claim can succeed. The totality of the facts must co-exist and if anything is wanting the claim would be incompetent. A part is included in the whole but the whole can never be equal to the part. It is also well understood that not only the party seeking relief should have a cause of action when the transaction or the alleged act is done but also at the time of the institution of the claim. For example, there may be a case where at the time when an action is brought, there is no right to seek the remedy though the remedy was available when the right was infringed. A suitor is required to show that not only a right has been infringed in a manner to entitle him to a relief but also that when he approached the Court the right to seek the relief was in existence. Similarly the Privy Council in another case had summed up that cause of action means every fact which will be necessary for the plaintiff to prove if traverse in order to support his right to judgment. It has no relation to the defence that may be setup nor does it depend upon the character of the relief prayed. The Hon'ble Supreme Court in its judgment reported in 1991 SCMR 2030 (Haji Mitha Khan v. Muhammad Younus and others) has held that the test of cause of action is that if what plaintiff has stated is taken to be correct, is he entitled to relief or not. In another judgment reported in 1995 SCMR 459 (Haji Allah Bakhsh v. Abdul Rehman and others), the Hon'ble Supreme Court has held that in order to press into service the provisions of Order VII, Rule 11, C.P.C., the averments contained in the plaint are to be presumed to be correct. On the above assumption, the plaint is to be examined and if the case falls under any of the clauses (a), (b), (c) and (d) of Rule 11, C.P.C., the plaint is liable to be rejected. According to one more judgment reported in 1990 SCMR 1630 (Ghulam Ali v. Asmatullah), the Hon'ble Supreme Court has held that assertion made in the plaint had to be seen for the purposes of determining whether plaint disclosed any cause of action. Lack of proof or weakness of proof in circumstances of the case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint.
' It is an old age golden principle that for the purpose of rejecting the plaint, the averments made in the plaint are to be looked into. The Court cannot take into consideration pleas raised by the defendants in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. The plaintiffs have spelled out the cause of action in the plaint.
' The plaintiffs have claimed declaration that they are allottee of agricultural land and another relief is against the defendant No,1 to declare him as trespasser. The third relief for declaration pertains to the right to grant 30 Acres land with further prayer of possession and injunction.
' The learned A.A.-G. Has raised another objection that instead of filing the present suit, the plaintiffs should have filed an appeal under section 161 of the Land Revenue Act, 1967 which pertains to the appeal for review and revision. For the sake of convenience, section 161, of the Land, Revenue Act, 1967 is reproduced as under:-- "161. Appeals. (1) Save as otherwise provided by this Act an appeal shall lie from an original or appellate order of Revenue Officer as follows, namely---
(a) to Collector, when the order is made by an Assistant Collector, of either grade;
(b) to the Commissioner, when the order is made by a Collector;
(c) to the Board of Revenue only on a point of law, when the order is made by a Commissioner: Provided that--
(i) when an original order is confirmed on first appeal, a further appeal shall not lie;
(ii) When any such order is modified or reserved on appeal by the Collector, the order made by the Commissioner or further appeal, if any, to him shall be final".
' The aforesaid provision of law relied upon by the learned A.A.-G itself answers that subsection (1) of section 161 of Land Revenue Act, 1967 makes it incumbent upon a party to file an appeal against some original or appellate orders. The court has specifically asked the learned A.A.-G. As well as Mukhtiarkar Gadap Town present in court whether any order was passed against the -plaintiffs whereby they were required or obliged to file appeal, the answer was in negative. The learned A.A.- G. Confirmed that no order was passed by the Revenue hierarchy for assailing the same in appeal.
At present I do not find any lawful or plausible justification to dismiss the suit on the question of maintainability unless the issues are settled and parties are allowed to adduce evidence in support of their respective claims.
2. Hearing of C.M.A. No,637 of 2009.---This is a contempt of court application filed by the plaintiffs in which it has been submitted that vide order dated 28-1-2008, the defendant No,1 was restrained to create any third party interest but he is continuously violating and flouting the restraining orders with the connivance of alleged contemnors. Issue show-cause notice to the defendant No,1 and alleged contemnors to appear in person on the next date and file comments if any. Learned A.A.-G.
And Mukhtiarkar Gadap Town are also directed to file their comments to show the status of the land at present and also submit whether any construction activity is going on and if it is illegal, what legal action has been taken by the Mukhtiarkar/Board of Revenue so far. Two weeks time granted for filing the comments.
3. Hearing of C.M.A. No, 425 of 2008.---Interim order dated 28-1-2008 is operating against the defendant No, 1 . Today neither he is present or being represented by his counsel nor he has filed any counter-affidavit. The interim order passed on 28-1-2009 is hereby confirmed till final disposal of the suit. The application is disposed of in the above terms.
4. Hearing of C.M.A. No, 3154 of 2008.---Learned counsel for the plaintiff does not want to press this application at this stage, which is disposed of as withdrawn.
5. vHearing of C.M.A. No,828 of 2008.---The learned A.A.-G. Wants to file comments to this application also before the next date of hearing. By consent adjourned to 28-9-2010 on which date Mukhtiarkar Gadap Town is required to be present with entire record.