SHAHID ANWAR BAJWA, J.-- Civil suit for declaration, possession and injunction was filed by present respondents Nos.5 to 13 against present appellants and present respondents Nos.1 to 4. Plaintiffs in A their plaint stated that they owned 50 paisa share in land at Survey No,18 admeasuring 3-17 acres in Deh and Tapo Sonda Taluka and District Thatta. (hereinafter referred to as the suit-land).
Boundaries of suit-land were stated as under:-- North Survey No,22.
South National Highway via Thatta to Hyderabad.
East Remaining 50 per cent of Survey. No,18 and Survey No,19.
West Survey No,17.
2. Balance 50 per cent belongs to persons Jakhra tribe. It was stated that there had been private partition between plaintiffs and Jakhras by which survey was divided into two portions half of the same was delivered to plaintiffs and remaining half portion on the Eastern side remains with Jakhras people. Plaintiff/respondents were in possession of disputed land and they cultivated the same. It was the case of plaintiffs that private defendants (present appellants) encroached upon some portion of their land and some portion of land of National Highway Department lying between the plaintiffs claimed land and National Highway and constructed shops and hotels illegally and malafidely. These structures were first dismantled were again constructed. It was alleged that present appellants are land grabbers. Consequently, civil suit was filed with following prayers:
(a) Declaration. That the plaintiffs being owners of the suit-land are entitled to use and enjoy without any let, hindrances, and disturbances from or by the defendants and the defendants Nos.5 to 10 have no legal authority or entitlement to raise the constructions/ encroachments over the area of suit-land being the share of 0-8-0 annas (0-50 Paisa) of western half portion in the survey No,18 admeasuring about 3-17 acres in deh and Tapo Sonda, Taluka and District Thatta as well as the area of the National Highway closing the way/passage connecting the suit-land with the National Highway disturbing/ infringing the easement rights of The plaintiffs and their construction/ encroachment over the same land are null, ab initio void, illegal, unlawful, mala fide without any lawful authority and not binding on the plaintiffs.
(b) POSSESSION directing all the defendants Nos.5 to 10 to deliver the vacant and undisputed possession of the area out of the suit-land encroached by them to the plaintiffs.
(c) MANDATORY INJUNCTION directing the defendants to remove away the all unauthorized Encroachments as well construction/material and structures etc. Opening cleaning the way/ passage of the suit-land restoring the easement rights to the plaintiff.
(d) DAMAGES directing the defendants Nos.5 to 10 to pay the damages at Rs,5000 per year to the plaintiffs.
(e) PERMANENT INJUNCTION restraining the defendants Nos. 5 to 10, their agents servants, legal representatives, associates assignees or any person or persons claiming through them in any way directly or indirectly from interfering area of suit-land, and also from driving their dirty water towards the suit-land, from bringing the construction material and laboures at the remaining area of the suit land as well as the National Highway, from raising the more constructions/encroachments there, from dispossessing or attempting to dispossess the plaintiffs from the suit-land, from issuing the serious threats of the making the more encroachments/ constructions there illegally, unlawfully and mala fidely and /or doing any act/thing prejudicial to the interest of the plaintiff in any manners without due course of law.
(f) The defendants shall bear the costs of the suit.
(g) Any other relief, which this Honourable Court may deem fit and proper, be granted to the plaintiff. "
2. Written statement was filed by defendants. It was claimed by the plaintiff that they are in possession of land as they purchased the same in 1988. 11 issues were framed by the learned trial Court. The same are as follows:-
(1) Whether the plaintiff has shown wrong boundaries of suit-land in the plaint?
(2) Whether the plaintiff owns 3-17 acres to extent of 8 anna share in survey No,18 situated in deh Sonda, Taluka and District Thatta and the remaining SO paisas share in the same S.No, belongs to the persons of Jokhia tribe and further there is private partition at suit-land in between plaintiff and the persons of Jokhia tribe in respect of their respective shares?
(3) Whether 50 paisa share in survey No,18 viz the suit-land belonging to plaintiff is towards northern side and the share of Jokhia tribe persons is towards eastern side?
(4) Whether there is a way/road going from suit-land to connect the suit- land with National Highway?
(5) Whether defendants Nos. 5, 6, 7 and 10 have encroached upon some portion of the land of National Highway department where they have illegally, unlawfully and mala fidely constructed Hotels and Shops and have disturbed easement rights of plaintiffs at this suit-land?
(6) Whether the Government authorities on the request of plaintiff had removed the encroachment but these defendants have re-constructed their katcha shops and hotels and major portion of the suit-land belonging to the plaintiff illegally, unlawfully and malafidely and have also attempted to make pacca construction of these shops and hotels.
(7) Whether the defendants Nos.5, 6, 7 and 10 have caused damages to the suit-land and are liable to be ejected from the portion of suit-land occupied by them?
(8) Whether these defendants Nos.5. 6, 7 and 10 are in possession of their property and have neither encroached upon the suit-land nor have damaged the suit-land nor have made any illegal construction at the suit-land?
(9) Whether the suit is not maintainable under the law?
(10) Whether the plaintiff has no cause of action to file the present suit?
(11) What should the decree?
4. Thereafter vide order dated 31-7-2007 suit was decreed as prayed. Being aggrieved by order of trial Court appeal was filed and the learned appellate Court concurred with conclusion of learned c trial Court and dismissed the appeal vide judgment dated 18-9-2008. This revision application has been filed to challenge concurrent orders passed by the two Courts below.
5. Learned counsel for applicants made the following submissions;-- ii) Plaintiffs have claimed rights on National Highway which they cannot claim. Declaration claimed by them is not permissible under D section 42 of the Specific Relief Act and no injunction can be granted in terms of section 54 of the Specific Relief Act.
(ii) Detail of land claimed to be property of the plaintiffs had not been disclosed in the plaint or in evidence and therefore plaint was liable to be rejected being in violation of provisions of Order VII, Rule 3, C.P.C.
(iii) No such document evidencing petition has been placed on record and no person of Jhakra tribe has been made party and therefore suit was not maintainable.
(iv) It was stated by the plaintiffs in evidence that cause of action to file suit had accrued to them three years prior to filing of the suit.
(v) Witness Ghulam Ali stated that measurement had been taken at the distance of 55 feet of the National Highway. Learned counsel contended that under section 8(1) of the Highway Ordinance neither can path be made to a Highway nor any building constructed within 220 yards measured from centre of a Highway. Courts below had paid no attention to this aspect of the law.
(vi) That the decree in the suit does not conform to provision of the Order XX, Rule 9, C.P.C. Which requires for suit in respect of immovable property, decree shall contain description of such sufficiently to identify the same. No such description has been given in the decree.
(viii) Since the National Highway Authority has been made party hence no permission as required by section 91, C.P.C. Has been obtained and plaint was therefore liable to be rejected. Learned counsel for the applicants relied upon Muhammad A fsar v. Muhammad Zaman and 4 others (2005 YLR 484), Zohr All v. Muhammad Yusuf and 7 others 1986 CLC 1301, Government of N.-W.F.P.
And another v Gul Muhammad Khan and 5 others 1996 SCMR 1858, Khalique Ahmed v. Abdul Ghani and another PLD 1973 SC 214, Mehr and 4 others v. Mst. Sahib Jan alias Shah Begum and 10 others, PLD 1973 Lahore 455, Rashid Ahmed v. Mst. Jiwan and 5 others 1997 SCMR 171 and Ghulam Muhammad and others v. Murad Bakhsh and another PLD 1969 Lahore 95.
6. Learned counsel for private respondents made the following submissions:---
(i) It is not appellant's case that they are owners of land in their occupation. They are therefore in any case trespassers.
(ii) It is not requirement of law that exact dimension of immovable property be given in the plaint.
All that law require is that sufficient detail be given so as to identify and describe the property.
(iv) As far as making co-sharers a party is concerned, firstly private partition has taken, place and documents were placed before Court belows and secondly co-sharer is required to be made a party only when suit is between co sharers.
(v) It is not a case of public nuisance.
(vi) This Revision does not fail within limited scope prescribed for revisions under section 115, C . P.0 ,
7. Mr. Nazar Hussain Dhoon learned counsel for National Highway Authority referred to finding of the learned trial Court on issue No, 6 and stated that National Highway Authority has no position whatsoever in respect of dispute between plaintiff and appellants but has right to get vacated its land, if any, in occupation of any of the parties.
8. Exercising his right of reply learned counsel for private respondents referred to Muhammad Suleman v. Wilayatullah Khan and 2 others, (1990 CLC 110) inlets and outlets property must be specified. He referred Lal Khan v. Faiz and another (1986 SCMR 1962) on the point that without co- sharers being a party suit could not be maintained.
9. I have anxiously considered submissions made by the learned counsel and have also gone through the case file and case law cited at bar.
10. As to the first submission of learned counsel for applicants that through plaint the plaintiffs are asking for., their rights on National Highway which they can not do. I have already reproduced above entire prayer clause and nowhere in the prayer clause any right on the National Highway has been claimed. Plaintiffs are claiming only for return of land which according to plaintiffs is their property and they are also claiming that if land abuts on National Highway no one should be permitted to raise any construction between their land and the National Highway. Whether they are allowed by the National Highway or not or whether they are allowed to construct any building on their own land within 220 feet on the middle of Highway or not is not question for the applicant to decide. That bridge in the business of National Highway Authority/ Highway Department.
11. Incidentally, plaintiffs have not claimed any such right. All that they have claimed is ownership of piece of land. Clearly if they want a path to Highway or if they want to construct anything within 220 feet of middle of Highway they would have to get approval from National Highway and they have no right of such path or such construction merely because of they own a piece of land abutting the Highway.
12. Sections 42 and 54 of the Specific Relief Act provides as under: -- "42. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, has 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.
' Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff.
' Explanation. A trustee of property is a "person interested to deny " a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."
54. Perpetual injunction when granted.--Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.
' When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of this Act.
' When the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases (namely):-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not afford adequate relief.
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceeding. Explanation.- For the purpose of this section a trade mark is property. "
13. Contention of the learned counsel for applicants is that no declaration as claimed is not permissible under section 42 of the Specific Relief Act and no injunction could be granted under section 54 of the Act. Plaintiffs have claimed that they are owners of property: They have claimed rights as owner of the same and I do not see how they cannot maintain claim under section 42 of the Act. They claimed declaration and then consequent relief of possession and in accordance with section 54 they are entitled to perpetual G injunction. None of 5 cases specified in section 54 of the Specific Relief Act are attracted to bar the plaintiffs from claiming the reliefs that they claimed in the suit. Third contention of the learned counsel was that details of land have not been stated in the plaint. In this connection learned counsel referred to provision contained in Order VII, Rule 3, C.P.C. Said provision is in the following words:-- "(3) Where the subject-matter of the suit is immovable property .--- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record
14. Learned counsel relied upon in Muhammad Afsar's case (supra). Facts of that case were that appellant in the Honourable Supreme Court brought suit for perpetual injunction in respect of land measuring 8 canal out of total area measuring 234 canal and 2 Marlas. It was land in his possession and he had constructed water tank and boundary over the suit land and also Dug therein. He alleged that respondents intended to interfere with his possession. He filed copy of Khasra Gardawari pertaining to year 1997 wherein his possession of 8 canals of land was recorded.
Defendant denied possession of the plaintiff over the suit land and contended that entire Khasra Gardawari was frivolous. Suit was dismissed by the trial Court. Appeal was allowed by the appellate Court and High Court allowed the revision and the matter eventually ended up in the Supreme Court. The Honourable Supreme Court after perusing Khasra Gardawari noted that possession of plaintiff though was recorded on the basis of said mutation but even in that vague entry it was not mentioned that what side of total land, disputed portion of land was located. Suit of plaintiff was held to be vague and negative and pleadings not fulfilling requirements under Order VII Rule 3 C.P.C. Appeal was dismissed by the Honourable Supreme Court. In the present case plaintiff has clearly stated in Para 2 of his plaint all the 4 sides of land. What is required by Order VII Rule 3 C.P.C.
Is "Description of the property sufficient to identify it". Four boundaries specified have been held by the two Courts below sufficient to identify it. The case law relied upon by the learned counsel is quite distinguishable because in that case mutation was made on the basis of vague documents.
Whereas in this case documents of private partition were filed in Court below (available at Page 135 of the file) clearly show separation of property and location of property. Therefore, this objection of learned counsel for applicants carries no weight.
15. Learned counsel for applicants also contended that co-sharers had not been joined as party. He relied upon Lai Khan's case (supra). In that case land was sold out by some co-sharers from any partitioned Khata and suit for pre-emption was filed. Facts are quite distinguishable. Firstly, it was unpartitioned piece of land and secondly it was a suit for pre-emption. Khalique Ahmed's case (supra) arose out of an ejectment application. It was ejectment application by one co-owner without joining other co-owners. The Honourable Supreme Court held that suit for possession can be brought by all co-owners jointly. It was held by the Honourable Supreme Court that it is open, however, to one of them also to sure for possession but he must join the other co-owners as defendants and decree will be for joint possession and not for possession by one of * the plaintiffs.
Further, in this case it had been concurrently held by the two Courts below that there had been private partition of property between the plaintiffs and persons of Jakhra tribe. Therefore this case is quite distinguishable.
16. Description of property has been described in the plaint. The applicant No.5 appeared as witness in trial Court. In his examination-in-chief he stated that land is owned by local Government.
In cross- examination he stated that land where shop is constructed is not his property.
' Voluntarily stated that it is Government property. He did not know the number of plot of the Government property. He voluntarily stated that Estate land belongs H to Highway authority. He stated that he did not know that Survey No.180 is behind his shop. Applicant No.2 in his evidence stated that suit shop and hotel are situated at Government land besides the road. Thereafter he stated that suit land was initially owned by Noor Muhammad and after death of Noor Muhammad plaintiff's ancestor became its owner. He also narrated that land upon which hotel is situated is not owned by him. Same has been said by applicant No.4. Applicant No. 1 stated that "we are in possession of Government land not on the property of the plaintiffs".
17. On the other hand plaintiff in his evidence stated all that the has pleaded in his plaint. He produced original sketch of partition duly executed before Mukhtiarkar Revenue Department (Exh.
113-B). He produced one Ghulam Ali as his witness. No question about private partition was asked from witness.
18. Scope of interference in revisional jurisdiction is quite limited. A revisional Court can only interfere if the Court below has exercised a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of its j jurisdiction illegally or with material 1 irregularity. None of these is attracted to revision application of applicants. This revision application is, therefore, dismissed in limini along with listed application and with costs.