ALI BAQAR NAJAFI, J. - The petitioners, through this petition, challenge order dated 6.4.2009 passed by respondent No. 1 and order dated 3.7.2011 passed by respondent No. 2, whereby application filed by the petitioners under Order VII, Rule 11, CPC for rejection of the plaint was dismissed.
2. Briefly, the facts giving rise to the filing of this writ petition are that respondent No. 3 filed a suit for declaration, cancellation, possession and mandatory injunction on the basis that she claimed herself to be the co- owner/co-sharer in the Shamlat of Mauza Topi to the extent of 21/64 share through mutation No. 319, whereafter mutation No. 3307 was attested by the concerned Collector, which was maintained up to this Court, whereafter mutation No. 319 was restored. Meanwhile, another mutation No. 11601 was attested, whereby co-sharer namely Tahir transferred 3 kanals, 19 marlas of land from Khasra No. 150 to the petitioners through sale-deeds dated 24.11-.1992. It was alleged in the suit that since mutation No. 3307 stood cancelled; therefore, sale-deed is also liable to be cancelled. During pendency of the suit the petitioners filed an application under Order VII, Rule 11, CPC which was dismissed on the ground that since the suit was for possession, therefore, respondent No. 3 was ordered to be paid Court-i.e of Rs. 15,000/-. The Appellate Court vide its judgment dated 6.4.1990 upheld the order on the ground that since the claim of respondent No. 3 was based upon her right of inheritance over the land which is part of Shamlat Deh, therefore, this question can be resolved after recording evidence.
3. Learned counsel for the petitioners submits that the petitioners are bona i.e purchasers for value; bare perusal of the plaint and the material placed before the Court demand it to return plaint under Order VII, Rule 11, CPC as no cause of action was disclosed. The petitioners being in possession and the dispute were between vendor and vendee, therefore, unless the matter resolved the plaint was to be returned. Reliance was placed upon S.M. Sha. Fi Zaidi through Legal Heirs Vs. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCM R 338), Muhammad Yaqoob Vs. Abdul Razzaq and 2 others (2009 YLR 126), Ume Aiman and 43 others Vs. Muhammad Yousaf and 10 others (2002 CLC 1620) and (1998 SCMR 826).
4. Conversely, learned counsel for the respondents opposed the petition by submitting that cause of action is disclosed in the plaint and there is no occasion to return the plaint. Relies on Ghulam Ali Vs. Asmat Ullah and another (1990 SCM R 1630), wherein it was held that to decide application under Order VII, Rule 11, CPC only perusal of the plaint and the documents attached along with are to be seen and even defence averred Order VII, Rule 11, CPC cannot be based for such a decision.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly, claim of the respondents is based upon inheritance of the parties in Shamlat Deh and the possession with the petitioners which they retained for the last many years. Even otherwise, case of the petitioners is that they were bona i.e purchaser for value and without notice which fact by itself requires evidence. In this view of the matter this writ petition is dismissed.