' SADIQ HUSSAIN BHA TTI, J. The plaintif f, Rana Azhar Ali Khan, since deceased and now represented by his legal heirs, has filed the present suit against the defendants for declaration, injunction, possession, mesne profits and compensation valued at Rs: Four million with the following prayer:-- "it is, therefore, [prayed that] this Hon'ble Court may be pleased to pass the following judgment and decree in favour of the plaintiff and as against defendants as under:
(a) Holding and declaring that the defendant 2 is a trespasser who has encroached the portion of Suit Property (portion 'B' of annx. And the plaintif f has every right to get possession, thereof from him. Similarly the defendants .3 to 42 are also encroachers of another portion of Suit Property (portion 'C') and they are liable to dispossession with due process of law .
(b) Prohibiting and restraintng the defendant 2 from creating any third party interest in the Suit Property for portion of land in his power and possession. Decree for possession by commanding and directing the defendant 2 to hand over vacant and peaceful possession of portion 'B' as shown in annx . A. 'and likewise commanding and directing the defendants 3 to 42 to part with illegal occupation and hand over vacant and peaceful possession of portion 'C' to and in favour of the plaintif f it being part and parcel of Suit Property viz Survey No. 99, measuring 4.35 acres, situated in Deh Khanto, Landhi, Karachi.
(d) Decree for MENSE PROFIT by directing the defendant 2 to pay Rs. 10,000 per month for portion 'B' as mesne profit for the last three years viz from November , 1998 till the date of dispossession. And like wise defendants 3 to 42 may be directed to pay Rs.300/ per month each, in case the plot is less than 200 sq. Yards, and Rs.500/ each for plot which is more than 200 sq. Yards, from November , 1998 till their ejectment from portion 'C' plus permissible markup thereon.
(e). The defendant 1 may be directed to compensate the plaintiff on account of acquisition of 2000 sq. Yards of land when a road stands carved, out by. Government of Sindh, as shown in annx.A and marKed as 'D'. Costs of the suit be awar ded and any other relief or remedy as may be deemed fit may also be granted in the interest of justice and equity ."
2: Facts of the case, as narrated in the plaint of the suit, are that the plaintif f has got an Establishment and/or Enterprise under the name of Messrs RABIA RANA and COMP ANY as sole proprietary concern owned by the deceased plaintif f. The plaintif f purchased a piece of land in Tapo Landhi, Karachi, bearing Survey No.99, Deh. Khanto, measuring 4.35 acres, in 1971, through registered SALE-DEED from the National Union of Journalists Cooperative Housing Society , Karachi on 29-8-1977 in consideration of Rs. 94,380/, hereinafter called the "Suit Property". On 5-3-1978, a' rectification deed was executed and registered vide Reg. No.1549, page 68 to 69, volume 1709, Book Addl.-I. A part or portion marked 'A' as shown in annexure "A", in green colour admeasuring just less than one acre, has been in power and possession of the plaintif f since purchase of the Suit Property . Part of portion "B" (in pink colour), admeasuring two acres, has' been in power and possession of defendant No.2 since February , 1991. Part of portion "C", as shown in blue colour , admeasuring 1.78 acres, has been encroached upon by defendants 3 to 42 since early March, 1991 and portion 'D' consisting of some 2000 sq. Yards land from the Suit Property has been consumed by defendant No. 45 in obedience to Government policy drawn up by the defendant No.1. According to the plaintif f, the occupants of both the portions 'B' and 'C', who were about 41 in number , are encroachers on the said land. They have, from time to time since early February , 1991 to early March, 1991, illegally and unlawfully , trespassed into the portions of Suit Property belonging to the plaintif f with the exclusion of all others. The case of the plaintif f, it is averred, is based upon title and as all attempts made to eject or dispossess defendant No. 2 from portion 'B' and defendants Nos. 3 to 42 from portion 'C' of Annexure "A", the plaintif f as such has every right to seek appropriate remedies from this Hon'ble Court. Hence the present suit.
3. In response to the summons issued to the defendants, defendant No. 44 and defendants Nos. 1, 45 and 46 (the official defendants) filed written statements: The defendant No. 44, Karachi Electric Supply Corporation, completely distanced itself from the suit on the ground that the dispute mainly is between the plaintif fs and the defendants Nos. 1 to 42 and it has no concern with the same. The official - defendants have, however , denied the averments made in the plaint and have also raised certain preliminary legal objection with regard to maintainability of the suit.
4. On the' basis of the pleadings of the parties, the following issues were framed for determination:--
(1) Whether the suit as framed and filed is maintainable in law .?
(2) Whether the defendants Nos.2 to 42 have any justification or locus standi to dispossess the plaintif f from suit property?
(3) Whether the City Government had carved out or set up any streets, road or carried out ancillary work upon Survey No. 99, Deh Khanti, Tapo Landhi, Karachi admeasuring 4.35 acres, f so, what is its ef fect?
' What should the decree be?
' On 15-12-2003, when this case was fixed in Court, the following order was passed:- "Mr. Saleem learned counsel for the plaintiff' is not ready with the case. He is unawar e of the fact as to how his client has acquir ed title. It appears that in this suit government interest is involved and the Provincial Government has not been impleaded as party to the proceedings in the manner as requir ed under C.P.C. It further transpir ed that the plaintiff is claiming title on the strength of some documents which he has not even filed with the plaint. Under these circumstances, the plaintiff is directed to amend the plaint impleading the Provincial Government as the defendant. He is also requir ed to disclose as to how he has acquir ed the title.
The Additional Advocate General present in Court is also unawar e of the facts of the case. The concerned DO (Revenue) is directed to appear in person with record and will also bring the concerned Mukhtiarkar who has kept the entry in favour of the plaintiff in Court on the next date of hearing. The learned Additional AG shall procure the attendance of the DO (Revenue) and Mukhtiarkar besides the record which includes Village From VII and or any other document. Adjourned to 22-12-2003 by which date the amended plaint shall also be filed by the plaintiff's counsel impleading Pr ovincial Government as one of the defendants." (emphasis supplied).
6. Learned counsel for the plaintif fs stated that a trespasser cannot become owner of a property solely on the ground of efflux of time. He states that a trespasser would remain a trespasser . In this regard he relied on the case reported as Maqbool Ahmed v. Government of Pakistan (1991 SCMR 2063 ). He also stated that defendants Nos.2 to 42 have been declared ex parte as neither they appeared to defend the suit nor did they file any written statement. He, therefore, argued that nonappearance of the defend ants as their own witnesses in support of their tase would make their claim highly doubtful. The learned counsel relied on the case reported as Messrs Kashmir (Pvt.) Limited and others v . Ghulam Nabi Gujjar and another ( 2006 CLC 482 ).
7. Issue No.l. The first and pivotal point involved in this suit is about its main tainability . A suit is filed by a plaintif f to enforce his civil right. Therefore, the first question which arises for determination is as to what is the right of the plaintif f to file the present suit. A perusal of para 1 of the plaint shows that the plaintif f claims to have purchased "a piece of land in TAPPO LANDHI, Karachi bearing Survey No.99," however , the sale deed annexed with the plaint as Anx. A shows that it is in respect of Survey Nos.31. Admeasuring 4.35 acres.
The plaintif f has also filed a copy of the Deed of Rectification dated 5th March, 1978. This Deed of Rectification states that "WHEREAS accor ding to Sale Agreement dated 31-7-1975 was executed between the above named parties in respect of Survey No. 99, admeasuring 4 Acrers and 35 dhuntas". This statement in the Deed of Rectification is wrong as there is no Sale Deed in respect of Survey No.99. It is also worth-mentioning that the document through which the predecessor in interest of the plaintif f acquired title of Survey No. 99, which it allegedly passed on to the plaintif f, has not been filed/produced by the plaintif f. The recital of the Sale Deed (Anx. X) clearly shows that "the Vendors (National Union of Journalist Cooperative Housing Society Limited) are the rightful and bona fide owners and seized and possessed in their own right as their exclusive and personal property the land bearing Survey Nos.31,...". However , the document through which the said Cooperative Housing Society became owner of the said land was not produced. The Deed of Rectification though states that it was typographical mistake but it' is very strange that how such a flawed document was registered by the concerned Registration Authority . The document through which the said land was leased out to National Union of Journalist Cooperative Housing Society Limited, who, in turn, allegedly sold the same to the plaintif f, is also an integral part of the chain of transaction and should have been filed with the plaint as well as with the affidavit in ex parte proof. However , this important document has not been filed by the plaintif f.
8. The plaintif f had earlier filed a Constitutional Petition but the same was withdrawn as the plaintif f himself stated in the plaint that as the case of the plaintif f requires evidence to establish the rights of the plaintif f in regard to relief claimed, the plaintif f has withdrawn his Writ Petition No. 122 of 2001, in February , 2002. A However , the plaintif f has not been able to file documents to prove his title as on the one hand it has not filed the document through which the Nation al Union of Journalist Cooperative Housing Society Limited became owners of leasehold rights in respect of the suit property and, on the other hand, the documents filed by it were flawed.
9. A perusal of the Affidavit in Ex Parte Proof shows that in para 4 thereof the witness/plaintif f has shown the documents which were filed by his late father in the office. However , he did not bother to obtain certified copies and file the same with his Affidavit. It is also clear from the list of documents mentioned in the said pars that the document through which National Union of Journalist Cooperative Housing Society Limited had obtained lease from the Government has not been filed. E Thus, the plaintif f has miserably failed to prove his ownership/title over the suit-land.
10. In view of my above discussion, I answer Issue No.1 in the negative.
11. In view of my findings on Issue No.1 above, there is no need to dilate upon the other issues involved in the suit as the same have become redundant. However , it is worth-mentioning that if the plaintif f was ever in possession of the suit land, which is highly doubtful, then it was his duty to be vigilant and should have immediately filed legal proceedings and should have availed other such legal remedies which were available to him to stop the encroachers from raising any construction on the suit land. He miserably .Failed to do so. He allowed the settlers to raise pucca/RCC construction on the lands occupied by them and, thereafter , he approached the Court.
12. The upshot of the above discussion is' that the plaintif f had no locus standi to file the present suit and the same is liable to be dismissed. Accordingly , the suit is hereby dismissed.