' IRFAN SAADAT KHAN, J.---This Revision Application (R.A) has been filed against the judgment and decree dated 29-7-2010 passed by the IInd Additional District Judge, Thatta in Civil Appeal No.16/2009 on an order passed by the Senior Civil Judge Thatta dated 14-5-2009 in respect of an application under Order XXXIX, Rules 1 and 2, C.P.C. Filed by the applicants in FC suit No.168/2009.
1. Briefly stated the facts of the case are that the applicants filed a civil suit bearing No.168/2009 for possession, mandatory and permanent injunction before the Senior Civil Judge Thatta against the respondents in respect of sikni (residential) plot bearing No.790, admeasuring 4000 Sq ft, situated in village Bilal Nagar, Gharibabad No.4 Dhabeji, Deh Gharo, Taluka Mirpur Sakro, District Thatta (hereinafter referred to as the plot). As per the said suit, the plot belonged to Government of Sindh and was subsequently allotted to the son of applicant No.1 namely Shafi Mohammad, under Goth Abad Scheme Act, 1987 (the Act) by the then Mukhtiarkar Gothabad Thatta. The said Shafi at the time of allotment was only two years of age. Sanad was also issued in his favour. Mutation entry was then kept in Record of Rights and Deh Form-II was also issued in this behalf in his name. The said allottee Shafi Mohammad expired on 14-8-1994 at the age of 4 years and after his death, the possession of the plot remained with the applicant No.l. The applicant No.1 then sold the plot to the applicant No.2 through a sale agreement dated 4-5-1995 and also executed a general power of attorney in his favour before the Sub-Registrar Thatta vide Serial No.148, Registered No.152 dated 6- 9-1995 and delivered the possession of the plot to the applicant No.2. The applicant No.2 then shifted to Karachi and in order to avoid any encroachment on the plot handed over it to respondents Nos.5 and 6 to look-after the same. At the request of respondents Nos.5 and 6, the applicant No.2 allowed them to install a service station on the plot, with the condition to vacate the same as and when required by him. After some time, the applicant No.2 asked the respondents Nos.5 and 6 to vacate the plot but they became greedy and refused to vacate it. The applicant No.2 then moved an application to the Executive District Officer (Revenue) Thatta (EDO) who forwarded the same to the respondent No.3 to furnish his report within 15 days. The applicant No.2 also moved another application to District Police Officer Thatta who instructed the concerned SHO to make an enquiry and to furnish his report in this behalf. As per the instant R.A. The applicant No.2 produced all the relevant documents, however, respondents Nos.5 and 6 failed to produce any document to prove their ownership. The applicant No.2 made a number of attempts to get the plot vacated from the said respondents but all went in vain. However, as per the applicant No.2. Not only the said respondents installed a service station on the plot but also raised construction thereupon. Being aggrieved with the situation, the applicant No.2 filed a suit bearing No.168/2009 for delivery of peaceful possession. The applicants then filed an application unde Order XXXIX, Rules 1 and 2 before the Senior Civil Judge. The matter proceeded before the learned Judge, who after finding averments of the applicant No. 2 to be incorrect dismissed the said application vide order dated 14-5-2009, against which the applicants filed an appeal before the District Judge Thatta who also vide his order dated 29-7-2010 dismissed the said appeal, against which the present R.A. Has been filed.
2. Mr. Azhar Mahmood advocate has appeared.On behalf of applicants and stated that the orders passed by the two authorities below are totally illegal and unlawful since both the courts below have passed the orders without proper application of mind and without giving cogent reasons for dismissing the application. While elaborating his view point the learned counsel stated that both the courts below have erred in applying the provisions of Goth Abad Scheme Rules 2008 (the Rules) to the present case. He submits that the said Rules came into force in 2008, whereas the matter pertains prior to coming into force of these rules, hence both the courts below were not justified to pass orders to give retrospective effect to the said rules. He submitted that the two courts below have also not considered the various ownership documents furnished by the applicant whereas no document whatsoever has been produced by the respondents Nos.5 and 6 in support of their contention. He submitted that since the courts below have failed to consider the various aspects going to the roots of the case, hence the R.A. May be allowed and the orders passed by the two-authorities below may be set aside. ' In support of his above contentions he has relied upon the following decisions:
(1) PLD 1978 Lahore 867 Re: [Barkat Ali v. Administrator Thal Development Bhakkarl
(2) PLD 2007 Karachi 186 Re: [Razaur-Rehman v. Govt. Of Sindh]
(3) 2007 CLD 01 (SC) Re: [Federation of Pakistan v. Haji Mohammad Sdiq]
(4) 2007 CLD 1642 Re: [Nazir Cotton Mills v. State Bank of Pakistan]
(5) 1992 SCMR 1652 Re: [Army Welfare Sugar Mills v.. Federation of Pakistan]
(6) 2002 SCMR 1023 Re: [Pakistan Steel Mills v. Muhammad Azam
(7) PLD 2012 SC 217 Re: [Sarwar Jan v. Mukhtar Ahmed]
(8) 2007 YLR 1981 Re: [Pioneer Cables v. S.G. Fibres Ltd.]
3. Mr. Aftab Ahmed Memon, advocate has appeared on behalf of the respondents Nos.5 and 6 and has supported the orders passed by the two authorities below. He submitted that concurrent findings are in his favour and the issue now raised regarding giving retrospective effect to the rules was also taken before the lower courts and these Courts have decided the matter against the applicants, after giving detailed and exhaustive findings in this behalf. He submitted that on perusal of the Act, it can be seen that it has categorically been mentioned in section 12 of the said.
Act that Government will make rules to give effect to the purpose of this Act and thereafter the rules were introduced in the year 2008 just to give effect to the said Act, which means that the said rules would have a retrospective effect. While elaborating his view point the learned counsel stated that it is very strange to note that a child of two years of age was given a Sanad, which is against the parameters as defined in the said Act and Rules. He submitted that if Rule 5 is perused it would be seen that eligibility of the allotment can only be granted to a person holding Identity Card. Since admittedly the person to whom the said allotment was made had expired when he was only four years of age hence he was not having any Identity Card, which is the primary requirement for the eligibility for issuance of allotment of the plot. He therefore, submitted that the very issuance of Sanad was illegal and the application was rightly dismissed by the two authorities below. He, thereafter, invited my attention to Sub-Rule (3) of Rule 6 of the said Rules which providing that the plot shall not be transferred for a period of ten years except Foti Khata Badal whereas in the instant case it is an admitted position that the plot was allotted in the year 1987 to Shafi Mohammad age two years and the applicant No.1 sold the said plot to the applicant No.2 in 1995 and hence the condition of 10 years also has not been fulfilled. Moreover no change in the title has been made through Foti Khata Badal. He submitted that since all the above illegal actions have been taken by the applicant No.1 with the connivance of applicant No.2, therefore, the application was rightly dismissed. Learned counsel has also placed reliance on Sections 42 and 56 of the Specific Relief Act by mentioning that the suit filed by the applicants was hit by the above two provisions of law.
He therefore, submitted that since the applicants have come to the court with unclean hands, therefore. The present appeal may be dismissed.
4. Mr. Iqbal Ahmed Soomro, State Counsel, has appeared on behalf of respondents Nos.1 to 4 and has adopted the arguments of counsel for the respondents Nos.5 and 6 and has stated that the application filed by the applicants was rightly dismissed and the present R.A ,is devoid of any merits and is also liable to be dismissed.
5. I have heard all the learned counsel at considerable length and have perused the record, the law and the decisions relied upon.
6. It is seen from the record that the Sanad of the above mentioned plot was granted to one Shafi Muhammad son of Izzat Khan by the then MuKhtiarkar illegally and the legal formalities in this regard have not been fulfilled. The said Shafi Muhammad died on 14-10-1994 and after a thorough investigation made by Senior Civil Judge in FC No.168/2008, he came to the conclusion that the Sanad issued to the minor Shafi Muhammad was highly objectionable. The said Court also observed that the applicant No.1 appears to be a person who has no concern with that Shafi Muhammad who was the real owner of the plot. It is seen from the record that one Shafi Muhammad having NIC No.520- 59-347072 appeared before the Deputy District Officer (DDO). The learned Senior Civil Judge obtained record from the concerned authorities and thereafter came to the conclusion that a person with the name Shafi Muhammad is the son of one Izzat Khan Bloch is another Shafi Muhammad who expired in the year 1994. Incidentally the names of the father of both these Shafi Muhammad are also Izzat Khan. The major Shafi Muhammad appeared before the DDO Sakro who was examined and he produced his NIC and explained that the said plot was sold by him to Pir Bukhsh. Relevant documents in this regard were also produced by Shafi Mohammad (major). However when the applicant No.1 was called upon to produce his son Shafi Muhammad he produced his death certificate. The learned Judge also observed that in view of the facts and circumstances, it is beyond comprehension that a Sanad could be given to a minor of two years only as there is no provision under the law for grant of Sanad to a minor. The learned Court also observed that since the very Sanad was a fake document, therefore all the subsequent proceedings regarding sale of the said plot etc. Were also illegal. The learned Court has also observed that the documents produced by the applicant No.2 appears to be managed one. The learned Court observed from the record that Muhammad Saeed who is the father of respondents Nos.5 and 6 obtained the plot bearing No.794 measuring 4000 Sq.Yd in the village Bilal Nagar, Gharibabad No.4, Dhabeji Deh Gharo Taluka Mirpu Sakro District Thatta in the year 1991, under the Sindh Goth Abad Scheme, who subsequently exchanged his plot with that of one Pir Bakhsh with Plot No.794 who in turn has purchased the said plot from Muhammad Shafi (major) as explained above. The Court also after hearing the applicants and respondents came to the conclusion that firstly the stand taken by the applicants regarding various definitions given in the Act and Rules about allotment in the name of minor was in violation of -provisions of Act as well as the Rules framed thereunder. The learned Court also observed that it has been proved that the applicant No.1 has obtained the Sanad by misrepresentation. The appellate Court also found the averment of the applicants to be devoid of any merit and thereafter dismissed the appeal.
7. In my view since the two courts below have threshed out the matter in a detailed manner by examining each and every aspect of the case hence no interference from this Court is required. I have found that in the sale agreement, which is available at page 75 of the file, the applicant No.1 has categorically mentioned that in the Sanad by mistake the name of his son Shafi Muhammad (minor) has been mentioned which is not correct. Meaning thereby that the applicant himself was mindful of the fact that the said Sanad issued to the minor was not in accordance with law and the Rules otherwise he would not have said so. It is also seen from the record that a number of opportunities were given to the applicant No.1 by the Revenue authorities and the police officials to prove his ownership, which he failed to produce in support of his contention. It is also seen from the record that the real Shafi Muhammad (major) appeared before the DDO along with relevant documents and gave statement and not a single word has been said in this regard by the applicant that whether the statement given by the said Shafi Muhammad was incorrect. It is also seen from the record that the documents regarding exchange of plot of Muhammad Saeed father of respondents Nos.5 and 6 with Pir Bakhsh have been furnished, which also have not been denied either by the applicant No.1 or by the applicant No.2, which also proves that the claim made by the them was incorrect. It is also seen from the record that DDO Mirpur Sakro and Gharo made extensive inquiry before whom the applicants Nos.1 and 2 have miserably failed to prove their ownership regarding the said plot. It is also hardly believable that the applicant No.2 handed over the said plot to respondents Nos.5 and 6 to save it from encroachers and also allowed them to install a' service station upon it. This fact is also on record that the, respondents Nos.5 and 6 installed a service station on the said plot and the same is in their possession since quite some time. Neccessary documents regarding Sanad and Deh Form of the said plot, deed and agreement were also furnished in this behalf. It is also seen from the record that the District Officer Thatta, the respondent No.2, has filed his comments according to which he has categorically mentioned that the issuance of Sanad to the minor is highly questionable, as no grant under the said Act is to be given to a child of two years only. He further mentioned that under the said Act, Sanad is always given to a person having dwelling house or to a she lter less person and not to a minor who is wholly dependent on his parents and the said plot has been obtained if any, by way of misrepresentation.
8. In view of the above facts and circumstances, I have come to the conclusion that the applicants Nos.1 and 2 have approached this Court with unclean hands and have miserably failed to prove with cogent material that they are the real owner of the said plot and that the respondents Nos.5 and 6 are the encroachers of the said plot. The decisions relied upon by the counsel for the applicants are found to be not applicable to the present case. This R.A. Thus is found to be devoid of any merit and the same is hereby dismissed along with the pending application,