1. ' AFTAB AHMED GORAR, J.- Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have impugned the order dated 14-3-2011 passed by the learned IInd Additional District Judge, Badin whereby while allowing Civil Revision Application No.9 of 2011, he set aside the order dated 10-1-2011 passed by the Senior Civil Judge, Badin in F.C. Suit No.102/2010 and consequently, the application under Order VII Rule 11, C.P.C.
2. Filed by the respondents Nos.5 and 6 stood allowed, while the plaint of the suit filed by the present petitioners rejected.
2. Precisely, the facts of the case, as disclosed in the plaint of F.C. Suit No.102/2010 filed by the petitioners against the respondents, are that a plot admeasuring 9450 sq. Feet, situated in Nindo Town (hereinafter referred to as 'the plot') was government naqabooli plot. It was an open ditch and was lying adjacent to the house of Shafi Mohammad, the deceased father of petitioners Nos.1 and 2 and husband of petitioner No.3. The said Shafi Mohammad started to fill mud in suit plot and brought it at the level of his own house by utilizing his labour. Neither the respondents Nos.5 and 6, who are the main contesting parties in these proceedings, nor anybody else from the vicinity raised any objection to the possession of the said Shafi Mohammad. He then moved an application to the then Deputy Commissioner in the year 1993 with the prayer to grant the said land/plot to him. The said application was forwarded to the Mukhtiarkar (R) who inspected the site and made enquiries from the locality of Sheedi Mohalla and from the Chairman, U.C. Nindo Town.
3. All such enquiries, endorsed the possession of the father of petitioners Nos.1 and 2 in respect of the said plot. Thereafter, in the year 1993, on the basis of possession, the Mukhtiarkar kept such entry bearing No.89 of Deh Form-II of Nindo Town in favour of the said Shafi Mohammad, by sketching the boundaries below Entry No.89. The father of petitioners Nos.1 and 2 then started the construction over the said plot and completed the same upto the plinth level in the year 1995 but could not complete the whole construction due to shortage of funds. He expired in the year 2003 leaving behind the petitioners to be his legal heirs. According to the petitioners, respondents Nos.5 and 6 started threatening the petitioners that either the suit plot be sold to them or else they shall occupy it forcibly. In the circumstances, the petitioners constructed katcha but over suit plot and also shifted some of their family members to the said plot. The petitioners then filed Suit No.29 of 2006 for permanent injunction against respondents Nos.5 and 6 before Civil Judge-II, Badin but during the pendency of said suit, the said respondents dispossessed the petitioners from the suit plot, therefore the petitioners withdrew the said suit with permission to file a fresh suit under section 9 of Specific Relief Act bearing No.6 of 2010 before Civil Judge-II, Badin. Respondents Nos.5 and 6 filed their written statement in the said suit wherein they filed order dated 9-1-2010 bearing No.395 passed by respondent No.2 whereby Entry No.89 of Form-II, Deh Nindo Town had been cancelled without notice and knowledge of the petitioners. The petitioners preferred Revenue Appeal against the said order before respondent No.3 which was dismissed vide order dated 20-7-2010. Thereafter the petitioners filed Suit No.102 of 2010 for declaration, mandatory and permanent injunctions. The respondents contested the said suit by filing written statement. Besides, they also filed application under Order VII, Rule 11, C.P.C. For rejection of the plaint. The petitioners opposed the said application and after hearing the parties, the learned Senior Civil Judge, Badin rejected the application vide order dated 10-1-2011. The respondents challenged the said order in Civil Revision No.09 of 2011 and the learned IInd Additional District Judge, Badin vide order dated 14-3-2011 allowed the revision application and set aside the order dated 10-1-2011. In consequence of the said order, the application under Order VII, Rule 11, C.P.C. Filed by the respondents Nos.5 and 6. Stood allowed, while the plaint of the suit filed by the present petitioners rejected. It is against the said order dated 14-3-2011 that the instant constitutional petition has been filed.
3. Learned counsel for the petitioners contended that the impugned order dated 14-3-2011 in Civil Revision No.9 of 2011 has been passed in a hasty and mechanical manner without applying judicial mind and the law applicable in the case. He further contended that the learned Revisional Court/Respondent No.7 did not bother to consider the averments made in the plaint of Suit No.102 of 2010, so also the grounds raised in the application under Order VII, Rule 11, C.P.C. Respondent No.7 also failed to appreciate that respondents Nos.5 and 6 have no right, interest and title in the plot in question, thus, according to him, respondent No.7 travelled beyond his jurisdiction. According to him, while holding that the petitioners have no legal right and character to file the suit, the revisional court has miserably failed to appreciate the definition of 'legal right and character'. He further contended that respondent No.7 also failed to consider the facts of the petitioners' case which disclosed the cause of action and the triable issues which could only be decided after recording of evidence of the parties. He prayed for allowing the instant petition and setting aside the impugned order dated 14-3-2011 passed in the civil revision application. In support of his contentions, he relied upon the decisions reported in 2007 MLD 884, 2003 SCMR 1284, 2007 CLC 163, PLD 2007 Karachi 347, 2004 SCMR 604, 2004 SCMR 612, PLD 2004 Karachi 269, 2007 PCr.LJ 1920 and PLD 2012 Sindh 390.
4. ' Conversely, learned counsel for the respondents Nos.5 and 6 contended that the petition is not maintainable as, in respect of the subject dispute, the petitioners had already exhausted legal remedies and Suit No.102 of 2010, subsequently filed by the petitioners, was hit by the principle of resjudicata as envisaged under section 11, C.P.C. He submitted that the plot in question was not granted in favour of the father of petitioners Nos.1 and 2, in fact he had managed false and fictitious entry in the revenue record. He further contended that the petitioners had no legal right or character, so also no cause of action accrued to the petitioners to file the suit, as such the revisional court rightly allowed the revision application which resulted in the rejection of the plaint of the suit filed by the petitioners. He ultimately prayed for dismissal of the constitutional petition.
5. ' Learned A.A.G. And the counsel for Board of Revenue contended that the petition is not maintainable as the petitioners could have availed different remedies available under the revenue law. It was further contended that father of the petitioners was never allotted the government land and the entry in the revenue record only relates to possession and not the title.
6. ' We have heard the submissions made by the learned counsel for the parties and perused the material available on the record as well as the case-law cited by the learned counsel for the parties.
7. ' This constitutional petition has been filed against the order passed by the learned Additional District Judge, Badin who set aside the order passed by the trial court whereby he dismissed the application under Order VII, Rule 11, C.P.C. Filed by respondents Nos.5 and 6 for rejection of plaint of the suit filed by the petitioners. The moot point to be decided in this petition is; as to whether the suit filed by the petitioners fell within the mischief of Order VII Rule 11 C.P.C. So as to warrant the rejection of the plaint. For resolving this controversy, it would be advantageous to reproduce hereunder the provisions of Order VII Rule 11 C.P.C.:-- "11. Rejection of plaint.-- The plaint shall be rejected in the following cases :-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law."
8. ' From the perusal of application and its supporting affidavit filed by the respondents Nos.5 and 6 under Order VII Rule 11, C.P.C., copies whereof are available at pages 21 to 27 of the file, it is apparent that they have invoked clauses (a) and (d) of the above-quoted provision of law for rejection of the plaint. Firstly, we would like to deal with clause (d). According to the respondents, the suit is hit by the provisions of section 11, C.P.C. And section 42 of the Specific Relief Act. The plea of the respondents is that the petitioners had already exhausted legal remedies in respect of the disputed land, as such Suit No.102 of 2010 subsequently filed by the petitioners was hit by the principle of res judicata, as envisaged under section 11, C.P.C. For deciding this point, it would be advantageous to reproduce the contents of section 11, C.P.C. Which read as under :-- "11. Res Judicata.---No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
9. ' Looking to the facts of the instant case in the light of the above provision of law, apparently, the proceedings under the Illegal Dispossession Act, 2005 have no bearing as the scope of Illegal Dispossession Act, 2005 is very limited and the court exercising powers under section 3 of the Act, was not competent to give any finding in regard to the authenticity of a document and the findings pursuant to the said Act were only confined to illegal dispossession and it is not the function of such court to decide or adjudicate upon title of the property. In this connection, reference may be made to 2007 PCr.LJ 1920 and PLD 2012 Sindh 390. So far as Suit No.29 of 2009 is concerned, it was not decided on merits but was disposed of as withdrawn. Suit No.6 of 2010 was filed by the petitioners under section 9 of the Specific Relief Act for illegally dispossessing the petitioners and even otherwise said was filed prior to the cancellation of Entry No.89 lying in the revenue record in their favour and had no nexus with the such cancellation, whereas the subsequent Suit No.102 of 2010 revolves around the said issue viz. Cancellation of the aforesaid entry. The Honourable Supreme Court in the case reported in 2003 SCMR 1284 held as under:-- "Apart from this, the judgments passed by the Courts below in this case are perfectly in accordance with law for rejection of the plaint was sought on the ground that the matter was barred by res judicata and it has been rightly held that same could be decided after framing regular issue and leading of evidence."
10. ' So far as plea regarding non-availability of cause of action is concerned, the respondents have stressed that the petitioners have no legal right or character, as such they had no cause of action to file the suit. In the case reported in PLD 2007 Karachi 347 it was held as under:-- ' The cause of action means giving rise for a claim or right of the plaintiff against the defendant, enable a Court to give its decision. The question as to whether the applicant will be able to prove the case at the trial is irrelevant and cannot be considered for rejecting the plaint.: ' In PLD 2004 Karachi 269 a Division Bench of this Court held as under:-- "Section 42 of the Specific Relief Act on the other hand, does not require existence of title in favour of the plaintiff but a declaration with respect to any right as to any property could be sought. It could not, therefore, be urged that unless the appellant's title had been perfected Suit No.607 of 1998 could not have been filed."
11. ' Another Division Bench of this Court in 'the case reported in 2007 MLD 884, held as under:-- "Even under section 53 of the Land Revenue Act, 1967 it has been provided that in case any person considers himself aggrieved by any entry in the record-of-rights or in any periodical record as to any right which he possesses, he may institute a declaratory suit for this purpose under Chapter VI, Specific Relief Act, 1877."
12. ' In view of the dictum laid down by the superior courts, it can safely be held that the Suit No.102 of 2010 instituted by the petitioners was maintainable and was not hit by the provisions of Order VII, Rule 11, C.P.C., thus, the revisional court erred in holding that the plaint was liable to be rejected.
13. ' Above are the reasons for the short order announced by us on 23-12-2013, whereby this petition was allowed and the impugned order dated 14-3-2011 passed by the Additional District Judge, Badin in Civil Revision No.09 of 2011 was set aside.