' KHADIM HUSSAIN M. SHAIKH, J.---This Revision. Application is directed against the judgment dated 07.11.2009, passed by the Court of District Judge, Badin in Civil Appeal No,32 of 2009, re-Bibi Jaloo Shah alias Dada Sam n and others V. Rehan and others, whereby order dated 07.05.2009, passed by the Court of Senior Civil Judge, Badin in F.C. Suit 121 of 2008, re-Bibi Jaloo Shah alias Dada Sam n and others v. Rehan and others, rejecting the plaint of the above suit, has been set aside, remanding the matter to the trial court.
2. Briefly, the facts of the case are that on 18.12.2008, plaintiffs/ .Respondents Bibi Jaloo Shah alias Dada Sain and others filed a suit being F.C. Suit No,121/2008 re: Bibi Jaloo Shah alias Dada Sam n and others v. Rehan and others, before the Court of Senior Civil Judge, Badin, for declaration, possession and permanent injunction. The case of the plaintiffs is that a plot measuring about 4000 sq. Ft. Out of survey No,207 of Deh Badin, situated in Ward No,5, Kachhi Mohallah, Badin Town, having descriptions and boundaries shown in para No,1 of the plaint, is an ancestral property of the plaintiffs; the subject plot was owned by one Pir Malook Shah Jeelani and on his death the same along-with his other properties stood devolved upon his legal heirs i.e, the plaintiffs according to Mohammadan Law of inheritance and such Foti Khata Badal was made in record of rights vide entry No,11 dated 30.08.2003 of Deh Form-II in their favour; that earlier the aforesaid survey number was an agricultural land, but now it is an un-city surveyed urban property, falling within the local limits of Municipal Committee, Badin; that the defendants Nos.01 to 05 illegally and without consent of the plaintiffs encroached upon the subject plot; that the plaintiffs approached the defendants Nos.1 to 5 and requested them to vacate the same, but they refused, hence the plaintiffs filed the above suit.
3. The defendants Nos.1 to 5 filed their written statement on 02.01.2009, wherein they have denied the averments of the plaint and .Have further stated that the defendants have no relevancy with survey No,207, .So also with the land inherited by the plaintiffs; that the land bearing survey No,207 has not been encroached upon by them; that the old committee as well as newly constituted committee of the old Eidgah executed an lqrarnama dated 11.03.2005 in favour of the defendant No,1 donating survey No,202 of Deh Badin for construction of Masjid; that the construction of Masjid and Madressa is being made on an area admeasuring 39417-50 Sq.Ft. From Na-Qabooli Survey No,202 of Deh Badin; that prior to construction of Masjid and Madressa, the defendants contacted the plaintiff No, 1, who granted such permission to them; that the defendants have no dispute if the Court get the area/suit plot surveyed to ascertain as to whether or not Masjid etc. Is constructed over survey No,202.
4. Along with the written statement, an application under Order VII, Rule 11, C.P.C. Was filed by the defendants Nos. 1 to 5 seeking rejection of the plaint. Plaintiff No, 1, Bibi Jaloo Shah alias Dada Sain filed her counter affidavit denying the contents of application under Order VII, Rule 11, C.P.C. And its supporting affidavit filed by the defendants Nos.1 to 5.
5. After hearing the parties counsel, the trial court vide order dated 07.05.2009, rejected the plaint of the subject suit under Order VII, Rule 11, C.P.C. The said order dated 07.05.2009 was appealed against by the Plaintiffs in Civil Appeal No,32/2009 re: Bibi Jaloo Shah alias Dada Sam n and others v. Rehan and others, which was ultimately decided by the learned District Judge, Badin vide judgment dated 07.11.2009, whereby the said order dated 07.05.2009, passed by the trial court has been set aside, remanding the matter to the trial court, hence this Revision Application.
6. It is, inter alia, contended by the learned counsel for the applicants that the plaintiffs had no cause of action to file the present .Suit; that the suit was barred by provisions of section 42 of Specific Relief Act, as the plaintiffs claimed their right in survey No,207 of Deh Badin and whereas, the Mosque and Madressa is being constructed in survey No,202 of Deh Badin, which is a na- qabooli land; and that the order passed by the trial court, rejecting the plaint did not call for any interference, but the learned District Judge, Badin vide impugned judgment dated 07.11.2009, has set-aside the aforesaid order dated 07.05.2009, passed by the trial court and remanded the case to the trial court, which, per him, is illegal. He, therefore, prays that the impugned judgment dated 07.11.2009, passed by the learned District Judge, Badin may be set aside and the order passed by the trial court, rejecting the plaint may be restored. He has placed his reliance on the case of S.M.
Shall Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Mom) through Legal Heirs (2002 SCMR 338).
7. On the other hand, the learned counsel for the respondents has mainly contended that the plaintiffs through the instant suit have sought for relief of declaration, possession and permanent injunction; that the plaint does disclose clause of action; that the suit is not barred by the provisions of section 42 of Specific Relief Act; that the order passed by the trial court rejecting the plaint under the provisions of Order VII, Rule 11, C.P.C., being based on defense pleas has been rightly set aside by the appellate court vide impugned judgment dated 07.11.2009. He, therefore, prays that the civil revision application filed 'by the applicants may be dismissed. He has placed his reliance on the cases of.Nawabzada Malik HABIBULLAH KHAN v. THE PAK CEMENT INDUSTRIES LIMITED (1969 SCMR 965), HYDERABAD MUNICIPAL CORPORATION v. Messrs FATEH JEANS LTD. (1991 MLD 284 Karachi) and Hall BAZ MUHAMMAD and another v. Mst. UMERA alias SHIREEN TAJ and 3 others (PLD 2003 Quetta 128).
8. I have heard the learned counsel for the parties and perused the material available on record.
9. In order to appreciate the contentions of the learned parties' counsel, it would be advantageous to re-produce the relevant paragraphs of the aforesaid order dated 07.05.2009 of the trial court, which read as under:-- ' In the present suit it is matter of record and documents annexed to the plaint shows that on Eidgah namely Pir Malook Shah was in eastern and southern side of S.No,207 deh Badin and the documents annexed to the written statement shows that the defendants are raising construction of Mosque in S. No, 202 as such plaintiff has no cause of action to sue the defendants and suit of plaintiff is barred under section 42 of Specific Relief Act which bring Order VII, Rule, 11(a) & (d), C.P.C.
Into operation.
' In these circumstances application under Order VII, Rule 11, C.P.C. Is allowed and plaint stands rejected under Order VII, Rule 11(a) & (d), C.P.C. Whereas an application under Order XXXIX, Rule 1 & 2, C.P.C. Stands infructuous the same is hereby dismissed, with no order as to costs."
10. The record reflects that the plaintiffs have filed the subject suit seeking declaration, possession and permanent injunction with the following prayers.
A) To declare that the plaintiffs are owners of suit plot admeasuring about 4000 sq. Feet from S. No,207 situated in Deh Badin Taluka Badin by way of inheritance and entitlement to having its physical vacant possession.
B) To direct the defendants Nos.1 to 5 to vacate the suit plot and handover its vacant physical possession to the plaintiffs.
C) To grant permanent injunction against the defendants Nos.1 to 5 restraining them permanently from selling, (possession) mortgaging, gifting, leasing, acrossing its limits delivering its possession to any one else and further restraining them from raising any construction over suit plot by themselves, through their agents, servants, subordinates, friends, helpers, Jamiates, or any body from the locality or in any way whatsoever.
D) Any other relief which this Honourable Court may deem fit and proper be awarded to the plaintiffs.
E) Costs of the suit be borne by the defendants.
11. The defendants Nos.1 to 5 have filed their written statements wherein they have denied the averments made in the plaint and their main assertion is that the defendants have not encroached upon the Survey No,207 belonging to the plaintiffs and that .The construction of Masjid and Madressa is being raised in survey No,202, which is alleged to have been donated to the defendants through an Iqrarnama by the alleged committee of old Bid-Gah. And such NOC has been issued by Taluka Municipal Administration Badin and Mukhtiarkar Taluka Badin has also made such report to the District Revenue Officer Badin in their favour.
12. From the above it is crystal clear that there is dispute between the parties over the possession of the subject property and the divergent pleadings of the parties have given rise to various issues to be framed in this case.
13. Manifestly, the trial court rejected the plaint, holding that the defendants are raising construction of Mosque in S.No,202 as such plaintiff has no cause of action to sue the defendants and such observations of the trial court are based on the alleged documents obtained by the defendants in their favour in the shape of NOC from Taluka Municipal Administration Badin and report of the Mukhtiarkar Badin to the District Revenue Officer Badin, which, from face of record, have got no legal sanctity and the same could not be taken as conclusive proof to decide the dispute between the parties over the subject property, however, at the most the same could be considered on production thereof in evidence that too subject to affording opportunity of confronting them to the other side in cross examination, but the same were taken as conclusive proof of the facts stated therein by the trial court while rejecting the plaint and thus the order dated 07.05.2009, passed by the trial court rejecting the plaint on the basis of such documents annexed with the written statement without any evidence worth consideration, was not sustainable. In case of Ghulam Ali v. Asmatullah (1990 SCMR 1630) the honourable Supreme Court of Pakistan has held that assertions made in the plaint had to be seen for the purpose of determining whether plaint disclosed any cause of action. Lack of proof or weakness of proof in 'circumstances of case did not furnish any justification for coming to the conclusion that there was no cause of action shown in he plaint. In case of Saleem Malik v. Pakistan Cricket Board PLD 2008 SC 650), the honourable Supreme Court of Pakistan has held as under:- "the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of facts or law; the provision of Order VII, Rule 11, C.P.C. Cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. The rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his legitimate right. "
14. The case of S.M. Shafi Ahmed Zaidi through legal heirs (supra) relied upon by the learned counsel for the applicants, is not attracted to the circumstances of the instant case as in the said case of S.M. Shafi Ahmed Zaidi the suit was filed only for possession of immovable property without seeking relief of declaration regarding title of the plaintiff and the claim of the plaintiff was based on a provisional allotment and the property was resumed by the Government of Sindh, but in the instant suit the plaintiff has sought for declaration of their ownership on the subject property by way of inheritance with consequential reliefs of possession and permanent injunction.
15. In view what has been discussed above I am of the considered view that order dated 07.05.2009, passed by the trial court rejecting the plaint under Order VII, rule 11, C.P.C., which was not sustainable, has rightly been set aside by the appellate court vide impugned judgment dated 07.11.2009, the learned advocate for the applicants has not been .Able to satisfy the court as to how the suit is barred under the provisions of section 42 of Specific Relief Act (I of 1877) and he has also not been able to point out any illegality or jurisdictional defect IN exercise of jurisdiction by the appellate court in setting aside the order dated 07.05.2009, 'passed by the trial court, attracting the provisions of Section 115 of the Code of Civil Procedure Code, therefore, this Revision Application is dismissed with no order as to costs.