NAZAR AKBAR, J.---This revision is directed against the consolidated judgment dated 29.05.2004 and decree dated 31.05.2004 passed by IVnd Addl. District Judge, (East) Karachi, whereby Civil Appeal No.281 of 2002 and Civil Appeal No.282 of 2002, filed by the Applicant against the consolidated judgment and decree dated 30.10.2002 and 31.10.2002 passed by IIIrd Sr. Civil Judge,
(East) Karachi, in Suit No.222/1988 and Suit No.744/1997 were dismissed and the judgment and decree of dismissal of applicant's Suit No.744/1997 and decree of respondent's Suit No.222/1989 was maintained.
2. Briefly stated facts giving rise to these revision applications are that the applicant had filed Suit No.744/97 for declaration, injunction and cancellation of lease deed dated 18.02.1987 in respect of quarter No.178, Sector No.35-B Korangi No.4, Karachi (the suit property) against Respondent No.1 who had already filed suit No.222/1989 against the applicant for declaration and possession of the suit property as owner by virtue of allotment order dated 27.03.1962, issued in his favour by KDA (Respondent No.2). The allotment was matured into a registered lease dated 18.2.1987. The Respondent in his suit No.222/89 alleged that the applicant herein was his tenant in the suit property and he is a constant defaulter in payment of rent. Therefore, respondent No.1 had filed a rent case No.2650/1980. However, it was dismissed by learned Rent Controller holding that there was no relationship of landlord and tenant between the parties. Respondent No.1 filed F.R.A. No.762/ 1984, but it was withdrawn with permission to file suit for possession if permissible under the law.
Respondent No.1 in his plaint averred that the applicant was occupying the suit property illegally and without paying the rent to him despite the fact he has demanded the same and entitle to possess of suit property as owner. He has prayed for the following reliefs:- i) For declaration that the plaintiff is the owner of quarter No.178/35-D, Korangi Township by virtue of Allotment No.63, issued by the Settlement Department in the Plaintiff's favour. ii) For Judgment and Decree direction the handing over possession of the said plot No.178/35-I by the defendant in favour of the Plaintiff be issued. iii) Cost of the suit. iv) Any other relief or relieves which this Hon'ble Court may deems fit and proper in the circumstances of the case.
3. The applicant in the year 1997, after 9 years of pendency of suit filed by respondent No.1, filed Suit No.744/1997 for declaration and cancellation of lease in favour of Respondent No.l. He claimed that he has several times approached the KDA authorities for regularization of suit property but he was being kept on assurance that his case, will be sent to Head office for necessary orders. In his suit the applicant averred that all of sudden he received notice from the small causes court and through the said notice it transpired that Respondent No.1 has claimed himself to be the owner and landlord of the suit property. In fact in plaint of his suit, he has reiterated his defence from Suit No.222/1989 filed by Respondent No. 1 . The applicant in his Suit No.744/1997 prayed for the following relief(s). i) To declare that the survey slip, allotment order and lease Reg. No.704 dated 18.02.1987 in respect of quarter No.178 Area 25-B, Korangi Township, Karachi in the name of the defendant No.2 issued by the defendant No.1 is collusive, illegal, arbitrary and against the KDA and Govt. policies and such is of no legal effect and as such does not confer any title in the name of the defendant No.2 and the same is liable to be cancelled and consequently the same be cancelled. ii) To declare that the plaintiff is entitled for the regularization allotment and lease of the quarter No.178 Area 35-B Korangi Township, Karachi and as such the defendant No.1 be directed to cancel the allotment and in the name of the defendant No.2 and to regularize, allotment and lease the aforesaid quarter in the name of plaintiff. iii) Any other relief or relieves which this Hon'ble Court fit and proper in the circumstances of the case. iv) Cost of the suit.
4. Respondents Nos.1 and 2 filed their written statement and denied the allegations of the applicant.
Respondent No.2 did not contest as according to them the dispute is between the private parties and no relief was sought by either of the applicant and Respondent No.1 in their pleading against the KDA.
5. The record shows that Suit No.229/1989 filed by Respondent No.1 was decreed by judgment and decree dated 28.8.1999. However, on appeal filed by the present applicant bearing Civil Appeal No.144/1999 and the decree dated 28.8.1999 was set aside by the Appellate Court and the case was remanded to the trial Court by Judgment dated 18.8.2000 with direction for a decision on the issues framed by the appellant. The issues framed by the Appellate Court were as under:-- i. Whether the lease deed of the suit property was allotted in favour of the respondent No.1 (Plaintiff Nazeer Ahmed) by the Respondent No.2 (KDA) during the Pendency of litigation between the parties in the courts of law and without consideration the pending application of the appellant for allotment? If yes, what will be its effect. ii. What should the decree be?
The remand order suggests that the appellate Court was impressed by the pendency of Suit No.744/1997 against Respondent No.1 the decree holder of Suit No.222/1989 and, therefore, the decree of respondent's suit was set-aside and the case was remanded for decision on the issues framed by the appellate Court. After remand the two suits proceeded jointly and common evidence was adduced. Respondent No.1 filed combined affidavit-in-evidence and produced documents at Ex.B, C-1 to C-9, D and E. The applicant has also filed his joint affidavit-in-evidence and produced documents at Ex.D-1 to D-20.
6. Learned trial Court after hearing the counsel for the parties, passed consolidated judgment dated 30.10.2002 whereby Suit No.222/1989 was again decreed and Suit No.744/1997 was dismissed.
The applicant preferred two separate appeals against the consolidated judgment bearing Civil Appeals Nos. 281 and 282 of 2002. Both appeals were dismissed by IVth Addl. Session Judge, East, Karachi by judgment dated 29.05.2004. The applicant against the concurrent findings of facts presented these Revision Applications on 04.09.2004.
7. I have gone through the record and heard learned counsel for the parties who has also filed written synopsis. The last 12 years' diaries of this Court show that learned counsel for the applicant after presentation of these revisions on 04.09.2004 made all efforts to delay this case. The impugned order was suspended on 29.4.2004 and thereafter on three consecutive dates he did not turn up. On 28.8.2006 he was again not well. On 18.9.2006 somebody died in the family of Mr. S. Zahir Hussain Chishti advocate, so he did not attend the Court. After two and half year on 10.11.2006 the revisions were dismissed for non-prosecution for the first time. He filed an application for restoration bearing C.M.A. No.1091/2007. On 11.3.2008 restoration was allowed on no objection from the other side. Then again Mr. Chishti remained absent on two subsequent dates and his client appeared for seeking dates. Then again on 21.5.2009 after 05 years these revisions were second time dismissed for non-prosecution. On 05.9.2009 he again filed application for restoration bearing C.M.A. No.2813/2009 even second restoration application was dismissed on 28.4.2010. This time after delay of two years on 7.8.2012 he filed an application for restoration of his dismissed restoration application. Again after filing of belated application, the learned counsel for the applicant remained absent on 10.10.2013, 5.12.2013, 24.12.2013. Then on 2.4.2014 he filed an application to bring L.R's on record for the first time during pendency of restoration application for the restoration of revision application. In already dismissed revision application and dismissed application for restoration of restoration application, he filed application bearing C.M.A.
No.1033/2015 for injunction against operation of writ of possession issued by the executing Court in Execution Application No. 16/2004 and got the order of writ suspended till 16.3.2015. On 24.3.2015 he got the case adjourned by consent to 15.4.2015 to be taken up at 11:00 a.m. and on 15.4.2015 applicant sought time on the ground Mr. Chishti is in Larkana. The case was adjourned to 30.4.2015 and on 30.4.2015 he remained absent. On 29.4.2016 he again requested for time, when all the pending applications were allowed without touching the merits on the condition the. Revisions will be heard and decided on merits on 30.08.2016 at 10.00 a.m. But on 30.8.2016 he again sought time and the case was adjourned on cost of Rs.10,000/- to 7.9.2016. On 7.9.2016 he did not assist the court on the ground that he is hard of hearing, therefore, he was given three days' time to file written submission, which he has filed.
8. Learned counsel for the applicant during the course of argument and in his written submission has not pointed out a single misreading and non-reading of evidence by the two Courts below. His only contention that the lease deed was executed by KDA in favour of Respondent No.1 in 1987 when there was litigation and F.R.A. No.762/1984 was pending before the High Court and therefore, it was hit by section 52 of the Transfer of Property Act, 1882. The submission of learned counsel is misconceived and contrary to law. He has misquoted the provision of section 52 of the Transfer of Property Act, 1882 in his written notes. He has quoted un-amended provision to take the advantage by misguiding the Court. The Sindh Amendment in Section 52 of the Transfer of Property Act, 1882 was incorporated way back in 1940 and it has not been referred to by the learned counsel, which is read as follows:-- [Sindh Amendment- Section 52 of the Transfer of Property Act, 1882 shall be re-numbered as subsection (1) of Section 52 of the said Act, and In subsection (1) so re-numbered, after the word "question", the words and figure "If a notice of the pendency of such suit or proceeding is registered under section 18 of the Registration Act, 1908", shall be inserted.
(ii) after the said subsection (1) sore-numbered the following shall be inserted, namely:- "(2) Every notice of pendency of a suit or a proceeding referred to in subsection (1) shall contain the following particulars, namely:- (a)the name and address of the owner of immoveable property or other person whose right to the immoveable property is in question; (b)the description of the immoveable property the right to which is in question; (c)the court in which the suit or proceeding is pending; the nature and title of the suit or proceeding; and (d)the date on which the suit or proceeding was instituted. "j Admittedly the applicant never got the pendency of F.R.A. No. 762/1984 registered, therefore, the Registrar of Properties was justified in admitting the execution of transfer deed. No other ground was urged in the written submission. The applicant has stretched litigation for over 28 years in respect of the property in which his own occupation is without any lawful entitlement. He spent more than 12 years in this Court to perpetuate his illegal possession in the name of pendency of these repeatedly dismissed revision against the concurrent finding for his eviction from the suit property.
9. On merit, too, his own suit for cancellation of lease deed dated 18.2.1987 filed in 1997 was hopelessly time barred. It was not only time barred it was also not maintainable in terms of Section 42 of the Specific, Relief Act, 1877 since the applicant has no legal character or any right as to the suit property. He has not prayed for declaration of ownership. In fact he had no title and he has sought declaration of his entitlement of lease in his favour for the first time in 1997 after ten years of the lease of suit property in favour of Respondent No. 1 by Respondent No. 2 (KDA), on the basis of allotment order dated 27.3.1%2, Survey Slip dated 25.2.1962, payment challan dated 28.11.1979 etc. As against these admitted document showing entitlement of Respondent which were confirmed as lawful document by KDA .in its evidence, the applicant has not produced any document which could have been considered by the KDA for grant of lease to him. The applicant in the plaint of his Suit No. 744/1997 claimed his entitlement for lease on the ground that he has occupied the suit property in 1961 when it was lying vacant. By occupying a property which was lying vacant, one does not acquire any right in such property, particularly when the said property, as in this case, belongs to the government institution. Such property has to be disposed of in accordance with law.
The applicant has made first ever application to KDA in 1980 without disclosing that under what circumstances, he entered into property and despite the fact that he has been facing after rent case instituted against him by Respondent No. 1, who hold official allotment order of the suit property issued by the competent authority. The other document such as certificate from Justice of Peace issued in 1980 and the electricity bills of 1996 etc. etc. do not confer any title better than the allotment issued by the competent authority in 1962 and the subsequent registered lease deed by the competent authority. The crux of the above discussion is that the claim of applicant was frivolous and as discussed in para-7 above, he is also guilty of abusing the process of court to perpetuate his illegal occupation over the suit property for more than 25 years.
10. In view of the above facts and particularly, the conduct of counsel for the applicant narrated in Para-7 above, these revisions are dismissed with cost of Rs.50,000/- each to be paid by the applicant to Respondent No. 1 along with peaceful possession of the suit property within 30 days from the date of announcement of this judgment. The executing Court is already seized of Execution No. 16/2004. Even writ of possession was issued on 11.02.2015. Therefore in case the suit property is not vacated by the applicants within thirty days, the executing Court should issue fresh writ of possession with permission to break open the locks and police aid without further notice to the applicant. The cost of Rs.50,000/= in each Revision Application should also be deposited by the applicant with the Nazir of trial Court within 30 days. In case of non-payment of cost, the executing Court already seized of execution should recover the same as recovery of money decree in accordance with law.