AZIZ-UR-REHMAN, J.---By this order we propose to dispose of CP No,D-4613 of 2016, filed by Ali Gohar son of Muhammad Umar against Respondent No, 1-Province of Sindh through Secretary Land Utilization Department and 2 others on 26.08.2016 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 [Ali Gohar son of Muhammad Umar v. Province of Sindh and 2 others] whereby, the Petitioner has approached this Court with the following prayers:- a]. Hold that the Respondent No,3 was allotted only 14-30 acres of land in Sector 22, KDA Scheme- 33, Karachi, and no extra/additional land was allotted to Respondent No,3 by the Respondent No,1 in Sector 22, KDA Scheme-33, Karachi. b]. Set-aside the Layout Plan No, URP-33.216/ MP&EC/88/208/UD-181, dated 07.05.2008 and creation of commercial Plot No,18, directing the Respondent No,1 to restore the Petitioner his 10- Ghuntas land/plot situated in Sector 22, KDA Scheme-33, Karachi. c]. Restrain the Respondent No,3, their servants, subordinates, agents, assigns, and/or any other person(s), claiming through or under them from alienating, mortgaging, selling, disposing-off and/or creating any third party interest in respect of the Plot/Land of the Petitioner, measuring 10 Ghuntas, situated in Sector 22, KDS Scheme-33, Karachi, in any manner whatsoever. d]. Any other relief(s) as this Honourable Court may deem it and appropriate under the circumstances of the case may also be granted.
2. Succinctly stated the facts of the case are as follows:
3. The Petitioner claims to be lawful and bonafide owner of 03-00 acres of land in different pieces, situated in Sector 22, Scheme-33, Karachi, as per Allotment Order No,PS/MBR/LU/(1353)96 N.C.1 [hereinafter referred to as 'suit property'], issued by Respondent No,1 through , Secretary, Land Utilization Department.
4. The Allotment Order No,PS/MBR/LU/(1353)96 dated 25.08.1996 [Annexure 'A' to MoP], it is significant to note, besides, being not in favour of the Petitioner exclusively refers to Judgment and Decree dated 26.04.1993 and 03.05.1993 respectively, passed in Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. Deputy Commissioner, Karachi East]. The said Suit No,131 of 1992, it appears, was filed by the petitioner in his capacity as a President of Allah Dino Khaskhelee Village, Sector 22, Scheme No,33, Main University Road, Karachi, before the Court of IInd Senior Civil Judge, Karachi [East], for Permanent Injunction.
5. From the record, it transpires that the Petitioner herein [Plaintiff in Suit No,131 of 1992], somehow, succeeded in getting an ex-parte 'Judgment' and 'Decree' in his favour as prayed, however, with no order as to costs. The prayer sought in the aforesaid Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. The Deputy Commissioner, Karachi East], reads as follows:- "a). Permanent Injunction by restraining the defendant, his staff his men, agents or any person working under him from dispossessing the Plaintiff along with the residents of Allah Dino Khaskhalee Village, situated at Sector No,22 Scheme No,33, Main University Road, Karachi without due process of law and not to allot the land of the Allah Dino Khas Khalee Village in the name of any other person who are not the resdients of the Allah Dino Khas Khalee Village. [Underlining is ours] b). Cost of the suit. c). Any other relief which the Hon'ble Court may deem fit and proper."
6. The aforesaid Judgment and Decree, upon having been challenged through an application under section 12(2), C.P.C., by one Ahmed Ali son of Haji Shakeel Akilado, in his capacity as an INTERVENOR/APPLICANT were set aside and later-on, the said Civil Suit No,131 of 1992, was also dismissed as withdrawn on 15.02.1994. Order dated 15.02.1994, passed by IInd Senior Civil Judge, Karachi, East, reads as follow:- "IN THE COURT OF SR. CIVIL JUDGE, KARACHI (EAST)
Civil Suit No,131 /92 Ali Gohar S/o Muhammad Umar, President of Allah Dino Khaskhalee Village, Sector No,22, Scheme No,33, T appo Gujro, Main University Rd., Karachi Plaintiff V/S The Deputy Commissioner, Karachi East Defendent
Plaintiff and counsel for the defendant present, the L/AGP has no objection if the suit is dismissed as withdrawn.
In view of the above the application is allowed as prayed and the suit is dismissed as withdrawn with no order as to cost. [Underlining is ours.] Sd/-15.02.1994 HND'SR. CIVIL JUDGE KARACHI EAST"
7. The Judgment and Decree of 26.04.1993 and 03.05.1993 respectively were not only irrelevant but also the same were not in field at the time of issuing the allotment order No,PS/MBR/LU/(1353)96 dated 25.08.1996 in favour of the Petitioner herein and one Noor Hussain, as upon setting aside of the aforesaid Judgment and Decree, even the said Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. The Deputy Commissioner, Karachi East] was dismissed as withdrawn on 15.02.2014.
8. Per para 2 of the Memo of Petition [In short MoP], upon full payment of cost of land and fulfilling all other necessary codal formalities/ requirements of ownership, at the office of Deputy Commissioner, Karachi East/Mukhtiarkar, Gulshan Iqbal, Karachi, the 'POSSESSION' of the 03-00 acres land, as claimed was HANDED OVER to the Petitioner in different pieces.
9. According to Petitioner's stand one so-called 'Plot' [unknown/ un-specified] measuring '10 Guntas' equivalent to 1210 sq.yds. out of the 03-00 acres land of Petitioner, has now been encroached upon by Respondent No, 3, under the garb of Lay out Plan No,URP- 33.216/MP&EC/88/208/UD-181 dated 07.05.2008, passed by Respondent No,2-Director Master Plan Department, in favour of Respondent No,3-Honourary Secretary/Managing Committee Divisional Commissioner's Employees Cooperative Housing Society.
10. Per Petitioner's version, Karachi Divisional Commissioner's Employees Co-operative Housing Society [In short KDCECHS], is only owner of 14-30 acres land in Sector 22, KDA Scheme No,33, Karachi, but Respondent No,2, as alleged, has illegally approved Lay out Plan No,URP-33.216/ MP&EC/88/208 /UD-181 dated 07.05.2008, for an area of 15 acres instead of 14-30 acres land whereby, the plot of 10 Guntas equivalent to 1210 sq.yds, as averred by the Petitioner, was thus got encroached by Respondent No,3, as alleged, illegally, unauthorizedly and without any lawful justification. Hence the instant petition.
11. On 07.09.2016, when the above 'Writ Petition' came-up before the Court then, the following order was passed:- "07.09.2016 M. Ghulam Akbar Khan Jatoi Advocate the Petitioner.
1) Urgency application is granted.
2) Exemption is allowed subject to all just exceptions.
2, 4 and 5) Office has raised objection that the impugned layout plan has not been filed by the Petitioner. The objection appears to be valid. Counsel for the Petitioner states that copy of the impugned lay out plan has not been provided to the petitioner by respondent No,2 despite repeated requests. He is put on notice to satisfy the Court on the next date about the maintainability of this petition in the absence of the impugned layout plan and also with regard to prayer clause 'a', wherein a declaration has been sought, which can be granted only by a Civil Court.
Subject to the question of maintainability, let notice be issued to the respondents as well as Advocate General Sindh, Respondent No,2 is directed to produce the impugned lay out plan before this court on the next date. To come up on 28.09.2016 at 11:00 a.m." [Underlining is ours].
12. Upon service, Mr. Raja Basantani, besides, filing `Vakalatnama' on behalf of Respondent No,3, filed a detailed 'counter-affidavit' of one Nasir Wasiullah son of Wasiullah in his capacity as being authorized person of Respondent No,3-Housing Society, wherein, Respondent No,3 has vehemently denied the assertions/stand taken by the Petitioner in the Memo of Petition. In response to 'counter-affidavit', the Petitioner did not file any 'affidavit-in-rejoinder, as such, the contents of the 'counter-affidavit', filed by Respondent No,3, have gone un-rebutted/unchallenged.
13. Apart from the above, a statement dated 10.11.2011, in compliance with Court's orders earlier passed on 28.09.2016 and 20.10.2016, has also been filed. Being relevant Order dated 10.11.2016, is reproduced herein-below:- "10.11.2016 Mr. Ghulam Akbar Khan Jatoi, Advocate for the Petitioner Mr. Shahzad Qureshi, Advocate for Respondent No,3/SBCA along with Syed Nishat Ali, Deputy Director, Master Plan Department, SBCA Mr. Raja Basantani Advocate files power on behalf of respondent No,3, which is taken on record. He requests for time to file counter affidavit. Let the needful be done before the next date with advance copies to other side.
In pursuance of the orders passed earlier, a statement dated 10.11.2016 has been filed by Master Plan Department SBCA along with several documents including lay out plan of the land in question. The above are taken on record, copies whereof have been received by the counsel for the Petitioner, who requests for time to examine the same and' to seek instructions in respect thereof.
In the aforesaid statement, it has been pointed out by SBCA that the present Petitioner has filed Civil Suits Nos,494 and 579 of 2014 involving the same controversy, which is the subject matter of the present petition. Counsel for the petitioner states that the cause of action and subject matter of the said Suits is entirely different. Be that as it may, let copies of plaint of both the above mentioned Suits be filed by the Petitioner along with a statement before the next date with advance copies to all concerned. [Underlining is ours] By consent, adjourned to 30.11.2016."
14. Lastly, on 14.12.2017, when the above writ petition came-up before us then, we heard Mr. Waleed Khanzada, learned counsel for the Petitioner, Mr. Miran Muhammad Shah, learned Addl. A.G. Sindh and Raja Basantani, learned counsel for Respondent No,3 and also gone through the available record with their valuable assistance.
15. Mr. Waleed Khanzada, learned counsel for the Petitioner, forcefully contended that the Respondent No,3, is the owner of only 14-30 acres land in Sector 22, KDA Scheme No,33, Karachi, however, Respondent No,3 Society, as alleged, has illegally encroached upon, a piece of land of 10 Guntas equivalent to 1210 sq.yds., which piece of land [Commercial Plot No,18], in fact, is belonging to the Petitioner. In this regard, Mr. Waleed Khanzada, made reference to the Amended/Revised 'Layout Plan' for an area of 15-00 acres, instead of 14-30 acres already approved on 07.05.2008, by Respondent No,2, in favour of Respondent No,3. Besides, learned counsel for the Petitioner focused our attention towards' Allotment. Order No, LU-II/2-781-G(K)/6496 dated 25.10.1982, as well as Form- II and urged that the Respondent No,3, in actual fact, is the owner of 14-30 acres of land only and not beyond that area. Being relevant, Allotment Letter dated 25.10.1982 [Annexure 'B' to Mon is reproduced herein-below:- "PHONE NO: 27052 NO: L. U-11/2:7-81-G(K)I/6496 Government of Sindh, Land Utilization Department, Hyderabad Dated. 25.10.1982 To, The Commissioner, Karachi Division, KARACHI SUBJECT: ALLOTMENT OF LAND TO KARACHI DIVISIONAL COMMISSIONER'S EMPLOYEES C. H. S KARACHI Reference: Your letter No,PA/2509/81, dated 11.7.1981.
The Government of Sindh in Land Utilization Department with the approval of Governor/Martial Law Administrator Zone-'C' has been pleased to grant an area of 14-30 acres from U.A.No,24 of deh Gujro Taluka Karachi (EAST) at the rate of Rs. 35/- per sq.yard in favour of Divisional Commissioner's Employees Cooperative Housing Society on usual terms and conditions applicable to Housing Societies in the Zonal Schemes in relaxation of Condition No,7(1) of Statement of Conditions 1971.
You are therefore, requested to take further action in the matter and inform the applicant Society."
SD/- SECTION OFFICER-I FOR SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT No,L.U-11/2-7-91-G(K)I/ DATED. .10.1982 Copy forwarded to the Deputy Commissioner Karachi (EAST) for information and necessary action.
Copy forwarded to the Section Officer (EXP:7X) Finance Department, Karachi for information.
SD/- SECTION OFFICER-I FOR SECRETARY TO GOVERNMENT OF SINDH LAND UTILIZATION DEPARTMENT"
16. Mr. Waleed Khanzada, in view of the above, contended that the approval of the layout plan for an area of 15-00 acres in favour of Respondent No,3, which is beyond an area of 14-30 acres, is fraudulent and illegal, as such, the Lay out Plan No,URP-33.216/MP&EC/ 88/208/UD-181 dated 07.05.2008, is liable to be set aside. Mr. Waleed Khanzada, while, concluding his arguments, prayed for allowing the above petition, as prayed, otherwise, the Petitioner as being owner of the said area shall be seriously prejudice.
17. Conversely, learned Addl. AG Sindh contended that above petition as 'framed' and 'filed' is not maintainable as the dispute involved, manifestly pertains to the 'ownership' of land claimed by parties which dispute, in any event, cannot be looked into and/or adjudicated upon by this Court without recording of evidence. Per learned Add. A.G. Sindh, the exercise of recording evidence cannot be undertaken under the Constitutional jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. According to learned Addl. A.G. Sindh, the alleged encroachment over the so-called 10 Guntas of land, if any, is a private dispute between the Petitioner and Respondent No,3, as such, otherwise as well, the same does not fall within the scope of Article 199. Lastly, learned Addl. A.G. Sindh urged that the instant petition is not only without any substance but also merits no consideration and as such, the same is liable to be dismissed with cost.
18. Raja Basantani, learned counsel for Respondent No,3, in contra, contended that the Petitioner is not the owner of 03-00 acres, as claimed. Per learned counsel, the Petitioner in the year, 1992, got a fictitious power of attorney of the villagers of Allandino Khaskhelee Goth, merely to act and fight the Civil Suit No,131 of 1992, filed by the Petitioner in his capacity as plaintiff against Deputy Commissioner Karachi (East) for permanent injunction, as at the relevant time the villagers of the said village, were under the threat of dis-possession. The Petitioner herein, ultimately succeeded in getting an 'ex parte judgment' and 'decree' dated 26.04.1993 for permanent injunction and restraining the Deputy Commissioner, Karachi (East), from [i] dis-possessing the Petitioner and other villagers without adopting due process of law and [ii] not to allot the land of village in name of any other person who are not the residents of Allandino Khashkeli Village.
19. The aforesaid 'ex parte judgment' and 'decree' dated 26.04.1993, later-on was challenged by one Ahmed Ali son of Haji Shakeel by way of filing an application under section 12(2) read with section 151, C.P.C., on the grounds that 'ex parte judgment' and 'decree' dated 26.04.1993, passed by IInd Senior Civil Judge, Karachi, East, in Suit No,131 of 1992 [Ali Gohar son of Muhammad Umar v. The Deputy Commissioner, Karachi East] have been obtained by way of playing fraud upon the Court.
The petitioner herein, ultimately admitted the claim of 04 acres of land of the said Ahmed Ali son of Haji Shakeel and thereafter, vide order dated 15.02.1992, passed by IInd Senior Civil Judge, Karachi East, the section 12(2), C.P.C. read with section 151, C.P.C. was allowed and the said judgment and decree were set-aside.
20. Raja Basantani, learned counsel for Respondent No,3, in view of the above, submitted that the Allotment Order dated 25.08.1996 [Annexure 'A' to MoP], thus erroneously carries a reference to `Judgment' decree' dated 26.04.1993 and 03.05.1993, passed in Suit No,131 of 1992, which judgment and decree at the time of Allotment Order of 25.08.1996 was not in existence. Per learned counsel, the allotment order dated 25.08.1996 [Annexure 'A' to the MoP], has thus been obtained by way of 'fraud' and 'mis-representation', as such, all the subsequent orders, actions, being based upon the aforesaid allotment order of 25.08.1996, is not only illegal but also void ab initio, as such, of no legal effect. While, concluding his arguments, Raja Basantani, learned counsel for Respondent No,3, urged for dismissal of the Petitioner in hand.
21. Not only the above legal proceedings, on the issue involved, another Suit No,196 of 1997 has also been filed before the Court of IInd Senior Civil Judge, Karachi (East) i,e, on the same cause of action by concealing the material facts about withdrawal of the earlier Suit No,131 of 1992.
22. From the record, it appears that the Petitioner herein and one Noor Hussain have also filed another Civil Suit No,494 of 2014 before the Court of With Senior Civil Judge, Karachi East [Ali Gohar and Noor Hussain v. Province of Sindh and others], for declaration and permanent injunction. Being relevant 'para 1' of the plaint and 'prayer clause' therefrom, are reproduced respectively herein- below:-- Para I That the plaintiffs' are seized and possessed owner of 3-00 acres which is situated in sector 22 KDA scheme-33 Karachi, duly allotted by the Land utilization department Government of Sindh (i,e, defendant No, 1), vide allotment order No, 2353/96 dated August 25th 1996 against the payment of Rs.1452,000/- only (Annexure A&B)
Prayer Clause It is, therefore, very respectfully prayed on behalf of the plaintiffs abovenamed that his Honourable Court may be pleased to pass decree and judgment in favour of the plaintiff under: a. To declare that the defendants Nos, 2 to 4 with collaboration to each other approved lay out plan and passed construction structure of Al-Wahid Towers and defendants Nos, 3 and 4 create illegal commercial Plot No,18 and increase size of any SB of commissioner CHS on plaintiffs plot i,e, out of sector-22 KDA scheme 33 Karachi, is illegal void-ab-initio.
To restrain the defendants their attorneys, Assigns, legal heirs and anybody else working on their behalf and/or under their control restraining them all from interfering with the possession of plaintiffs in respect of the suit land, demolishing the construction of the plaintiffs, creating hindrance and difficulties of raising the construction by the plaintiffs. c. To declare and direct to Defendants Nos, 3 and 7 to hand over two plots in compensation of plot No,18 and the plot on which Margalla Heights building is constructed, in equal area out of ST-8 Block-7 Gulshan-e-lqbal Karachi. d. Any other relief(s) which this Honourable Court deems fit and proper in the circumstances of the case be also awarded to the plaintiffs. e. Cost of the suit and fees paid to learned counsel appearing on behalf of the plaintiffs amounting Rs.100,000/- be also awarded to the plaintiffs. f. This prayer is made in the larger interest of justice.
23. Apart from the above Suit No,494 of 2014 [Ali Gohar and Another v. Province of Sindh though Secretary Land Utilization Department and 6 others], the Petitioner herein viz. Ali Gohar and Noor Hussain [who are brothers], and one Asad son of Iqbal have also filed another suit bearing No,579 of 2014, before the Court of VIIth Senior Civil Judge, Karachi, East for Declaration and Permanent Injunction. Also being relevant, therefrom 'para 1' of the plaint and 'prayer clause' therefore, are reproduced respectively hereinbelow:- Para 1 That the plaintiffs are seized and possessed owner of 3-00 acrs which is situated in sector 22 KDA scheme-33 Karachi, duly allotted by the Land utilization department Government of Sindh (i,e, defendant No,5), vide allotement order No, 2353/96 dated August 25th 1996 in different pieces because of no piece of 3-00 acrs land was available in compact against the payment of Rs.1452,000/- only (photocopy of allotment order herewith enclosed as Annexure A)
Praye r Clause It is, therefore, very respectfully prayed on behalf of the plaintiffs abovenamed that this Honourable Court may be pleased to pass decree and judgment in favour of the plaintiff as under: a). To declare that the defendants Nos, 1 to 3 with collaboration of each other approved lay out plan and passed construction structure of project SILVER LEAF HEIGHTS is illegal, unlawful and void- ab-initio. b). To declare that the actions of the defendant No,3 to construction of project of SILVER LEAF HEIGHTS on the land of plaintiff are illegal/unlawful and void-ab.-initio. c). To declare that no any plot No, COMMERCIAL ST NC-34 in sector 22 KDA scheme 33 Karachi exist in sector 22 as well as in KDA scheme 33 Karachi. d). To restrain defendants from raising constructions on the plot of plaintiffs situated in Sector 22, Scheme No,33 measuring 800 Sq. yards. d)(sic). Any other relief(s) which this Honourable Court deems fit and proper in the circumstances of the case be also awarded to the plaintiffs. e). Cost of the suit and fees of the learned counsel appearing on behalf of the plaintiff amounting to Rs. 100,000/- be also awarded to the Plaintiff. f). This prayer is made in the larger interest of justice.
24. Besides, one another Suit No,196 of 1997 [Ali Gohar son of Muhammad Umar v. Deputy Commissioner/Collector Karachi and another] has been filed/pending before IInd Senior Civil Judge, Karachi, East. Being relevant 'para 12' of the plaint in Suit No,196 of 1997 and 'prayer clause' therefrom, are reproduced herein-below: Para 12 That the cause of action has accrued to the plaintiff on 25.08.1996 when the Allotment Order No,PS/MBR (LU)/1353/1996, Government of Pakistan, Land Utilization Department, Camp at Karachi, dated 25.08.1996, in question was issued and has not been implemented and till now all efforts failed to get the same implementation. The cause of action is continue from day to day till now.
Whenever the plaintiff served legal notice to the deponent on 06.01.1997 and 08.08.97.
Praye r Clause .
It is, therefore, prayed for judgment and decree as under:- a. That the Allotment Order No, No, PS/MBR(LU)/1353/1996, Government of Pakistan, Land Utilization Department, Camp at Karachi, dated 25.08.1996 in question, is legally issued by the competent authority and the defendants are bound to act upon the same and to provide the land in question as hand over the land provided in the Allotment Order. b. The defendants be directed to provide the land and possession in question forthwith without any further delay. c. The defendant be directed to charge reasonable rate per sq.yards which is Rs. 100/- as charges occupancy value per sq.yards and issue challan, Lease Form-II, NOC along with all documents which required by the plaintiff. d. Cost of the Suit be awarded to the plaintiff. e. Any other relief which this Hon 'ble Court may deem fit in the circumstances of the Case.
25. Moreover, the matter in dispute was thoroughly probed by the Deputy Commissioner (East) who thereafter, vide order dated 14.09.1999 cancelled entry No,26 in Deh Record of Gujro kept in the name of Petitioner herein and his brother as the same was made in connivance with the Revenue Staff. The operative part of order dated 14.09.1999 passed by the then Deputy Commissioner and Collector District East Karachi reads as follows:- "Considering the points mentioned above and going through the record produced by the Tapedar of the beat and Revenue Branch. I am convinced that judgment and decree obtained on 31.5.97 was based on misrepresentation, fraud and concealment of facts. Therefore I order that entry at Sr. No, 26 of Deh Gujro may be cancelled and a criminal case may also be lodged against the would be beneficiary who tried to defraud and cheat the government. It also appears that this fraud has been committed and executed with the active connivance of functionaries of Revenue Branch of Deputy Commissioner East office. Specially the Tapedar of the beat Mr. Khuda Bux Khaskhelly who remained incharge of the Tappa during the pendency of this case when the entry No, 26 was made on 121.9.97 till day. He should be suspended forthwith and necessary legal action to be taken against him. The connivance of some functionaries of L. U. Branch can also not be ruled out and matter will be brought to the knowledge of Honourable Member L. U. for necessary action at this end. SD/- DEPUTY COMMISSIONER AND COLLECTOR DISTRICT EAST KARACHI
26. The Petitioner herein, it appears, is not member of the Respondent No,5, as such, he has no right to put forward his claim over the society's land. Even otherwise, the alleged claim of ownership of 3-00 acres land of the Petitioner on the basis of Annexures 'A' to `A/4' to MoP, is in Survey No,01 Deh Gujro, Sector 22, Scheme 33, which land as per Respondent No,3 stand is far away from S.Nos,24 and 25 of Deh Gujro where, land of KDCECHS is situated. Moreover, the claim of the Petitioner over 10 Guntas of land allegedly falls in S.No,24 of Deh Gujro, seems baseless, as the alleged allotment order dated 25.08.1996 is for S.No,01. The Petitioner herein, nevertheless, has failed to show any provision of law or order, if any, passed for shifting or exchange of land in favour of the Petitioner.
The Annexure 'A-3' [Deh Form II, Entry No,26], is in respect of Survey Nos,34 and 01, which on the face of it not seems in consonance of Annexure 'A' to MoP. Since, the alleged land of the Petitioner is not situated in S.No,24 or 25 of Deh Gujro, therefore, the Petitioner has no 'cause of action' against Respondent No,3' s Housing Society.
27. Significantly, the disputed questions of facts between the parties cannot be looked into or otherwise, determined in a writ petition. Moreover, the Petitioner amongst others has already availed the alternate remedy[ies] by way of filing several Suits, referred to herein above. The said suits, it appears, are still pending before the concerned trial Courts for adjudication.
28. Manifestly, the dispute viz-a-viz. title of land, cannot be looked into or adjudicated upon under the exercise of discretionary jurisdiction under Article 199 of Islamic Republic of Pakistan, 1973. The jurisdiction under Article 199 of the Constitution is not only discretionary but also equitable. The exercise of such discretionary and equitable relief is governed by the maxim; 'he who seeks equity must come to the Court with clean hands'. In the case in hand, the Petitioner has failed and/or avoided to disclose the factum of pending various suits/litigation already going on between the Petitioner and Respondents amongst others. Non-disclosure of this fact also disentitled the Petitioner from seeking the discretionary and equitable relief, as in our view, the Petitioner has not approached this Court with clean hands. On this aspect of the matter, reliance can be placed on the cases of [i] Mian Muhammad Yousaf and another v. Lahore Development Authority through Director-General, L.D.A. Plaza, Lahore and 5 others [PLD 2001 SC 393] and [ii] West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) [2007 SCM R 1318]. The relevant portions therefrom, respectively are reproduced herein-below :-
[i] 10. It is a settled law that the scope of the Constitutional jurisdiction is very limited and is confined to ascertain as to whether the Tribunal or the Appellate Authority as in his case, the Civil Court had the jurisdiction and whether after rejection of the plaint, the pendency of appeal against the disputed question of fact would not confer the jurisdiction on the High Court to entertain the petition in writ jurisdiction. Invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant law would only be justified when the impugned order/action was palpably without jurisdiction as to force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper. In the instant case the suits and an appeal are pending decision between the parties before the Civil Courts and, therefore, bypassing the remedy provided under, the plenary jurisdiction of the Civil Courts would not be justified and to press into service the Constitutional jurisdiction of the High Court by the appellants can only be deprecated. The writ petition can be filed if an aggrieved person has no remedy under the statute against the impugned order passed by the Tribunal. In the instant case, as stated earlier, the parties are locked in civil litigation in three suits and one appeal and, therefore. invocation of the Constitutional jurisdiction by the appellant is certainly, an act which cannot be accorded credence in the appeal before us. ..................
[ii] 14. Furthermore in law, the petitioner seeking leave to appeal against the High Court order is not entitled to the discretionary and equitable relief from this Court in the exercise of constitutional jurisdiction as he has not approached this Court or the fora prescribed under the Constitution and the law with clean hands. One who seeks equity must have equities in his favour.
In the present case we are firmly of the opinion that the equities do not lean in favour of the petitioner therefore in our considered view the impugned judgment does not warrant any kterference by this Court." ..............................
29. Moreover, the exercise of Constitutional Jurisdiction under Article 199 of Constitution Of Islamic Republic of Pakistan, 1973, is not meant for to render the available lower forum/fora redundant/disfunctional. Article 199 of Constitution of Islamic Republic of Pakistan, 1973, it is needless to say, does not vest in the High Court unlimited/un-restricted powers to either bypass or otherwise, ignore legal remedies available under the law. In this regard, reliance can be placed on the case of Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others [PLD 2010 SC 969], wherein, it was observed as follows:- "5. It hardly needs any elaboration that Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) "cannot he construed to vest in the High Court unrestricted powers to administer supposed equity, not based on a justiciable foundation.
Therefore, the High Court cannot interfere under this Article unless it be satisfied that some illegal wrong has been inflicted or is about to be inflicted on the Petitioner" (Siddiq Ahmed v. Estate Officer, Government of Pakistan PLD 1957 Karachi 887, Siddiq Ahmad v. Estate Officer, Government of Pakistan PLR 1958 (1) W.P. 711, Jeshingbhai v. Emperor AIR 1950 Bom. 363, Bagram v. State of Bihar AIR 1950 Pat.387, Harnam Singh v. The State of Punjab AIR 1953 Punj. 176, Badri Prasad v. President; Dist. Board, Mirzapur AIR 1952 All 681, R.R. Ranade v. State of V.P. AIR 1952 Him Pra 35, In re V.
Nagalingam Servai and others AIR 1952 Mad.834, S.T.O. Co. v. State of M, P. AIR 1952. Nag: 353, Ramani Kanta v. Gaithati University AIR 1951 Assam 163, Gopeshwar Prasad v. State of Bihar AIR 1951 Pat.570). It is also well settled by now that "extraordinary jurisdiction of High Court is available only after all other legal remedies are exhausted. Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of constitutional petition. In another case it was held that relief in writ jurisdiction cannot be granted merely for academic purpose where aggrieved party can approach specified authority for effective redress". Quaid Cap House v. Sect. Divl. Evacuee Trust (PLD 1980 Kar. 261), Pakistan Metal Industries v. Asst. Collector C.E. and Customs 1990 CLC 1002, M/s. Shahid Agency v. Collector Customs (Appr.) 1989 CLC 1938, Amar Lal v. Board of Intermediate and Secondary Ed. (1986 CLC 1848), Wazir Ahmad v. S.H.O. P. Station Mehboob Kalhoro (1990 PCr.LJ 2006), Allah Dost v.
Muhammad Alam (PLD 1987 Quetta 235), Allah Bakhsh and another v. Muhammad Ismail and others (1987 SCMR 810), Ghulam Rasool v. Returning Officer PLD 1990 PCr.LJ 2006, Ghulam Rasool v.
Returning Officer PLD 1985 Kar.126, 166, Golden Industries Ltd. v. Province of Sindh (PLD 1983 Kar.76), Lipton Pakistan Ltd. Karachi v. Government of Sindh (PLD 1977 Kar. 714), Malik Abdur Rahim v.
Anayatullah Khan (NLR 1992 CLJ 1). In our view where alternate remedy is more convenient, beneficial and likely to set the controversy at naught completely, jurisdiction under Article 199 cannot be exercised. In this regard, reference can be made to the dictum laid down in the following cases:- Riaz Ahmad v. Inspector of Police, Baseerpur (1991 PCr.LJ 6), Abdul Humid Khan Ackakzai v. Election Commissioner (1989 CLC 1833), Abdul Razzaq and Co. v. Asstt. Collector of Customs (1986 CLC 2559), Standard Vacuum Oil Co. v. Trustees (PLD 1961 Dacca 289), Lutf-un-Nisa v. Deputy Commr.
Dacca (PLD 1964 Dacca 132), PLR 1963 Dacca 944, S.M. Wall Ahmed Chowdhury v. Mahfuzal Haq Chowdhury (PLD 1957 Dacca 209) and S.M. Wali Ahmed v. Mahfuzal Haq (8 DLR 429)." ................
30. Besides, a 'writ petition' under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, is for the enforcement of clear legal right and not otherwise, meant for establishing a right which in fact is not free from doubt. Of course, a doubtful/disputed question of fact cannot be seen and/or dealt with under the Constitutional Jurisdiction of Article 199 of Constitution of Islamic Republic of Pakistan, 1973. On this aspect of the matter reliance can be placed on the case of Asdullah Mangi and others v. Pakistan International Airlines Corporation and others [2005 SCM R 445], wherein it was observed as follows:- .............
"10. ....We may mention here that a Court of Law cannot exercise an ettered or unrestricted powers to administer supposed equity not based on justiciable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the appellants. In this regard reference can be made to the cases of "Manjula v. D.P.I. AIR 1952 Orissa 344, Siddiq Ahmad v. Estate Officer, Government of Pakistan PLD 1957 (W. P.) Kar. 887; Jeshingbhai Ishwarlal v. Emperor AIR 37 1950 Boni. 363: Bagaram Tubule v. The State of Bihar AIR 1950 Patna 387; Harnam Singh v. The State of Punjab AIR 1952 Punj. 76 and Badri Prasad v. President, District Board, Mirza ur AIR 1952 All. 681". It is also well established by now that before invocation of Constitutional jurisdiction as has been done by the appellants, it must be shown that they had got a clear legal right as not to admit of a reasonable doubt or controversy. M The question as to whether the training was completed or not; uniforms were provided or not, passing out parade was held or not, applications were moved through back door or not, are the questions of fact which cannot be determined in Constitutional jurisdiction. "Khairuddin v. Settlement Commissioner 1988 SCMR 988".
The object of the proceeding initiated under Article 199 of the Constitution of Islamic Republic of Pakistan, is the enforcement of a right and not the establishment of le:al right and therefore the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simplicitor. There must be an actual infringement of the right. If any authority is required, reference can be made "Kandaswarmy and others v. The Deputy Registrar of Cooperative Societies. Coimbatore and another AIR 1954 Madras 348". We may mention here that "a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. Then must always be occasions at which and 0 circumstances under which they may be exercised, but are the peculiar characteristics of those rights. "Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312". The appellants have failed to establish their legal right for appointment as Flight Steward and therefore, the question of its infringement does not arise."
31. Manifestly, the dispute involved/arising in the instant 'writ petition' is relating to the title of land regarding which as stated herein-above, various suits are pending before the trial Courts wherein the dispute between the parties can appropriately be adjudicated upon in accordance with law.
The Petitioner, under law, cannot avail, two remedies before two different fora because E under law, one cannot be vexed twice on the same cause of action/subject matter. Moreover, a Constitutional Jurisdiction is not meant for deciding disputes relating to title of immovable property. For such disputes, it is needless to say, remedy is available under general law. Reliance, in this regard, can be made to the case of Muhammad Amir v. Umer Hayat and 5 others [2010 CLC 1798], wherein it was observed as follows:- ...................
"3. Without dilating upon the merits and demerits of the case it is pointed out that prior to filing of this writ petition for setting aside the orders dated 21-10-2009, 12-5-2008, 29-12-2006 and 26-2- 2003 respectively the petitioner Muhammad Ameer filed a civil suit on 18-11-2009 in the court of learned Senior Civil Judge, Sahiwal assailing the same orders which are assailed in this writ petition. Muhammad Ameer petitioner did not disclose in this writ petition the filing of the same which is serious concealment of facts. Relief under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 is always a discretionary relief. The petitioner should approach this court with clean hands. This material concealment of facts not disclosing the filing of civil suit before the learned Senior Civil Judge, Sahiwal by the petitioner is sufficient ground for refusing the relief sought for in this writ petition. The petitioner cannot avail two remedies simultaneously. He is bound to choose either to avail the remedy of filing civil suit or filing this writ petition. At a time petitioner has availed both the remedies.
4. In "Muhammad Anwar and another v. Government of Sindh through Secretary, Home Department and 2 others" 1986 MLD 1440 (D. B) Karachi, it is held that:-- "Proper course---Title of car in dispute being subject-matter of civil suit pending adjudication in civil court proper course for custody of such car, held, would be to move application in that respect to concerned civil court".
7. In "Saleem Akhtar v. Province of Punjab" 1994 CLC La/t. 2290, it is held that: "Dispute between parties relating to title to immovable property--Constitutional petition--- Maintainability--- Suit relating to disputes about title was pending adjudication in Civil Court--Suit being appropriate remedy for settlement of title disputes relating to immovable property between parties, remedy under Constitutional jurisdiction was not available in such cases except when violation of some statutory duty on the part of statutory functionary was alleged---High Court could not allow its Constitutional jurisdiction to be used for ,deciding title disputes relating to immovable property for which remedies under general law were available---Constitutional jurisdiction was not intended to substitute ordinary remedies by way of suit available to party-- Constitutional jurisdiction being special and extraordinary should not be exercised in ordinary cases-Constitutional jurisdiction was not maintainable in circumstances". .....................
32. Keeping in view the pendency of suits, it appears that the Petitioner has not only split the claim put forward by him but has multiplied the remedies regarding the same subject matter/cause of action which under law is not permissible. Reference in this regard can be made to the case of Muhammad Bachal v. Province of Sindh through Home. Secretary and 12 others [2011 CLC 1450], wherein, it was observed as follows:- ......................
"18. It is pertinent to state that Order II, Rule 2, C.P.C, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
Section 19 of C.P.C. provides that where a suit is for compensation for wrong done to the person or to the movable property, if the wrong was done within the local limits of jurisdiction of one Court and the defendant resides or carries on business, or personally works for gain, within the local limits of jurisdiction of another Court, the suit may be instituted at the option of plaintiff in either of the said courts. Order II, Rule 2, C.P.C. is devised to prevent a party from splitting up claims and remedies arising out of same cause of action against the same party. This provision is based on the principle that the defendant should not be vexed twice for the same cause of action. It is penal in nature and precludes the plaintiff to sue for the portion of claim or remedy so omitted." ................
33. In the petition in hand, the Petitioner has also questioned the Layout Plan No, URP- 33.216/MP&EC/88/208/UD-181, dated 07.05.2008 after about 8 years and that too without showing any plausible reason / explanation. On this ground, as well, the Petitioner is found disentitled for grant of a discretionary relief under Article 199 of Constitution of Islamic Republic of Pakistan, 1973.
Moreover, on account of pendency of civil suits before the trial Courts filed by the Petitioner against the Respondents amongst others, the Petitioner has got no locus standi to file the instant writ petition. Notwithstanding, filing and pendency of the suits, the Petitioner herein, is also agitating the same subject matter in the instant writ petition. This practice and course being adopted by litigant public to file Constitution Petition either without availing the alternate remedies or upon availing the alternate remedies simultaneously needs to be deprecated, as such practice is nothing but an abuse of the Constitutional Jurisdiction of the Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. On this aspect of the matter reference can be made to the case of Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore [PLD 1996 SC 2461 wherein, the apex Court while, deprecating such course of practice has observed as follows:- "9. The High Courts are already huddled up with thousands of cases. If the litigant public is permitted to take all sorts of disputes to the High Courts without first availing of the other remedies available to them, under law, it will not only necessarily increase the work-load of the High Courts but would also defeat the provision of law by which the said remedies have been made available. Such a spree on the part of the litigant public would, if we may say so, amount to abuse of the Constitutional Jurisdiction which is to be exercised by the High Courts in exceptional cases to provide justice which cannot be otherwise obtained by the aggrieved parties. "
34. In para 2 of MoP, the petitioner claims that he was handed over possession of 03 acres of land but in different pieces. The description/details of such different pieces of land, has however, not been disclosed/given in the MoP. In para 5' of the MoP, the Petitioner herein, alleges that Respondent No,3-Co-operative Housing Society, has encroached upon the Plot of 10 Guntas, illegally and un-authorizedly. If this is so, then why the Petitioner did not initiate any suitable proceeding before the appropriate forum against such encroachment of respondent No,3.
35. Keeping in view all the above, we are of the considered opinion that the 'writ petition' in hand is not only devoid of any merits but also is misconceived, as such, the same is dismissed at KATCHA PESHI stage a/w pending application[s], if any, however, with no order as to costs.
36. Before parting with judgment it is, however, clarified that the observations made herein-above, are just of tentative nature and the same are confined to the disposal of the instant petition. The learned trial Courts where the suit[s] is/are pending shall proceed with such suits in accordance with law and shall in no way be influenced with the observations made hereinabove.
37. Petition stands dismissed accordingly.