KHADIM HUSSAIN M. SHAIKH, J .----Petitioner Asad Jamal Daoodpoto through this petition has prayed as under : d. That this Honourable Court may graciously be pleased to issue writ directing respondents Nos.1, 2 and 3 to carry out the demarcation of subject land bearing Survey Nos.102, 103 and 104 deh Naudero to the extent of ownership rights of the petitioner and after notice to the neighboring owners. e. To award of this petition to the petitioner . f. Any other relief which this Honourable Court deems fit and proper under the circumstances may also be granted to the petitioner .
2. The petitioner's claim is that his grand father Ghulam Sarwar had purchased an area of 2.31 1/2 acres, out of Survey Nos.102, 103 and 104 from Mst. Afroz Begum wife of Deen Muhammad Bhutto as is reflected from paragraph-1 of the petition, but the descriptions, boundaries, location and the material particulars relating to the alleged sale transaction between Mst. Afroz .Begum and Ghulam Sarwar Khan A are no where mentioned in the petition; however , photocopy of entry of D-F, VII-B filed as Annexure 'A' available at page 15-16, reveals that the aforesaid land, situated in Deh Naudero (Naudero City), Taluka Naudero, District Larkana, is shown to have been purchased by Ghulam Sarwar son of Muhammad Laiq Khan from Mst. Afroz Begum wife of Deen Muhammad Bhutto in the consideration of Rs.12000/- through oral statement, but the date of transaction and the date of oral statement and other material particulars relating to such sale transaction are not mentioned in the relevant column of the said entry and even Columns Nos.9 and 10 of the said entry meant for remarks relating to its verification, attestation, designation and seal of the attesting officer are also blank; and, the said entry on face of it seems to be fictitious; even B no title document in respect of the subject land in name of Mst. Afroz Begum, to prima facie prove her ownership over the subject property , has been filed, which was very essential, for, the transferor could only transfer such right in the property to the transferee, which the transferor was entitle d to, by proving his/her title and right over. the property under sale. It is reiterated that mutation entry is not a. document of title, which by itself does not confer any right, title or interest and the burden of proof lies upon the person, in whose favour it was mutated, to establish the genuineness of transfer in his/her favour: a sale completing the transaction, whic h if is of more than Rs.100,-would be compulsorily registrable, for, provisions of section 17 of the Registration Act, 1908 and section 54 of The Transfer of Property Act, 1882 postulate that transfer of the property under sale, having value of Rs.100 and upwards can be made only by a registered instrument. It is also well settled law that things required to be done in a particular manner the same are to be done in that manner and, if anything is done contrary to that, the same shall be deemed to have not been done at all. And, thus the alleged sale of the subject land embodied in the aforesaid entry also does not seem to be valid. It is also well settled law that if the foundation is illegal and defective then entire structure built on such foundation, having no value in the eye of law would fall on the ground .
3. The petitioner has filed a copy of judgment dated 18.03.2003 as Annexure-B, available at pages 17-50, passed by the learned VII Additional District Judge, Larkana in Civil Appeal No.109 of 2000 "re-Jamaluddin and others v.
Muhammad Khan and others ", which reveals that the subject property wherein an Ice Factory is also constructed as is averred in paragraph-2 of the petition, which being situated within the municipal limits of Naudero City, is a commercial property of potential value. It further reveals that Jamaluddin, the fathe r of the petitioner and 03 others had filed a suit being F.C. Suit No.07 of 1995 against one Muhammad Khan Solangi, which was dismissed by the learned Court of IIIrd Senior Civil Judge, Larkana vide judgment dated 08.11.2000 and decree dated 11.11.2000, but copies of the said judgment and decree have not been filed by the petitioner: the petitioner's father Jamaluddin and others, from whom the petitioner derives his claim, were out of possession of the subject property , therefore, they by seeking amendments in the pleadings, had included the prayer of possession in the subject suit, wherein Mst. Afroz Begum and/or her legal heirs were not arrayed as party; from the conduct displayed by defendant Muhammad Khan, who claimed himself to be the owner of the subject property on the basis of a sale agreement allegedly executed by one Ghulam Hyder in his favour and then on the basis of Sanad allegedly issued to him, under Goth Abad Scheme for an area of 19840 Sq. ft., situated in the Municipal Limits Naudero City, which was subsequently shown to have been canc elled by the Revenue Authorities being bogus and fraudulent one, had given obliging statement in favour of Jamaluddin and others to help them to obtain a favourable decision in their favour; and, thus the said judgment and decree passed by the learned Vth Additi onal District Judge seems to be offspring of collusion of the parties. On a query learned counsel for the petitioner has stated that no proceedings for execution of the aforesaid decree allegedly passed in the year 2003, were initiated by the decree holders for last more than 17 years.
4. It is worthwhile to mention here that it is incumbent upon the petitioner exhausting remedy under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, to establish that he has legal right over the subject property and that such right is so clear that leaves no room of doubt or any controversy , and the exercise of extraordinary constitutional jurisdiction under Article 199 of the Constitution is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority is floating on the surface, which can be established without any elaborate enquiry into the questions involved in the matter; moreover , the writ jurisdiction is undoubte dly discretionary and extraordinary in nature which cannot be allowed to be invoked by a party who demonstrates a style of slackness and laxity on his part and law is a well settled that a parry guilty of gross negligence and laches is not entitled to the equitable relief which is available even otherwise to a party who he comes in Court with clean hands.
5. Manifestly , the matter does not involve the question of demarcation of the subject property , but the petitioner , who is out of possession of the subject property , having also no clear right or title over it, by filing this petition, has attempted to have some favourable order and then to take delivery of possession of the subject commercial property under the umbrella of that order , by suppressing the real and material facts and documents, which adversely reflects upon the petitioner . Under these circumstances, we are of the humble view that this petition, which besides being not maintainable, also seems to have been aimed at to abuse the process of law. The learned advocate for the petitioner has also not been able to satisfy the Court as to the maintainability of this petition, which is accordingly dismissed in limine along with the other listed application.
6. While parting with this order it is essential to mention here that according to Article 172 of the Constitution any property which has no rightful owner shall, if located in a province, vest in the Government of that province, and in every other case, in the Federal Government; as none of the parties seems to have clear right or title over the subject property , therefore, a copy of this order is directed to be sent to all the concerned, who shall ensure that the interest of the Government, if any, in the subject huge commercial property of potential value located in Naudero City is protected and safeguarded by vigorously pursuing the matter and taking necessary action with progress report to the Additional Registrar of this Court.