' Respondent Khalil-ur-Rehman had filed six separate suits against the six appellants for possession in respect of separate pieces of land which formed part of the same plot i,e, Plot No, 33 situated in Firdous Co-operative Housing Society, Karachi. The case of the respondent was that this plot was leased by the Government to Firdous Co-operative Housing Society who granted sub- lease in favour of the respondent. It was alleged that the appellants unauthorisedly trespassed upon this plot and occupied different portions of it. He, therefore, filed six separate suits for possession against the six appellants in the Court of XIth Civil Judge Ilnd Class, Karachi. As issues in all the cases were common, hence the suits were consolidated and decided by the learned Civil Judge by one judgment dated 12-12-1968. By his judgment dated 7-10-1969 the suits of the respondent were dismissed.
2. Against this judgment the respondent filed appeal in the District Court. It was transferred for hearing to IInd Addl. District Judge, Karachi, who allowed the appeal by his judgment dated 7-10- 1969 and decreed the suits of the respondent for possession against the appellants. The appellants, therefore, have filed the present six second appeals challenging the above decision of the learned District Judge.
3. The case of the respondent before the Civil Judge was that Plot No, 33 situated in Road No, 6, Firdous Co-operative Housing Society, Golimar, Karachi has been leased out to him by the said Society. The six appellants have encroached upon different portions of the land as under :- (1)Appellant Abdul Latif occupied 169 sq. Ft. Portion of the said plot on 25-6-1965, which is subject- matter of Suit No, 463/1967 ; (2)Appellant Muhammad Ali occupied 64 sq. Ft. Portion of the said plot on 8-7-1966, which is subject-matter of Suit No, 464/1967 ; (3)Appellant Abdul Rauf occupied 35 sq. Ft. Portion of the said plot on 20-1-1965, which is subject- matter of Suit No, 467/1967 ; (4)Appellant Muhammad Zakki occupied 173 sq. Ft. Portion of the said plot on 6th June, 1966, which is subject-matter of Suit No, 466/ 1967 ;
(5) Appellant Riazuddin occupied 123 sq. Ft. Portion of the said plot on 25-3-1965, which is subject- matter of Suit No, 465/1967, and
(6) Appellant Naqi occupied 186 sq. Ft. Portion of the plot in question on 26th October, 1966, which is subject-matter of Suit No, 1392/1967.
4. Although in his plaint the respondent had claimed to be licensee of Plot No, 33 which was composed of the different portions in possession of the six appellants, but in his evidence he claimed only to be a sub-licensee of this plot from Firdous Co-operative Housing Society. The respondent also claimed mesne profits at the rate of annas per day from each appellant from the date of the alleged wrongful possession till the date of their eviction.
5. The appellants contested the suits and denied that they had wrongfully occupied the various portions of the disputed plot as alleged by the respondent. Their case was that they had received a direction from the late Prime Minister Liaquat Ali Khan in the year 1949 to take possession of vacant land to raise hutments thereon. In pursuance of the said direction the appellants are alleged to have occupied the disputed portions alongwith hundred other refugees, who had also occupied adjacent plots and raised construction thereon. It is alleged that Firdous Co-operative Housing Society never took any objection to the possession of the appellants over the disputed portions of the plot. They have challenged legality of the sub-lease granted by the said Society in favour of the respondent. They have also taken some legal pleas which are reflected in the common issues which were framed by the trial Court in all the suits and which are as under :-
(1) Whether the plaintiff is the sub-licensee of Firdous Co-operative Housing Society Golimar in respect of the suit premises?
(2) Whether the defendant is a trespasser on the plot in suit or the defendant is in possession in his own rights?
(3) Whether the defendant is in adverse possession of the plot in the suit?
(4) Whether the defendant is in possession since 1949? If so what is its effect?
(5) Whether the suit is bad for non-joinder of necessary parties?
(6) Whether the suit is undervalued? If so, what is the proper valuation of the suit?
(7) What should be the order?
6. After recording evidence of the parties, the learned Civil Judge decided all the issues, excepting Issue No, 7 relating to relief, in favour of the respondent/plaintiff. However, in spite of the above findings, the issue regarding the relief i,e, Issue No, 7 was decided against the respondent and his suit was dismissed with costs. It was held by the learned Civil Judge, while discussing Issue No, 7, that the evidence of the plaintiff/respondent was not satisfactory, that he had not produced any authentic map of the plot to clearly identify the pieces of land which are in actual physical possession of the appellants, that no City Survey record has been produced and that there is a colony of 600 huts situated on a very big plot including the disputed portions claimed by the respondent and that it is not possible to determine the identity of the portions of the land which are alleged to be in wrongful possession of the appellants. The learned Civil Judge was of the view that without examining the City Survey Officer it cannot be determined as to what actually is the land in dispute. He, therefore, held that the respondent was not entitled to any relief.
7. The 1st Appellate Court came to the conclusion that the respondent has fully established his case for possession and mesne profits and as such he was entitled to a decree as prayed by him.
8. The six appellants have challenged the decision of the 1st Appellate Court on common grounds, hence all the appeals are being decided by this judgment. They have raised inter alia following points in support of their appeal :-
(1) That on admitted facts the plaintiff/respondent had no personal right or interest in the plot in dispute and as such the suit was not maintainable.
(2) That the sub-licensee cannot have more right or title in the property than the licensee itself which fact was not taken into consideration by the Courts below.
(3) That the question of non-maintainability of the suit was not given proper consideration by the Courts below.
(4) That a sub-licensee has to file a suit in the name of the licensee or with the permission of the licensee and the respondent was not entitled to maintain the suit without joining the licensee i,e, the Firdous Cooperative Housing Society.
(5) That the question of limitation was wrongly decided by the Courts below.
' Before deciding the above points it would be appropriate to state here some admitted facts which go to the root of these cases. These facts are :-
(a) The plaintiff/respondent never got possession of the plot in dispute. Although it was allotted to him by the Society in 1966 but it is not stated that after this allotment or even before this he had ever been in possession of this plot or any portion of it. Although he states that his mother was the first allottee of this plot by virtue of allotment which was issued in the year 1952 and that after the death of his mother in 1964 the plot was allotted to him in the year 1966. The allotment in the name of his mother has not been proved because it is on a typed paper which does not bear any date.
Even if this plot was allotted to the respondent's mother, it is nowhere in evidence that his mother had ever been in possession of this plot i,e, Plot No, 33, nor it is the case of the respondent that he got allotment of this plot in his name as successors of his deceased mother.
(b) The actual dimension and size of this plot are also unascertainable. The so-called allotment order in the name of the respondent's mother shows that the size of the plot is 1,000 sq. Yds. But the sub-licence granted by the Society to the respondent shows that the size of the plot is about 600 sq. Yards.
(C) Even the actual demarcation of the plot in question is not ascertainable due to which even if a decree is passed for possession, it shall not be executable. It is not sufficient for the plaintiff to have mentioned simply the number of the plot in his plaint as the entire description of the property.
What actually are the demarcations of this plot has nowhere been mentioned in the plaint. Learned counsel for the respondent has alleged that no dispute had been raised by the appellants in respect of the demarcation. Hence this question -cannot be agitated before the Ilnd Appellate Court. The argument is not correct because the appellants have clearly stated that there are about 600 hutments on the land where the disputed plot is alleged to have been situated and that some portion of it is also in possession of Taj Battery. There is no admission on the part of the appellant that the portions which they are occupying form part of Plot No, 33.
' Decision of the suit and the appeal by the two Courts below without deciding the above points and not framing an important issue in respect of these points amounts to material irregularity.
Unless the above questions are resolved by recording further evidence, it will not be possible in this case to pass an executable decree. This can be done only by joining the licensee i,e, Firdous Co- operative Housing Society as a party to the suit. Specific plea was raised by the appellants in the written statement that the Society was a necessary party. Both the Courts below have erred in holding that the Society was not a necessary party. In order to determine the validity of the sub- licence and actual demarcation and size of the plot it was very much necessary to join the Society as a party to the suit. Again it is reported that this land has been surveyed. Hence examination of the City Surveyor was also necessary to determine the identity of the disputed A plot. It is, therefore, necessary to remand the case to the trial Court to decide the above points after calling upon the parties to lead evidence in support or against the same. Following issue, therefore, is framed for determination by the Court :- 'What are the dimensions and the actual physical demarcation of Plot No, 33?'
' This issue should be decided after the plaint is amended by the respondent by joining Firdous Co- operative Housing Society as a party to the suit.
' Consequently the judgments of the First Appellate Court and trial Court are set aside and the suits are remanded to the trial Court for fresh decision after recording evidence on the above issue. The appeals are, therefore, allowed but the cost of the appeals shall abide the final result of the suits.