' This suit has been filed by the plaintiffs wherein they seek possession of land in suit and also a decree for Rs, 61,91,815, as shown in para. 29 of the plaint. In the alternative they have claimed a decree for Rs, 2,1,807 as balance amount of consideration alongwith decree for Rs, 61,91,815, as mesne profit/damages and also prayed for permanent injunction restraining the defendants from transferring the possession of or title in the said land to anyone else except the plaintiffs. They have also prayed for a declaration against the defendant No, 6 (Mukhtiarkar, Karachi East) that all the entries made in the record of rights since 1952 as against the plaintiffs and other co-sharers in respect of the land in suit situated in Deh Mehran Tapo Malir Taluka Karachi are null and void. They have also claimed a decree for injunction restraining the defendant No, 6 from effecting any entry for mutation in the record of rights without the consent and approval of the co-sharers and the plaintiffs.
' The plaintiffs Nos. 2 to 4 are heirs of late Panju and the plaintiffs Nos. 5 and 6 claim to be the heirs of late Wali Muhammad. The plaintiff No, 1 (as intending purchaser) has described himself as the legal heir of nearly all the heirs of and legal representative of other co-sharers, numbering about 127, on the plea that they have agreed to sell all their shares in the balance land by different agreements of sales and received valuable consideration and executed irrevocable powers-of- attorney in his favour with powers to recover possession.
' Defendants Nos. 1 and 2 are the persons who contracted to purchase from Allah Bux and heirs of other co-sharers five pieces of land bearing Survey Nos. 300, 301, 302, 303 and 304 Deh. Mehran in all total are 29 acres and 18 Ghuntas vide agreement of sale, dated 14th February, 1958.
' The defendants Nos. 3 to 5 have been joined as per averments made in para. 20 of the plaint to the effect that the defendants Nos. 1 and 2 illegally transferred pieces of land to them and that these defendants Nos. 3 to 5 are making allotments and raising minor constructions and boundary walls. According to the plaintiffs all these transfers to these defendants are illegal and unlawful and the same neither create any interest nor confer any title on them and that they are liable to be ejected from the said land.
2. Alongwith the plaint, the plaintiffs filed two applications under Order I, rule 8, C. P. C. In the first they claimed leave of the Court to allow them to sue the defendants on behalf of and for the benefit of all the co-sharers numbered 127 and further prayed for direction of publication of notice in the newspaper. In the other application they claimed for permission to enable them to sue the defendants in the representative capacity on behalf of all the co-sharers number 127 and for the benefit of all the persons interested in the Survey numbers 293, 296, 298, 300 to 314 Deh Mehran Taluka Karachi. The plaintiff have not sought of these applications any orders till the hearing this application. Accordingly permission to allow the plaintiffs to sue in the representative capacity has not yet been granted.
3. The plaintiffs also moved two applications under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. (C. M. A. 4224 and C. M. A. No, 4225 of 1982 in which substantially the same prayers are made or restraining the defendants 1 to 5 from transferring the possession or transacting sale and allowing others to occupy the land in suit and also prayed for injunction against the defendant No, 6 the Mukhtiarkar (East), from effecting change, alteration or making mutation in the record of rights in respect of the survey numbers mentioned in the suit.
' The defendants Nos. 1 to 5 have resisted the said applications on a number of grounds.
4. I have heard the learned Advocates Mr. Abbas Zia and Mr. Kazi Iqbal for the plaintiffs and Mr. S. H.
Rizvi, Advocate for the defendants Nos. 4 and 5 and the Additional Advocate-General for defendant No, 6.
5. In order to determine if the plaintiffs have prima facie case it would be relevant to consider if they have, prima facie, any right or title in the land in suit. In the prayer made in the plaint the plaintiffs have claimed declaration that they have right and title in various survey numbers which amongst others consist of Survey numbers 300 to 304 and Survey Nos. 305 to 311.
' In para. 1 of the plaint the plaintiffs admitted that the defendants Nos. 1 and 2 contracted to purchase from Allah Bux and the legal heirs of the other co-sharers 5 Survey numbers Nos. 300 to 304 (out of 24 Survey numbers) situate in Deh, Mehran measuring 29 acres and 18 Ghuntas vide an agreement of sale, dated 14th February, 1982. It also admitted by them that they also signed the said agreement though the case is that the defendants Nos. 1 and 2 obtained the several signatures and thumb-impressions of various heirs including the plaintiffs Nos. 2 to 5, without their having knowledge of the transactions. According to the plaintiffs the thumb-impressions have been manupulated and/or forged by the vendees f. e. The defendants Nos. 1 and 2. It is further pleaded that the vendees obtained several signatures and thumb-impressions of those who could be found and could be pursuaded by them, on three pages which were all blank and/or only contained the few concluding sentences with typed name of the co-sharers. According to the plaintiffs out of the sale consideration agreed to be paid for the aforementioned five plots except for the earnest money paid, the balance was to be paid within 6 months of the execution of the sale agreement. It is also pleaded that the defendants were led into the possession for the specific purpose of demarcation, surveying boundaries and that measurement etc. Of the plot for the sake of convenience only. It is further pleaded that at the time of the agreement of sale there were restrictions on the transfers or sale of agricultural land or any land comprising the area in which the said plots existed. The plaintiffs also pleaded that the defendant presented a false sub-division plan of the plots of which plaintiffs or their predecessors-in-interest had no knowledge at all and that the office of the collector without making any inquiry and with a view to overcome the legal restrictions under undue influence of the defendants Nos. 1 and 2 recognised the said sub-division plan to defeat plaintiffs rights, the five survey numbers are divided into small size residential plots vide letter of Collector, dated 14-4-1954. According to the plaintiffs the said sub-division plan is illegal null and void as the same was manupulated by the defendants Nos. 1 and 2 in contravention of and to defeat the existing rules and regulations, without any knowledge of or information of the co-sharers.
6. I may note here that in the land in respect of which the declaration is sought the plaintiffs admit that some of the area has already been acquired by the Government for civil aviation and military cantonment as per letter of Military Estate Office, Karachi Circle, dated 31-5-1982.
7. According to the plaintiffs some of the co-sharers in December, 1981, tried to know the exact position of the Record of Rights relating to Survey Nos. 300 to 304, when according to them, they found that havoc was being played by the defendants and that they, therefore, made application to the Mukhtiarkar Karachi for grant of copy of Form VII. According to the plaintiffs the Mukhtiarkar Karachi informed that the Records of Rights was in torn condition and its copy could not be prepared. It is the case of the plaintiffs that the report of the Mukhtiarkar was false as he is in league and conspiracy with the defendants Nos. 1 and 2 and that he had been issuing Form VII and effecting mutation illegally every day on the behest of the defendants Nos. 1 and 2.
' Thus, on the plea that in the circumstances of the case the defendants having neither the intention to perform the agreement of sale nor have done any act in furtherance of the contract and are not ready to perform or willing to perform their part of the agreement during the course of all these years, committed serious breaches of the terms and conditions of the agreement and transferred possession to the other defendants without any legal authority removed the pillars, demarcation stones and managed manuplations in the Record of Rights, are liable to be ejected and that the plaintiffs are entitled to recover possession of the land in suit, besides grant of other reliefs.
' According to the plaintiffs the defendants were bound to perform the agreement and complete the sale within the course of maximum one year and in default the agreement stood cancelled as stipulated, as the defendants deliberately avoided to pay the whole of the consideration amount and that the defendants have made huge illegal profits by transferring possession of some portions of the stipulated land to other defendants.
' The plaintiffs in para. 29 have claimed Rs, 61,91,815 as mesne profits for the period February, 1953 to February 1982, Rs, 2,13,807 as the original value at Rs, 1.50 per square yard.
8. Alongwith the plaint application for injunction has been filed which has been resisted by the defendants as stated above on the plea, amongst others, the plaintiffs have no prima facie case or title in the land in suit.
' At the very outset it may be pointed out that though the plaintiffs have claimed declaration in respect of the various survey numbers but the dispute between the parties is restricted to two sets of survey numbers namely (i) Survey Nos. 300 to 304 and (ii) Survey Nos. 305 to 311. With the other survey numbers the defendants have no concern.
9. I will first deal with Survey Nos. 305 to 311. It will be noted that in the narration of facts in the plaint no averment whatever has been made by the plaintiffs claiming any right, title or interest in these survey numbers. They have, however, in the prayer clause added these Survey numbers (305 to 311) as well, while claiming declaration in respect of the various pieces of land, otherwise the plaintiffs have neither shown any title or interest nor have made any averment so as to claim any title or interest in these Survey numbers (305 to 311). Accordingly their application claiming any injunction in respect of these survey numbers is liable to be rejected on this short ground alone.
10. As regards the Survey Nos. 300 to 304 it will be seen that the plaintiffs have admitted in the plaint that they as well as other legal heirs of the original owners of these 5 survey numbers, have either agreed to sell or sold away their rights therein to the other party. The plaintiffs obviously cannot plead case of the other co-sharers who according to the plaintiffs had signed the agreements. It is obvious that as the sellers, other than the plaintiffs, have not chosen to join the suit as plaintiffs and have not even been cited as defendants, cannot be treated as having any grievance. In the circumstances the only case which requires consideration is that of the plaintiffs and not of all the other heirs of the original owners who have not joined and are not parties to the suit.
' As to the alleged right/title of the plaintiffs I find from the documents produced that the defendants Nos. 3 and 4 (and defendant No, 5) have prima facie validity acquired title in the above survey Nos. The defendants have produced 15 documents which fully support the case of the defendants (the defendant No, 5 is a company whose interest is common with defendants Nos. 3 and 4) that these Survey Nos. 305 to 311 have validly been transferred in their favour.
11. The learned counsel for the plaintiffs were unable to show that the transactions whereby these Survey Nos. 300 to 304 and/or Survey Nos. 305 to 311 stand transferred to the defendants Nos. 3 to 5 and/or to the defendant No, 5 in any manner suffer from any illegality, rendering them inoperative.
12. I may summarise the situation as follows:-
(i) The plaintiffs Nos. 2 to 5 lost title in Survey Nos. 305 to 311 on execution 15 sale-deeds (which are on record) in 1952 and the defendant No, 5 acquired title in these Survey Nos. To the extent 0-15-0 share by execution of a registered sale-deed by Nazir of this Court pursuant to a decree passed in Suit No, 474 of 1970. The remaining 0-1-0 share was purchased by registered sale-deeds (six in numbers) from Pir Pagaro and 2 others and by sale agreement dated 25-3-1981 from Riaz Hussain Fazail.
' As regards sale of Survey Nos. 300 to 304 there are four registered sale-deeds executed by (1) Maj. Zaheeruddin, (2) Mrs. Noor Bano, (3) Mst. Afsari and (4) Abdul Mughni Khan and others. Nine other parties transferred their rights by statement and mutation made in favour of the defendants Nos. 4 and 5. The defendants have produced 17 receipts of full payments besides to two sale agreements.
13. Thus, in the face of the above facts, prima facie the plaintiffs Nos. 2 to 5 have failed to make out a case that they have title or any subsisting title or interest in the lands in suit so as to entitle them to claim injunction, against the defendants. In the absence of a prima facie case having been made out, the plaintiffs applications for injunction cannot succeed. I may observe here that the plaintiffs have also failed to show that they would suffer any irreparable loss if injunction is not granted. Indeed they have claimed monetary decree in the alternative and it has not been argued that realisation of the amount, if the suit was ultimately decreed, from the defendants would not be possible or that the defendants are transferring their assets and/or doing any act, deed or thing whereby the execution of the decree would be delayed or defeated. I may also add that it has also not been shown that the balance of convenience is in favour of the plaintiffs.
14. For the reasons discussed above I find no merit in these applications which are accordingly dismissed, and accordingly C. M. A. 4764 of 1982 also stands disposed of.