' This civil revision application under section 115 of C.P.C. Has arisen out of suit No,5 of 1989 filed by the respondent against the petitioner for a declaration that he was in lawful possession of the suit land, and was not liable to be dispossessed by the latter. Respondent also sought issue of interim injunction, restraining the appellant from interfering with his possession over the suit land.
2. Case of the respondent was, that he was purchaser of four pieces of land measuring 7208 sq. Ft.
From the land of Survey No, 347 which was carved out of UA. No, 5 of Deh Gidu Bunder Taluka Hyderabad City. Respondent claimed to have purchased the suit property from its owners namely Mir Murad Ali Khan and others, by virtue of an agreement dated 20-5-1987 during the execution of which he paid entire price of the suit property. He was put in possession of the suit property, in pursuance of the said agreement. He claimed that he continued to be in possession of the same.
Respondent also raised boundary wall at the suit land. He received impugned letter dated 14-12- 1988 from the Director Katchi Abadis to the effect that the construction was being raised on municipal land and it should be stopped. Said notice was replied by the respondent. Subsequently staff of the petitioner came at the suit land and dismantled the boundary wall and threatened to dispossess the respondent forcibly. Respondent alleged that the letter dated 14-12-1988 wherein it was claimed that the disputed property was of the Municipality, was mala fide and illegal. Hence the suit.
3. Petitioner moved the trial Court with an application for rejection of the plaint and as such the trial Court under an order dated 26-4-1989 rejected the plaint. Said order was however reversed by the learned Vth Additional District Judge, Hyderabad on 26-2-1990 in Civil Appeal No, 100 of 1989.
Hence this revision application.
4. Mr. Aftab Ahmed Shaikh, learned counsel for the petitioner raised the following points:
(i) That suit of the respondent was not maintainable in view of the provisions contained by sections 42 and 56 of the Specific Relief Act.
(ii) That suit of the respondent was barred by the provisions contained by sections 11 and 13 of the Sindh Public Property (Removal of Encroachments) Act, 1975.
(iii) That suit of the respondent was barred by section 108 of Sindh Local Government Ordinance.
(iv) That suit of the respondent was barred under rule 4 of Sindh Local Councils (Appeal) Rules, 1982.
5. It is a settled position of law that for the purpose of considering whether plaint should be rejected under Order 7 rule 11 of C.P.C. All the averments made in the plaint shall be assumed to be correct in manner and in form. In the instant case the respondent claimed in his plaint that he was prospective purchaser of the suit land, consisting of four pieces of land from survey No,347 of Deh Giddu Bunder. No doubt the sale agreement executed by the vendor in favour of the respondent, does not give him title to the disputed property, but if possession of the suit property has been given to him in pursuance of such agreement, such possession would confer on him certain rights to be protected by law. Presumably because of this, the respondent sought declaration that he was in lawful possession of the suit land. Respondent also sought issuance of permanent injunction restraining the petitioner and the Director Katchi Abadis from interfering with his possession over the suit land.
6. In respect of maintainability of the suit, it was argued on behalf of the petitioner that the respondent has no title in the suit property and as such he cannot seek declaration in respect of the same. Section 42 of the Specific Relief Act entitles a person to seek declaration in respect of his legal character or right to any property. It is not requirement of section 42 of the Specific Relief Act, that declaration in respect of right to any property can be sought only if the par v seeking declaration is owner of the same. In the case of Mokarala Pitchayya v. Boggavarapu Venkatakrishnayya and others (AIR 1943 Madras 497) it was held that section 42 of the Specific Relief Act does not require that the plaintiff should have a right in the suit property and that an agreement to sell in favour of a person gives him a right, as to, or in relation to the property, which is the subject of the agreement. In the present case, the respondent is yet to obtain sale-deed in pursuance of the Sale Agreement. Maximum that can be said against the respondent is that he has no title in the suit property. This by itself does not make his suit non-maintainable, if he has obtained possession of the suit property validly and certain rights in respect of the suit property have accrued to him by virtue of his being in possession of the suit property and by virtue of the sale agreement dated 20-5-1987. Besides the relief of declaration, the respondent has sought relief of injunction. The relief of injunction can be granted under section 54 of the Specific Relief Act to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication. Here again possession of the respondent is to be protected if he got the possession in a lawful D manner. Respondent has to prove this by evidence. In view of all this the suit of the respondent could not have been thrown away on the ground of its being non-maintainable.
7. It was argued on behalf of the petitioner that the suit property was a public property, as defined under section 2(h) of Sindh Public Property (Removal of Encroachments) Act, 1975 (hereinafter to be mentioned as the Act), and as such the petitioner or the Director Katchi Abadis had jurisdiction to remove the respondent from the suit property and such action cannot be challenged in a Civil Court as per section 11 of the said Act. It is settled position of law that barring provisions apply only in respect of the acts which are intra vires of a public functionary. Again it is for the Civil Court to determine, whether such public functionary has acted within its sphere of jurisdiction or has travelled beyond its known jurisdiction. Even where the jurisdiction of the Civil Court is barred and conferred upon Special Tribunals, the Civil Courts being Courts of ultimate jurisdiction, will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide, as observed in the case of Hamid Hussain v. Government of West Pakistan and others 1974 SCM R 356. In the case of Veedhal Shah and others v. Province of Sindh and another PLD 1978 Kar. 464 it was observed, in the context of the provisions contained in section 11 of the Act, that the ouster of jurisdiction of a Civil Court in respect of a civil suit is not to be readily inferred. That unless jurisdiction of a Civil Court has been either expressly or impliedly taken away, it wil continue to vest in the Civil Court. It was also held that the bar contained by section 11 of the Act, was not an all purpose bar, but only in relation to purpose of the Act or anything done or intended to be done thereunder. It was further observed that the bar to the Civil Court's jurisdiction did not extend to adjudication by the Civil Courts upon the dispute that the property is not public property. Lastly it was held that the suit, where the question needing determination was whether or not the subject land was public property, not in relation to the Act but independently of it, was not barred under sections 11 and 13 of the Act. In the case of Mst. Siddiqa Begum v. Karachi Development Authority PLD 1985 Kar. 312, it was observed that a statutory tribunal constituted under section 4 of the Act, has exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined, "for purposes of said Act". It was also held that where the adjudication called for in deciding the suit, falls beyond the limited questions transferred to the exclusive jurisdiction of the Tribunal, the general jurisdiction vesting in the Civil Court remains unaffected. In the case of Abdul Manan Umar v. Industrial Development Bank of Pakistan and others 1987 CLC 1214, the actions of the respondent were challenged to be malicious, vindictive, mala fide and in excess of lawful authority and the view taken was that in the circumstances the trial Court was not jusitified to throw out the suit by rejecting the plaint without holding factual inquiry. The respondent claimed to have occupied the suit property, not as an encroacher, but as a prospective purchaser in pursuance of his Sale Agreement. The provisions of the Act would apply only in respect of clearance of public property from encroachment. Respondent challenged the impugned notice to be not only illegal but also mala fide. Such an allegation requires evidence. In any case the plaint could not have been rejected on the basis of the provisions contained by sections 11 and 13 of the Act.
8. Section 108 of the Sindh Local Government Ordinance, states that any person aggrieved by an order passed under said Ordinance or the rules or bye-laws, may appeal to such authority, in such manner and within such period, as may be prescribed. This provision could apply, if an order "under said Ordinance" had been passed against the respondent. In this view of the matter section 108 of said Ordinance would not come in way of the respondent. For similar reasons, rule 4 of the Sindh Local Councils (Appeal) Rules, 1982 would not bar trial of the present suit.
9. Jurisdiction of this Court, while hearing a revision application under section 115 of Cr.P.C. Is a limited one. Even if the finding of the Court below is erroneous, no interference by this Court is permissible, except in cases where the decision is based on no evidence or on inadmissible evidence or is so perverse that grave injustice would result therefrom, as held in the cases of Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53 and Haji Muhammad Zaman v.
Zafar Ali Khan PLD 1986 SC 88.
10. In the present case, the lower Appellate Court appears to have rightly held, that the trial Court had erroneously rejected the plaint. In the circumstances, no case has been made out for interference by this Court, with the impugned order. I, therefore, dismiss this revision application in limine.