1. ' This Revision Application arises in the following circumstances.
2. ' Respondent No,1 Muhammad Iqbal filed Suit No,3012/1979 (New No,2337 of 1985) against the appellant and the respondent No,2 with a prayer that allotment order No,570/31 dated 6-1-1964 issued by respondent No,2 (K.D.A.) in favour of the appellant be adjudged void and be cancelled.
3. ' Case of the respondent No,1 was that he was in peaceful physical possession of the disputed plot bearing No,2-C, 133, Sector 37-A Landhi Karachi, without any interruption etc. Since 1963. It was alleged that the appellant had obtained a fake, bogus, forged and fraudulent allotment order in dispute bearing No,570/31 with regard to the suit plot. Said allotment order was alleged to have been stolen from old files of the year 1964. It was alleged that the name of original allottee and his parentage was removed and name of the appellant and his father was typed in it fraudulently. It was also averred that the suit plot could not have been allotted to the appellant in 1964 when his age was only 11 yeaRs, It was added that the appellant had also obtained registered lease deed from K.DA. On the basis of the forged allotment order and the same was also illegal void ab initio and ultra vires.
4. ' The suit was contested by the appellant and by the respondent No,2, who filed separate written statements. Maintainability of the suit was challenged and so also jurisdiction of the trial Court.
5. Want of notice under Article 131 of the K.DA. Order was pleaded.
6. ' The trial Court framed issues on the point of maintainability of the suit, on the point of possession of the suit plot and on the point whether the allotment of the plot and lease of the plot in favour of the appellant was forged and fraudulent. After recording evidence, the trial Court under the impugned judgment dated 11-2-1987 found the suit to be maintainable but held the other issues in favour of the appellant and dismissed the suit. Respondent No,1 filed Civil Appeal No, 43/1987 challenging the judgment and the decree of the trial Court. Learned Appellate Court under the impugned judgment dated 3-12-1987 reversed the findings of the trial Court and accepted the appeal with costs. Hence this revision.
7. ' Mr. Syed Riaz Hussain, learned counsel for the appellant argued that the trial Court had taken the view that the appellant was a bona fide allottee of the disputed plot which was allotted in a regular way. Learned counsel further argued that the allotment order challenged by the respondent No,1 was supported by K.D.A. Through the witness Muhammad Saleh (Exh.18) who had given evidence in the trial Court to the effect that in the year 1978 the suit plot was leased out to the appellant and that the respondent No,1 had no concern with the same. Learned counsel for the appellant referred to the report submitted by the Local Commissioner in the trial Court and argued that said report was in favour of the appellant. Learned counsel supported the judgment of the trial Court.
8. ' Mr. Iftikhar Javaid Qazi, learned counsel for the respondent No,1 argued that the allotment order in question was a forged document and it was prepared in collusion with the staff of K.D.A. Learned counsel referred to the deposition of Muhammad Saleh (Exh.18) who had said that the suit plot was regularized in the name of the appellant. Learned counsel for the respondent No,1 further argued that the Commissioner had given the report that the plot in suit was an open plot and hence the same could not be regularized in the name of anybody as per evidence of Muhammad Saleh (Exh.
9. 18). Learned counsel further argued that photo copy of identity card of the appellant showed that his age in 1974 was 21 years and as such his age in 1963 must be 10 or 11 years and as such he could not have been allotted the suit plot being minor. Learned counsel for respondent No,1, further argued that the suit of the respondent No,1 was maintainable under section 39 of the Specific Relief Act, because he was in possession of the disputed property and in the circumstances if the allotment order issued in favour of the appellant was left undisturbed the same may cause serious injury to the respondent No,1. In support learned counsel cited the cases of Badri Narain Singh and others v. Kodo Sah AIR 1915 Cal. 423, Suraj Ket Prasad v. Chandra Mul and others AIR 1934 All. 1071 and Muhammad Bashir and others v. Mst. Walayat Begum and others PLD 1967 Lah.
10. 391.
11. In his plaint respondent No,1 did not claim that he was allottee of the suit land or he was entitled to allotment of the suit land. Although the respondent No,1 claimed to be in possession of the suit land since 1963 but he did not state as to under whose authority he occupied the suit land. In the cicumstances even if the respondent No,1 was in possession of the suit land since 1963, he could be termed as trespasser. Admittedly, the respondent No,1 was not pm try to the allotment order, of which the cancellation is sought. In the case of Abdul Hamid v. Dr. Sadeque Ali Ahmed and others PLD 1969 Dacca 357, it was held that a document which is null and void ab initio need not be set aside and it may be treated as non-existent. It was also held that in case of void document a person may rely on its invalidity as against himself without suing for its cancellation. In the same case it was held that a person who is not the party to the deed, is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiffs rights would be quite enough.
12. In the case of Badri Narain Singh AIR 1915 Cal. 423, it was held that where a person has some interest in the land in suit, he has clearly a cause of action as is required by section 39 of Specific Relief Act. In the said case the plaintiff had some interest in the disputed land which was covered by the deed sought to be cancelled. In the case of Suraj Ket Prasad AIR 1934 All. 1071, it was held that section 39 of the Specific Relief Act, applies also to the instruments to which the plaintiff was not party. In the said case, the plaintiff challenged a compromise entered into by his father in a family partition suit. In the case of Muhammad Bashir and others PLD 1967 Lah. 391 it was held that relief under section 39 of the Specific Relief Act, can be properly claimed not only by the party to the instrument, but by any person against whom the instrument is void or voidable. In the instant case, suit of the respondent No,1 was found to be maintainable by the trial Court and such finding was not assailed.
13. ' Respondent No,1 Muhammad Iqbal (Exh.5) deposed that he was in undisturbed possession of the suit plot since 1963. That in 1979 the appellant came to occupy the plot in suit by claiming to be its allottee. Respondent No,1 added that the appellant had obtained the allotment by fraud. Neither in his plaint nor in his evidence respondent No,1 mentioned the facts which constitute fraud.
14. Respondent No,1 admitted in his cross-examination that the area where the plot in dispute is located is the area of K.DA. He added that in 1966 he had made an application to the K.DA. For allotment of the suit plot but no allotment in his favour was made. Respondent No,1 examined P.W.
15. Abdul Hameed Exh.12 who deposed that the suit plot was in possession of the former for preceding 18 or 20 years, and that it had never remained in possession of the appellant. Abdul Hameed admitted being related to the respondent No,1 and on visiting terms with him. He admitted that he was residing at a place 50/60 paces away from the respondent No,1. No other witness was examined. Appellant Naseeruddin Exh. 13 deposed that he was in possession of the suit plot for preceding 18 years and that the same was leased out to him 4/5 years prior. Appellant admitted in his cross-examination that no construction was raised by him over the plot in suit. Appellant denied his age being 26 years and explained that his age in his Identity Card Copy Exh. 14 was wrong. Appellant produced copy Exh. 15 of the Allotment Order dated 6-1-1964 which contains his photo. His photo does not show if he was minor in 1964. Appellant examined Abdul Majid Exh. 16 and Bashir Exh. 17 in support. They deposed that the appellant was in possession of the suit plot and he was allottee and lessee of the same. The most important witness in this can Muhammad Saleh Exh.
16. 18 who is Assistant Director K.DA. He deposed that the suit plot was leased out in 1978 to the appellant who was in possession of the same and that in 1964 it was regularized in favour of the appellant. Even if regularization of the suit plot in favour of the appellant was bad due to the plot being open or due to the appellant being minor, then too the appellant has legal right to claim the plot because it was leased out to him in 1978 under a registered lease deed.
17. ' Moreover the respondent No,1 has no locus standi to challenge lease of the plot in suit to the appellant because in words of Muhammad Saleh Exh. 18 respondent No,1 had no concern with the suit plot.
18. ' The onus was on the respondent No,1 to prove' that the allotment/regularization as well as the lease of the suit plot in favour of the appellant was fraudulent and as such void or voidable. The respondent No,1 has not been able to make out the case for cancellation of the allotment order or the lease deed. For all these reasons I am of the view that suit of the respondent No,1 was rightly dismissed by the trial Court.
19. ' Consequently this revision Application stands accepted with no order as to costs and the appellate Court's judgment and the decree are set aside and those of the trial Court are restored.