' This suit for possession in respect of Katchi Abadi Plot No,29, Doda Village 6 situated near Usmania Colony, Karachi, for possession, mesne profits at the rate of Rs,100 per day amounting to Rs,1,08,000 and damages/compensation worth Rs,50,000 for causing demolition of structure has a chequered history.
2. It is the case of the plaintiffs that their predecessor-in-interest Khair Muhammad was in occupation of the plot in suit since the time of his ancestors and people are residing in this village for more than a century. Plot in suit consisted of five barracks like construction. The said Khair Muhammad let out barrack Nos. 1 and 5 to defendant No,1 on rent of Rs,70 per month some times in 1967. On the failure of defendant No,1 to pay the rent he filed claim for recovery of rent before the Chairman, Conciliation Court, Karachi, who awarded the claim for a sum of Rs,630. This decision was challenged in revisional jurisdiction before the District Court which was allowed on legal ground and the decision of the Chairman was set-aside. After the death of Khair Muhammad some times in February, 1969 defendant No,1 came forward with a plea that he had purchased the structure raised on the plot in suit from Khair Muhammad vide agreement to sell dated 5-1-1966 for a sum of Rs,7,000. After service of notice on the plaintiffs he filed Suit No,1618 of 1969 before the Civil Court for declaration and injunction claiming title to the property in suit on the basis of said agreement. Conversely plaintiffs filed Suit No,2271 of 1969 for declaration that the alleged agreement to sell purported to have been executed by late Khair Muhammad was false and fabricated with a prayer for its cancellation. Both the suits were consolidated but the suit filed by, defendant No,1 was dismissed as withdrawn on 23-7-1976 whereas suit filed by the plaintiffs was decreed on 8-9-1980. Defendant No,1 challenged the judgment and decree in Civil Appeal No,393 of 1980 which was dismissed by an additional District Judge, Karachi. A Civil Revision Application No,138 of 1985 preferred by the defendant No,1 before the High Court also met the same fate and was dismissed on 9-12-1985.
3. Thereafter, plaintiffs filed Suit No,1241 of 1985 for possession against defendant No,1 before VIth Senior Civil Judge, Karachi-West in respect of the property in suit on the averments that the Barrack No,3 in occupation of one Saleh as a tenant after being vacated was locked. Defendant No,1 allegedly broke open the wall of the said house from inside and illegally and unauthorisedly occupied Barracks Nos.3 and 4 whereas Barracks Nos.1 and 5 were let out to him on rent. This suit was .Contested on the ground that plaintiff's father had sold out this property for a sum of Rs,7,000 whereas other pleas were also raised. The suit was decreed on 6-10-1986. Civil Appeal. No,165 of 1986 preferred by defendant No,1 before District Judge, Karachi-West from the judgment and decree was dismissed for non-prosecution vide order dated 16-2-1987. Application under Order XLI, rule 19, C.P.C. For re-admission of the appeal was also dismissed by the Appellate Court on 9th July, 1987. Thus decree in favour of plaintiffs attained finality but defendant No,1 challenged the legality and propriety of the dismissal order by way of Civil Revision Application No,199 of 1987 which was dismissed in limine on 15-9-1987 by Saiduzzaman Siddiqui, J (as his Lordship then was).
4. During the pendency of Suit No,2271 of 1969 plaintiffs filed Rent Case No,2486 of 1980 against defendant No,1 for his eviction from Barracks Nos. 1 and 5 which was decided in their favour vide order dated 21-11-1983. In F.R.A. No,10 of 1984, however, the eviction order in favour of plaintiffs was set aside by the High Court. Plaintiffs preferred Civil Petition for Leave to Appeal No,82-K of 1986 before the Supreme Court which was dismissed as withdrawn with permission to file fresh suit or proceeding for eviction of defendant No,1 before competent Court of law.
5. After a long chain of litigation between the parties plaintiffs brought this suit with the caption as suit for declaration permanent injunction and possession valued at Rs,2,58,000 but essentially it is a suit for possession mense profits and damages as stated earlier. According to plaintiffs, during the pendency of Suit No,2271 of 1969 defendant No,1 constructed two rooms on the plot in suit in 1979 and both the defendants who are husband and wife collusively got an entry maintained in the record of Excise and Taxation Department indicating Plot No,DV-1-A in favour of defendant No,2. As averred in the plaint originally Plot No,DV-6 was entered in the records of the Excise and Taxation Department in the name of Khair Muhammad and after his death record was mutated in their favour. They approached the Excise and Taxation Authorities and succeeded in getting the record corrected to the effect that property unit DV-1-A was merged with DV-6 in the name of plaintiffs Allah Bux and others vide Assessing Authority order dated 24-12-1985. It is claimed that Katchi Abadi Committee of the Karachi Metorpolitan. Corporation included Plot No,DV-6 in their scheme for regularization by ermarking it as Plot No,29 in the plan. Defendant No,2 agitating her possession over Plot No,DV-1-A filed Constitutional Petition No,773 of 1983 for declaration that she is in lawful, continuous and peaceful possession of the plot referred to above measuring 350 sq. Yards since prior to 1969 and entitled to the grant of permanent lease but her petition was dismissed on 29-8- 1989. Likewise plaintiffs' Writ Petition No,D-366 of 1983 seeking their right and title to an open space lying in front of Plot No,29 on the basis of their possessory rights was also dismissed on the same date. Plaintiffs averred that the cause of action arose to them at Karachi on 18-6-1986 when Supreme Court delivered its judgment arising out of F.R.A.
6. Both the defendants filed separate written statements contesting the suit on various grounds, claiming to be the owners of the plot in suit on the basis of their continued and peaceful possession of the plot in suit in Katchi Abadi and having raised construction over it.
7. Pleading of the parties were reflected in the following issues:
(1) Whether the suit is time-hatred as the defendant is in possession of suit property since 1965 and the present suit was filed in 1987?
(2) Whether the suit is further barred by res judicata under section 11, C.P.C.?
(3) Whether the suit property bearing No,DV-6 Plot No,32, Sheet No,62 (Barrack type) is constructed on the Government land now Katchi Abadi. If so, its effect?
(4) Whether suit property as claimed by the plaintiff belongs to him?
(5) Whether the defendant No,1 came in possession of a part of Plot No,DV-6 as tenant and then subsequently he and defendant No,2 occupied further portion unauthorisedly and raised unauthorised construction?
(6) Whether the defendant demolished two barracks on the plot?
(7) Whether Plot No,DV-1/A is in existence in the record of K.M.C. And Excise and Taxation Department?
(8) Whether area claimed under Plot No,DV-1/A is a part of Plot No,DV6?
(9) Whether old Plot No,DV-6 has now been numbered as Plot No,29 by the Katchi Abadi Directorate and earmarked for allotment to the defendant?
(10) Whether defendant has any right to occupy the plot?
(11) Whether plaintiffs are entitled to claim possession of Plot old No,DV-6 and new No,29 and also mesne profits and damages?
(12) To what relief are the plaintiffs entitled?
(13) What should the decree be?
8. In support of their case plaintiffs examined their attorney P.W. Abdul Karim who was cross- examined at length on behalf of the defendants but they did not adduce any evidence in rebuttal.
9. I have heard Mr. Azhar Ali Siddiqui, learned counsel for the plaintiffs at quite some length and gone through the relevant evidence on record, my findings are as under the following reasons: ' Reasons:
10. Issue No,1.--This issue was raised by defendant No,1 pleading the bar by limitation on the averments that he has been in possession of the property in suit since 1965 as such the present suit filed in 1987 would be barred by limitation. As observed earlier both the defendants did not bother to lead evidence in support of their plea with regard to their continuous possession since 1965 but on plaintiffs own showing Barracks Nos.1 and 5 were let out on rent to defendant No,1 in 1967 by their deceased father which circumstance conclusively shows that defendants No,1 has remained in possession of these Barracks on the plot in suit at least from 1968 when the plaintiffs approached the Conciliation Court, Karachi for recovery of arrears of rent. As regards barracks Nos.2, 3 and 4 plaintiffs did not explain in their lengthy plaint spread over 23 paragraphs as to at what point of time defendants occupied the said portion of the property. In paragraph 8 of the plaint it was simply stated that the plaintiffs also filed suit for possession of two barracks which the defendant No,1 had taken possession from two other tenants. A reference was made to decree passed in favour of the plaintiffs in Suit No,1241 of 1985 without reference to the barrack. Nos. As pointed out in the narrative of this judgment, this suit for possession without seeking any other relief essentially pertained to the property in suit. Judgment in the said suit attained finality with the dismissal of the Revision Application No,199 of 1987 before the High Court.
11. Plaintiffs' averment in paragraph 16 of the plaint that they filed this suit in view of the order passed by the Supreme Court in connection with proceedings under the rent laws does not show that the suit' in respect of the barracks Nos. 1 and 5 was filed within 12 years from the date of handing over possession of the premises to defendant No,1. There is no gainsaying that there is absolutely no averment with regard to barracks Nos.2, 3 and 4 and the entire plaint is silent on this point which would undoubtedly show that plaintiffs' suit filed on 12-1-1987 was brought long after the date of dispossession and thus hit by the provisions of Article 142. Article 142 of the Limitation Act provides a period of 12 years from the date of dispossession or discontinuance for filing a suit for possession of immovable property when the plaintiff while in possession of the property has been dispossessed or has discontinued the possession. No doubt defendants have not asserted adverse possession of the property in suit they have specifically pleaded the bar of limitation and as pointed out hereinabove a suit for possession of immovable property ought to be filed within 12 years of the date of dispossession or discontinuance. Both the defendants have claimed possession of the property in suit in their own rights peacefully and continuously.
12. In Muhammad Hussain v. Ghazi and others PLD 1972 Quetta 47 late Ghulam Rasool K. Shaikh, J.
(as he then was) held that the plaintiffs seeking eviction on the basis of his title must establish it as a condition precedent to the application of either of the Articles (Articles 142 and 144). Learned Judge further observed that it, therefore, follows that in case he does not succeed in establishing his title the suit must fail and the consideration of the question of limitation becomes redundant.
13. In the case reported as Khisro Nawaz v. Khanimullah PLD 1962 (W.P.) Pesh. 124 Division Bench of West Pakistan High Court consisting of Anwarul Haq and Sajjad Ahmed, JJ., observed that: "The period of limitation for a suit under the Article applicable to it, has primarily to be determined from the averments in the plaint. Where a plaintiff seeks possession of immovable property on the basis of a possessory title and alleges dispossession or discontinuance of possession therefrom, the Article applicable to the case is Article 142 of the Limitation Act, 1908 which gives a period of twelve years for such suits commencing from the date of the alleged dispossession or discontinuance of possession."
' In Abdul Hamid Khan v. Inayat Khan PLD 1958 Lahore 99 the view taken was that there is ample authority in respect of the proposition if it is in essence a suit for ejectment on the strength of title, the plaintiff should not only make out his title to the property sought to be recovered but should also he establish that he has a subsisting title i,e, he or his predecessor had been in possession whether direct or constructive within 12 years prior to the date of the suit.
14. For the foregoing reasons I hold that the suit was filed beyond the expiry of period of limitation, I answer the issue in affirmative.
15. Issue No,2.--This plea was also raised on behalf of the defendant No,1 with reference to Suit No,1241 of 1985 brought by the plaintiffs against this defendant for possession in respect of the property in suit as well as Rent Case in respect of rooms Nos.1 and 5 decided against them. Learned counsel for the plaintiffs did not attempt to refer to the earlier adjudication and the decree passed in Suit No,1241 of 1985 and he was contended by saying that the defendants have not been able to point out as to how the present suit is barred by res judicata.
16. In my view present suit for possession and mesne profit is completely barred by the principle of res judicata by virtue of the judgment and decree in Suit No,1241 of 1985 which was filed by the plaintiffs against the defendant No,1 for possession and decreed. Needless to reiterate the decree in the said suit attained finality with the dismissal of the appeal and the Revision Application. Issue of possession relating to the property in suit between the parties having been finally heard and decided in the previous suit, present suit on the face of it is very clearly hit by the principle of law contained in section 11; C.P.C.
17. A person who is entitled to the possession of an immovable property may recover the same by instituting a suit in the manner provided by the Civil Procedure Code i,e, a suit for ejectment on the basis of title and after obtaining decree may recover actual possession in execution proceedings under Order XXI, Rules 35 and 36 or any other appropriate provision of the C.P.C. The word "entitled to possession" means a right to possession on the basis of ownership or possession of which the person claiming has been dispossessed. In the present case plaintiffs have neither proved their title to the property nor any right or interest thereto as owners therefore a suit for possession simpliciter without seeking the declaration of their title, in my view is completely misconceived and not tenable at law.
18. There is another aspect of the case namely bar arising under Order II, Rule 2, C.P.C. To my mind in the earlier suit for declaration and injunction plaintiffs having not asked for possession and mense profits the present suit is hit by the provisions of Order. II, Rule 2, C.P.C. It was incumbent upon plaintiffs to seek the relief of possession and mesne profits when on the earlier occasion they had disputed validity and genuineness of the agreement to sell in favour of defendant No, 1 .
Likewise relief of mesne profits in the present suit would be barred and it would be deemed to have been abandoned in the earlier suit for possession. On an over all assessment of the facts and circumstances I am clear in my mind to hold that the plaintiffs failed to establish any right or title to the plot in suit and therefore not entitled to any of the relief asked.
19. Issue No,3.--Learned counsel for the plaintiffs conceded that the property in suit is constructed on the Government land since declared as Katchi Abadi. In my view there is no controversy about this factual position and I am at loss to understand as to how this issue was settled for determination. To my mind the issue is redundant.
20. Issue No,4.--It would appear from a narrative of this judgment that the plaintiffs did not claim any title to the property in suit and their claim is confined to their possessory rights since the time of their ancestors. Nature of the claim advanced by the plaintiffs is long and continuous possession of the property in suit before the occupation of defendant No,1 which does not confer any right or title in their favour.
21. Issue No,5.--It would seem from a narrative of this judgment that first part of this issue stands adjudicated right up to the Supreme Court against the plaintiffs who failed to establish tenancy in respect of barraks Nos. 1 and 5 in favour of defendant No,1. As regard second part of the issue relating to illegal and unauthorised occupation of the defendants learned counsel for the plaintiffs strongly relied upon two inspection reports dated 21-2-1989 and 6-12-1992 submitted by Mr. Muhammad Tasnim, Advocate appointed as Commissioner by the High Court and acceptance of his reports without any objection vide Court orders dated 12-3-1989 and 26-4-1992 respectively. It is doubtful whether these inspection reports can serve the proof of unauthorized and illegal occupation of a property in suit by the defendants. I am also doubtful in accepting these reports as conclusive evidence of the facts mentioned therein also for the reason that the Commissioner was appointed for the limited purpose of verifying at the site whether any construction was being raised in the context of an injunction application:
22. Plaintiffs in their plaint did not plead or explain as to at what point of time did the defendant unautorisedly occupy remaining portion of the property in suit. Notwithstanding the circumstances that plaintiffs' earlier suit was decreed against defendant No,1 as far back as 6-10-1986, in my view in the absence of any pleading as to the alleged illegal and unauthorized possession of the property in suit on the part of the defendants this issue cannot be decided. I am of the view that the evidence led in this behalf by the plaintiffs is liable to be ignored such being beyond the pleadings in the suit itself. It may be observed that in para. 16 of his affidavit-in-evidence plaintiffs' witness stated that in view of the order passed by the Supreme Court plaintiffs are filing this suit against the defendants. He added that defendant No,2 has been impleaded as party as defendant No,1 in his efforts to usurp the plot by raising some construction on the plot got it assigned to defendant No,2 but legally speaking this evidence is inadmissible, I am fortified in my view by the dictum of the Hon'ble Supreme Court in Atlantic Steamer Supply Company v. m.v. Titisee PLD 1993 Supreme Court 88 holding that in the absence of any such pleading, it will be open to the Court not to allow a party to lead evidence on the said question and if the evidence on such question is produced, the Court may decline to look into the same.
23. Issue No,6.--It was stated at the Bar that the defendant raised construction on the plot in suit after illegally demolishing the structure and they are in possession of the newly-constructed building on the site. Be that- as it may, since the plaintiffs have no right or interest in the plot in suit their silence with regard to the raising of construction by the defendants on plot in suit speaks volumes about it. The issue as such is redundant and need not be answered.
24. Issues Nos. 7 and 8.--There is no evidence on both the issues since the defendants did not step into the witness-box to substantiate their case. There is no other evidence except the extracts from P.T.I. Register maintained by-the Excise and Taxation Department but these entries by themselves are not conclusive proof of the facts stated therein. Both the issues, therefore, stand not proved.
25. Issue No,9.--It is the case of the plaintiffs that Plot No,DV-6 has been numbered as Plot No,29 in the Katchi Abadi Directorate. So, is the case pleaded by the defendants and there appears to be no controversy to this extent. In the absence of any satisfactory evidence, it is however, difficult to hold that the same has been earmarked for allotment to the defendants and I hold accordingly.
26. Issue No, 10.--This issue being unnecessary is dropped and does not require any finding.
27. Issues Nos. 11, 12 and 13.--In the light of aforesaid discussion and findings on the foregoing issues I hold that the plaintiffs are not entitled to reliefs prayed fora The suit is accordingly dismissed with costs.