1. ' The dispute in this civil revision revolves round Plot No,451 (also shown in some documents as No,767), Lyari Quarters, Karachi. From the overall examination of the record, it appears that defendant-respondent K.M.C. Had granted a lease of the referred plot, which expired on 1-2-1952 and, on 31-7-1972, when its then owner, Messrs Ghulam Hussain M. Ismailji Lakrwala Trust, made alienation in favour of plaintiff, Mst. Sakeena Begum (since deceased), through a deed of sale of such date (Exh. P/2), there was no tenure lease in operation touching such plot (hereinafter referred to as the main plot). Relevant lease dated 1-2-1931 for an initial period of 21 years, had, as said, expired in 1952. However, on 19-12-1975, Mst. Sakeena Begum was informed by the Land Manager, K.M.C., through a letter of that date (Exh. P/4), that the Corporation, per resolution dated 3-12-1975, had granted sanction to the renewal of lease of the plot in question in the name of such lady for a period of 21 years from 1-2-1952 and for a further term of identical number of years with effect from 1-2-1973. The actual lease itself, covering both renewals of 21 years, before and following its date, was effected on 24-9-1977 between respondent K.M.C. And the said Mst. Sakeena Begum, wife of Muhammad Sharif (Exh. P/3). In the meantime, abutting the Eastern boundary wall of the 'plot under reference, some interests appear to have evolved. Thus on 12-5-1973 defendant- respondent K.M.C. Had granted a 99 years lease (Exh. D/2) of a portion, abutting the referred plot, terming it as Plot No,766, to one Mst. Aisha Bibi (defendant No,2 through legal representatives). Like lease of another similarly abutting portion, numbered as 1819-A, was granted to one Mst. Aziza Bano (defendant No,3 through legal representatives) on 22-6-1974 (Exh. D/21). While such leases were granted at a time when the plaintiff-applicant did not come to have any interest in the main plot, and we know very little as to how her transferor (the then owner-Trust), had dealt with defendants Nos.2 and 3, there is clear correspondence from the side of Muhammad Sharif, husband of plaintiff, Mst. Sakeena Begum, disputing the title of the referred two defendants on the ground of easement and alignment rights, which is reflected in letters dated 8-2-1975 (Exh. P/7), 17- 5-1978 (Exh. P/8), 9-7-1977 (Exh. P/9) and 10-5-1979 (Exh. P/10), ultimately giving rise to a suit against the defendants (respondents here) in 1979, numbered as 1335 of 1979. In such suit, which was re-numbered as 412 of 1989, reliefs of declaration and permanent injunction were sought, largely on the grounds that the plaintiff was entitled to have the two leases in favour of the defendants Nos.2 and 3 cancelled and herself get the land abutting the main plot on the Eastern side, in furtherance of her easement and alignment rights because on such Eastern side that plot was shown in the records as abutting Hussain Bhai Ismailji Road and the two private defendants were mere inter-meddlers and encroachers who had been regularised otherwise than in due course of law by defendant K.M.C. The private defendants pleaded bar of suit and also denied the claim on merits, urging that the plaintiff had no rights and, at any event, when the defendants came to acquire leasehold rights, the plaintiff was not in the picture and even the title of her predecessor (the Trust) had been rendered defunct since the K.M.C. Lease of the main plot itself stood lapsed, way back in the year 1952. The Trial Court framed the following issues:- "(1) Whether the jurisdiction of this Court is barred under sections 4 and 9 C.P.C. Read 'with sections 42 and 88 of Sindh Local Government Ordinance., 1972?
(2) Whether the relief claimed is barred under sections 42 and 56 of Specific Relief Act?
(3) Whether disputed plots are alignment of Plot No,LY 13/96?
(4) Whether the plaintiff is not the owner of Plot No,LY 13/96?
(5) Whether the suit is beyond the pecuniary jurisdiction of this Court?
(6) Whether lease of disputed plot by defendant No,1 in favour < of defendants Nos.2 and 3 is illegal, void and liable to be cancellation? '
(7) What should the decree be?"
2. ' Upon trial, in effect, only Issue No,2 was decided and because at the time Mst. Sakeena Begum (plaintiff) acquired proprietary rights in the main plot there was no subsisting and operative lease from the K.M.C. Of such plot, it was found by the learned Trial Judge that there was no right as to any property in relation ' to which such lady could seek a declaratory decree in terms of section 42 of the Specific Relief Act or for the matter of that any consequential relief. An appeal, bearing Civil Appeal No,191 of 1989, was taken and was decided on 20-9-1992, affirming the Trial Court verdict on the decided issue but also adding that the plaintiff, on the legal and factual plane, had also failed to establish any alignment right whatsoever. These adjudications have given rise to the present civil revision, which was admitted to regular hearing on 24-1-1993.
3. ' During the course of hearing here, a great deal was said from the side of the applicant-plaintiff (through legal heirs) about the road presently touching the newly-created plots aforesaid namely, Hussain Bhai Ismailji Road, claimed to be 40 feet wide, to have been unilaterally and arbitrarily sliced and curtailed by respondent-defendant K.M.C. Since no inspection relevant to the width of such road was sought for or ordered in the Courts below and alignment rights agitated by the plaintiff had a direct nexus with the variation(s), if any, in such width over the years, a number of successive inspections were ordered here, in result whereof some reports of the Official Assignee and of an architect engaged by him have come on record. While it is still unclear as to what was the planned width of the referred road, it is gleaned from the examination of such reports that Hussain Bhai Ismailji Road, in its present shape, carries no consistent width and apparently there are encroachments all around without the K.M.C. Or the property owners of abutting lands doing anything. On this premises it may well be said that even if the two private respondents (defendants) are found to be illegal occupants/transferees and are directed to be removed, the width of the road would be altered only to a very limited extent, moreso because the applicant- plaintiff (through legal representatives) has herself been found, upon the record, to be in occupation of at least two similar portions abutting the same boundary wall and in the immediate vicinity of the two disputed newly carved plots to which respondents Nos.2 and 3 have laid claim.
4. Yet this aspect, assuming that the road earlier had defined perimeter, may not be important because if the private respondents are removed so will also be the applicant-plaintiff in consonance with the applicable right of the road, if that is found to be established. In such a situation neither the K.M.C. Nor the Court can overlook the encroachment of the applicant-plaintiff herself. As to the remaining inconsistent width of the road all that need be said is that if concerned landholders have slept over their rights and interests that circumstance by itself cannot be allowed to negate the entitlements, if any, of those who have been vigilant in seeking relief. Still, this would not absolve respondent-defendant K.M.C. From discharging its own obligations regarding public streets enjoined by law.
5. ' Another aspect of the matter, which would require further examination, is that in so far as the dimension of the road is concerned, the main plot (bearing No,451) has alongwith Plots Nos. 452 and 453, been the subject-matter of a controversy in the then Court of the Judicial Commissioner of Sindh in Suit No,36 of 1934, where such three plots were amalgamated and then divided and in which suit available material may be of consequence relevant to the controversy here. Some such documents have been placed on the record from the side of the applicant-plaintiff at this stage of the proceedings.
6. Coming directly now to the questions involved in the civil revision, merely because the lease relative to the main plot had expired it cannot be said that the erstwhile lessee had lost all rights in the leasehold. The latest renewal (Exh. P/3), which is on record and which probably is on the same pattern as the expired lease, would show that there is a vested right of renewal in the lessee under the indenture. What is more section 116 of the Transfer of Property Act, in clear and categorical terms, protects the rights of a tenant continuing in possession, following upon efflux of the lease period, irrespective of the nature of the lease and the rights and liabilities of the lessor and the lessee are to be governed on the basis of the expired lease, lessee being termed as the tenant holding over. The right accrues even if nothing more is involved than an assent of the lessor, express or implied, for the lessee to continue in possession. There is considerable case-law on the point but reference may only be made, as the learned counsel for the applicant have chosen to do, to Munshi Safar Ali v. Abdul Majeed, AIR 1927 Calcutta 279, Ramsunder v. Bataso Kuer, AIR 1935 Patna 271, Badal v. Ram Bharosa, AIR 1938 Allahabad 649, and Abdul Ghaffar Khan v. Ghullah Jan, PLD 1952 Peshawar 50. It follows, accordingly, that the concurrent findings of the Courts below that neither the plaintiff nor her predecessor had any right, title or interest in the main plot when the private defendants came to acquire their entitlements are not sustainable. The plaintiff-applicant did have, at all material times, rights in the main property for seeking declaratory relief covered by section 42 of the Specific Relief Act and consequential remedy could correspondingly be considered.
7. Taking up, at this stage, the finding of the Appellate Court that the applicant-plaintiff was not able to establish anything in the way of alignment rights, learned counsel for the applicant have correctly referred to section 42(f) of the Sindh People's Local Government Ordinance, II of 1972, which clearly provides a specific right of land-holders for adding alignment or small plots of not more than 80 sq.Yds. In area lying adjacent to their plots against a market price likely to be obtained in an auction. Even so, it must categorically be declared that no alignment rights whatever can arise if, for the purpose of giving effect to such purported rights, a road or street is to be sliced or in any other way curtailed. There are, one may add, specific provisions in the successive municipal statutes, covering the subject, pertaining to the dimensions and topography of roads and streets, which are public property and from which, except under very compelling and totally non-controversial circumstances, no plots of land for any private benefit are to be carved out. As to the rights of the public relevant to public streets, learned counsel for the applicant have cited Municipality Multan v. Tahlia Ram, AIR 1923 Lahore 272, with the principle in which I respectfully agree.
8. ' Here it may be added that since the plaint in these proceedings was presented on 4-4-1979 and the current Sindh Local Government Ordinance, 1979, came to be promulgated on 25-7-1979, the plaintiff-applicant does not seem to have pressed her rights, if any, under that statute.
9. The crux of the conclusion, therefore, is that the findings of the two Courts below are not correct nor are they in accordance with law and have to be set aside. This is a clear case of refusal to exercise jurisdiction conferred by law, attracting the revisional remedy under section 115, C.P.C. At this level.
10. ' However, a proper decision in the matter cannot be based on the existing material and would require a more detailed examination of the dispute, including additional evidence as to the position of the Hussain Bhai Ismailji Road. This is not all, it may also have to be seen as to whether, by conduct or otherwise, the previous owner of the main plot had acquiesced into the rights of the private respondents or had incurred any obligations in the way of estoppel which, if that were the case, the applicant-plaintiff would come to labour under similar disadvantages and may have to be refused the discretionary relief on that account. Obviously, this too would require further evidence. Even this, as said earlier, should not deter respondent-defendant K.M.C. From performing its duties relevant to a public road.
11. ' In consonance with the above, the revision application is allowed but without any order as to costs and the case is remitted to the Trial Court for a fresh adjudication. During the pendency of the proceedings before the learned Civil Judge, the private respondents (defendants before him), as here, would continue to maintain status quo, except that the learned Judge would be free to regulate the order of status quo in the event it is shown to him that prior to the raising of the present structure by respondent Mst. Aisha Bibi there was an existing structure going beyond the ground floor level, in which event some equitable though temporary relief may remain to be considered at the level of the Trial Court. The remanded suit would be decided de nova and in accordance with law at an early date.
12. ' Taking up the applications which are listed today, CMAs. 34/93 and 223/93 stand disposed of in terms of the foregoing interlocutory order, CMA 223/93, for contempt, not being pressed by the learned counsel for the applicant in view of such order. CMA 1126/93 is for additional documents from the side of the applicant-plaintiff. Such also is disposed of inasmuch as the applicant-plaintiff would be free to lead evidence as to the referred earlier suit and/or any other matters or proceedings relevant to the main plot so that the controversy between the parties is fully, elaborately and justly dealt with.