1. This suit has been filed seeking the following reliefs:
(a) Possession of suit property presently in possession of defendants Nos.3 to 5 bearing No. R.C- 3/12. Custodian No. IV-A-464, Lalu Gagu Street, Off Nishtar Road, Ranchore Line, Karachi may be delivered to the plaintiff or to Government of Pakistan or Government of Sindh or to any competent authority after determining the ownership of suit property and validity, legality of P.T.D. Purportedly in possession of defendants Nos. 1 to 5.
(b) To declare that the P. T. D. Issued to defendant No. l is forged document and defendant No. l is not legal transferee of suit property and any right or title obtained by defendants Nos. 2 to 5 through defendant No. 1 is illegal and ultra vires.
(c) To restrain the defendants Nos. 1 to 5 not to alienate, transfer, and burden the suit property through mortgages, agreements of sale or in any other manner and the defendants may be restrained not to raise any construction on the suit plot and cause any damage to the suit property in any manner pending decision of the suit;
(d) Costs of the suit, and
(e) Any other and/or better relief which this Hon'ble Court may deem fit under the circumstances to grant.
2. The plaintiff is Notified Officer under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, hereinafter referred to as I the Act'. It is claimed in the plaint that the Permanent Transfer Deed dated 25-9-1968, issued in favour of the deceased defendant No. 1 in respect of property bearing No. R.C-3/12, Custodian No. IV-A-464, Lalu Gagu Street, Off Nishtar Road, Ranchore Line, Karachi is not supported by the record available with the Settlement Department and, therefore, the same was highly doubtful and hence liable to cancellation. It is further alleged in the plaint that the deceased defendant No. 1 had sold the subject property to defendant No. 2 who, in turn; had sold it to the defendants Nos. 3, 4 and 5 through a fake sale deed.
3. According to the contents of the plaint, such fraud came to the knowledge of the plaintiff when written-statement was filed by the defendants in Suit No. 650 of 1990 which had been instituted by the occupants of the subject property but was subsequently withdrawn. It is further averred in the plaint that there was no entry in respect of the subject property in the Evacuee Property Survey Register nor had any proceedings for disposal of such property through auction, been-initiated by the Settlement Department. It is also claimed that the subject property has become State property after the repeal of the Evacuee Laws, having remained un-disposed thereunder. In para.10 of the plaint, however, the following averment has been made: "10. That the property apparently belongs to defendant No. `5 and the defunct Settlement Department was not competent to transfer the suit property under Settlement Scheme. The plaintiff has submitted written statement in Suit No. 650 of 1990. Copy of the written-statement is attached as Annexure ' E' wherein para. 3 of the written statement the plaintiff has submitted as follows: 'That referring to the contents of para. 5 of the plaint it is submitted that the transfer of the property in question to defendant No.2 is highly doubtful and appears to be spurious as there are no such entries of the P.T.D. In the relevant register in the office of the defendant. It is further submitted that the subject property is not surveyed and entered in the E.P.R, obviously because of the reason that the said property is an Evacuee Trust Property'."
4. The contents of the above-referred paragraph are evidently contrary to the bulk of facts stated in the plaint. The subject property, according to the above-referred paragraph, belongs to the defendant No. 5. The averment to the effect that the defunct Settlement Department was not competent to transfer the suit property under Settlement Scheme tends to show that the factum of transfer is admitted by the plaintiff. The basis of the plaintiff's claim to the subject property is that it is an evacuee property forming part of the compensation pool and had remained un-disposed until after the repeal of the Evacuee Laws, and therefore, would vest in the Provincial Government.
5. However, such position would stand belied if the authority of the Settlement Department to transfer the subject property is challenged. It may further be noticed that para.3 of the written-statement submitted by the plaintiff in Suit No. 650 of 1990, which has been reproduced in the above-referred paragraph, contains an averment to the effect that the subject property is an Evacuee Trust Property. If such averment is accepted again, the plaintiff cannot claim any right of interest in the subject property since such properties vest in the Evacuee Trust Property Board constituted under section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. The cause of action, according to the plaint, had accrued upon issuance of P.T.D. On 25-9-1968 and upon its having become known to the plaintiff through written-statement filed on 19-3-1990 by the defendants Nos. 3 to 5 in the above-referred Suit No. 650 of 1990. The present suit was filed on 21-9- 1992 and it is claimed that by virtue of section 18 of the Limitation Act the time would start running with effect from the date of knowledge about the fraud.
6. On behalf of the defendants Nos. 3 to 5, application has been filed under Order 7, Rule 11, C.P.C seeking rejection of plaint on the grounds that the plaintiff has no legal character or right to maintain the suit; the suit is barred by limitation; and it is also barred by the principles of res judicata. In the counter-affidavit filed on behalf of the plaintiff, it is stated that the plaintiff being a representative of the Government has the right to protect every evacuee property and since P.T.D on the basis whereof title is claimed by the defendants is, ipso facto, a forged document, the plaintiff after repeal of the Evacuee Laws has acquired interest in the subject property, As to the limitation, it is urged that since fraud is a continuous process, a suit can be filed at any time upon gaining knowledge about the fraud.
7. On behalf of the learned counsel for the defendants Nos. 3 to 5, it is urged that the question of genuineness or otherwise of the P.T.D was duly considered in Constitutional Petition No. S-51 of 1985 which was disposed of on 4-10-1986 by this Court and it was held that the notified Officer had no jurisdiction to cancel permanent Transfer Deed after repeal of the Evacuee Laws. It is further urged by the learned counsel for the defendants Nos. 3 to 5 that the occupants of the subject property had filed a Civil Suit No. 650 of 1990 seeking cancellation of the Permanent Transfer Deed on the very grounds urged in the present proceedings. In such suit the plaintiff was also a party. The suit filed by the occupants, as above, was subsequently withdrawn unconditionally. It is further contended that the title of the defendants was also considered in the rent proceeding filed by the defendants Nos. 3 to 5 against the occupants of the subject property and the order passed by the Rent Controller in favour of the defendants Nos. 3 to 5 has been affirmed up to the level of the Supreme Court in C.P.L.As. Nos. 363 to 372-K of 1991. As to the plea of limitation, it is urged that under Article 14 of the Limitation Act, a period of one year is prescribed for proceedings to set aside any act or order of an Officer of Government in his official capacity. According to the learned counsel, the plaintiff is presumed to have gained knowledge when the record pertaining to the subject property was mutated in favour of defendant No. 1 on the basis of Permanent Transfer Deed dated 25-9-1968 and then on 24-11-1980 when the Conveyance Deed in favour of defendants Nos. 3 to 5 was registered; then upon filing of the Constitutional Petition No. S-51 of 1985 wherein also the plaintiff was a party whereafter memo., dated 9th September, 1985 was addressed to the Excise and Taxation officer followed by the institution of Suit No. 650 of 1990 filed by the occupants of the subject property for cancellation of the P.T.D. According to the learned counsel, computing the period of limitation from any of the above dates, the suit is barred by limitation. Lastly, it is contended by the learned counsel for defendants Nos. 3 to 5 that the present proceedings are barred by the principles of res judicata for the reason that the question of title of the defendants No.3 to 5 has been determined by judgment dated 4-10-1986 in C.P. No. S-51/1985 and in Suit No. 650 of 1990 and in the rent proceedings.
8. On behalf of the plaintiff, the learned A.A.-G. Has referred to the contents of the plaint and asserted that the P.T.D., allegedly issued in favour of defendant No. 1, was not supported by any record of the Settlement Department. However, in the pleadings, there is an admission to the effect that some entries are found in the record of permanent transfer known as C.S.C. F-Register, Volume V at page 16 to the effect that the subject property had been transferred in favour of the defendant No. 1. I may regretfully observe that the learned A.A.-G., although had not made any request for adjournment, appears to be quite non-conversant with the record of the proceedings. The learned A.A.-G. Was not even able to make reply to the various contentions of the learned counsel for the defendants.
9. I have examined the record and find that the determination of title of the defendants Nos. 3 to 5, in the various proceedings referred by the learned counsel for the defendants, cannot be treated as an authoritative or final determination of such question as against the plaintiff. The issue which had been raised in Constitutional Petition No. S-51 of 1985 was absolutely different and it was held therein that the Notified Officer appointed under section 2(2) of the Act had no jurisdiction to cancel P.T.D in the proceedings initiated after promulgation of the said Act. The issue raised in the present proceedings is totally different since the jurisdiction of Civil Court for declaration, as has been sought in the present case, is not barred. As to Suit No. 650 of 1990 which had been filed by the occupants for cancellation of the P.T.D, suffice to observe that the plaintiff was a defendant therein and the suit was withdrawn unconditionally by the occupants of the subject property. Thus, the issue had not been adjudicated after application of mind thereto. In any event, to debar the plaintiff on the basis of order permitting withdrawal of the suit shall amount to denying relief to the plaintiff merely on the basis of a technicality. As to the rent proceedings, the learned counsel for defendants Nos. 3 to 5 admits that the plaintiff was not a party to such litigation. However, as to the legal character of the plaintiff, for seeking declaration about the permanent Transfer Deed and thetitle of the defendants, a bare reading of the plaint shows that the plaintiff has conceded right of the defendant No. 5 with regard to the subject property. The plaintiff does not even seem to be certain as to in whom the subject property would vest in case the Permanent Transfer Deed issued in favour of the defendant No. 1 is found to be non-existent. The contents of the plaint further show that the plaintiff is not even certain about the nature of the property. The averment to the effect that the subject property is Evacuee Trust Property would, by itself, divest the plaintiff of any interest or right therein. Under the provisions of the Evacuee Trust Property (Management and Disposal) if Act, 1975, all the Evacuee Trust Properties do formed part of Trust Pool and their management and control vests with the Evacuee Trust Property Board constituted under section 3 thereof. The plaintiff cannot claim control of every property belonging to the Government. The jurisdiction and scope of authority of the plaintiff is circumscribed by the provisions contained in section 2(2) of the Act which is as follows:--- "Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
10. As to the transfer and right of management of the undisposed properties, section 3(l) is relevant and may be reproduced with advantage as follows:--- "All properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts of institutions, whether occupied or unoccupied, which may be available for disposal immediately before the repeal of the aforesaid Acts and Regulations, or which may become available for disposal after such repeal as a result of a final order passed wider subsection (3) of section 2, shall stand transferred to the Provincial Government, on payment of such price as may be fixed by the Federal Government in consultation with the Provincial Government, for disposal--
(a) in the case of urban properties, by the Provincial Government under a scheme to be prepared by it in this behalf; and
(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf: Provided that agricultural land occupied by any person continuously for four harvests immediately preceding Kharif 1973 shall first be offered for sale to such person unless an order of ejectment has been passed against him in respect of such land: Provided further that only so much land shall be offered to such person as does not together with land already held by him, exceed a subsistence holding within the meaning of the Land Reforms Regulation, 1972. "
11. The plaintiff, therefore, has a very limited sphere of jurisdiction and cannot claim to be custodian of all Government lands and properties. Reading of the plaint does not show any legal character or right in the plaintiff to maintain the present proceedings. For maintaining any proceedings for declaratory relief, the plaintiff must shown existence of a status or character conferred by law, which is wanting in the present case. Reliance in this respect may be placed on the case of Burmah Eastern Limited v. Burmah Eastern Employees' Union reported in PLD 1967 Dacca 190 and the case of Mst. Sakina v. Excise and Taxation Officer reported in 1989 CLC 964. The principle deducible from the above judgment is that a Court is obliged to reject the plaint and has inherent jurisdiction to do so where positive prohibition can be spelt out even by necessary implication of law. The provisions of Order VII, Rule 11, C.P.C, contemplate a chance to the plaintiff to retrace his steps at the inception of proceedings and to follow such remedies as may otherwise be available in law besides saving the defendant from the rigours of a fruitless and incompetent litigation.
12. 'Indeed, such determination is required to be undertaken with reference to the plaint and its Annexures alone. Consideration of disputed or un-admitted material outside the plaint would necessarily require evidence and therefore is not to be considered while exercising jurisdiction under Order VII, rule 11, C.P.C. The idea is to nip in the bud and to bury a still-born suit at its inception which is eventually bound to collapse and to avoid wastage of time of the Court. To allow such proceedings to continue would result in abuse of the process of Court. In the present case, a perusal of the plaint shows that declaration is being sought aliunde falling beyond the scope of section 42 of the Specific Relief Act, which is as follows:- "'42. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
13. Bar to such declaration--Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than mere declaration of title; omits to do so.
14. Explanation.--A trustee of property is a 'person interested to deny' a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.'
15. Applying the principles laid down in the above-referred Judgments, I am of the view that the plaintiff has no legal character or right to maintain present suit and the plaint is liable to be rejected on such ground.
16. As to the question of limitation, suffice to observe that the bar under Article 14 would apply only in cases where the act or order, sought to be set aside, is shown as having validly been passed. In the present case, the allegation on behalf of the plaintiff is that the P.T.D. Had been procured by practising fraud. For such reason the question of limitation cannot be pressed as a bar to the maintainability of the suit. As to the bar founded on the principle of res judicata, I have already observed that the plaintiff was not party to any proceedings involving issues as are involved in the present case. It is an elementary principle for application of section 11, C.P.C. That the issue, adjudication whereof is sought, should have been finally determined in an earlier proceedings. I am, therefore, not inclined to agree with the contention raised by the learned counsel for the defendant that the present proceedings are barred by the principle of res judicata.
17. On the basis of my findings to" the effect that the plaintiff does not have any legal character or right in terms of section 42 of the Specific Relief Act, this application is granted and the plaint is rejected.
18. As a result of order passed on C.M.A No. 402 of 1995, no orders are required to be passed on the other application which is, accordingly, dismissed. The parties shall bear their own costs.