1. Mr. Mushtaq Memon, learned counsel for defendant No.3, has filed this application under O.VII, R.11, C.P.C., with the prayer to reject the plaint in the above proceedings as barred by limitation in terms of section 3 of the Limitation Act. The application is supported by affidavit of Abdullah Yousuf Dadahboy son of Yousuf Dadaboy. Mr. Mushtaq Memon has contended that as per the contents of the plaint, the cause of action had accrued to the plaintiff on 28-1-1960 and the alleged P.T.O. And PTD are ex facie manipulated documents. That the plaintiff has never remained in possession, physical or otherwise. That defendant No.3 has always been in possession of the subject property which belonged to the K.M.C. Since before partition. The defendant No.3 had always paid rent to the defendant No. 1, K.M.C., except for a very brief period in 1951 when a sum of Rs.1474-5-0 was recovered by the Deputy Custodian, Thatta, Karachi. That the defendant No. l has always been recorded owner of the subject property and granted 99 years' lease thereof in favour of the defendant No.3. That the suit is filed after about 32 years and provisions of Articles 120 and 144 of the Limitation Act are applicable in the matter. He has contended the plaintiff has not filed application under section 14 of the Limitation Act for condonation of delay. That under section 45 subsection (4) of the Sindh Local Government Ordinance, the defendant No.3 have rightly obtained lease rights from the K.M.C. That Act 12 of 1975, Evacuee Trust Property (Management and Disposal)
2. Act, 1975 stands repealed w.e.f. 1-7-1974. He has further contended that the application may be allowed and the plaint be rejected. Mr. Muhammad Yaseen Kiyani, learned counsel for defendant No. l has adopted the arguments of Mr. Mushtaq Memon, Advocate for defendant No.3. Mr. Fazle Ghani Khan has contended that Plot No.27 of G.K.7, admeasuring 1673 sq. Yds, Ghulam Hussain Quarters, Karachi, was owned, possessed and occupied by Seth Ram Ratan Mondra Harijina Handicraft Institution and Leather Goods Factory. The owner left Pakistan on or 1-3-1947, therefore, this property became evacuee trust property. The K.M.C. Under the law on or after 1-3-1947 had no authority to deal with the property without sanction of competent authority. That defendants with the connivance of each other have tried to usurp this property. Mr. Fazle Ghani Khan, learned counsel for the plaintiff, has drawn my attention to an order in C.P. No.696/94, dated 24-5-1994, wherein the learned D.B. Observed: "Where factual controversies have been raised and the contention of each party is supported by documentary evidence, it is not possible for us to resolve such controversies while exercising jurisdiction under Article 199 of the Constitution. It is also pertinent to point out that such controversies can only be resolved when evidence is led on behalf of the parties in support of their respective contentions. Such exercise is not possible for us to undertake while exercising Constitutional jurisdiction. The petitioner may seek his remedy elsewhere but not by filing a Constitutional petition."
3. The Supreme Court was also approached through C.P. No.214-K/94 and the hon'ble Supreme Court in its order, dated 14-3-1995 held as follows: "It is not denied that the property in dispute was transferred in favour of the petitioner by the Settlement Department. The Evacuee Trust Board also claimed the property in dispute to be an evacuee trust property; the Karachi Municipal Corporation also claimed its ownership and on that basis had granted the same to respondent No.3 on lease. After the repeal of the Evacuee Laws with effect from 1-7-1974, the question whether the property in dispute is owned by the Karachi Municipal Corporation or otherwise could only be determined by the Court of plenary jurisdiction after recording evidence adduced by the contesting parties."
4. Mr. Fazle Ghani Khan has referred 1991 SCM R 2063 (Maqbool Ahmed v. Government of Pakistan) and a decision in C.P. No.946/95 of this Court, admitted the petition with direction that such shall not be laid for regular hearing till such time as the Suit No.233/95, Azizullah Baig v. K.M.C. And another, is decided. The parties have contested the matter in Constitution petition and even approached the Supreme Court. According to the plaintiff the PTD has been issued in his favour by the competent authority and also letter of Secretary Evacuee. Divisional Trust Property, Karachi, has been filed which is Annexure R-32' . Whereas the contention of the learned counsel for defendant No.3 is that as the Act 12 of 1975 has been repealed w.e.f. 1-7-1974 and the suit is barred by provisions of Law of Limitation. I have perused the provisions of Limitation Act and so also the Act 12 of 1975. I have also gone through the decision of the learned D.Bs. And Hon'ble Supreme Court and so also 1991 SCM R 2063, the plaintiff is very diligently pursuing his matter with the hope that he will be able to get justice but as the question of factual controversies were raised and the petition was dismissed whereas the order of the Supreme Court is also to the effect that these controversies can only be resolved by the Court of plenary jurisdiction and after recording the evidence adduced by the parties. In this matter after filing of the suit, written statements on behalf of the defendants have been filed but the issues are yet to be settled thereafter the parties will adduce evidence in their favour. Recording of evidence coupled with cross-examination will be analyzed by the Court for coming to a correct conclusion in accepting or rejecting the claim of the parties for the suit property. I am of the firm opinion that without going through the evidence, this controversy will not come to an end as such I find no substance in this application which accordingly is dismissed with no order as to costs.