1. SAIYED SAEED ASHHAD,, J.--- This revision application has been filed against the order of the IInd Additional District Judge, Karachi (West), dated 20.5.1999 in Civil Appeal No. 30 of 1998, whereby the appeal filed by the applicant/defendants. Nos. 1, 2 and 3 was dismissed and the judgment and decree of the 1st Senior Civil Judge, Karachi (West), dated 9.5.1998 and 14.5.1998 respectively was upheld.
2. The brief facts leading to the filing of this revision application are that respondent No. 1/plaintiff was occupying house situated on Plot No. 240, Ghosia Baloch Colony, Sector No. 11-1/2, Orangi , Town, Karachi, consisting of rooms, bath rooms and kitchen, having purchased the same from one Mst. Saira for a sum of Rs.8,000 in 1978. After purchasing the same, he made additions to the existing construction. In the year 1987, applicant No. 1, who is nephew of respondent No. 1/plaintiff, approached him for providing him temporary shelter as he, his wife and son (applicants 'Nos. 2 and 3/plaintiffs Nos. 2 and 3) were ousted by his father from his house. Respondent No 1/plaintiff allowed this request by providing shelter to applicant/defendants Nos. 1, 2 and 3. Subsequently, the applicants/defendants Nos. 1, 2 and , dishonestly and fraudulently obtained N.O.C. From the Deputy Director, Water and Sewerage Board, Karachi, in respect of the demised premises and tried to obtain lease in their favour from the Assistant Director (Land), Zonal Municipal Committee, Orangi Town, Karachi, whereupon he approached the relevant authorities bringing to their notice the fraud and forgery being committed by the applicant/defendants Nos. 1, 2 and 3 and also called upon them to vacate the demised premises. On failure of the applicants/defendants Nos. 1, 2 and 3 to vacate the demised premises; The respondent No. 1/Plaintiff filed Suit No. 603 of 1992, wherein all the aforesaid facts were stated and he sought the following reliefs:-
(A) Directing the defendants Nos. 1, 2 and 3 to hand over the vacant and peaceful possession of the structure- of the house bearing No. 240, \measuring about 240 sq.Yard=s, situated at Ghousia Baloch Colony, Sector No. 1 1 -1 /2 , near Abu Bakar Masjid, Orangi Town, Karachi, to the plaintiff.
(B) For mense profit at Rs.160 per day is charged for use and occupation with effect from January, 1992 until the possession of the house is handed over to the plaintiff.
(C) Restraining the defendants, their agents, servants contractors, factors, employees, or any other person acting on behalf of the defendants, form getting the said house leased, mutated, transferred, or disposed of in any way during the pendency of the suit and or obtaining N.O.C. From any authority in relation of the said house/property till the final disposal of the suit,
(D) Cost of the proceedings.'
3. The applicants/defendants Nos. 1, 2 and 3 in their written statement raised certain legal objections with regard to the maintainability of the suit stating that the demised premises was situated' in a Karachi Abadi,, the land whereof belonged to the Government of Sindh and the suit was not maintainable for the reliefs sought by respondent No. 1 /plaintiff. Factually, they denied that constructions/structures standing on Plot No 240 were of temporary nature, and were raised by applicant/defendant No 1 about six years back from his own funds and resources and was never the property of Respondent No 1 /plaintiff. Applicants/defendants Nos. 1, 2 and 3 and denied that the construction/structure standing on Plot No 240 was ever in physical water and sewerage charges of this plot. They denied accrual of cause of action in favour of Respondent No 1 /plaintiff to file the suit an prayed that the same may be dismissed. Respondents Nos. 3 and 4/defendants Nos. 5 and 6 also filed their written statement wherein they also objected to the maintainability of the suit on the ground that I t was barred by Sections 42 and 56 of the, Specific Relief Act. Factually it was submitted that the plot in dispute bearing No 240 existed in the lay out plan of Ghousia Baloch Colony, Orangi Town, Karachi, which was a Katchi Abadi and respondent No 1 /plaintiff had no right to file a suit and seek the reliefs; which he had sought in his aforesaid suit and the same was liable to be dismissed. Respondents Nos. 2, 5 and 6/defendants Nos.4, 7 and 8 did not appear in Court to contest the suit and the same was directed to proceed ex parte against them.
4. On the basis of the pleadings of the parties, the Trial Court framed the following issues:- "(1) Whether the suit is not maintainable?
(2) Whether this Court has no jurisdiction?
(3) Whether the suit is, barred under Sections 42 and 56 of Specific Relief Act?
(4) Whether the plaintiff has undervalued the suit?
(5) Whether the plaintiff has 'no cause of action to file the present suit?
(6) Whether the plaintiff is in occupation of disputed house or the same was constructed by defendant No 1 and is in physical possession of defendants Nos. 1, 2 and 3?
(7) Whether the structure of disputed house was purchased by (plaintiff from one Mst. Sara wife of Gul Muhammad in the year 1979 in consideration and after its purchase the plaintiff raised construction as stated in the plaint?
(8) Whether the defendant No 1 in the year 1987 approached the plaintiff for giving him temporary shelter in the disputed house and plaintiff allowed him temporary shelter with defendants Nos. 2 and 3?
(9) Whether the defendants managed to obtain N.O.C. From Deputy Director, Water and Sewerage Board, Karachi, by fraud and misrepresentation of facts- and defendant No. 1 also tried to obtain lease fraudulently from ZMC and defendants are trying to get the disputed house regularized in their favour?
(10) Whether the plaintiff is entitled for the relief claimed?
(11) What should the decree be?
5. Issue No 1 In negative Issue No. 2 In negative.
6. Issue No 3 In negative Issue No 4 In negative.
7. Issue No. 5 In negative Issue No. 6 As under.
8. Issue No. 7 As under Issue No. 8 As under.
9. Issue No. 9 As under Issue No. 10 As under.
10. On the basis of its finding son the aforesaid issues, the Trial, .Court decreed the suit filed by Respondent No. 1/plaintiff. Feeling aggrieved and dissatisfied with the judgment and decree of the Trial Court, applicants/defendants Nos. 1, 2 and 3 filed an appeal in the Court of District Judge; Karachi (West), which was dismissed by the IInd Additional District Judge, Karachi (West) by his impugned judgment upholding the judgment and decree of the-Trial Court. Again feeling aggrieved and dissatisfied with the order of the Appellate Court, applicants/defendants Nos. 1, 2 and 3 have challenged the same by way of this revision application.
11. I have heard the arguments of Messrs Muhammad Hanif Kashmiri and Muhammad Ashraf Kazi, the learned counsel for the parties and have perused the material on record as well as the relevant provisions of law.
12. Respondent No. 1/plaintiff has filed a suit for possession and permanent injunction. The prayers sought by respondent No. 1/plaintiff in his suit has already been produced hereinabove. Prayer at clause (a) related to handing over of vacant peaceful possession of the demised premises constructed on Plot bearing No. 240, measuring 240 sq.Yards, Ghousia Baloch Colony, Sector 11-1/2, Orangi Town, Karachi. Prayer at clause (b) was for restraining the applicant/defendants, their agents, relative and/or any other person acting on their behalf from getting the said property leased, mutated, transferred in their name or in the name' of any other person. It is pertinent to note that the plot in dispute together with the construction thereon is situated in a Katchi Abadi.
13. According to his own admission the respondent No. 1/plaintiff had purchased the property in dispute from one Mst. Saira for a sum of Rs.8,000. There is nothing on record as to what title, interest or right Mst. Saira had in respect of the property in dispute. Obviously she was also an encroacher or a usurper of the plot in dispute and whatever construction had been raised by her was also illegal and without any lawful authority. The alleged sale made by her in favour of respondent No. 1/plaintiff could not Confer on him title right or interest in the demised property better-than she herself had, which was that of an encroacher or a usurper. Unauthorised occupation or any encroachment over a property or any other property does not provide a right tot the encroacher or a trespasser either for the transfer of the said property or for claiming himself to be the Owner/title-holder of the said property. In this connection reliance has been placed on the case of Abdul Ghafoor v. Settlement Commissioner and others reported in 1968 SCMR 12'86. The Supreme Court in the case of Anjuman Araian, Bhera v. Abdul Rashid and Others reported in PLD 1982 SC 308,'observed that an encroacher was neither entitled to any relief nor he could be said to be an affected or aggrieved person if the land in his possession was allotted, transferred or taken away by another person. It was further observed that illegal and unauthorised possession had no legal sanction and cannot have the blessing of any law. Lahore High Court in the case of Sabir Hussain v.. Gulzar Begum reported in 1989 M LD 3084 made a pronouncement that a suit for possession in relation to land which was included in Katchi Abadi and was transferred as Katchi Abadi was not competent.
14. Upon the above discussion I find that the Trial Court Judge as well as the Appellate Court Judge did not apply their minds in decreeing the suit filed by the respondent No. 1/plaintiff. None of them took into 'consideration the fact that Respondent No. 1/plaintiff failed to establish that he had any legal right or entitlement in respect of the ownership of the plot of land or in respect of the possession. Both the Trial Court as well as the Appellate Court also failed to take into consideration the provisions of Section 8 of the Specific Relief Act, which clearly, provide that suit for possession can be field where a person is dispossessed of his legal and rightful possession of a specific immovable property. I an satisfied beyond any doubt that the judgments and decrees of the Trial Court as well as of the First Appellate Court are not in accordance with the provisions of law and they cannot be sustained as they were arrived at not only' due to illegality committed by the two Courts below in ignoring the provisions of law and they cannot be sustained as they were arrived at not only due to illegality committed by the two Courts below in ignoring the provisions of law thereby they illegally exercised the jurisdiction vesting in them. Accordingly, this revision application is allowed. The judgment and decree of the Appellate Court is set aside and the suit filed by respondent No. 1/plaintiff is dismissed. Parties are directed to bear their own costs.