1. ' The applicants/plaintiffs who claim to be owners/proprietor of Messrs Faisal Khalid Cargo Suppliers Trailer and Truck Services and member of Karachi Goods Carriers Association filed Suit No,509 of 1995 in the Court of learned IVth Civil Judge, Karachi West praying therein for the following reliefs:-- "It is most respectfully prayed that this Hon'ble Court may graciously be pleased to pass a decree declaring that the plaintiff is entitled for the possession of Plot bearing No,183, New Truck Stand, Hawksbay, Karachi;
(b) Pass a decree for possession of the abovementioned plot in favour of the plaintiff;
(c) Pass a decree of permanent injunctions restraining the defendants, their agents, servant or any other person or persons acting on their behalf from allotting, transferring, alienating, leasing the abovementioned plot to any other person or persons other than due process of law.
2. ' The applicants/plaintiffs stated in their plaint that defendants Nos.1 to 3 wanted to shift the Truck Stand of Goods Carriers from Maripur Road to the New Truck Stand at Hawksbay, Karachi. The plaintiffs were informed on 10th November, 1986 by the Karachi Goods Carriers Association of having been given the membership of the Association and were asked to pay their membership fee of Rs,100 and the monthly contribution for the months of October, and November, 1986. The plaintiffs further stated that on 14-7-1994 the defendants Nos.1 to 3 issued a challan for Rs, 21,000 being the first instalment as part payment in respect of Plot No,183 allotted to them. The plaintiff paid such amount but the defendants Nos.1 to 3 did not issue fresh challan and went on keeping the plaintiffs on hopes. The plaintiffs came to know that their allotment was being cancelled and the plot allotted to them was being allotted to some other person hence they submitted applications to defendant No,1 on 4-8-1994, 19-9-1994 and again in the month of August, 1995 but the same remained unresponded. The plaintiffs claim to have a legal right for possession, lease and allotment of Plot bearing No,183 New Truck Stand Hawksbay, Karachi and as such filed the suit for reliefs mentioned above.
3. ' In the written statement filed on behalf of the Karachi Metropolitan Corporation, the case set up by the plaintiffs was denied and it was categorically stated that the plaintiffs have no business under the name and style of Faisal Khalid Suppliers. They are minors being school-going children and were not made as a member of the Association. It was further stated that the plaintiffs are brothers of Muhammad Tahir Bhatti son of Merajuddin Bhatti who has been allotted Plot No,230 measuring 140 Sq. Yards as an alternate plot. Defendant No,4 Mst. Nargis Parveen who is step-mother of plaintiffs and Muhammad Tahir Bhatti, is claiming her share in the said plot and has filed suit against them. Provisional challan of 1/4th payment was issued as per list of the members of KGCA.
4. The provisional allotment orders as per KMC are to be collected personally by the concerned party but the plaintiff did not turn up. On site verification it revealed that there is no existence of any such company at the site as claimed by the plaintiffs who on their part also failed to submit any proof.
5. The claim of the plaintiffs was alleged to be fictitious. It was further contended that no provisional allotment order was issued and the plaintiffs were advised to get their 1/4th amount refunded but they did not turn up. The plaintiffs had no business as claimed at Maripur Truck Stand hence there was no question of shifting of their business from the Old Truck Stand. It was further stated that issuing of challan and provisional allotment order and handing over of the possession to the respective allottees was being done strictly in accordance with computerized balloting list prepared by IBA and approved by KMC. It was also pleaded that the plaintiffs have no cause of action. Legal pleas regarding maintainability of the suit, the suit being barred under sections 42 and 56 of the Specific Relief Act so also under section 113 of Sindh Local Government Ordinance, 1979 were also raised.
6. ' Defendant No,4 also filed her written statement stating therein that the plaintiffs are the sons of late Marajuddin Bhatti who succeeded in establishing their business on the strength of business of their late father and obtained independent status from the business of deceased father known as Al-Tahir Goods Transport Company which in fact is the part and parcel of business of deceased and the plaintiffs are liable to pay share to the legal heirs of the deceased. She also relied upon the version of KMC that the right of allotment, was originally founded on the right of the long standing business of deceased Marajuddin Bhatti. However, she did not support the case of the plaintiffs and prayed that the suit be dismissed with special costs.
7. ' In view of the pleadings of the parties, the learned trial Court framed the following issues:-- "(1) Whether the suit is not maintainable according to law?
(2) Whether both the plaintiffs are carrying on the business under the name and style of Khalid Faisal Suppliers at Maripur Truck Stand?
(3) Whether the plaintiffs are entitled to the allotment of plot No,183, at New Truck Stand, Hawksbay, Karachi?
(4) Whether the lady defendant No,4 Mst. Nargis Parveen has any right and title or share in the proposed Plot No,183, for the plaintiffs being the widow of Marajuddin Bhatti the father of the plaintiffs?
(5) Whether the plaintiffs entitled to relief sought?
(6) What should the decree be?
8. ' In support of their .Case plaintiffs' attorney Muhammad Saeed Bhatti was examined who produced the power of attorney, newspaper clipping, challan for payment, certificate and receipt of the payment to Association. However, no further evidence was adduced and the side was closed. On behalf of the defendants Nos.1 to 3 Mr. Zubair. Alam Mughal, Deputy Director Land (Lease) was examined who produced certified reports in respect of the nature of the dispute.
9. Defendant No,4 Mst. Nargis Parveen examined herself and closed the side.
10. ' The learned trial Court found the suit to be maintainable under Issue No,1 but while deciding Issues Nos.2 and 3 it came to the conclusion that the plaintiffs are not entitled for allotment of an alternate plot as they were not carrying on the business under the name and style of Faisal Khalid Suppliers at Maripur Truck Stand. Issue No,4 regarding the alleged share of Mst. Nargis Parveen from Plot No,183 was also decided in negative. Resultantly, the suit was dismissed with no order as to costs.
11. ' An appeal being No,56 of 2000 was filed impugning the judgment and decree of the learned trial Court was heard by the learned IVth Additional District Judge, Karachi West who by judgment and decree dated 21-1-2001 dismissed the same, however, with no order as to costs.
12. ' I have heard the learned counsel for the parties and perused the material placed on record.
13. ' It has been contended by Mr. Muhammad Ashraf Bhatti learned counsel for the applicants that the two Courts below have acted illegally while dismissing the suit and the appeal. He has argued that the plot bearing No,183 was allotted to the applicant for which he has paid the 1/4th of the price. However, subsequently challan for payment was not issued and the plot in question has been allotted to somebody else. It is pertinent to mention here that the subsequent allottee of the plot has neither been named nor arrayed as a defendant. However, with the assistance of the learned counsel for the applicants I have gone through the material on record and perused the reasoning recorded by the two Courts below while dismissing the suit and appeal of the applicants. I find that the applicants have failed to substantiate their claim and right over the plot in suit. There is no tangible evidence on record to establish that M/s. Khalid Faisal Cargo Suppliers were involved in such business.
14. ' The applicants were admittedly minors and there is no evidence as to who was conducting the alleged business on their part. The applicants/plaintiffs failed to examine any witness even from Karachi Goods Carrier Association to substantiate their claim or the fact that they were conducting any such business. On the other hand, D.W. Zubair Alam Mughal who was Deputy Director Land (Lease) Department in KMC has denied the claim of the plaintiffs and produced certified copies of the reports of physical, survey carried out by Mr. Ramzan Baloch, Assistant Director Land, Mr. Hameed Ahmed and Mr. Hameedullah Niazi representative of the Association which reveal that Faisal Khalid Cargo Suppliers was a new association having no office except that they occupied a small space of the office of Al-Tahir Goods Transport Company. The said witness further stated that 750 plots were allotted to the Goods Carriers. Association members and a plot bearing No,230 measuring 140 sq. Yrds. Was allotted to Muhammad Tahir Bhatti brother of the applicant in lieu of the space occupied by him at Maripur Bus Stand where the business was being conducted under the name and style of Al-Tahir Goods Transport Company. The learned trial Court also came to the conclusion that the plaintiffs failed to establish their right for a plot in lieu of their alleged claim. Mr. Muhammad Ashraf Bhatti learned counsel for the applicants advanced an argument that the applicants are entitled for the plot in question under section 53-A of the Transfer of Property Act and in support of this proposition of law he cited the cases reported as Inayatullah and others v.
15. Shah Muhammad and others (PLD 1961 Lah. 372) and Habib Bank Limited v. Ghulam Haider and another (PLD 1975 Lah. 489).
16. ' I feel at loss to state that the said plea has no relevance with the facts of this case at all. It appears that the learned counsel has not appreciated the purpose and the spirit of section 53-A of the Transfer of Property Act under which a plaintiff can protect his possession. A perusal of the plaint would show that the plaintiffs have nowhere claimed to be in possession of the plot in question. On the contrary in the prayer clause (b) as reproduced above they have prayed for a decree for possession apart from other reliefs.
17. ' So for the claim of the defendant No,4 is concerned, its fate depends upon the claim of the plaintiffs who have not been found entitled for any relief. Furthermore, the defendant No,4 did not file any cross objection for appeal and failed to question the judgment and decree passed by the two Courts below.
18. ' I find that there are concurrent findings of facts and law recorded by the two Courts below. There is nothing on record to justify any interference with such findings in exercising of revisional jurisdiction by this Court, hence this revision merits no consideration.
19. ' By a short order, dated 17-9-2001 this revision was dismissed in limine and these are the reasons for the same.