1. ' Through this civil revision, the applicant has challenged the judgment and decree dated 10-9- 1988 and 14-9-1988, respectively passed by learned IVth Additional District Judge, South Karachi in Civil Appeal No,188 of 1986, whereby he dismissed the appeal filed by the applicant and maintained the judgment of 1st Senior Civil Judge, South Karachi in Suit No,2280 of 1985 (Old No,3945 of 1981) whereby the suit filed by the respondent No,1 was decreed on 2-10-1986.
2. ' The case of plaintiff as set up in the plaint was that he was owner of Plot No,K/20 New Lyari since 1932. The plot was numbered in 1960 and was given a Jamabandi Nos. 1447-1449 of Jamabandi Register maintained by K.M.C. The plaintiff paid property tax for both the aforesaid numbers till the year 1971-72. The plaintiff married with the daughter of applicant/defendant No 1 (hereinafter referred to as applicant). The applicant was brought to his house and he settled her on the disputed plot. He constructed a separate house for the applicant. No title or ownership was created in her favour and she was living in the premises as licensee. The plaintiff/defendant No, 1 (hereinafter referred to as the respondent No, 1) after some time divorced the daughter of applicant and asked them to vacate the house. The applicant refused to vacate the same. After that, the plot number bearing Entry No, 1447 was leased out in favour of respondent No, 1 by respondent No,5. On 15-7-1977, the respondent No, 1 moved for the lease of plot bearing Entry No, 1449 as the same was not yet leased out. He moved the application to respondent No, 4, Excise and Taxation Officer for issuing P.T.I. After proper inquiry it was ordered that P.T.I. Be issued in favour of respondent No, 1 for Plot No, AK/20/A/2571-C, Lyari Quarters, Karachi vide order dated 21-8-1977. The said order was reversed by the respondent No, 3 vide order dated 5-3-1978. The respondent No, 1 challenged the order in revision before Director-General/Excise and Taxation, Sindh, who passed a consent order on 1-7-1980. It was stated in the plaint that the respondents Nos. 2 and 3 were only the tax recovering authorities and were not empowered to lease out the property. The decisions of respondents Nos. 2 and 3 were illegal, void and inoperative. The applicant had no right or title over the disputed property.
3. ' Thereafter, the respondent No,1 filed Constitution petition but the same was dismissed on the ground that the proper forum was Civil Court. The respondent No, 1, filed Civil Suit No, 3907 of 1980 on 1910-1980 in the Court of IVth Senior Civil Judge, Karachi. During the pendency of suit Plot No, AK/20/A/2571-C was leased out by the respondent No, 5 in favour of applicant. Therefore, the suit was withdrawn and the present' suit was filed by respondent No, 1 for declaration, permanent injunction and cancellation of lease.
4. ' The applicant after receipt of notice filed her written statement wherein she denied all the allegations. It was stated in the written statement that respondent No, 1 had not produced any title document which could show his ownership. The original Plot No,AK/20/A/2571-C was numbered at Serial No, 1899 of K.M.C. Registration Book of 1961-62, by the Excise and Taxation Department on 8-2- 1978. The said property was a separate unit and was entered in the name of Fateh Muhammad, the late husband of applicant. It had a separate number given to it by the Excise and Taxation Department. The claim of respondent No, 1 was specifically denied. K.M.C. Stopped assessing the properties from 1962-63. The respondent failed to produce Jamabandi Register. The Director- General, Excise and Taxation in Revision No,6 of 1980 had passed a consent order on the basis of admissions made by both the parties. Hence the suit filed by respondent No, 1 was hit by principle of estoppel. The plea was taken that the plaint was fit for rejection under Order 7, rule 11, C.P.C. As the market value of plot in question was more than 2,00,000 (Rupees two lacs only). The plot was leased out to applicant by the competent authorities after verifying document, possession and other entitlements relating to the payments of KMC dues. The suit was not maintainable under sections 42, 54 and 56 of Specific Relief Act and section 117 of the Sindh Local Government Ordinance, 1979. The claim of the respondent No, 1 was barred by time. It was stated that the KMC ceased to assess properties after 1962-63. Hence the assessment of Jamabandi of the past period was of no use and was outdated. The marriage of defendant No, 1 with the respondent No, 1 took place before 1972. The respondent No, 1 had two sons out of the wedlock from the daughter of applicant. She was living on the property since long. The said property was an independent unit bearing Jamabandi Entry No, 1899, AK/20/A/2571-C. The orders passed by the respondents Nos. 2 and 3 were legal and based on sound reasoning.
5. ' The respondent No, 2 K.M.C/ defendant No, 5 (hereinafter referred to as the respondent No,2) filed a separate written statement wherein it was stated that the suit was not maintainable under sections 42 and 56 of Specific Relief Act and the Court had no jurisdiction. The property was leased out to the applicant as per layout plans on the basis of physical possession after completing all the formalities.
6. ' The trial Court, out of the pleadings framed the following issues:--
(1) Whether present suit is barred by principle of res judicata, estoppel and admission?
(2) Whether the cost of Rs, 100 ordered by IVth Court and again by this Court in the order of 21-11- 2001 was deposited or paid in time to entitle the plaintiff to file this suit? If not, the effect of 2nd disobedience?
(3) Whether the relief of possession has been grossly undervalued and suit is bad for non-payment of proper court-fee?
(4) Whether the suit is barred by the provisions of sections 42 and 54 of the Specific Relief Act and section 117 of Sindh Local Government Ordinance, 1979?
(5) Whether the plaintiff's claim is barred by limitation?
(6) Whether the Plots Nos. 1447 and 1449 Lyari Quarters has been in use and occupation of plaintiff, and his name exists in Jamabandi Register of defendant No, 5 as owner.
(7) Whether the plaintiff has paid taxes of plots in question according to Jamabandi Register? If so, its effect?
(8) Whether the defendant No, 1 was the mother of first wife of plaintiff and was allowed to live in plot in question as licensee?
(9) Whether defendant after divorce to his daughter, continued the possession and failed to vacate the plot? If so, its effect?
(10) Whether the defendant No, 1 fraudulently in collusion got the plot transferred in her name in the record of K.M.C. The defendant No, 5?
(11) Whether the defendant No, 5 without making proper enquiry, on false representation and in collusion issued lease in favour of defendant No, 1?. If so, its effect?
(12) Whether orders of defendants No, 2 and 5 dated 1-7-1980 and 5-3-1978 are null and void and without jurisdiction?
(13) Whether plaintiff is entitled for mesne profits? If yes, at what rate and for what period?
(14) Whether plaintiff is entitled for possession of the property? What should the order be?
(15) What should the order be?
7. ' The parties led their evidence and ultimately the trial Court decreed the suit filed by the respondent No, 1.
8. ' The applicant being dissatisfied by the judgment dated 2-10-1986 filed an appeal in the Court of learned District Judge, Karachi South, which was transferred to the Court of learned IVth Additional District Judge Karachi South, who dismissed the appeal and maintained the judgment and decree of trial Court.
9. ' The aforesaid judgments and decrees are impugned in this revision.
10. ' I have heard learned counsel for the parties and perused the record.
11. ' Learned counsel for the parties have reiterated their points urged by them in their pleadings.
12. ' Perusal of record shows that the daughter of applicant Mah Pari was married to respondent No, 1 Malang Dad but after some time the relationship between the spouses was strained and Malang Dad divorced the daughter of the applicant. The applicant was residing on plot bearing Jamabandi Entry No, 1899 7/C whereas the respondent No, 1 was occupying plot Entries Nos. 1447 and 1900. They relate to Plot No, 7/B which belonged to respondent No, 1 whereas Plot No, 7/C was originally entered in the name of Fateh Muhammad, the husband of the applicant, according to the Jamabandi Register of 1961-62. Previously suit was filed by the respondent No, 1 and ultimately compromise had been arrived at between the parties before Additional Director, Excise and Taxation Department, wherein it was held that 7/C stood in the name of applicant Mah Pari.
13. Although, this was a consent order but the revision was filed against the said order by the respondent No, 1 which was dismissed by Director-General, Excise and Taxation. Respondent No, 1 Malang Dad f led Constitution petition in the High Court of Sindh which was dismissed on the ground that he should invoke the jurisdiction of Civil Court. He filed Suit No, 3097 of 1980, but during the pendency of suit, the lease was executed in favour of Mst. Mah Pari hence respondent No, I withdraw his suit with permission to file afresh subject to the payment of cost of Rs, 100 after that Malang Dada filed second suit. The applicant has produced extract from K.M.C. Record pertaining to the year 1962 which shows that Plot No, 1899, Sheet No, K-20 was owned by Fateh Muhammad son of Naek Muhammad. Extract is produced on record." Extract copy of PT-1 from Excise and Taxation Office A-Division has been produced in respect of Plot No, AK 20-A/2/5/7/C which is in the name of Mah Pari pertaining to the year 1978. After the death of her husband, the respondent No, 1 took a dispute with the applicant. He sought P.T.I. From the office of respondent No,
4. She filed an appeal before Additional Director/Collector (Taxes), Excise and Taxation, Karachi, who passes an order on 5-3-1978 to the following effect. The said order is reproduced hereinbelow:-- "This is an appeal filed by Mst. Mah Pari widow of late Mr. Fateh Muhammad regarding change of ownership of Property Unit No, AK-20A-2S-&/C, Lyari Quarters, Karachi.
14. ' The appellant Mst. Mah Pari, Mr. Malang, the respondent and the E.T.S.I. Mr. Rehman are present and heard. Perused the records of Assessing Authority.
15. ' Since the ownership of Property Unit No, AK-20A-28-7/C is disputed between Mst. Mah Pari widow of late Mr. Fateh Muhammad and Mr. Malang. The perusal of the Extract copies from K.M.C. Revision Book of 1961-62 shows independent ownership of the portion at Serial No, 1899 in the name of Mr. Fateh Muhammad son of Nek Muhammad now inherited in favour of Mst. Mah Pari and 1900 in the name of Mr. Malang son of Muhammad Siddiq. Therefore, the ownership may be bifurcated according to the old number amongst the disputed parties."
16. ' The respondent No, 1 Malang Dad being aggrieved by the aforesaid order filed an appeal before Director-General Excise and Taxation, Sindh, Karachi. The parties compromised in the matter and the relevant portion of the aforesaid order is reproduced hereinbelow:-- "The Advocate for the respondent also agrees that his client Mst. Mah Pari is rightful owner of Plot No, 1899 and the superstructure constructed on that plot and that his client has no concern with that Plot No, 1900 and any superstructure on such plot.
17. ' From this, I find that there is no dispute about the substance of the matter. Accordingly I find that Plot No, 1899 and all superstructure on that plot are owned by Mst. Mah Pari, and Plot bearing No, 1900 and all superstructure on such plot are owned by Mr. Malang. If the record shows any discrepancy from this, it should be amended accordingly."
18. ' It is pertinent to note that respondent No, 2 i,e, K.M.C. Filed written statement wherein it is submitted that the lease of the plot was granted on the basis of lay out plan. And after verifying the physical possession/occupation of Plot No, 1899 Saeedabad Lyari, stood leased out on 22-11-1980 in favour of applicant (Mah Pari). The respondent No, 1 and the applicant were also locked in litigation in Suit No,3907 of 1980 filed by the respondent No, 1 which was ultimately dismissed by IVth Senior Civil Judge, Karachi. The lease was granted by the competent Authorities and the respondent No, 1 had failed to show any mala fide in passing the aforesaid order. Civil Court can only have the jurisdiction in respect of lease and allotment, when the authority empowered to pass such orders had passed it malafidely or in excess of its jurisdiction. Admittedly lease had been executed by the K.M.C. In favour of respondent No, 1 as well as applicant in respect of their respective plots. The Civil Court can cancel the lease, if it is found to be illegal or mala fide but cannot grant lease to somebody else and act as a land grant authority. That can only be done in exceptional and extraordinary facts and circumstances, if record manifest the things clear to do so. The applicant is in possession of the plot since long.
19. ' The record and the judgments of two Courts below do not indicate from any documents that the plot bearing Entry No, 1899 belonged to respondent No, 1 or it was ever leased out to him. No documentary evidence is produced to show that the applicant was licensee of the respondent No,
1. The learned trial Court relied upon the documents Exhs. 7, 8, 9 and 10. On perusal of record it revealed that aforesaid exhibits are given dual numbers as the same exhibits are also the depositions of the witnesses. The respondent No,1 was out of the possession of the property but he made no prayer for possession being the consequential and larger relief in the suit. Although, in the body of the plaint it was stated that possession was not with plaintiff, which be delivered to him.
20. The judgment of Appellate Court is passed in slipshod manner and he simply maintained the judgment by holding that the decision on each and every issue by the trial Court was correct. No proper reasoning has been given for maintaining the judgment of the trial Court. Mostly the documents which have been produced by the respondent No, 1 pertained to his own survey number which is still with him. The trial Court has not properly maintained the record of proceedings.
21. ' From the aforesaid documents and the orders passed by competent Authority i,e, K.M.C. Director and Additional Director of Excise and Taxation Department appeared to be legal and lawful. The aforesaid orders are neither mala fide nor capricious.
22. ' The judgments of two Courts below are based on misreading of evidence which are perverse and arbitrary. They have acted with material irregularities and exercised the jurisdiction not vested in them by law. The orders are passed without considering the material available on record inasmuch as they have failed to decide and discuss the vital points of entitlement of ownership of the subject-matter which has resulted in grave injustice.
23. ' Resultantly, the two judgments of Courts below are set aside and the Revision Application No, 274 of 1988 is allowed with no order as to costs.