' NAZIM HUSSAIN SIDDIQUI, J.---The petitioners, herein have impugned the order, dated 12-12-2000 of a learned Division Bench, High Court of Sindh, Karachi, passed in H.C.A. No,238 of 1999, whereby the order, dated 6-7-1999 passed by a learned Single Judge, High Court of Sindh rejecting the plaint (Suit No,316 of 1995) of the petitioners, under Order VII, Rule 11, C.P.C., was maintained.
2. The case of the petitioners, in brief, is that S.M. Shafi Ahmed Zaidi, who was their predecessor-in- interest was a Member of Chief Commissioner Secretariat Employees Cooperative Housing Society Ltd., Karachi, hereinafter referred to as "the society". On 23-9-1959, the then Collector Karachi with prior approval dated 16-2-1959 of the Commissioner, Federal Territory, Karachi, allotted an area of 15.5 acres of land to the society on lease for 99 years in perpetuity i.e, Plot No,570, Garden East, measuring 7.50 acres at Jehangir Quarters, and adjoining plot of 8 acres at Jamshed Quarters, Karachi. The Society divided the Plot No,570 G.R.E. Into several plots, which were marked as JS2, JS3, JS4, and so on and allotted the same to its members. According to the petitioners, Plot No,JS2 measuring 1360 Square Yards out of said Survey No,570, was allotted to the abovenamed predecessor-in-interest of the petitioners, as per allotted letter, dated 2-11-1972 and its possession was also handed over to him, who paid its full price to the Society.
3. The petitioners have claimed that in the year 1975 a portion of said plot was encroached upon by some unauthorized persons, but later on the local administration removed those encroachers and its possession was again handed over to their predecessor-in-interest. Above was done on the order, of the then SDM, Malir, who by order, dated 2-7-1975 directed their predecessor-in-interest to maintain status quo and not to raise further construction on said plot.
4. It is alleged that in the year 1984 the respondents Nos.1 to 4 herein again encroached upon said plot and on complaint made to the Minister for Revenue, the Home Department of Sindh issued directions to remove the encroachments and restore its possession to its owner vide Letter No,LU- 11/7-1-78-G(K)1/8751, dated 11-6-1984.
5. It is alleged that later on the entire land viz. Said Survey No,570, including the plot of the predecessor-in-interest of the petitioner, was declared and notified as Katchi Abadi by the Director-General Sindh, Katchi Abadi by Notification No,SK.AA/NOT/KAR/87, dated 31-12-1987.
6. Move Notification was challenged before High Court impleading the respondents herein in C.P.
No,D-900 of 1999, and by judgment dated 18-8-1992 the aforesaid Notification was declared without lawful authority and this finding was maintained by this Court as per order, dated 16-12- 1992, passed in C.P. L . A . No,513-K of 1992. Thereafter, according to the petitioners, the respondents filed Suits Nos.844, 935, 936 and 937 in the year 1988 before the Court of Vth Senior Civil Judge, Karachi for declaration and injunction. Declaration was sought to the effect that their rights were protected, under MLO 110, and also under Sindh Katchi Abadis Authorities Act and sought injunction against Deputy Commissioner and others to restrain them from demolishing their alleged construction on the suit properties and evicting them therefrom otherwise than in due course of law etc.., the petitioners got themselves impleaded as respondents in above suits, which now are pending for decision before High Court.
7. The petitioners state that respondent No,1 Malik Hasan Ali Khan (Moin) obtained lease from KMC on 4-9-1998 of the plot in question, which according to them is illegal and contrary to the various orders passed in these matters.
8. The petitioners, therefore, filed Suit No,316 of 1995 in High Court (Original Civil Jurisdiction) and prayed for reliefs, amongst others, that the lease dated 4-9-1988 granted by KMC in favour of said Hasan Ali Khan (Moin)) in relation to, and affecting the rights of ownership of the petitioner on Plot JS-2 of said Survey No,570 is ab initio, void and of no legal effect. Injunction was also prayed in this regard.
9. The respondents herein filed an application under Order VII, Rule 11, C.P.C., which was allowed by learned Single Judge and the plaint was rejected. Above order was challenged before a learned Division Bench, and the appeal was dismissed by the order, which has been impugned in this petition.
10. It is contended on behalf of the petitioners that while exercising jurisdiction under Order VII, Rule 11 the Court has to confine itself to the averments made in the plaint and it is not supposed to travel beyond the same and also not to consider other material, the authenticity of which is disputed.
Learned counsel also argued that the case of the petitioners is based on the allotment order of said plot and not only its entire cost was paid, but even their predecessor-in-interest was inducted into possession. Learned counsel also submitted that High Court seriously erred in law by placing reliance on an order, dated 8-4-1975 passed in C.P. No,585 of 1975, concerning the Society. Learned counsel also argued that High Court failed to appreciate the facts in their true perspective and having examined entire facts should have reached the conclusion that neither KMC nor Government was the owner of said plot and it exclusively belonged to their predecessor-in- interest.
11. As against above, Mr. Muhammad Sharif, learned counsel for the respondent No,1 contended that suit of the petitioners was not maintainable under section 54 of the Transfer of Property Act and that for that the propose of deciding the application under Order VII, Rule 11, C.P.C. Other material than the contents of the plaint could be looked into. For this purpose he placed reliance on various cases, which have been quoted in the impugned order.
12. Having taken into consideration various pleas raised on behalf of the parties, learned High Court reached the following conclusion:- ' "In the instant case when examined shows claim of the appellant is based on a provisional allotment without identification of piece of land, even permanent allotment has not been made nor admittedly lease had been executed in his favour. It has come on record that the Society itself surrendered entire land to the Government of Sindh on 5-10-1976 and it was resumed by the Government of Sindh on 29-10-1975 and same was handed over to KMC as recorded in C.P. No,588 of 1975. Secondly that, the PT(I) issued in his favour was cancelled by the Excise and Taxation Officer on 25-6-1988 which order was maintained by the Appellate Authority vide order, dated 26- 11-1988 to which no exception was taken by the appellant. Despite challenge to his title and right to property the appellant has chosen not to seek a declaration as to his right or title in the property.
Under the circumstances. It was rightly held by the learned Single Judge that the provisional allotment which was subject to the final allotment and lease does not confer any right or title in the property which society itself had surrendered to the Government of Sindh, as the Society itself was bereft of any right or title. No title could possibly pass on to the appellant by it."
13. With the assistance of learned counsel for the parties, we have examined the record of this case.
14. Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered alongwith the averments made in the plaint.
15 The judgment delivered in C.P. No,585 of 1975 is enough for non-suiting the petitioners. According to this judgment, Hafiz Syed Muhammad Ishaq, the then Chairman of Society, surrendered the portion of land granted to Society situated on Plot No,570, to the Government and requested for equal land elsewhere alternatively. On the basis of statement of the Chairman of the Society, the Government cancelled 8 acres of Plot No,570 and 7.7 acres on Jamshed Quarter of the Society and allowed it 13 plots measuring 260 sq. Yard each and one plot of 280 sq. Yards, which were in possession of its members. Thus, it is evident that the plot in question was surrendered by the Society and was handed over to the Government. The above order also unequivocally postulated that . The Government had withdrawn order made during 1956 regarding resumption of Plot No,570 from KMC and further ordered for its re-handing over to KMC for its regularisation in favour of occupants. All along the petitioners claimed the title of the plot on the basis of alleged allotment in favour of their predecessor-in-interest. When the society delivered back the land in question to the Government the said allotment order lost its sanctity, if any, and no longer any proceedings could be initiated on its strength.
16. From Government the land had gone to KMC and to various persons, who now claim their title over it on the basis of their possession. Learned counsel for the petitioners before us conceded that since 1986 the petitioners were not in possession of said plot. Mr. Muhammad Sharif learned counsel for the respondent No,1 on this point submitted that in fact never possession was delivered to the predecessor-in-interest of petitioners and no reliable evidence was available on record to substantiate this plea.,
17. Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Special Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected.
18. In consequence, leave to appeal is refused and the petition is dismissed.
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