ORDERSHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision No. 33 of 2006

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DATE ORDER WITH SIGNATURE OF JUDGE ______________________________________________________________________

1. For orders on CMA 142/2006.

2. For orders on CMA 527/2007.

3. For katchapeshi.

30-10-2017.

Mr. Raj Kumar D. Rajput Advocate for Applicants.

Mr. UbedullahMalano Advocate for respondents Nos. 1

and 2.

Mr. Munawar Ali Maitlo State Counsel.

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The instant revision has been filed against the concurrent findings of the Courts below where the suit filed by the present applicants being F.C Suit No. 6 of 2002 was dismissed when it was challenged by an application made under order VII Rule 11 CPC filed by the respondents. Understandably, the appellate Court also upheld the decision of the trial Court.

The controversy at hand infactarose from the suit No.02/1987filed by the applicants challenging the title of the defendants. In that first round of litigation, the trial Court by its judgment dated 02.08.1988 after giving cogent reasons came to the conclusion that the claim of the plaintiff was devoid of any legal character as he admittedly stated that he was Hari of the suit land thus not entitled to the ownership of the suit land. The present applicant while challenged the said outcome of the trial Court where the appellate Court through judgment dated 21.3.1992 upheld the findings of the trial Court, it is pertinent to mention that no revision was preferred against the said appellate Court’s order passed in Civil Appeal No.66/1988.

The grievance of the applicant as louded before me is that he was “forcibly” dispossessed by the respondents after the pronouncement of trial Court’s judgment dated 02.08.1988. Applicant’s counsel submitted that while the applicant took pain of filing the initialsuit (which was decided against him),however it were the defendnats/respondents who reaped benefit thereof, thus they had no legal grounds to take over possession of the suit land as well as when he filed the second round of litigation against the said “illegal dispossession” through civil suit No.06/2002 he complained that his second move was abruptly rejected by an application made by the respondents under order VII rule 11 CPC. Counsel submits that since the applicant always enjoyed the possession, therefore, there was no ground to handover possession of the suit land to the respondents.Counsel placed reliance on 2011 CLC page 907 Karachi, P L D 2009 Karachi 38 and PLJ 2001 SC 1398 suggesting that the second round of litigation could not have been simply rejected on the ground of resjudicata. Learned counsel for the respondents submitted that the controversy with regard to the suit land was in fact decided by the first round of litigation where the plaintiff admitted that he was in possession of the suit land merely as aHari, therefore, Court could not grant title to him as under section 42 of the specific Relief Act, his prayer was devoid of any legal character, which was rightly held soby the trial Court in the first round of litigation.

Heard the parties, reviewed the material. It is interesting to see that the plaintiff who had approached the Court in 1987 through FC Suit No.2 of 1987 with no legal title is continuously pressing for the possession of the suit land notwithstanding that time and again Courts have held that the applicants/plaintiffs had no title or ownership of the suit land;that his claim has no legal character,and that the suit land for which entries have been legitly recordedin the revenue records inthe names of the respondents despite lapse of litigation spreading over 30 years have received no dent. The case law referred by the counsel was shown to be irrelevant and did not support the contention of the learned counsel with specific reference to the facts of the case in hand.

The perusal of both the judgments of the Court below shows that the subject matter and the grounds taken in the first civil suit as well as in civil appeal are the same grounds on which the plaintiff filed the second round of litigation through his attorney Atta Muhammad Soomro; that too against the same defendants. Section 11 of CPC provides that no court shall try any suit or issue in which the matter directly and substantially an issue in a former suit between the same parties or between the parties under whom they or any of them claim litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised has been heard and finally decided by such court.

As stated above, this round of litigation is filed by the same plaintiff against the same defendants agitating the same subject matter which has been decided in the Civil Suit No.2/1987 and in the appeal No.66/1988.The present proceedings are clearly barred by section 11 CPC. Reliance is placed on 2000 SCMR 1171 and PLD 2003 Lahore 48. With regards transfer of the possession of the suit land from plaintiff to the defendants, it was naturaloutcome of the trial Courts judgment, thus cannot be termed illegal on any account.

It is also well settled law and pre-requisite condition of clauses (a) and (d) rule 11 of order 7 CPC that a Court is bound to reject a plaint where the plaint does not disclose cause of action or where the suit appears to be prima facie barred by any law in such circumstances (Reliance is placed on PLD 1997 Karachi 292, 1991 CLC 149, PLD 1979 SC 821 and 1989 MLD 451). The plaintiff in his averments in the suit had admitted that land in dispute was purchased by Farzand Hussain an allottee, but subsequently it was cancelled and was placed in the provincial Government Pool to be disposed off by the Barrage department under existing land grant policy. This omission itself shows that the plaintiff had no legal character to file a declaratory suit as required U/S 42 of Specific Relief Act, which provides that personsentitled to any legal character or to any rights as to any property could only institute a suit against any person denying his title to such character or right.Which is not the case at hand for the applicant. Undoubtedly the plaint of the suit filed by the plaintiffswas hit by section 11 CPC and Section 42 of Specific Relief Act and when any suit is hit by the provisions of any law, the plaint is liable for rejection. Hence the trial Court rightly allowed the application U/O 7 Rule 11 CPC filed by the defendants Nos. 1 and 2 and rejected the plaint.

For the above reasons, the instant revision filed against the concurrent findings had very narrow scope nonetheless from its inception.No illegality has been seen in the Judgment impugned as the Courtsbelow have applied judicious mind in declaring the instant second round of litigation legitlybarred under section 11 .CP.C. I therefore find no reasons to interferein the judgments of the courts below, this revision application is accordingly dismissed but with no orders as to costs.

JUDGE

Irfan/PA.