ORDER SHEET

HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD.

Present

1. Mr. Justice Amir Hani Muslim.

2. Mr. Justice Irfan Saadat Khan.

C.P.NO.D-906 OF 2009.

Muhammad Yaseen. . . . . . .Petitioner.

Versus.

Ist Additional District Judge, Hyderabad

and another. . . . . . . . .Respondents.

Petitioner: Through Mr. Hassan Mehmood Baig, Advocate.

Respondent No.1: Through Mr. Allah Bachayo Soomro, Additional A.G.

Respondent No.2. In person.

Date of hearing: 09.12.2010.

Date of order: 09.12.2010.

O R D E R.

IRFAN SAADAT KHAN,J.- This Constitutional Petition has been filed with the prayer that the order dated 02-10-2009 passed by the 1^st Additional District Judge, Hyderabad, affirming the order passed by the trial Court in F.C Suit No.17/2005, rejecting the plaint of the petitioner.

2. Briefly stated the facts of the case as per the petition are that the Petitioner claimed that he is the owner of plot No.4/255 Ward “A” measuring 258.96 sq feet Gali No. 1 Sarfaraz Colony Hyderabad which he purchased from one Abdul Khan for a consideration Rs.10, 000/- and got the possession of the same thereafter. The Petitioner then got the mutation recorded in his name from the City Survey Record. As per the petitioner there is another plot bearing Survey No.4/256 in the neighborhood which is owned by the Auqaf department and the Respondent No.2, who is his aunt, is in possession of this plot. As per the petition the respondent No.2 after the death of her husband shifted to Bahawal Nangar and by virtue of an agreement dated 26-04-1976 sold out the Malba of the said plot to the Petitioner for a sum of Rs.6000/-. The Petitioner approached the Auqaf department by claiming that he has purchased the said property through a registered sale deed from the Respondent No.2 on 21-06-1977 and the said plot was leased out in his favour by the said department. The Petitioner thereafter demolished the old construction of the said two plots and after getting the plan approved from the Building Control Department constructed a double story building by spending a sum of Rs.600,000/- and started residing alongwith his family. The Respondent No.2 was allowed by the Petitioner to occupy one room on ground floor. As per the averments of the petition, the Respondent No.2 thereafter made an application to Auqaf department alleging that she has not sold the said property to the Petitioner. The Respondent No.2 also filed a suit bearing No.367/1984 for declaration, possession and permanent injunction against the Petitioner and others. As a counter blast the Petitioner also filed a suit bearing No.281/1984 against the Respondent No.2 for handing over the possession of one room to him, which was in her possession.

3. Both these suits were consolidated and decided by the common judgment dated 26-03-1996, through which the suit filed by the Petitioner was dismissed and the suit filed by the Respondent No.2 was decreed in her favour declaring that the transfer of plot No.4/256 in the name of Petitioner was illegal and void and the Respondent No.2 was the real owner of the said property. Moreover, the Petitioner was restrained from interfering in the possession held by the Respondent No.2.

4. The Petitioner thereafter filed Civil Appeals No.76 & 77 of 1996 but these appeals also were dismissed vide judgment dated 22-04-2000 by the Vth Additional District Judge, Hyderabad. A revision was then filed by the Petitioner which too was dismissed by a single Judge of this Court on 23-10-2000 affirming the decree in favour of respondent No.2. In the meantime, the Respondent No.2 filed Execution Application No.04/2002 and writ of possession was issued by the Vth Senior Civil Judge, Hyderabad in her favour and the Petitioner was dispossessed from said property pursuant to the execution proceedings.

5. The Petitioner thereafter filed a fresh suit bearing F.C No.17/2005, praying therein that the respondent No.2 has encroached upon the area of his plot in execution proceedings seeking declaration that area of plot No.4/255 is 258.96 square feet. The respondent No.2 filed application under Order VII Rule 11 CPC with the prayer of rejection of plaint, inter alia, on the ground that the issue raised is already decided in suit bearing No.281/1984 against the petitioner and suit is hit by Section 11 of the C.P.C. This application, however, on a mistaken notion was dismissed by IIIrd Senior Civil Judge, Hyderabad vide order dated 06-12-2005, against which the Respondent No.2 filed Civil Revision under section 115 of CPC bearing No.09/2006, which was however, allowed vide order dated 02-10-2009 and the plaint filed in F.C Suit No.17/2005 was dismissed. It is against this order the present Constitutional Petition has been filed.

6. Mr. Hassan Mahmood Baig, learned counsel appearing on behalf of the Petitioner has submitted that the order passed by the revisional Court below is without legal and lawful justification as the Respondent No.1 has passed the order without considering the material documents and the reasons assigned for dismissing the suit was not tenable under the law. As per the learned counsel the Respondent No.1 has not considered the order passed by the IIIrd Senior civil Judge, Hyderabad dated 06-12-2005 whereby it was specifically mentioned that the earlier suit bearing No.281/1984 was in respect of property bearing No.4/256 whereas the subsequent suit filed by the Petitioner was in respect of different property bearing No.4/255, hence there was no justification available with the Respondent No.1 to hold that the suit was hit by the principles of res judicata. The learned counsel contended that there was no dispute with regard to the property in possession of the Petitioner as the Respondent No.2 has not claimed proprietary rights in the property bearing No.4/255 which as per the learned counsel admittedly belongs to the Petitioner. He however contends that the Respondent No.1 has failed to take into consideration that when the suit was fixed for evidence how he entertained the application filed by the Respondent No.2 under Order VII Rule 11 CPC, which in his view should have been dismissed in limine. As per the learned counsel the Respondent No.1 has erroneously invoked the provisions of Order 2 Rule 2 CPC as the same was neither pleaded nor any material in respect thereof was brought on record. The learned counsel further submitted that the order passed by the Respondent No.1 suffers with grave errors as he has incorrectly connected the area of the property belonging to the Petitioner and appropriate relief in this regard should have been granted to him.

7. Learned Additional A.G. appearing on behalf of respondent No.1 has supported the orders of the Courts below and submitted that this constitutional petition being frivolous be dismissed in limini.

8. The respondent No.2 is present in person is an old lady requests that justice may be done with her as she cannot afford to engage a counsel and contends that order of appellate Court was unjust.

9. We have heard the learned counsel for the parties at some length and have also perused the record and our findings are as under:-

10. Perusal of record reveals that respondent No.2 was residing in the property bearing No.4/256 for the last several years. The late husband of the respondent No.2 was a bonafide tenant of the Auqaf Department since 1961. The husband of the respondent No.2 died on 01.01.1973. The petitioner under the garb of the tenancy of the Auqaf Department wanted to sell the plot to some other person fraudulently obtained original documents and thumb impression of the respondent No.2 on a blank stamp paper and with the connivance of the Auqaf Department got the said property transferred in his name.

11. The respondent No.2 on coming to know about the said transfer of the property approached the Auqaf Department when it was revealed that the petitioner had played fraud with her by fraudulently transferring the property in his name.

12. Thereafter, as enumerated above, suit for declaration and permanent injunction was filed by the respondent No.2 before Vth Senior Civil Judge, Hyderabad, which was decided in her favour.

13. It is noted that the petitioner filed an application under Order 26 Rule 9 C.P.C. r/w section 151 C.P.C. in the execution application No.4 of 2002 praying that as the dimension of the plot has not been determined, therefore, the side inspection of the same be made. The Vth Senior Civil Judge, Hyderabad after hearing both the parties came to the conclusion that the executing Court has no jurisdiction to go beyond the decree, which has already been granted in favour of respondent No.2. The learned Judge thereafter dismissed the said application and allowed the execution application No.4 of 2002 filed in suit No.367/1984 and ordered that writ of possession be issued in the light of the contents of the judgment dated 22.4.2000 and decree was ordered on 02.5.2000.

14. It is further noted that the subsequent suit was dismissed vide order dated 02.10.2009 by making a specific observation that the issue already stands settled and decided in favour of the respondent No.2, hence the subsequent suit was nothing but an afterthought on the part of the petitioner as he had deliberately concealed the true facts which explicitly proves that the plot bearing No.4/255 was the suit property and it has already been held in the earlier round of litigation that this property had fraudulently been assigned a new survey number by foul play of the petitioner. The Court has clearly observed that it was the petitioner who in the suit filed by him has himself assigned a new survey number to the said property and had claimed that the matter has already been decided between the parties and the petitioner had approached the Court with unclean hands.

15. We have perused the record and it is an admitted fact that in the earlier round of litigation the area in possession of respondent No.2 with its dimension was disputed in execution proceedings. The objections of the petitioner were decided in the execution proceedings and the respondent No.2 is in possession of the property pursuant to the decree in her favour, which decree was appealed against by the petitioner and subsequently the appeal was also impugned in the revision before this Court in the earlier proceedings. In execution proceedings the respondent No.2 was put in possession of the property with its dimension. Orders passed in the said execution proceedings in the earlier round of litigation were not impugned by the petitioner before any forum. The area in possession of the respondent No.2 pursuant to the orders and the decree and judgment cannot be challenged by the petitioner by way of a fresh suit under the garb that the petitioner's property having different number was encroached upon by the respondent No.2 in execution proceedings, which proceedings were independent and were not objected too. The area of the property claimed by the petitioner would in no way entitle him to vary, modify or review the earlier findings given by up to this Court by introducing and or initiating separate suit as has been done by the petitioner. We are of the view that if "lis" between the parties have attained finality then it cannot be challenged in the manner as has been done by the petitioner that his area of the property was encroached upon by the respondent No.2, unless it is shown that encroachment has been made after the execution proceedings are over. No new cause of action has accrued to the petitioner to file suit of the nature and the Courts below had done substantial justice by dismissing the suit of the petitioner.

16. Even otherwise, controversy of the nature having been settled by the Courts below does not warrant interference in exercise of constitutional jurisdiction, as it is factual controversy and the scope of writ jurisdiction is limited.

17. We, therefore, are of the view that no case of interference is made out. The second round of litigation is nothing but an attempt to defeat the earlier findings. We, therefore, dismiss this constitutional petition in limine.

18. Above are the reasons of our short order dated 09.12.2010, by which we have dismissed the instant petition.

JUDGE