ORDER SHEET

HIGH COURT OF SINDH, KARACHI

Suit No.167 of 2012

Date                

Naseem-ul-Haq                        …………….Plaintiff

Versus

Raees Aftab Ali Lashari & others …………Defendants

For hearing 

1.CMA No.2731/2012 

2.CMA No.1367/2012

3.CMA No.1368/2012

SUIT NO.439 OF 2012

Panah @ Pirano                               ….. …..….Plaintiff

Versus

Province of Sindh & others              ………Defendants

For hearing

CMA No.4068 of 2012

Dates of hearing:  09.08.2012, 15.08.2012, 06.09.2012, 12.10.2012, 19.10.2012 & 25.10.2012

Mr.Mustaque A. Memon Advocate for plaintiff in Suit No.167/2012.

M/s.Yawar Farooqui & Irfan Ahmed Memon Advocates for defendant Nos.1 and 3 in Suit No.167/2012 and for  plaintiff in Suit No.439/2012

Mr.Ahmed Pirzada Advocate for Board of Revenue in both cases.

Mr.Khawaja Shams-ul-Islam, Advocate for the defendant No.5 in Suit No.439/2012

*********************

MUHAMMAD ALI MAZHAR, J: The plaintiff in Suit No.167/2012 has filed two Civil Misc. Applications under Order 40 Rule 1 CPC and Order 39 Rule 1 and 2 CPC while defendant No.1 in the same suit has moved an application under Order 7 Rule 11 CPC. In Suit No.439/2012 the plaintiff has also filed injunction application. All aforesaid applications will be disposed of by means of this order. The Suit No.167/2012 has been filed by Naseem-ul-Haq  against Raees Aftab Ali Lashari and his father Panah @ Perano and others while Suit No.439/2012 has been filed by Panah @ Perano against Province of Sindh, Naseem-ul-Haq and others. Both the suits have been filed vice versa for the one and the same piece of land.

Brief facts of Suit No.167/2012

2. The plaintiff in this suit contended that he purchased land bearing Nos.18-B, 19, 20 and 21 Nai-Malir, Deh  Dih Karachi East measuring 1.00 acre from Mohammad Raees Qureshi through registered conveyance deed dated 30.4.1992. It is also the case of the plaintiff that he purchased land Survey Nos.19, 20 and 21, Nai-Malir Deh Dih, Karachi East measuring 3.00 acres by virtue of another conveyance deed dated 30.4.1992 executed in his favour by M/s.Al-Hamra Trading Corporation. It is further averred that the possession of aforesaid land was handed over to the plaintiff & in the year 1993, the Survey Superintendent conducted demarcation and due to change of Deh the suit land became part of Deh Drigh. By virtue of Ghat Wadh Form, Old Survey No.18-B was allocated new Survey No.77 whereas old Survey No.19, 20 and 21 were assigned new Survey  No.78, 79 and 80. As a result of aforesaid demarcation the plaintiff raised boundary wall. The grievance of the plaintiff is that on 6.2.2012, 30 to 40 persons armed with deadly weapons dispossessed the plaintiff. They also demolished the boundary wall and on newly built front side boundary wall the name of defendant No.1 was found painted as owner. The plaintiff has filed this suit for declaration that he is exclusive owner of the suit plot with the relief of permanent injunction against the defendants from changing the status of the suit land or creating any third party interest, charge or encumbrance. The plaintiff has also prayed for mandatory injunction for issuing directions to the defendants to remove the illegal and unauthorized trespassed and encroachment. On 14.2.2012 the matter was placed before the learned Single Judge of this court for orders on injunction application as well as on the application filed for the appointment of Receiver. On Receivership application the notice was issued but meanwhile parties were directed to maintain status quo. However, on 5.3.2012 Nazir was appointed Receiver to take over the suit land. The order dated 5.3.2012 was challenged by defendant No.3 in HCA No.33/2012 and vide order dated 13.3.2012 the said HCA was disposed of by consent and the impugned order was set-aside.

Brief facts of Suit No.439/2012

3. The plaintiff in this case is Panah @ Perano who is also defendant No.3 and father of defendant No.1 in Suit No.167/2012 alleged that he is in possession of land in Deh Drigh, Nai Malir, Karachi and in pursuance of his application the competent authority was pleased to allot 4.00 acres of land in Survey No.131, Nai Malir, Deh Drigh Road Karachi for 99 years lease. It is also stated that the plaintiff has been in uninterrupted possession since 1991. Vide letter dated 4.11.1996, Secretary, Government of Sindh Land Utilization written a letter to the Deputy Commissioner East Karachi in which he verified and confirmed that the land in question is in possession of the plaintiff. After promulgation of Sindh Government Lands Ordinance III of 2001 the plaintiff’s land was resumed and subsequently it was regularized by order dated 3.11.20111 on payment of deferential amount. According to the plaintiff the land claim by the plaintiff in Suit No.167/2012 is situated in Nai Malir Deh Dih and he also raised allegation that the defendant No.5 has manipulated the Survey Nos.77 to 80 Nai Malir Deh Dih which have been cancelled by the competent authority vide order dated 14.1.2012. The plaintiff has also sought declaration that he is lawful owner of the same land and  he is in uninterrupted physical possession and also prayed for permanent injunction that the defendants be restrained from interfering, interrupting and or dispossessing the plaintiff from the land in question.

4. Learned counsel for the defendant No.1 and 3 has filed this application under Order VII Rule 11 CPC (CMA No.2731/12) in Suit No.167/12 for rejection of plaint. Learned counsel argued that the suit is barred under Section 11 of Sindh Revenue Jurisdiction Act, 1876, Section 36 of Colonization of Government Land (Sind) Act, 1912, Section 172 of Land Revenue Act, 1967. He further argued that the plaintiff has no cause of action and the suit has been filed on concealment of facts that survey numbers were cancelled by Director Settlement Board, Hyderabad. He further argued that land of the plaintiff is situated in Nai Malir, Deh Dih,   Karachi while defendant No.1’s land is situated in Nai Malir, Deh Drigh, Karachi. Learned counsel further argued that suit is also barred by Section 42, 54 and 56 of Specific Relief Act. Learned counsel referred to supporting affidavit of application in which it is stated that defendant No.3 is lawful allottee/owner of land in question by virtue of Allotment Order dated 16.10.1996. Learned counsel also referred to the Letter dated 03.11.2011 and argued that after allotment of this land through due process of law, the Sindh Government Land Committee in its meeting held on 29.06.2011 considered the request and in pursuance of Section 5 of the Sindh Government Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, (III of 2001) was pleased to regularize the land measuring 4 acres out of 8 acres land in favour of the defendant No.3. Learned counsel also referred to copy of differential amount which was paid by the defendant No.3 for the purpose of regularization. Learned counsel also referred to Village Form-II showing entry of 4 acres of land in Survey No.131. Learned counsel also pointed out the order dated 14.01.2012 passed by Director of Settlement, Survey and Land Records Sindh Hyderabad who cancelled Ghat Wadh Form bearing No.25 and 26 in respect of Survey Nos.77, 78, 79 and 80 of Deh Drigh Road in the public interest. Learned counsel submits that against this cancellation, proper remedy was to file an appeal and not this suit which is according to the learned counsel, is barred under section 11 of Sindh Revenue Jurisdiction Act, 1876. Learned counsel further argued that nothing has been mentioned in the plaint whether against the cancellation of Ghat Wadh Form any appeal was preferred or not by the plaintiff either under the provisions of Sindh Revenue Jurisdiction Act or under the Land Revenue Act.

5. Learned counsel further argued that since the competent authority has cancelled the Ghat Wadth Form and unless such order is recalled or set-aside, the plaintiff has no locus standi or legal character to file this suit which is no more available after cancellation of Ghat Wadth Form, therefore, he has no right or entitlement to seek any declaration that he is exclusive owner of land and or other reliefs including permanent injunction, mandatory injunction and or mesne profit. Learned counsel also referred to an order dated 17.4.2012 passed by the learned Single Judge of this court , which shows that the learned counsel for the Board of Revenue stated that he will be satisfied if statement is made on behalf of plaintiff that there is no claim against the Government or the Board of Revenue. The order further shows on that date the learned counsel for the plaintiff drawn attention to the title of the plaint to show that the official defendants Nos.4 to 6 have been sued proforma, which statement was taken on record. In support of his arguments the learned counsel relied on the following case law.

(1) 2007 CLC 1790 (Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana).  Entries standing in plaintiff’s name in record of rights as owner of State land. Cancellation of such entries by Authority for being made on basis of forged documents. Suit by plaintiff for declaring such order as ab initio void and illegal. Maintainability. Plaintiff had filed suit without first availing remedy available under West Pakistan Land Revenue  Act, thus, suit was barred by Section 11 of Sindh Revenue Jurisdiction Act, 1876. Provision of Section 53, West Pakistan Land Revenue Act, 1967 would apply to a person aggrieved by some entry in record of rights, but would not apply to a suit questioning order of cancellation of an entry. An order not passed strictly in accordance with law, would not become an order without jurisdiction. Suit was dismissed on merits and also for being non-maintainable.

(2) 2012 SCMR 730 (Administrator, Thal Development v. Ali Muhammad). Suit for declaration, resumption of State land by Colony officer due to non-fulfillment of required pre-conditions by the plaintiff. Jurisdiction of civil court to entertain such suit. Scope, plaintiff had not availed remedy of appeal under Section 161 of West Pakistan Land Revenue Act, 1967, thus, jurisdiction of civil court was impliedly barred. Jurisdiction to resolve such dispute exclusively vested with Revenue Courts.

(3) 2011 CLC 1235 (Muhammad Manzoor through Legal Heirs & others v. Province of Punjab). Plaintiff challenged through civil suit order passed by Member, Board of Revenue, whereby conveyance deed in favour of plaintiff was set aside and matter was remanded to the District Officer, Revenue. Trial Court rejected the plaint holding that the civil court had no jurisdiction to adjudicate the matter. Validity, where the order passed by an authority was within power of such authority, jurisdiction of civil court was ousted under Section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Under Section  30(2) of the Act, Board of Revenue was competent to resume the land. Both the forums below correctly found that civil court had no jurisdiction.

(4)  2005 SCMR 1302 (Muhammad Ali v. Province of Punjab & others). Plaintiff as lessee under Temporary Cultivation Scheme filed suit challenging order of Collector refusing to grant him proprietary rights of suit land. Trial Court refused to grant stay order. Appellate Court in appeal against such order rejected plaint under Order VII, Rule 11, C.P.C., on the ground that jurisdiction of Civil Court was barred by Section 36 of Colonization of Government Land (Punjab) Act, 1912. Plaintiff had not availed statutory remedies of appeal and revision before Commissioner and Board of Revenue respectively against order of Collector. Plaint did not disclose that order of Collector was illegal or beyond his powers or suffered from any jurisdictional defect so as to be amendable to jurisdiction of Civil Court.

(5) 2007 YLR 1880 (Pir Bux v. Muhammad Moosa & others). Revenue authorities without determination of plaintiff’s pending claim, had included the suit land in the schedule for the purpose of auction and in fact finally granted the same to the defendants.  Plaintiffs in circumstances, should have asserted their rights before the open assembly. Bar contained in Section 36, Colonization of Government Lands (Punjab) Act, 1912 as well as Section 11 of the Sindh Revenue Jurisdiction Act, 1876 was fully applicable. Plaint was correctly rejected by the Civil Court.

6. Conversely, the counsel for the plaintiff argued that the defendant No.1 filed the application to delay the proceedings and to continue unlawful trespass over the land. He further argued that Section 11 of Sindh Revenue Jurisdiction Act is not applicable as it only bars the institution of suit in the matters fallen within the ambit and purview of Section 4, however, Section 184 of the Land Revenue Act, 1967 pertains to the repeals and saving.  The Sub-section (2) of Section 184 of Land Revenue Act, 1967 clearly stipulates that on the commencement of Land Revenue Act in any area the enactments mentioned in part two  of the schedule shall, if and in so far as applicable to that area, stands repealed.  Under part two of the Schedule it is clearly provided that Sections 4, 5 and 6 of Sindh Revenue Jurisdiction Act, 1876 stood repealed. So far as Section 36 of the Colonization and Disposal of Government Lands (Sindh) Act, 1912 is concerned learned counsel submitted that the plaintiff has filed this suit for declaration that he is exclusive owner of land in question and also prayed for injunction to restrain the defendant No.1. Learned counsel argued that Section 36 only applicable to the matters for which the power can be exercised by the Collector. Neither the forcible dispossession and or encroachment or trespass can be a remedied or covered under Section 36 of the aforesaid Act nor Section 172 of Land Revenue Act is applicable in which exclusion of the jurisdiction of civil court is provided to take the cognizance of any matter in which Government, Board of Revenue or any Revenue Officer is empowered by this Act to dispose of and to take cognizance of the matter. Learned counsel argued that the order for cancelling the Ghat Wadh Form was passed without notice to the plaintiff and without affording any opportunity of being heard. It was further averred that the defendant No.1 had no right and authority to forcibly occupy the land, which was in physical possession of the plaintiff until 6.2.2012. The suit land is situated in Deh Drigh and the entire strip of land initially allotted to various people in Na-class Deh Drigh Karachi as a result of demarcation and survey. Learned counsel further argued that  Ghat Wadh Form was unlawfully cancelled through office order dated 14.1.2012. He also referred to the documents attached with the counter affidavit of injunction application filed by defendant No.1. The crux of the arguments is that the District East Karachi was created  in the year 1985 and in support of his contention he also referred to judgment reported in PLD 2009 Karachi 186 (Syed Muhammad Khalid v. Province of Sindh & 2 others).  In this case, while deciding the fate of application moved under Order 7 Rule 11 CPC the learned Single Judge of this court observed that the certification by the Mukhtiarkar in Column No.7 is apparently not true as on 25.7.1975 there was no existence of Karachi (East) as District (East) of Karachi was created in the year 1985. Learned counsel referred to annexure D-1 attached with aforesaid counter affidavit in which the father of defendant No.1 requested to worthy Chief Minister Sindh for allotment of land and for poultry farming purpose 10 acres land was allotted by the Deputy Commissioner Karachi East vide Office Order dated 21.2.1983 for 25 years out of which two acres land was encroached and request was made for grant of 99 years lease for the remaining 8.00 acres of land. Learned counsel argued that on the face of it annexure D-1 is a forged document and on the basis of this claim the map was prepared on 18.12.1991. He further referred to challan attached with the counter affidavit, which was issued on 8.10.1996 and amount was deposited on the same date. Learned counsel argued that the same challan was filed by the defendant No.3, who is father of defendant No.1 in C.P.No.619/2008 with different parentage, while the same person filed the Suit No.1559/2010 in this court and on the strength of the same paid challan he has claimed different land.

7. Learned counsel further argued that it is well settled principle that the plaint can only be rejected if from the averments of the plaint no case is made out. The prayer clauses in the suit made it clear that the plaintiff has approached this court for safeguarding  his interest and to protect his exclusive ownership rights which is in danger. The plaintiff has made out triable issues, which require evidence and the plaint cannot rejected.

8. Heard the arguments. The learned counsel for the defendant No.1 very forcibly argued that the suit is not maintainable under Section 11 of Sindh Revenue Act, 1876. For ready reference, Section 11 of aforesaid Act is reproduced as  under :-

“11. Suits not to be entertained unless plaintiff has exhausted right of appeal.  No Civil Court shall entertain any suit (Subs. By the A.O., 1937, for “against Government” and finally the word “Government” was subs. for the word “crown” by P.O. No.1 of 1961) against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present”.

9. The bare look of prayer clause and the gist of plaint does not show that the plaintiff has challenged any act or omission of the Revenue Officer for which the plaintiff has to first prove that previously he presented such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing the suits. The plaintiff has prayed for declaration to protect and  safeguard the ownership rights to the land bearing Survey Nos.77, 78, 79 and 80 Nai Malir Deh Drigh admeasuring 4.00 acres and also claimed permanent injunction. Learned counsel for the defendant No.1 himself pointed out an order which clearly reflects that counsel for the plaintiff gave clear statement that the defendant Nos.4 to 6 are proforma defendants, which unequivocally shows that the plaintiff has not called in question any act or omission of Revenue Officer. So far as the cancellation of Ghat Wadh Form is concerned, according to the learned counsel for the plaintiff the plaintiff has already filed an appeal which is pending and in this suit the Ghat Wadh Form is not in question. So in my view from the averments of the plaint this suit does not appears to be time barred under Section 11 of the Sindh Revenue Act, 1876. In this regard I would like to refer to my own judgment reported in 2011 CLC 88 (Mst.Bano alias Gul Bano & others v. Begum Dilshad Alam & others), in which also application under Order 7 Rule 11 CPC was filed for the rejection of plaint and the plea was taken that the suit is barred under Section 11 of the aforesaid Act. In which I observed that the plaint was not confined to the acts and omission of revenue officers alone, but there are many other reliefs sought by the plaintiffs which cannot be entertained and or decided by the revenue hierarchy and this is not a simple matter of mutation entries and or its cancellation.

10. Learned counsel also took the plea that the suit is also barred under Section 36 of the Colonization and Disposal of Government Lands (Sindh) Act, 1912 which provides that a civil court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the Provincial  Government, Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act. Though learned counsel vehemently relied upon this Section, but he could not point out whether the controversy or the bone of contention raised  by the plaintiff can be decided or disposed of by the aforesaid hierarchy. Much emphasis was made that since Ghat Wadh Form was cancelled through an order therefore, the plaintiff cannot maintained the suit which is not in fact a correct legal position. No relief has been claimed by the plaintiff in the suit against the revenue hierarchy, but the suit is for declaration and permanent injunction against the defendant Nos.1 and 3 and S.H.O. Police Station Balouch Colony, Karachi. Naturally the authorities mentioned in the Section cannot decide the present controversy and they have no right to grant any declaration under Section 42 of the Specific Relief Act to the plaintiff nor they can permanently restrained, which powers can only be exercised by the civil court under the provision of Specific Relief Act. Section 172 of the Land Revenue Act is almost identical to Section 36 of the Colonization and Disposal of Government Lands (Sind) Act, 1912 which provides that no civil court can exercise jurisdiction in any matter which Government, Board of Revenue or any Revenue Officer is empowered to dispose of or take cognizance of the matter. Under sub-section (2) various conditions are provided for which civil court cannot exercise its jurisdiction. Again I would like to observe that the plaintiff has not prayed for any relief which could be achieved and obtained under clause (i) to (xxi) of sub-section (2) of Section 172 of the Land Revenue Act, therefore, from this angle also it cannot be said that the suit is barred under this Section.

11. Learned counsel for the defendant No.1 next argued that the suit is barred by Section 42, 54 and 56 of the Specific Relief Act. The plaintiff in this case claims the title on the basis of two registered conveyance deed dated 30.4.1992 one executed by Mohammad Raees Qureshi in his favour for land measuring 1.00 acre while other conveyance deed was executed by Al-Haram Trading Corporation for the land measuring 3.00 acres. In both conveyance deed the plot numbers are also mentioned along with their location as Nai Malir Deh Dih, Karachi East for which no case for cancellation of these registered documents is said to have been instituted. Even in the suit No.439/2012, the defendant no.3 is the plaintiff who is also father of defendant No.1 only claimed the declaration that he is the lawful owner of land measuring 4.00 acres, Survey No.131 Nai Malir Deh Drigh Road, Karachi. The bone of contention is only that the defendant No.1 and 3 submitted that their land is situated in Deh Drigh while the plaintiff is of the view that initially the land purchased by him was situated in Deh Dih but the name of Deh was subsequently changed and now it is Deh Drigh and both the plaintiff and defendant Nos.1 and 3 claiming the same land with variation of Deh name only. Under Section 42 of the Specific Relief Act, any person entitled to any legal character or to any right as to another property may institute a suit against any person denying or interested to deny his title to such character or right. The object of this section is to perpetuate and strength the testimony regarding the title of the plaintiff and to secure possession of the property to a wrong party. A person can seek the aid of the court to dispel the cloud in case a cloud is cast upon his title or legal character. On the plain language of the Section it does not appear to be any justification for assuming that a suit for declaration as to status claim by the plaintiff cannot be maintained. A man’s legal character is generally taken as the same thing as a man’s status. The words “right to as to any property” are to be understood in a wider sense than “right to property” and the words “interested to deny” denotes that the defendant is interested in denying the right of the plaintiff or his legal character. The denial of the right constitute a cause of action to maintain an action under this Section. A relief of declaration being a discretionary relief can be granted in the case where substantial injury is established and in absence of denial of right no relief of declaration can be granted. In the case of Major General Shanta Shansher Jung Bahadur Rana v. Kemani Brother Private Ltd. reported in AIR 1959 Bombay 201, it was held that Section 42 provides that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right. This section therefore applies when a person is entitled to any legal character or to any right as to any property. The phrase “legal character” occurs in two statutes viz., in Section 42 of the Specific Relief Act and in Section 41 of the Indian Evidence Act (Article 55 of Qanun-e-Shahadat Order, 1984) but that phrase has not been defined in either of the said two Acts. Section 42 provides for a declaration being made in respect of a legal character and a right as to any property. These two categories viz., legal character and a right as to any property, have been separately mentioned and would therefore prima facie appear to be distinct, separate and exclusive. Section 42 provides for making a declaratory decree i.e., making a decree declaring a man’s rights which would mean legal rights and it would therefore appear that both the said categories mentioned in Section 42 are species of the same genus viz., “legal rights”, “legal character” however, does not appear to be phrase common to jurisprudence nor does it appear to have been used in statutes, except in Section 42 of the Specific Relief Act and Section 41 of the Indian Evidence Act (Article 55 of Qanun-e-Shahadat Order, 1984). In at least three judgments reported in I.L.R. 39 Mad 80 = AIR 1915, Mad. 584, AIR 1955 Mad b. 111 and AIR 1940 Cal 225, “legal character” has been taken to mean “legal status” a phrase known to jurisprudence. When the legislature used the phrase “legal character” in the said two sections, it is legitimate to assume that the legislature was using the same in respect of some known legal concept and the context in Section 42 of the Specific Relief Act indicates that what was intended to be meant by “legal character” was “legal status”.

12. As a matter of fact section 42 of the Specific Relief Act is not exhaustive of the circumstances in which declaration is to be given. Declaration can be given even in the circumstances not covered by Section 42 in which case general provision of  law would give the declaration sought. The court in substance has to see whether the plaintiff in facts and circumstances of the case should or should not granted declaration. In this case the plaintiff is claiming title through registered conveyance deed and not on mere entry of mutation whether the plaintiff is entitled to the declaratory decree or not requires evidence and the controversy cannot be resolved unless the issue are settled and parties are allowed to lead evidence. So far as the arguments that the suit is also barred under Sections 54 and 56  of the Specific Relief Act is concerned I have already observed that keeping in view the facts and circumstances of the case it cannot be determined at this stage that the plaintiff is not entitled to the relief of declaration and or permanent injunction and in order to sift grain from the chaff it is necessary for the parties to lead evidence.

13. Learned counsel for the defendant No.1 relied upon various case law. In the case of Jan Muhammad Abbasi, the dispute was relating to the cancellation of entries in plaintiff’s name in the record of rights. There is no issue involved regarding the cancellation of entries in the record of rights. In the case of Thal Development, the land was resumed being state land by the Colony Officer due to non-fulfillment of required pre-conditions by the plaintiff, hence it was observed that the plaintiff failed to avail the remedy of appeal under Section 161 of West Pakistan Land Revenue Act, 1967. In the case of Muhammad Manzoor the Member Board of Revenue cancelled the conveyance deed and matter was remanded to District Officer Revenue and it was held that Board of Revenue was competent to resume the land which facts are also distinguishable. In the case of Mohammad Ali the controversy was that the plaintiff is lessee under temporary cultivation scheme filed the suit challenging the order of Collector refusing him to grant proprietary rights of the suit land, since the suit appeared to be barred under Section 36 of the Colonization  Act, 1912  hence it was held that the plaintiff failed to avail statutory remedy and in the case of Pir Bux the facts were that the revenue authorities without determination of plaintiff’s pending claim included the land in the schedule for the purpose of auction so it was held that the plaintiff should have been asserted right before the open assembly, therefore, the learned court held that Section 11 of the Sindh Revenue Jurisdiction Act, 1876 was applicable. The aforesaid case law is distinguishable to the facts and circumstances of the case in hand.

14. In order to decide the application for rejection of plaint averments made in the plaint are to be seen for the purpose of determining whether plaint discloses any cause of action or it is barred by any law. Lack of proof or weakness of proof does not furnish any decision for coming to the conclusion that there was no cause of action showed in the plaint. It is well settled principle of law that in case of controversial question of fact or law the provision of Order 7 Rule 11 CPC cannot be rather proper course for the court in such case is to frame issue on such question and decide the same on merits in the light of evidence. Reference can be made to my own judgment reported in 2011 CLC 88. The pros and cons lead me to a conclusion that no case of rejection of plaint is made out and the application has no merits.  

15. Before deciding application for appointment of receiver, I would like to take up CMA No.1368/2012 filed by the plaintiff in Suit No.167/2012 under Order 39 Rule 1 and 2 CPC and CMA No.4068/12 filed by plaintiff in Suit No.439/12. The plaintiff in Suit No.167/2012 has prayed that the defendants be restrained from changing the status of the suit land and creating any third party interest, charges or encumbrances and also claimed mandatory injunction against the defendants to remove the illegal and unjust trespass and encroachment over the suit land.  The plaintiff in the Suit No.439/2012 has prayed in his application that the defendants be restrained from interfering and interrupting the plaintiff’s title in respect of four acres of land Survey No.131 Deh Drigh Nai Malir Karachi and or dispossessing or taking any coercive action against the plaintiff in respect of suit land. On 14.2.2012 the injunction application in Suit No.167/2012 was fixed in court for orders when the learned Single Judge of this court as an interim measure directed to the parties to maintain status quo with respect to the subject property. While the injunction application filed in Suit No.439/2012 was placed before the leaned Single Judge of this court on 27.4.2012 when the learned Single Judge observed that subject matter of two suits is the same land and while issuing notice to the defendants as an interim measure, parties were directed to maintain status quo in respect of the subject property.  It was further ordered that both the suits to be fixed together on the next date.

16. Much have already been dealt with and observed regarding the actual and factual controversy and the bone of contention between the parties while disposing of the application moved under Order 7 Rule 11 CPC. In  both suits the plaintiffs are claiming right and title and filed suits against each other for declaration but it is a matter of fact that the dispute relates to one and the same land and both the plaintiffs have produced their title documents with their plaints.

17.   When the defendants threatened to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the property in dispute the court may grant temporary injunction to restrain such an act or make other order for the purpose of preventing the dispossession or causing of injury to the plaintiff in relation to any property in dispute. Injunction is a preventive relief and is generally granted taking note of equity. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before the uncertainty could be resolved.

18. It is well settled that while granting injunction the court has to consider whether prima facie case is made out with two important factors that is elements of balance of convenience and irreparable injury. In order to make out a prima facie case the plaintiff need not to establish his title. It is enough if he can show that he has fair question to raise as to the existence of right which he alleged and can satisfy the court that the property in dispute should be preserved in its present actual condition until such question is disposed of. The plaintiff  should establish that the balance of convenience in the event of withholding the relief of temporary injunction will in all event exceed that of the defendant in case he is restrained. The plaintiff must also show a clear necessity for affording protection to his alleged right which would otherwise be seriously injured or impaired. Where legal injury caused to the plaintiff is far greater than those that may be caused to defendant, grant of temporary injunction would be proper. The term irreparable injury is meant an injury which is substantial and could never be adequately remedied for by damages.

19. In the case of Farooq Hassan v. International Credit & Investment Company [1996 CLC (Karachi)  507], the learned Division Bench of this court held that for granting interim relief it is never necessary for a court to record a positive finding in favour of either party. On balance , the party claiming relief is only to be shown to have made out a prima facie case which in turn means an arguable and not an indefeasible case. If that be so the next questions to be considered are those of balance of convenience and irreparable loss, where the relief claimed is that of an interim injunction.  To be precise, in the various provisions of the Code, vast interlocutory powers have been conferred on Courts of Civil Jurisdiction to ensure that relief is fashioned to cover the exigencies in each individual case.

20. Since in both suits parties have claimed interim injunction against each other and have filed their separate applications for injunction and this court in both suits separately directed the parties to maintain status quo.  Therefore, in my view unless the controversy is resolved between the parties which require evidence, it would be appropriate to advance cause of justice to confirm the interim orders passed by this court in both the suits.

21. Now I will take  up the CMA No.1367/ 2012 filed by the plaintiff in Suit No.167/2012 under Order 40 Rule 1 CPC read with Section 94 CPC with the prayer that the property in dispute may be taken into custodia legis by appointment of Receiver during pendency of the suit in order to preserve and protection against any danger or loss thereto at the hands of the defendants. In the supporting affidavit the plaintiff has reiterated the same facts which are more particularly mentioned in the supporting affidavit of injunction application. The main reason for asking appointment of receiver is based on the allegation that on 6.2.2012,  30 to 40 persons came with deadly arms, tractors and bulldozers at the land and dispossessed the plaintiff. Learned counsel for the plaintiff argued that there is a serious apprehension that in order to take undue advantage of the trespass the defendant No.1 may change the status of suit land. It was further argued that the defendants may also raise construction or hand over physical possession of the plaintiff’s land to the third party and if this is done it will be difficult to ascertain the present position of the land. It was further averred that it would be just and convenient to take the suit land into the custody of this court through appointment of Receiver. In support of his arguments Mr.Mushtaque Memon, learned counsel relied upon following case law:-

(1) 2007 YLR  (Karachi) 2204 (Ehsanullah Khan Afridi v. Province of Sindh through Secretary, Land Utilization Department and 5 others). Receiver could be appointed suo motu by a Court or on the application. Where the plaintiff had made out a prima facie case for preservation of the disputed properties from being wasted.

(2) PLD 1978 (Karachi) 1093 (Motherwell Bridge Contracting & Trading Co. Ltd. V. Riaz Ali Khan etc.)  Provisions of Order 40 Rule 1 authorizes civil Court to appoint a receiver whenever it appears to be just and convenient to do so. The matter is therefore left to the discretion of the Court but this discretion is to be exercised according to judicial principles and further that a Court cannot act outside this Rule in the appointment of a receiver. Thus the petitioner has to satisfy the Court before he succeeds in this request that it would be just and convenient to appoint receiver. These two words have not been defined under the Civil Procedure Code. Appointment of a receiver is the harshest remedy provided under Code of Civil Procedure. However, there is no dispute about the object and purpose of the appointment of a receiver and generally stated it is for the preservation of the subject matter of the litigation pending judicial determination of the rights of parties thereto.

(3) PLD 2011 (Karachi) 151 (Asadullah Mirbahar and another V. Mrs. Ayesha Muzahir through Attorney  and 9 others). (Authored by me). Trial Court initially only passed injunction order but defendants dispossessed the plaintiff and were continuously raising construction in spite of restraining order, therefore, Trial Court appointed receiver to protect the property from encroachment and land grabbers. Effect of appointment  of receiver by Trial Court was not to prejudice the case of any party but the only object was to maintain the situation intact during pendency of the suit. High Court did not find any illegality or irregularity in the order passed by Trial Court and receiver of suit property was rightly appointed for proper supervision and to save the land from further encroachment and illegal construction.

(4) 2005 CLC (Karachi) 1937 (Bahadur Khan v. Qabool Ahmed and 4 others). Incumbent upon the party asking for appointment of receiver to show of all necessity, that the property in the hands of other party was in danger of being wasted. Court will appoint a receiver of the disputed property if the Court reaches the conclusion that it is just and convenient to order so and to persuade the Court to reach such conclusion the plaintiff has to make out a prima facie case that he owns the suit property or has a substantial interest therein which requires protection or preservation and the right or interest of plaintiff cannot be preserved or protected without appointment of Receiver.

22. The defendant No.3 being real father and natural guardian of defendant No.1 filed his counter affidavit in which he almost repeated the same contention. Learned counsel for the defendant Nos.1 and 3 again reiterated that the plaintiff was allotted land in Dih  Nai Malir Korangi Karachi. He further argued that the plaintiff in order to usurp the right of the defendant No.1 and 3 has maneuvered by shifting Deh Drigh from Deh Dih in collusion with Revenue Officials. The learned counsel also disputed that the plaintiff was in possession and he was dispossessed. It was further contended that in view of the cancellation of Ghat Wadh Form the plaintiff  has fabricated the story. Learned counsel further argued that appointment of receiver is the harshest remedy which in fact tantamount to dispossessing the present possession. According to learned counsel the plaintiff has failed to establish any specific instance of wastage,  mismanagement, misappropriation warranting the exercise of discretion of appointment of Receiver. He further argued that in view of the earlier order passed by this court as in interim measure the parties have already been directed to maintain status quo and whether the plaintiff was in possession or not or he has been dispossessed from the suit land, this can only be decided after leading evidence by the parties. In support of his arguments Mr.Yawar Farooqui, learned counsel for the defendant No.1 and 3 relied upon following case law:-

(1) PLD 1997  (Karachi) 409 (Iqrar Muhammad Siddiqi v. Mst.Shahid Zareen). Applicant for appointment of receiver, would have to make out strong prima facie case enabling Court to reach tentative conclusion that it was just and convenient to appoint receiver. Such requirement was imperative for appointment of receiver in civil proceedings which was considered to be quite harsh remedy. Party requiring appointment of receiver must also show that property which was sought to be taken in custodia legis was in imminent danger of waste.

(2) 1993 CLC  (Karachi) 605 (Miss Qamar Ali v. Syed Nadir ALI and others). Plaintiff having not shown any peril to property in possession of defendants, no justification was for appointing a receiver in case by dispossessing defendants who on plaintiff’s own showing were entitled to some share in the suit property. Appointing receiver over property was a very harsh action which should not be resorted to lightly, but a strong case of peril to property by citing instance of waste and damage should be made out.

(3) 1998 MLD  (Karachi) 1844 (Muslim Commercial Bank Limited v. Panama Trading Co. (Pvt) Ltd). Order XL, Rule 1 & Section 94. Object behind appointment of a Receiver is to preserve the status quo during the pendency of the litigation and to prevent the ends of justice from being defeated as stipulated under Section 94, C.P.C. Party asking for appointment of a Receiver must make out a prima facie title to the property as the effect of appointing a Receiver is to dispossess a person in possession.

23. I have already observed earlier the bare bones of the matter that  the parities in both suits  are fighting for the same land. One party asserts that initially the land in Deh Dih,  but subsequently the land was converted in the name of Deh Drigh while other party asserts that the Ghat Wadh Form was cancelled  whereafter the land shown in Deh Drigh was again resumed in Deh Dih. The plaintiff submitted that on execution of registered conveyance deed possession was handed over  to the plaintiff but the defendant Nos.1 and 3 dispossessed the plaintiff on 6.2.2012. Both the parties also claimed that their lands were regularized under the Sindh Govt. Lands (Cancellation, Allotment, Conversion and Exchange) Ordinance, 2001 and they paid differential amount also. So far as the cancellation of Ghat Wadh Form is concerned the plaintiff  has already filed an appeal which is pending adjudication before the competent authority,  as according to the plaintiff through an office order which was passed without issuing any notice to the plaintiff or provide any opportunity of being heard. No doubt  in order to preserve and protection the court has ample powers  to appoint Receiver. The object and purpose of the appointment of Receiver may generally be stated to be the preservation of the subject matter of the litigation pending judicial determination of the rights of the parties. Appointment of Receiver is an act of the court and made in the interest of justice. The words “just and convenient”  do not mean that the court is  to appoint Receiver simply because the court thinks  it convenient.  The order is discretionary and the discretion must be exercised in accordance with the principles on which judicial discretion is exercised. The terms ‘just and convenient’ used in the rule does not mean arbitrary whim or pleasure of the court.  Appointment of Receiver deprives a person from enjoyment of the property, and therefore, it has been regarded as harsh remedy. The distinction between a case in which temporary injunction may be granted and a case in which a Receiver may be appointed is that while in either case it must be shown that property should be preserved  from waste and alienation. In the former case it is sufficient that if it be shown that the plaintiff in the suit has a fair question to raise as to the existence of the right alleged while in the  latter case a good prima facie title to the property  over  which the receiver  is sought to be appointed as to be made out. The court may appoint receiver not as a matter of course but as a matter of procedure having regard to the justice of the situation. A receiver cannot be appointed unless there is some substantial background for such interference that the property in suit dissipated or other irreparable mischief may be done, unless the court appoints a Receiver.

24. Learned counsel for the plaintiff referred to the case of Ehsanullah Khan Afridi, Motherwell Bridge Contracting & Trading Co. Ltd. and Bahadur Khan. In all three cases the learned courts laid down the guidelines for the appointment of receiver and held that the receiver can be appointed for preservation of the disputed property from being wasted and the matter can be left at the discretion of the court when it appears to be just and convenient to do so. But this discretion is to be exercised according to the judicial principles. It was further held that the appointment of the receiver is the harshest remedy. It was further held that the mere fact that the defendant happens to be in possession would be no bar to the appointment of Receiver, if the plaintiff on his part shows an immediate right to possess. Learned counsel also cited a D.B. Judgment, authored by me in case of Asadullah Mirbahar in which the trial court passed the injunction order but the defendant dispossessed the plaintiff and they were continuously raising construction  despite restraining order, therefore, learned Single Judge of this court appointed Receiver to protect the property from encroachment and land grabbers. The order of learned Single Judge was affirmed in the HCA with the observation that effect of appointment of Receiver was not to prejudice the case of any party and it was further held that the Receiver was rightly appointed for proper supervision and to save the land from encroachment and illegal construction. The facts of the aforesaid case are distinguishable. It is admitted position that the plaintiff claims to have been dispossessed on 6.12.2012 and he filed suit on 13.2.2012, which  shows that at the time of his dispossession there was no interim orders operating against the defendants.

25. Conversely, the learned counsel for the defendant Nos.1 and 3 cited the cases of Iqrar Muhammad Siddiqui, Miss Qamar Ali and MCB. In all cases the court held that the essential condition for appointment of Receiver would be strong prima facie case enabling the court to reach at tentative conclusion that it was just and convenient to appoint  Receiver. Party requiring appointment of Receiver must also show that property which was sought to be taken in custodia legis was in imminent danger of waste. It was further held that no material had been placed on record to show that the subject matter was in danger of waste. The plaintiff had failed to make out a fit case for appointment of Receiver to deprive one party from possession. In another case it was held that the person who was in possession of a property in his own right and title was not to be lightly dispossessed unless some particular instance of waste and damage to property was shown. The object behind appointment of a Receiver is to preserve the status quo during the pendency of the litigation and to prevent the ends of justice from being defeated as stipulated under Section 94 CPC.

26. After going through the entire case law focused on appointment of Receiver cited by both the learned counsel there is no cavil to proposition expounded which primarily relates to the guiding principles for appointment of  Receiver, but the fact remains that the  main purpose for the appointment of Receiver over the disputed property is to protect and preserve the same pending judicial determination.

27. Learned counsel for the plaintiff relied upon Nazir’s report dated 2.3.2012. Nazir in his report observed that one police Chowki of P.S. Balouch Colony is situated adjacent to the main gate of the premises and wall parallel to the road is about 6’ to 8’ feet high on which words “PRIVATE LAND-NOT FOR SALE-OWNER RAEES AFTAB ALI LASHARI” are mentioned. One Chowkidar Ameer Jan was present who said that the premises is owned by Raees Aftab Ali Lashari. He further informed that there are four Chowkidars and he was deputed last month at the same time one Mohammad Ramzan was also available who said that he was Chowkidar of Naseem-ul-Haq from 1997 till last month when he was forcibly thrown away. Nazir in his comments also said that the land is almost clear while broken pieces of masonry block as well as some bushes were found on the small portion  of the area. Nazir further stated that the wall on the side of Defence View Phase-I was in old construction while the wall on main gate facing main road was seen to be newly constructed and some masonry blocks were also lying along with the wall. The Nazir submitted this report in pursuance of the order dated 14.2.2012 when the learned Single Judge directed the Nazir to inspect the suit property and submit his report relating to the possession of the suit property. It is clear that the plot in question is an open plot and nothing is transpired from Nazir’s report or otherwise to tentatively determine that an order is required to be passed for appointment of Receiver to protect and preserve and or manage the property during pendency of the suit particularly in the circumstances when the plot in question is an open plot and both parties in both suits have already been directed to maintain status quo. Hence, at this stage there is no necessity to pass an order for appointment of Receiver which would not be just and convenient as no substantial background was made out for such interference that the property in suit dissipated or other irreparable mischief may be done, unless the court appoints a Receiver. However, if the plaintiff despite confirmation of status quo order at any point of time in future contemplates or anticipates that status quo order is being violated or the property in question is in danger or its imminent protection and preservation is required, he can obviously move fresh application immediately for appointment of receiver.

28.  Mr.Ahmed Pirzada, counsel for the Board of Revenue has referred to order dated 17.4.2012 in Suit No.167/2012 in which the learned counsel for the plaintiff argued that the defendant Nos.4 to 6 are merely proforma defendants. Learned counsel  submits that the

Ghat Wadh Form was cancelled which pertains to the location of the property and not to the title. He further argued that since the Ghat Wadh Form was cancelled for which an appeal is pending and unless the appeal is decided, it cannot be said that in which Deh the land in dispute is located. So far as the title documents filed by the parties are concerned, the learned counsel did not argue that the documents are forged and or manipulated.

29. As a result of above discussion, I have reached to an  irresistible conclusion that no case for rejection of plaint is made out. Consequently, the application moved under Order 7 Rule 11 CPC is dismissed. So far as injunction applications filed in both the suits are concerned, the interims orders passed earlier are confirmed, consequently,  parties are directed to maintain status quo till final adjudication of the suits. The application moved for appointment of receiver is dismissed.

All applications are disposed of in the above terms.

Karachi:

Dated. 12.2.2013                                           Judge