IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
R.A.No. 168 of 2011
Mr. Muhammad Arshad Pathan, advocate for applicants
Mr. Ashfaque Nabi Kazi, AAG, State Counsel
SALAHUDDIN PANHWAR, J: Through instant Civil Revision, applicants have assailed the judgment and decree dated 05.4.2011 and 11.4.2011 respectively passed by 7th Additional District Judge, Hyderabad in Civil appeal No.302 of 2010 “Re-Asal Khan & another V. Taluka Nazim & Ors” maintaining thereby the order dated 06.10.2010 passed in F.C. Suit No.79 of 2006 by 2nd Senior Civil Judge, Hyderabad rejecting the plaint of the applicants/plaintiffs U/O 7 r 11 CPC.
2. Succinctly, brief facts are that applicants / plaintiffs filed suit for Declaration and Permanent Injunction, pleading therein that they reside on the lease of coal plot on National High Ways near Wahdat Colony, Hyderabad and have constructed a house and four shops which are adjacent to main gate of Memon Cooperative Housing Society, Hyderabad and opposite of Poly Technique College main gate and its residential colony Qasimabad, Hyderabad. In year 1974 the Executive Engineer, Buildings Division, Hyderabad, Chief Officer, Municipal Committee, Hyderabad, City Mukhtiarkar, Hyderabad, the Deputy Commissioner, Hyderabad called applicants /plaintiffs and directed them to vacate above said house so the applicant No.1 filed a suit for Declaration and Permanent Injunction. Such matter went upto High Court of Sindh and was finally disposed vide judgment dated 03.02.1985 by mentioning that applicant filed suit for Declaration & injunction on the plea that being a successful bidder for lease of a coal plot situated on National Highways near Wahdat Colony, Hyderabad he was put in possession by respondent No.1 in year 1965 and in support of such claim he produced three receipts, issued by respondent No.1 for year 1965,1966 and 1967 and except respondent No.2 none filed written statement. Such suit, however, was found barred by trial court while holding the applicant to be an encroacher. The applicant claimed himself as lessee and to have paid lease money but subsequently authority did not come forward to receive lease money. In such round of litigation the 1st appeal of applicant No.1 bearing No.16 of 1974 was accepted and judgment and decree of civil court was set-aside with order that applicant will not be ejected except in due course of law.
3. It is further claim of the applicants that applicant No.1 is his real uncle, who is issueless therefore he adopted applicant No.2 as son. The plaintiff No.2 is attorney so also owner of the suit property. It was further claimed that they are in possession which is situated outside the boundary wall of Services Hospital and the shops (suit property) are adjacent to Memon Cooperative Housing Society near residential colony towards Rajputana Hospital where there are number of shops for which there is no notice or litigation. Respondent No.2 has nothing to do with suit property but illegally issued preplanned illegal and unlawful notice to applicant No.2 in order to harass; respondent No.2 sent copies to various authorities for dismantling, removing, breaking the house and shops without due course of law. The applicants claimed that they have not constructed house on the land of respondent No.2, as such, respondent No.2 has no right, title or interest of any kind to issue notice and even respondent No.2 gathered men and machinery to demolish the subject matter.
4. With reference to above pleaded facts, the plaintiffs / applicants sought the following relief (s):-
a. That this Honourable court may kindly be pleased to declare that the plaintiffs are in possession of the suit property since long long ago;
b. That, this Honourable Court may be pleased to declare that the act and action of the defendants of dispossession is illegal, unlawful, malafide, void abinitio, nullity in the eyes of law, the same is null and void and defendants are not owner, nor have any legal right over the suit property shown in the body of the plaint;
c. That, this Honourable Court may be pleased to declare that the notices issued by the defendant No.2, are illegal, unlawful, void abinitio, nullity in the eyes of law, neither binding on the plaintiffs nor creates any right, title or interest in favour of the defendants;
d. That, this Honourable Court may be pleased to restrain the defendants from dispossessing, transferring, registering, mortgaging, alienating the suit property to any one else, without due course of law;
e. The costs of the suit be saddled on the defendants;
f. Any other relief which this Honourable Court may deems fit and proper may be granted to the plaintiff.
5. In response to notice (s) the defendant / respondent No.1 filed written statement wherein denying the claim of the plaintiffs / applicants as lessees but they were claimed to be encroachers; regarding judgment in first appeal No.16 of 1974 it was stated that it was not pertaining to subject matter hence was not relevant; the suit of the plaintiffs / applicants was also claimed to be hit by Section 42 and 56 of Specific Relief Act so also under C.P.C.
6. The defendant / respondent No.2 also filed written statement wherein while taking almost same legal pleas, further claimed that subject property is property of Govt. Services Hospital, Hyderabad and is part and parcel of the hospital which never belonged to plaintiffs / applicants; plaintiffs / applicants are land grabbers / encroachers; that area (subject matter) encroached by applicants / plaintiffs was required for construction of a new block, consisting of Maternity, Pediatrics Ward and Casualty department. The property belongs to Services Hospital, Hyderabad vide letter No.RC/G-148/2038 of 2006 issued by Executive Engineer, Provincial Buildings Division Hyderabad. It was further claimed that Chief Minister of Sindh, had desired immediate and necessary steps with help of law enforcing agencies to remove all encroachments upon suit land and recur land from land grabber vide Govt. of Sindh letter No.SO(C-(V)/SGA&CD/9-87 dated 22.5.2006 issued by Services & General Administration and Coordination Department, Karachi.
7. It is further revealed that an application U/o 7 r 11 CPC was also filed for rejection of the plaint of the applicants / plaintiffs which, after notice and hearing the parties, was allowed by learned trial Court Judge vide order dated 06.10.2010. The applicants / plaintiffs filed the Civil Appeal No.302 of 2010against rejection of their plaint; appeal was made over to the court of learned VIIth Addl. District Judge , Hyderabad, who, having heard the parties, dismissed the appeal of the applicants / plaintiffs.
8. Learned counsel for applicants has argued that impugned judgments are contrary to the law; on same subject matter property, already this Court passed order whereby official respondents were restrained to dispossess the applicants without due process of law; respondents have no concern with the subject matter property, applicant is in legal possession hence both Courts travelled beyond their jurisdiction; in fact in the case evidence is required to be produced by the applicants who have been deprived from their legal right.
9. Learned A.A.G. for the respondents while refuting the above contentions has argued that instant revision against concurrent judgments is not maintainable under the law; applicants have no locus standi in subject matter property; instant revision application is devoid of merits, liable to be dismissed.
10. I have heard the respective parties and have examined the available record. The perusal of the record shows that present applicants / plaintiffs have not come with any independent legal character but the instant lis was raised with a specific plea of ‘lessee’ under a cover of the judgment of this Court, recorded in 1st Appeal No.16 of 1974, therefore, I find it in all fairness to attend this plea of the applicants / plaintiffs first.
11. It is a matter of record that even in earlier round of the litigation, initiated by the applicant / plaintiff Assil Khan. Let’s have a reference to the operative part of the judgment passed in 1st Appeal No.16 of 1974, which is being insisted by the applicants / plaintiffs strongly, to continue their possession.
In para-2 line 8
‘The facts on record established that the appellant was a lessee of certain plot at National High way near Vahdat Colony’. This lease was granted to him by the respondent No.1.’
The underlined portion makes it clear that this was in respect of a ‘certain plot at National Highway near Vahdat Colony’ . The present applicants / plaintiffs never succeeded in establishing that such plot is, in fact, the subject matter of the instant litigation because simple claim in this respect cannot be legally taken as the one in hand which is described by giving the boundaries thereof. The subject matter in earlier round of litigation was a ‘plot’ while subject matter in the instant matter is a house having four shops which the present respondent No.2 has claimed the property of the Services Hospital.
12. The lease document / agreement, if any, was never produced by the present applicants / plaintiffs except receipts of payment of lease money which describe the subject of lease as:
‘coal plot on national Highway near Wahdat Colony’
‘coal plot on National Highway’.
The ‘coal plot’ situated somewhere on National Highway near Wahdat colony cannot be fitted in the one described in the instant matter. However, worth to make it clear here that it is not the receipt of payment of the lease money which would constitute a valid ‘lease’ but it is the ‘lease agreement/document’ as per Section 107 of the Transfer of Property Act, 1882. The applicant / plaintiff Assil Khan never claimed continuity of the lease or a permanent lease but confined his claim to yearly lease (s) in respect of a ‘coal plot’ therefore, he (Assil Khan) was never legally authorized to use or convert the plot, if any, for purpose other than described in the lease.
13. Be as it may, the concluding para of the judgment passed in said 1st appeal by this Court leaves nothing ambiguous that rights of the Assil Khan (the applicant / plaintiff No.1) were confined to extent of resort to ‘due process of law’ as is evident from operative concluding part thereof which is:
“In the circumstances the Judgment and decree passed by the learned trial Court is set aside and it is ordered that the respondents will not eject the appellant except in due process of law”
The ejectment of Assil Khan (applicant / plaintiff No.1) from ‘certain plot at National Highway near Vahdat Colony’ , even, was not restricted by this Court nor the applicant / plaintiff No.1 (Assil Khan) was held to be lawful lessee but the ejectment was made subject to due process of law. Even if for sake of arguments, it is believed that it is the same subject matter yet the applicant / plaintiff Assil Khan could, at the most, have resisted his ejectment in name of due process only but cannot legally continue retaining the possession for an indefinite period. The record also makes it clear that this judgment was passed on the appeal of the applicant / plaintiff No.1 himself (Assil Khan), who, having not challenged the same, allowed it to attain finality hence the same cannot be reopened or interpreted in any other manner except the one sealed by the Court by clearly allowing the ejectment but subject to due process.
14. Besides, the perusal of the record shows that applicant / plaintiff Assil Khan has neither been served with any notice by the authorities (respondents) nor he (Assil Khan) has been alleged to be an encroacher or in possession of any area of the respondents / defendants. The perusal of the notice (s), available on record, shows that the plaintiff / applicant No.2 is enlisted in the list of addresses (occupants). The applicant / plaintiff No.2 has attempted to justify his possession under shadow of applicant / plaintiff No.1 (Assil Khan) while pleading that:
‘Plaintiff No.1 is a real uncle and who is issueless therefore he adopted plaintiff No.2 as a son, who, being seriously ill, is out of province. The plaintiff No.2 is attorney so also owner of the suit property’.
The receipts, under which the applicant / plaintiff No.1, had any claim was clearly specified / titled as: ‘NOT TRANSFERABLE’ , therefore, the claim of the plaintiff / applicant No.2 cannot be legally sustained.
However, if such plea of the applicant / plaintiff No.2 is taken for sake of arguments, it can safely be said that the applicant / plaintiff No.2 , under shadow of applicant / plaintiff No.2, cannot claim any better title and status what the applicant / plaintiff No.1 himself has / had. Since, the right of the applicant / plaintiff No.1 were limited to resist his ejectment from ‘coal plot’ subject to ‘due process’ , therefore, the plaintiff / applicant No.2 can, at the most, could take this plea alone but cannot legally continue his possession for an indefinite period over the property which is specifically claimed by the respondent / defendant No.2 to be its own. Such claim has not been challenged by the applicants / plaintiffs which, always, has to be kept in view. The term ‘due process’ has been defined by Honourable Supreme Court in the case of Babar Hussain Shah v. Mujeeb Ahmed Khan, reported as 2012 SCMR 1235, as under :
“As far as due process is concerned, this Court in the case of “New Jubilee Insurance Company Limited, Karachi v. National Bank of Pakistan, Karachi (PLD 1999 SC 1126)”, while summarizing the term due process of law relied on the judgment of this Court in the case of “Aftab Shahban Mirani v. President of Pakistan (1998 SCMR 1863)”, wherein this Court held as under:-
“(1) A person shall have notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction. Above are the basis requirements of the doctrine “due process of law”, which is enshrined, inter alia, in Article 4 of the Constitution. It is intrinsically linked with the right to have access to justice which is fundamental right. This right, inter alia, includes the right to have a fair and proper trial and a right to have an impartial Court or Tribunal. A person cannot be said to have been given a fair and proper trial unless he is provided a reasonable opportunity to defend the allegation made against him.”
15. Since the competency of the Court (s), in earlier round of the litigation, was / is not disputed, therefore, the condition (s) ( c ) and (d), cannot be insisted upon as the status of the applicant / plaintiff Assil Khan or one claiming under him was finally determined as ‘liable to ejectment subject to due process’. So as to complete the meaning of ‘due process’ the compliance, the perusal of the record shows that proceedings for removal (ejectment) has been initiated by the quarter concern under a relevant laws and notice (s) were issued to all the occupants, therefore, it cannot be said that authorities (respondents) tried to remove / eject the occupants without providing them an opportunity of hearing. However, even if the argument of the applicants / plaintiffs regarding a cover under earlier round of litigation is taken as correct then the instant suit of the applicants / plaintiffs shall stand hit by Explanation IV of Section 11 of the C.P.C which reads as:
‘Explanation IV—The matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit’
The perusal of the prayer clause (s) of the instant matter would also show that the plaintiffs / applicants sought no relief of their own legal status and character except that of possession. The notice of removal / ejectment or dispossession itself is an acknowledgment of one to be in possession from area sought in the notice. In absence of a declaration of legal right and status the suit / lis shall be barred by Section 42 of the Specific Relief Act which reads as :
42. 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, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
The position in the instant matter is rather clear because the status of the plaintiff / applicant No.1 (Assil Khan) stood determined in earlier round of litigation and since the plaintiff / applicant No.2 also claiming the possession on the basis of claim agitated by applicant / Assil Khan hence declaration in earlier round of litigation is binding upon him too within meaning of the Section 43 of the Specific Relief Act which reads as:-
“43. A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.
It has not been the case of the present applicants / plaintiffs that the applicant / plaintiff No.1 Assil Khan after decision of 1st Appeal No.16 of 1974 ever attempted or tried to pay rent / lease money or for renewal of the lease, if any, but he by acknowledging the conclusion in earlier round of litigation, himself brought an end to his such status of ‘lessee’ , if any, and converted it into an ‘unauthorized occupant’ only who was, at all times, liable to ejectment in resort to due process of law for such ejectment by the quarter concerned.
16. At this juncture, it is pertinent to mention here that an occupant over government property cannot claim his permanent possession and use of government property for his own benefits for decades together only by paying alleged lease money for two/three years towards yearly lease, if any because the moment a legal document, creating right and title, ceases the title there-under also disappears. Even the period of such encroachment / unauthrized occupation or even that of expenditure in construction shall be of no help to change the status of an ‘encroacher / unauthorized occupant’ nor could be taken as a ground to continue unauthorized possession because it must always be kept in view that an act could only be legal if it is permitted by law therefore where one is occupying the government property without any legal authority he can only be termed either as ‘encroacher’ or ‘unauthorized occupant’. In either case(s), the encroacher or unauthorized occupant cannot resist his removal / ejectment but could, at the most, insist ‘due process of law’ for such removal / ejectment which shall include service of notice (s) and an opportunity of hearing before taking coercive measures i. demolishing of the structure.
17. On the other hand the defendants / respondents, in particularly the defendant / respondent No.2 claimed the property to be that of Services Hospital and required for construction of a new block, consisting of Maternity, Pediatrics Ward and Casualty department which, undoubtedly, shall cause a benefit to people in general, therefore, such a cause involving public interest cannot be allowed to be defeated on the basses of an unsustainable lis. Worth to add here that there is no claim from the National Highways authority nor it (NHA) has come to dispute the title of the defendant / respondent No.2 which also makes it evident that this is not the same plot ‘coal plot’ which is made a base to resist a lawful process towards removal of an encroachment from government property. The status of the subject matter of instant lis is not disputed as ‘government property’ hence an encroacher / unauthorized occupant is not legally justified to cause delay in schemes / projects, meant for ‘public benefit’ else the object and scheme of Section 56 of the Specific Relief Act shall fail which is meant for no other purpose but to avoid delay.
18. Since the discussions, made above, has made it quite clear that the suit of the present applicants / plaintiffs was never sustainable under the law and so it was found by both the Court (s) below. There is no illegality in the judgment (s) of two courts below hence instant revision petition, being devoid of substance, was dismissed by short order dated. 23.12.2014 and these are the reasons of same.
19. While parting, I must insist that the government official (s) are always the custodian of the interests, rights and properties of the government (pertaining to respective departments) therefore, the local officer (s) should always feel free in resisting any encroachment / unauthorized occupation over government property because it is always advisable to nip an illegality at its root else such negligence will result into turning a bud into a tree which would require harder labour to root out. The government department (s) should not wait for arising of a need to move for removal of ‘encroacher or unauthorized occupant’ from government properties but should ensure their presence, which (presence), if exists in reality, cannot loose sight of an encroacher / unauthorized occupant. In future, the government department (s) should ensure their existence and negligence on the part of local incharge in this respect should not be allowed to go unattended and proceeding against delinquent officer shall be intiated. Let the copy of this order be supplied to learned AAG, for compliance.