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Civil Petition for Leave to Appeal No. 14‑K of 1985, decided on 2nd July, 1985.

(On appeal from the judgment of the High Court of Sind, dated 2‑i1‑1984, in R.A. No. 3 of 1983).

‑‑‑Art. 185(3)‑‑Specific Relief Act (I of 1877), S. 42‑‑Declaratory suit‑ Maintainability of‑‑Locus standi‑‑Transfer of evacuee property in favour of respondent‑‑Petitioner alleging fraud and misrepresentation, seeking declaration that transfer in favour of respondent was illegal and that authorities be directed to issue transfer documents in his favour‑ Petitioner's application for transfer of suit property having been finally rejected earlier for lack of locus standi‑‑Mere desire of a person to bid at a future auction of property after transfer made in favour of transferee is set aside, is not a vested right and cannot be construed as a right in property within purview of S. 42 of Act (1 of 1877) ‑‑High Court's view that suit as framed was not maintainable and was rightly dismissed as such, upheld‑‑Leave to appeal refused.

Abdul Hamid Khan v. The Settlement and Rehabilitation Commissioner and others 1971 S C M R 711 and Mir Zaman Khan v. Muhammad Ashraf Lodhi and others, 1976 S C M R 319 ref.

Suleman Kassam, Advocate Supreme Court and A. Aziz Dastgir, Advocate‑on‑Record for Petitioner.

Nemo for Respondents Nos. 1 to 3.

K.B. Bhutto, Advocate, Supreme Court and Anwar Ali, Advocate-on‑Record for Respondent No. 4.

Date of hearing: 2nd July, 1985.

This petition for leave to appeal is directed against the judgment of a learned Single Judge of the High Court of Sind, Karachi, dated 1st November, 1984, whereby the revision application filed by the petitioner was dismissed.

2. The facts of the case as narrated by the petitioner are that evacuee Plot bearing Custodian No. 131/2‑D, at Thatta, was transferred to him by the Settlement Authorities on 25th December, 1959. He had also applied for transfer of another Plot bearing Custodian No. 131/1‑D, Thatta, but no action was taken on this application and no decision was communicated to him. According to the petitioner Haji Abdul Waheed, respondent No. 4, by fraud and misrepresentation, in collusion with the staff of Deputy Settlement Commissioner, managed to obtain transfer documents in respect of Plot No. 131/1‑D, as well as in respect of Property Nos. 255/D and 255/1‑D. It seems that respondent No. 4, on the basis of transfer orders in his favour, obtained an ejectment order against the petitioner. Petitioner's representation before the Settlement Authorities having failed to produce any result, he filed a suit in the Court of District Judge, Thatta, seeking relief of declaration that the transfer of the aforementioned property in favour of respondent No. 4 was illegal, void and inoperative in law. He also prayed for the relief that he is the legal transferee of Properties Nos. 255/1‑D and 131/2‑D, with the consequential relief that the authorities be directed to issue the transfer documents in his favour.

3. Learned Senior Civil Judge in whose Court the case appears to have been transferred for trial framed two preliminary issues as follows:

"(1) Whether this Court has no jurisdiction to try this suit

(2) Whether suit is not maintainable in law "

On the aforesaid issues the trial Court held that the suit filed by the petitioner was not maintainable. The petitioner challenged the decision of the trial Court but his appeal was dismissed by the District Judge, Thatta.

4. Being dissatisfied the petitioner filed a revision application before the High Court of Sind at Karachi. The learned Single Judge who heard the revision application came to the conclusion that the Civil Court had jurisdiction in the matter as allegations of fraud were made in the suit in challenging the action of the Settlement Authorities. Despite this finding, the learned Single Judge held that the suit filed by the petitioner was not maintainable as on the admitted position the petitioner claimed no legal right in the property which was transferred in favour of respondent No. 4. In this connection learned Judge referred to the admitted fact that after the transfer of Plot No. 131/1‑D, respondent No. 4 had served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act 1958, on the petitioner, who in response thereof started paying rent to him. It was during the continuance of the statutory tenancy thus created that the petitioner applied for transfer of the said plot but his application was dismissed by the Deputy Settlement Commissioner. Subsequently his appeal was also dismissed by the Additional Settlement Commissioner. After this the petitioner did not pursue the matter any further. In these circumstances the learned Single Judge dismissed the revision application by judgment, dated 1st November, 1984. This petition for leave to appeal has been brought against the aforesaid judgment of the High Court.

5. In support of the petition, learned counsel argued that the petitioner has locus standi to challenge the transfer orders issued in favour of respondent No. 4 on the ground of fraud and misrepresentation, as upon cancellation of the said transfer, the property would be available for disposal so that the petitioner would be able to purchase it. Learned Judge in the High Court among other judgments referred to Abdul Hamid Khan v. The Settlement and Rehabilitation Commissioner and others 1971 S C M R 711 and Mir Zaman Khan v. Muhammad Ashraf Lodhi and others 1976 S C M R 319, to hold that as the petitioner's application for transfer was finally rejected in respect of the suit property, he had no legal right which could form the basis of right to remedy by way of declaration under section 42 of the Specific Relief Act. In the first case referred to above this Court, in somewhat similar circumstances, held that "the mere desire to bid for a property at an auction' does not carry a vested right to bring such property to auction." Similarly in the case of Mir Zaman Khan, in which the petitioner had failed to prove that he had a legally vested interest in the property, this Court declined to interfere on the ground of lack of locus standi even on the assumption that the‑transfer sought to be challenged was not legal. The proposition of law that under section 42 of Specific Relief Act, the aggrieved party must show that he is entitled to any legal character or to any right as to any property, on which the learned Judge in the High Court proceeded is unexceptionable. It is well‑settled that whenever a plaintiff seeks a declaration from a Court, the Court ought to be satisfied that the plaintiff has an interest in the property in respect of which declaration is claimed which is a valid and subsisting interest. As laid down by this Court the mere desire o; a person to bid at a future auction of the property after the transfer made in favour of the transferee is set aside, is not a vested right and cannot be construed as a right in property within the purview of section 42 of the Specific Relief Act. Learned counsel attempted to argue that in any case the petitioner has an interest in the property on the basis of his possessory title by virtue of his tenancy right as an occupant. This submission is devoid of force. In the first place the petitioner is not entitled to set up a case at this stage of the proceedings different from his pleading as contained in the plaint in which no such right was asserted. Secondly, as conceded by the learned counsel himself, he has been dispossessed from the property in pursuance of an order of ejectment passed by the Rent Controller which has been upheld upto the stage of the High Court in second appeal and is, therefore, very much in the field. Admittedly the petitioner sought no relief against the order of his eviction in the suit filed by him. Clearly, therefore, he has no subsisting right to possession in the property. In the light of these circumstances we fully endorse the view taken by the learned Judge in the High Court that the suit as framed was not maintainable and was rightly dismissed as such.

6. In the result this petition is without merit and is dismissed accordingly.

M. I. Leave refused

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