GHULAM HYDER MAHAR vs ILLAHI BUX MAHAR Ss — 2022 CLC 1374 KARACHI-HIGH-COURT-SINDH

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GHULAM HYDER MAHAR VS ILLAHI BUX MAHAR Ss.9 & 42---Suit for possession and declaration---Entitlement/ownership of property---Existence of right at the time of filing suit---Petitioner/plaintiff contended that he was in possession of the disputed plot since 19 years; that despite the fact that the disputed plot was owned by the Central Government, nobody appeared to defend the case; that the petitioner was entitled to retain possession till such time the application for grant of land filed by the petitioner be decided otherwise---Trial Court unequivocally found that the property in dispute was Government property and that the evidence of both the parties transpired that the disputed plot had not yet been allotted either to plaintiff or defendant---Despite the said findings against the very claim of the petitioner, all other issues were answered in favour of the petitioner and the suit was decreed as prayed---Validity---Admittedly, the petitioner had only sought a declaration of possession which in absence of a title could not have been granted---Pleadings had transpired that the land was owned by Central Government and Trial Court had also held so---Once record showed that none of the petitioner and the respondent was the owner of the land then taking up other irrelevant issues and the evidence led on the same including the claim regarding possession was not required to be adjudicated upon---Both the petitioner and respondent had never claimed ownership on the basis of any title/instrument---Dispute between the parties was regarding use/encroachment of the land, which none of them owned---At the time of filing of the suit, the petitioner was not holding any title to seek the relief as prayed for---Petitioner had asked for a declaration not of an existing right but of chance/possibility of acquiring a right in the future---No declaration of an abstract right could be granted, howsoever practical it might be to do so---Trial Court ought not to have exercised any discretion in the matter, as it was not a matter of absolute right to obtain a declaratory decree; rather it was a discretionary relief---Revision petition was dismissed accordingly.

GHULAM HYDER MAHAR vs ILLAHI BUX MAHAR Ss — 2022 CLC 1374 KARACHI-HIGH-COURT-SINDH

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