EMMANUAL OJAGAR And Others vs Miss ROZINA MALL
This matter concerns a petition for leave to appeal against an order of the Lahore High Court, which affirmed a decree for possession of a residential property in favour of the respondent, Miss Rozina Mall. The petitioner had previously engaged in multiple rounds of unsuccessful litigation, including a failed suit for declaration of title and a failed suit for perpetual injunction, both of which established that the petitioner lacked legal title to the property. In the third round of litigation, the respondent sought recovery of possession, asserting that the petitioner occupied the property as her licensee. The trial court decreed the suit in her favour, a decision upheld by the appellate court and the High Court. The Supreme Court examined whether the respondent, as an allottee of the house, possessed sufficient title to maintain an action for possession. The Court held that the allotment created a clear right in the property, allowing the allottee to maintain an action for possession against an unauthorised occupant. Consequently, the Court found the petitioner to be a trespasser without legal right to possession and refused leave to appeal.
- Does an allotment of property create sufficient title for an allottee to maintain an action for possession against an unauthorised occupant?
- Can a person who has previously failed to establish title to a property in earlier litigation continue to claim a right to retain possession?
ORDER
ABDUL QADEER CHAUDHRY, J: --Leave to appeal is sought against the order of the Lahore High Court dated 12-3-1989.
2. A piece of land was purchased by the Catholic mission for construction of houses for the benefit of members of their community. The dispute relates to the house under Survey No.15. The petitioner claimed ownership right in the house and filed a suit for declaration of his title against the working committee of the Catholic colony and some others including Miss Rozina Mall. The suit was dismissed on 21-3-1985 by the Civil Court. The appeal was dismissed by the appellate Court on 21- 9-1985 and the revision was also dismissed by the High Court on 2-11-1985.
3. The petitioner brought a civil suit for perpetual injunction against the same set of defendants restraining them from causing interference with his possession over the portion of the house except in due process of law. The plaint was rejected on 28-5-1986. His appeal was dismissed by the Additional District Judge on 31-1-1987 and his civil revision petition was also dismissed by the High Court on 1-11-1987.
4. The third round of litigation was started by Miss Rozina Mall to recover possession of portion of the house No.15, Christian Colony, from the petitioner on the ground that he was in possession as her licensee. The suit was contested by the petitioner. The trial Court settled certain issues.
Ultimately, the suit was decreed in her favour. All the issues were decided in favour of the plaintiff.
The appeal preferred by the petitioner was dismissed and so was the revision petition.
5. Learned counsel for the petitioner has submitted that Miss Rozina Mall, at the most, is a licensee and had no right to file the suit. This contention has no force. The house was allotted to Miss Rozina Mall and a title had been created in her favour. The petitioner's claim for title had been rejected earlier by the Courts of competent jurisdiction. The petitioner had no legitimate right to remain in possession of the disputed house. He was a trespasser and therefore not entitled to retain the possession on any principle of law. In considering the case on merits, the learned High Court observed as hereunder:- "Allotment created a clear right in the property in favour of the plaintiff. Mr. Shakoor Peracha did not deny that the allotment is to be followed by transfer of ownership rights upon payment of sale price. In this view allottee of the house had sufficient title of the basis of which he could maintain an action for possession of the property found to be unauthorisedly possessed by the petitioners.---
6. The above finding is not open to any challenge there is no force in this petition. Leave to appeal is refused and the petition is dismissed.
Cited by 1 case
- RANI Versus RAZIA SULTANA 1994 SCMR 2268