1. 1 to 3. This is an application filed by the plaintiff under Order XXXIX, rules 1 and 2, C . P. C . (C .M . A .
2. 1203 of 1993) seeking by the Deputy Registrar (Judicial) dated 22-3-1995 are also listed for Dih, Karachi measuring 4.20 acres till disposal of the suit. It is further possession of the plaintiff on the area of land situated in Nai Malir, Deh dated 16-10-1994 by the Mukhtiarkar/City Survey Officer and the other hearing which shall be disposed of by this order.
3. The plaintiff's case is that on 28-4-1992 the suit property was allotted to him vide lease agreement executed on behalf of the Government of Sindh in favour of the plaintiff for 99 years; that the plaintiff has paid the entire valuation of the land and has raised 2005] members etc. Etc. From interfering with the physical and constructive prayed in this application by the plaintiff that the defendant be restrained abovesaid property. Along with this application, two survey reports, one interim injunction against the defendants, their agents, staff and/or from demolishing the construction raised by the plaintiff on the Nafees-ul-Hassan v. Pakistan Defence Officers Housing Authority (Rasheed A. Razvi, J) 521 construction of a boundary wall around the suit property measuring 4.20 acres; that on 28-2-1993 the defendant through a letter informed the plaintiff that the suit property was allotted to the defendant as far back as in the year 1979 and that the plaintiff has no right on the suit property. This denial by the defendant led the plaintiff to file the instant suit for declaration and permanent injunction. The case of the defendant is that a total area of 640.55 acres of land was initially allotted to the then Pakistan Defence Officers Cooperative Housing Society (now Pakistan Defence. Officers Housing Authority) through a grant dated 6-12-1979 made on behalf of Government of Sindh; that due to construction of embankment on the River Malir a major portion of the land was resumed by the Government of Sindh and the defendant was left with only 50 (fifty) acres. It is further case of the defendant that the suit property falls within this 50 acres which is part of Phase IX of D.H.A. And that a commercial area namely Humayon Commercial Area has been fully developed by removing encroachers of Qayumabad. The defendant has also disputed the title documents of the plaintiff and pleaded that this is a case of double allotment and the defendant being first allottee has legal right over this land.
4. ' I have heard Mr. Raja Muhammad Iqbal, Advocate for plaintiff and Mr. Raja Muhammad Irshad, Advocate assisted by Mr. Zafar Iqbal, Advocate for defendant. It was argued by Mr. Raja Muhammad Iqbal that in view of 99 years lease, the plaintiff has successfully established a prima facie case. He has also referred to the two survey reports which, according to the learned counsel are in favour of the plaintiff. On the other hand, it was argued by Mr. Raja Muhammad Irshad that the plaintiff has not come with clean hands before the Court as through manipulation with the certain Officers in the Government of Sindh, he has manufactured these documents and, therefore, the plaintiff has failed to establish the three ingredients required for the grant of interim injunction.
5. He has also proposed that to cut short the litigation once a preliminary issue be framed and matter be treated as of short cause to determine whether this is a case of double allotment.
6. According to the learned counsel, if this issue is proved in affirmative then the plaintiff would be out of the Court and if it is answered in negative then consequently, the defendant has no case. In alternative, he has also proposed that any senior officer of Board of Revenue (Land Utilisation) be appointed as Commissioner to determine whether the suit property falls within the land allotted to the defendant. This proposal is not accepted by the learned counsel for the plaintiff on the grounds, inter alia, that it is suggested at belated stage.
7. ' Besides copy of lease agreement dated 28-4-1992 which is for 99 years, the plaintiff has filed letter of possession, initial allotment letter and copy of paid challan in order to establish that after payment of full consideration and completion of other formalities the suit property was allotted to the plaintiff. He has also filed a letter dated 7-1-1993 as Annexure "D" to the plaint which is a letter written by M.E.O. (Military Estate Officer) to the plaintiff confirming that the suit property does not fall within the limits of Clifton Cantonment. On 18-9-1994 this Court directed inspection of the suit property and appointed Mukhtiarkar/City Survey Officer to survey the land who filed his report.
8. Following is the operative portion of the said report:- "No other land was allotted or proposed to the defendant No,1 in Deh Dih. The land measuring 4 Acres and 20 Ghuntas is far away from the boundary wall of the proposed land to defendant No, 1.
9. The allotted land is in the physical possession of plaintiff and plaintiff land falls in Nai Malir area and not in Naclass No,24 Deh Dih hence the plaintiff land is far away/out of the boundary of proposed land of defendant No,1. Further orders as deemed fit are solicited."
10. ' This inspection report of Mukhtiarkar/City Survey Officer was challenged by the learned counsel for the defendant on the ground that at the time of inspection the Commissioner did not invite any representative of the defendant and thus, being in the nature of ex parte is not sustainable in law.
11. Accordingly, this Court on 15-1-1995 appointed Deputy Registrar (Judicial) of this Court to inspect the suit property. He has also filed his report dated 22-8-1995. The learned Deputy Registrar has conducted a detailed survey of the land and has also collected documentary evidence from both the parties. The conclusion drawn in the said report by the Deputy Registrar is as under:-- "A perusal of the above Deh Map (Exh.A/3) very clearly shows that the land allotted to the plaintiff measuring 4.20 acres shown in Yellow colour is far away at a distinct position from the land measuring 640.55 acres allotted to the defendant shown in Purple colour. Thus, according to the Deh Map (Exh.A/3) both the lands allotted to the plaintiff measuring 4.20 acres and to the defendant measuring 640.55 acres are situated on separate locations.
12. ' As regards the conditions/possession of the disputed land measuring 4.20 acres it was observed that the land was full of pits and shrubs -here and there. The ground was not levelled and it appeared that no development work was carried out on the land. Keeping in view the demolished boundary wall and remains of the Chowkidars rooms it appeared that physically the disputed land had remained in possession of the plaintiff."
13. ' Mr. Raja Muhammad Irshad, Advocate for defendant has vehemently objected on the report of Deputy Registrar (Judicial) on the grounds that the learned Commissioner had acted under the wrong advice of Tapedar from the office of the Deputy Commissioner and that the letter dated 14- 9-1977 as well as lease agreement, dated 16-12-1979 was not considered by the Commissioner. It is further objected that the Commissioner/Deputy Registrar has solely relied upon the statement of the plaintiff and did not consider the documents and other facts brought on record by the defendant's representatives.
14. ' It was also argued by Mr. Raja Muhammad Irshad that this is a case of double allotment and in this connection, he has shown me a photocopy of letter dated 4-7-1995 issued by the Deputy Commissioner Karachi East wherein a detailed report about the double allotment and unauthorized allotments were conveyed to the Member (Land Utilization) Board of Revenue, Karachi. I have gone through the contents of this letter and I am of the view that in absence of any supporting application or affidavit arid without giving an opportunity to the plaintiff to rebut/controvert the same, contents of such letter cannot be accepted in a manner as proposed by the learned counsel for the defendant. However, the defendant shall be entitled to place all these documents on record through appropriate application, if so advised.
15. ' For the purpose of obtaining an interim injunction it is settled law that the plaintiff is required to show a prima facie case as well as has to show that in case the relief as prayed is not granted he shall suffer irreparable loss and injury and that the balance of convenience is in his favour. After going through the documents filed with the plaint and after considering the two survey reports of the Commissioners as well as the respective submissions of both the learned counsel, I am of the tentative view that the plaintiff has made out a prima facie case for grant of injunction and that the balance of convenience as well as question of suffering irreparable loss and injury are also in favour of the plaintiff. However, this application cannot be granted as prayed since according to both the reports of the Commissioners the boundary wall constructed by the plaintiff was seen to have been demolished and only debaris and other wild bushes were found on the disputed land which indicates that at the time of hearing none of the parties was in actual physical possession of the suit-land. However, I am of the considered view that in order to keep the suit-land protected from alienation some terms should be imposed on both the parties. Therefore, I grant this application in the following manner:--
(i) The defendant is restrained from disposing of in any manner or alienating or creating any lien or third party interest on the suit property.
(ii) The plaintiff is also restrained from disposing of in any manner or from creating any third party interest in property till disposal of the suit.
(iii) Since short question, as suggested by Mr. Raja Muhammad Irshad, is involved in this suit, I direct that this suit be treated as short cause case.
(iv) It is directed that the office may fix this case at an early date for framing of issues.
(v) It is earnestly desired, if acceptable to the parties, that evidence may be recorded through a Commissioner so to shorten the duration of litigation.
16. ' C.M.A. No,1203 of 1993 stands disposed of.
(4) By consent this application is granted. Let the fee of the Commissioner be paid to him.
(5) The amendment proposed by the plaintiff, as it appears, will neither change the character or nature of the suit nor amounts to introducing any fresh cause of action. I am also of the view that no prejudice will be caused to the defendant if such amendment is allowed: Subject to all just exceptions, this application is granted. Plaintiff is directed to file amended plaint within two weeks and to supply the copies to the defendant.