The facts of present case are that in June, 1965, Karachi Development" Authority (KDA) acquired from KPT 638 acres and 1590 sq. Yds. Of land in connection with Kehkeshan Clifton, Scheme-V. The agreed rate of the land was Re.1 per sq. Yd. The land went in the possession of KDA which prepared the lay-out plan of Scheme V and then allotted/leased but plots to various persons. A plot measuring one acre (4011.11 sq. Yds) from the area reserved for Public 13uilding was, allotted to PICIC for construction of its office building. The price fixed was of commercial area. It was at the rate of Rs,400 per sq. Yd. On 27-4-1983 allotment/possession order was issued in transferee's favour and then possession of the plot was physically delivered to them on 15-8-1983.
2. Under the terms of allotment PICIC had to complete the construction of its office building within two, years from the date of th,e possession order. However, that time was later on extended.
3. Lastly, on failure to start and complete the construction of office building by PICIC, the allotment was cancelled by KDA,. The Cancellation order was challenged by PICIC through Suit No,384 of 1991 which was later on withdrawn on 21-5-1998 after agreement between PICIC and KDA that two years further time for completing the construction shall be allowed to PICIC after it pays ground rent with effect from 1-7-1995 and non-utilization fund with effect from 1-1-1994. PICIC paid those charges in October, 1998. Obviously, the period of two years commenced from the date of that payment.
4. Before expiry of the period allowed to PICIC for construction KPT and KDA entered into correspondence relating to non-payment of part of the price of land by KDA. Lastly, Board of Trustees of KPT passed a resolution withdrawing the offer of the transfer of KPT land to KDA. The decision was communicated to Secretary KDA through letter dated 9th June, 2000 by Estate Manager KPT. Thereafter, Estate Manager, KPT issued notice dated 20-7-2000 under the Land Control (Karachi Division) Act, 1952 to PICIC mentioning therein that KPT Board had withdrawn offer of transfer of the land to KDA and they (PICIC) were occupying KDA's land unauthorized and had raised boundary wall thereon without lawful authority, therefore, the encroachment shall be removed within seven days else the boundary wall shall be demolished at their (PICIC's ) risk and cost.
5. After replying the notice through their Advocate PICIC filed present suit pleading therein substantially that after acquiring the land from KPT, KDA had validly allotted the plot to them and they had paid the occupancy charges and then non-utilization funds and ground fee. They further pleaded that they being valid allotted of the plot were possessing it with right to raise construction thereupon, and KPT could not resume the plot and treat their possession as unauthorized one. They prayed as under:--
(a) Declaration that the-plaintiff is owner of subject Plot bearing No,PB-1, Block-6, Scheme No,5, Clifton, Karachi;
(b) Declaration that the Notice dated 20th July 2000 issued by Defendant No,2 is without lawful authority and of no legal effect;
(c) Permanent injunction restraining the defendants, their subordinates, employees, agents etc., from interfering with plaintiff's possession, enjoyment and use of subject Plot bearing No,P13-1, Block-6, Scheme No,5, Clifton, Karachi;
(d) Costs of the proceedings; and
(e) Any other, additional, appropriate relief as may be considered proper by this Hon'ble Court.
6. In their written statement the defendants i,e, KPT and its Estate Manager admitted the position about acquiring of land including the plot in question by KDA with their approval, for Scheme V Clifton Karachi. They also did not deny the allotment of plot in question to the plaintiff and payments by the allottee. Delivery of possession to the allottee with right to raise construction was also not disputed. However, they claimed that the title over the land still vested in KPT as no such, deed was extended and signed, therefore, KDA had not acquired marketable title and they (KPT) could withdraw their offer to transfer the land and resume its inbuilt portion. They also pleaded that after the withdrawal of the offer the plaintiff's occupation over the plot in question and construction of compound wall were unauthorized, therefore, the defendant No,2 had competently declared them unauthorized and issued notice to PICIC requiring them to remove the encroachment. They also, raised objections that no legal cause of action for filing the suit and accrued to the plaintiff and the suit was hit by sections 42 and 56 of Specific Relief Act; Sections 4 and 87 of the KPT Act and section 15 of the Land Control (Karachi Division) Act, 1952.
7. Following issues were cast on the pleadings of the parties:
(1) Whether any cause of action has accrued to the plaintiffs against the Defendant for the present suit?
(2) What is the effect of allotment of Plot No,PB-1, Block-6, Scheme No,5, Clifton, Karachi by KDA in favour of the plainti
(3) Whether the Plaintiff has encroached upon any land belonging to the Defendants?
(4) What should the decree be?
8. Plaintiff examined Abubakar Siddique and Syed Liaquat Hussain who produced bulk of documents. Defendants examined Bashir Ahmed and Badruduja Qureshi. They also produced a big number of documents specially the letters forming part of the correspondence between KPT and KDA authorities.
9. After hearing the parties counsel and examining the material, I proceed to decide the issues. For the sake of convenience I shall first take up issues Nos.2 and 3 and decide them together.
Issue Nos. 2 & 3:
10. All the material facts and events including the acquisition of KPT's land measuring 738 acres and 1590 sq. Yards by KDA; fixation of its price and delivery of possession thereof to KDA are admitted. Preparation of layout plan of Scheme-V, by KDA and then allotment and lease of the plot to various persons arc also not disputed, The allotment of plot in question measuring I acre (4011.11 sq. Yards) to PICIC, the plaintiff for construction of its office building is also an accepted' fact.
Possession of the plot in question was delivered to the plaintiff with right to raise construction thereupon. Exhibit 8 letter dated 20-4-1983 by Additional Director (CON) KDA to Managing Director, PICIC; exhibit 10 letter dated 27-4-1983 from Assistant Director-II; Amenity Plot Cell, KDA to Secretary, PICIC and exhibit 12---an acknowledgment of possession confirm the above position.
11. Without disputing the above facts the learned Advocate representing the defendant argued that since the title over the land was not transferred finally to KDA the allotment of the plot in question by it did not transfer any right in favour of plaintiff. According to him KPT being owner of the land could competently take decision of resuming un built part thereof. He further contended that the plot in question being amenity plot could be allotted for construction of office building of the plaintiff.
12. Mr. Mushtaq A. Memon, learned counsel for the plaintiff argued that after transfer of the land to KDA even if it was incomplete, KPT could not take unilateral decision in respect of any part of the land, for non-payment of the balance of the price and they could only insist upon the payment. In the alternative he argued that KDA had been dealing with the land as its owner with the express consent of KPT therefore the transfers/allotments by KDA are not open to challenge by KPT in view of estoppel provided by section 41 of Transfer of Property. Act, being conscious of the fact that the transfer of the plot in question in favour of the plaintiff was yet to be completed. Mr. Memon argued that the scheme of section 14 of Transfer of Property Act protects incomplete transactions also.
According to him it will be ridiculous to leave the incomplete transfer by ostensible owner unprotected. He also argued that vendors can be compelled legally to complete the transfers. He referred to section 55(i)(g) of Property Act.
13. The contentions of Mr. Mushtaq A. Memon, learned counsel for the plaintiff have much substance in them. However, I skip the part of arguments relating to the right of KPT to the extent of balance of price only as that controversy can be mainly in between KDA and KPT. My discussion and decision will be to the extent of plot in question. There can be no two opinions about the fact that after delivery of the possession of land by KPT to KDA in 1965 the latter had been dealing with it as its owner. It had allotted the plot in question to the plaintiff and received consideration thereof.
When hundreds of persons were being allotted/transferred the plots by KDA as owner it can legitimately be inferred that the plaintiff got the allotment in good faith, taking care about the competency of KDA to transfer the same. Thus even if the defendant's plea about final transfer of the land is accepted then also the allotment of the plot in question in favour of the plaintiff is a transfer by ostensible owner and no essential element of section 41 of Transfer of Property Act is wanting. The transfer which the section speaks of includes the incomplete transfers also as the scheme of the, section is based on a principle. Not providing the protection to the incomplete transfers by the ostensible owner fulfilling all the essential requirement of section 41 of Transfer of Property Act would be absurd.
14. On allotment of the plot in question to it and receiving possession thereof with right to raise construction the plaintiff has acquired right in rem in respect of the same. Decisions of this Court in cases of Noor Muhammad v. KDA, reported in PLD 1975 Kar. 373 (DB) and Ibadur Rehman v. KDA reported in 1981 CLC 1260, can be referred to in support of the view. It may be made clear that the allotment is subject to its terms and conditions and the relevant law The defendant's plea relating to the status of the plot is, on the face of it, afterthought. It is not so that KPT's Board has taken decision in respect of the individual plot. Also KPT has no locus standi to resume the plot in question on the ground of validly of its allotment. It was only KDA which could take decision about the allotment_ in accordance with law and the terms of the allotment.
16. In view of the above the allotment of plot in question to the plaintiff was not affected by the decision taken by KPT's Board and the possession of allottees over it cannot be treated as unauthorized one. Issues answered accordingly.
Issue No,1:
17. As the suit was filed by the plaintiff after receiving notice from the defendant No,2 under the provision of Land Control (Karachi Division) Act 1952 the learned Advocate representing the defendants argued that the Land Control (Karachi Division) Act 1952 provides for an appeal against the decision of defendant No,2 before a particular special forum therefore suit filed by the plaintiff without filing an appeal against the order is not maintainable. The contention is not acceptable. In present case the notice dated 20-7-2000 issued by defendant No,2 under the Land Control (Karachi Division) Act, 1952 contains that the decision of defendant No,2 about the nature of plaintiff's possession over the plot in question was taken in consequence of the decision of KPT's Board to resume the land including the plot in question. The plaintiff in effect challenged the decision of KPT's Board and the notice has been challenged only as an act in the result of KPT's decision therefore the suit is not barred and is maintainable. The plaint, as shaped, discloses causes of action as it does contain recitals that the plaintiff's legal right has been infringed. Even in the light of the conclusion recorded above, the plaintiff had cause of action to file present suit. The issue answered in affirmative.
Issue No,4:
18. Although the plaintiff has prayed for declaring them owner of plot in question but evidence on record proves them to be the allottees of the plot therefore they are declared as such; the notice dated 20-7-2000 issued by the defendant No,1 is declared without. Legal effect and defendants are restrained from interfering with the possession of plaintiff over the plot in question till they have right to possess the same under the allotment in their favour. KPT the defendant No,1 to suffer costs.