1. ' SAJJAD ALI SHAH, J.---The present suit has been filed by the plaintiffs, who claim to be the Joint Owners of a residential Bungalow bearing No, A-2-A, situated at Sunset Boulevard, Phase II, Defence Housing Authority, Karachi, (hereinafter referred to as 'said property') praying:--
(a) for a declaration that the plaintiffs are lawful owners of the suit plot measuring 3728 square yards, which has been purchased by the plaintiffs for valuable consideration;
(b) for a declaration that the plaintiffs are entitled to mutation of the suit plot;
(c) for a declaration that the letter, dated 3-11-1999 issued by the defendants is null, void ab initio, illegal, without jurisdiction and has no legal effect and the said letter has been issued by the defendant malafidely, in violation and in contradiction of the sub-leases, dated 12-3-1963 and 6-2- 1967 (Annexure P-2 and P-4A) as well as the said plan, dated 4-12-1975 (Annex P-8), wherein the boundaries of the suit plot are clearly delineating;
(d) for a permanent prohibitory injunction restraining the defendant, its agents, representatives, assigns, officers or any other person/ persons acting directly or indirectly through it, jointly and severally from acting upon the illegal letter, dated 3-11-1999 (Annex P-7B) and from interfering with its possession of the land and construction within the following boundaries; ' North: 60 feet wide South Park Avenue South: 120 feet wide Sunset Boulevard East: 60 feetwide South Park Avenue West: 40 feet wide South Park Street
(e) permanent mandatory injunction directing the defendant to carry out mutation in favor of the plaintiffs in its records and complete the transfer in its records of the suit plot together with the construction thereon in favor of the plaintiffs;
(t) for any other, further or better relief (s) that this Honourable Court may deem fit and proper in the facts and circumstances of this case;
(g) Costs.
2. ' It is asserted that Plot No, A-2A (hereinafter referred to as 'said plot') is positioned in a manner that it is an Island with metalled roads on all its four sides. The "said plot" was originally allotted to one Col. Sultan Muhammad Khan on 12-3-1963, who at the relevant time was the Director of Works and Chief Engineer of Pakistan Defence Officers Cooperative Housing Society. Col. Sultan Muhammad Khan on 1-4-1966 gifted the "said pot" to his wife namely Begum Suriaya Sultan, which gift was duly recorded by the defendants in the record maintained by them. Begum Suriaya Sultan thereafter constructed a bungalow on the `said plot' and upon its completion, the President of Pakistan through Military Estate Officer on 31-3-1966 executed a sub-lease in Form '13' in her favor.
3. ' It is further asserted that prior to the purchase of 'said property' from Begum Suriaya Sultan through a duly registered Conveyance Deed, dated 13-8-1995, the plaintiffs since 1974 were living in the "saidproperty" as her tenants. It is further claimed by the plaintiffs that after the purchase of the "said property" they on 29-9-1998 got it mutated in their names in the record of rights maintained by Military Estate Office Karachi. The plaintiffs, thereafter, on 10-12-1998 applied for mutation in the record maintained by the defendants, the defendants undertook to mutate the 'said property' in their names within 15 days, however, when the defendants despite lapse of considerable time failed to mutate the `said property' in their names, the plaintiffs made necessary inquiries and came to know that the defendants have found out that the 'said plot' comprises of 3728 Sq. Yards instead of 2600 Sq. Yards leased out to the predecessor-in-interest of the plaintiff. The plaintiffs, consequently, asserted their right by issuance of Legal Notice, dated 30-8-1999 demanding mutation on the basis of boundaries described in the lease as well as in the site-plan issued by the defendants, however, the defendant refused to carry out the mutation and advised the Plaintiffs to either pay a sum of Rs,7 million for the extra land admeasuring 1128 Sq. Yards or vacate the same. It was asserted that the plaintiffs had purchased a duly constructed bungalow and had no means of finding out that any part of the said bungalow would be disputed by the defendants and such belief was based on the documents issued and approved by the defendants and now the defendants are estopped from challenging any part of the said bungalow on the ground of it being excess of lease area. It was asserted that sub-lease in Form "A" and "B" as well as site-plan issued by the Defendant in respect of "said plot" describe the following boundaries:-- ' North: 60 feet wide South Park Avenue South: 120 feet wide Sunset Boulevard East: 60 feetwide South Park Avenue West: 40 feet wide. South Park Street ' And since the "said plot" on which the bungalow is situated in within the afore-stated boundaries as such the dispute regarding size or area becomes immaterial. On the other hand, the defendants filed their written-statement, contending that originally Plot No,A-2-A admeasuring 2000 Sq. Yards was allotted to Col. Sultan Muhammad Khan on 5th October, 1963. The site-plan was issued on 18- 10-1963, sub-lease in "Form A" was executed in his favor on 12-3-1963 showing an area of 2000 Sq.
4. Yards, later on the area of plot was revised from 2000 to 2600 Sq.Yards through Deed of Rectification, dated 23-6-1964 and thereafter on 19-11-1964 the building plan was approved, and upon completion of building lease in From B was executed on 16-2-1968. It was contended that on 10-12-1998 the plaintiffs applied for the mutation of 'said property' in their nameswhereupon the 'said property' was checked and it transpired that the owner had encroached and occupied an excessive area of 1128 Sq.Yards over and above the original allotted area of 2600 Sq.Yards.
5. Consequently, the owners were asked to either vacate or to pay for the extra land so that their application for mutation may be processed. However, the owners have neither agreed to pay the cost of extra land nor have vacated the same. It was submitted by the defendants that since there was a part adjacent to the 'said plot' and no other residential plot exists in the surrounding area, hence the "said property" was not checked during past decades in the end, it was asserted that the plaintiffs are only entitled to mutation of suit property in their name if they agree to pay for the extra land encroached by them or vacate the same.
6. ' On the basis of the pleadings of the respective parties following issues were framed:--
(1) Whether the Defence Housing Authority can determine the lease in Form-B executed by the Military Estate Officer on behalf of the President of Pakistan or resume any portion of land for which such lease has been granted?
(2) Whether mutation before the Defence Housing Authority is mandatory and if so, whether the Defence Housing Authority can refuse to mutate a transfer where the lease has been granted by the President of Pakistan?
(3) Whether the Defence Housing Authority in law has the power to question the right and title of the lessee in respect of the lease issued by Military Estate Officer?
(4) Whether the plaintiff is in illegal possession of extra area measuring 1128 Sq.Yards in addition to his own plot measuring 2600 Sq. Yards.
(5) Whether the plaintiff has purchased suit property measuring 2600 Sq. Yards or 3728 Sq. Yards.
(6) What should the decree be?
7. ' On 24-11-2003 it was ordered that since the issues are of legal nature, therefore no evidence is required and consequently the case was listed for arguments to be decided on the basis of documents on record.
8. ' As to issue No,l. I am of the view that this issue does not arise from the pleadings as the defendants have never claimed that they have any right to determine the lease in Form 'B' executed by the Military Estate Officer on behalf of the President of Pakistan nor have asserted to resume any portion of land for which such lease has been granted. Onthe contrary, Mr. Nazar Hussain Dhoon has very fairly conceded that the defendants cannot resume any portion of land covered by the lease, in view of such statement no further discussion or determination is required.
9. ' As to issue No,2, both the learned counsel have not addressed on the first part of the issue requiring determination as to the necessity of mutation in the records of defendants. However, from the scrutiny of the documents on record it cannot be disputed that the defendants are acting as Managers for the actual owner of land who is no one but the President of Pakistan and the names of plaintiffs have already been mutated in the records of rights maintained by the Military Estate Officer on behalf of the President. Even otherwise the only requirement for acquiring title to an immovable property of the value of Rs,100 or above as envisaged under section 54 of the Transfer of Property Act is a registered instrument which in the present case is Sale-Deed, more over it is well A settled by now that mutation neither creates title nor extinguishes it but in fact, is a record and an evidence of a transaction which has already taken place, the failure to effect the mutation by itself cannot undo the registered sale. The Hon'ble Supreme Court in the case of Muhammad Munir v. Muhammad Saleem and others (2004 SCM R 1530) has held that "mutation entries in the Record of Rights are maintained for fiscal purposes and do not decide the question of title finally. At any event, such entries do not confer right of ownership of property". Whereas in the present case the owner of the "said plot" has mutated in the "said plot" in the names of the plaintiffs, therefore, mutation of names in the record of defendant who are only acting as Managers for the owner of the land cannot be termed as mandatory for the purposes of accomplishing title. As to the second portion of the issue Mr. Nazar Hussain Dhoon, at the very outset of his arguments has conceded that the Defendants in accordance with Rule 36 of Guide Book of the Authority upon receipt of mutation charges as well as photocopies of medium of Conveyance Photographs of the transferee etc. Are bound to mutate the names of the plaintiff in their record in accordance with and to the extent of the area covered under the lease granted by the President of Pakistan through Military Estate Officer. The learned counsel further contended that the defendants never refused to mutate the suit property in the name of the plaintiffs if the excess land in their possession is vacated or its price is paid. Even now the defendants are willing to mutate the name of the plaintiffs in their record in accordance with Lease subject to their rights to take action in order to recover extra land which does not form part of lease. The issue is answered accordingly.
10. ' IssueNo,3 also does not arise from the pleadings as the defendants have never questioned the rights and title of the plaintiffsarising out of the lease but are questioning the area which, according to them, is not covered under the lease.
11. ' The real dispute between the parties is covered by issues Nos.4 and 5 and since both the issues are inter-linked as such are taken up together.
12. ' It is evident from the sub-lease in Form B' executed by the Military Estate Officer in favor of the predecessor-in-interest of the plaintiffs that the 'said plot' is surrounded by the metalled roads. The Master Plan placed on record also reflects that the 'said plot' is a solitary plot and is surrounded by roads on all sides. A perusal of para.5 of the written statement reveals that the 'said plot' at the time of allotment was admeasured at 2000 Sq. Yards, while the area of the plot was revised from 2000 to 2600 Sq. Yards at the time of approving the Building Plan. The defendants in support of such plea have produced three site plans one showing the area of "said plot" as 2000 Sq. Yards and two plans issued after revising the area of "said Plot" from 2000 Sq. Yards to 2600 Sq. Yards. In the first Site-plan which was issued on 18-10-1963 the "said plot" is shown as rectangular and the measurements are given as 180x100 ft. It is shown to be bounded.
13. ' On North by 60 feet wide South Park Avenue On South by 120 feet wide Sunset Boulevard. On East by 60 feet South Park Avenue.On West by 8 feet wide Lane.
14. ' This site-plan further shows a triangular park on the West side after the 08 ft. Wide lane as well as a small piece of land on the North side of the `said plot' whereas in the first revised site-plan, dated 6-2-1964 issued after increasing the area of "said plot" from 2000 Sq. Yards to 2600 Sq. Yards neither the park after the 08 ft. Wide lane on the West side is shown nor the small piece of land on the North side, and on West instead of 8 ft. Wide lane 40 ft. Wide South Park Street has been shown and further the shape of the said plot has been changed from rectangular to more or less oval and its width on the southern side, has been increased from 100 ft to 120 ft and on the northern side the maximum in the oval shape is increased to 150 ft whereas the depth has been decreased from 180 ft to 174 ft and it is shown to be surrounded by roads as on all sides i,e, ' North: 60 feet South Park Avenue South: 120 feet wide Sunset Boulevard. East: 60 feet South Park Avenue West: 40feet wide South Park Street.
15. ' The third site-plan, dated 4-12-1975 annexed with the written-statement appears to have been issued in the name of Begum Surraya Sultan wife of Col. Sultan Muhammad Khan after the completion of the construction and issuance of Lease of Form 'B'. A perusal of the third Site-plan reflects that it is a replies of second site-plan and reflects the same area of 2600 Sq. Yards, within the same boundaries.
16. ' From the examination of above referred documentary evidence produced by the Defendants, it is crystal clear that there was no extra piece of land within the boundaries where the "said Plot" was situated which could have been trespassed by the plaintiff or their predecessor-ininterest, the defendants further have not disclosed in their written statement the availability of any extra land within the described boundaries which could have been trespassed by the plaintiff or their predecessor-in-interest. The plea of the defendants that the plaintiffs or their predecessor-in- interest have trespassed on extra land in their possession therefore cannot be accepted. In view of what has come on record and discussed above it leaves no doubt in my mind that the excess land within the boundaries of the "said plot" was a result of favoritism extended by the defendants to its Director of Works and Chief Engineering and for this reason the defendants did not object for more than three decades till he or his wife remained the owner and knowingly kept on issuing site-plan showing the area of plot as 2600 Sq. Yards instead of actual area i,e, 3728 Sq. Yards.
17. Notwithstanding since the defendants have failed to establish that the plaintiff have trespassed over any piece of land and there is sufficient documentary evidence available on record reflecting that even the excess land was handed over by the defendants themselves, therefore, the possession of the plaintiffs even to the extra area of 1128 Sq. Yards can, by no stretch of imagination, be termed as illegal and the issue No,4 is answered, accordingly.
18. ' As to issue No,5, the defendants have not denied the claim of the plaintiffs that they were living in the suit property since 30h October, 1974 as tenant of their predecessor-in-interest and in whose favor the Defendants have issued third site-plan on 4-12-1975, much after the completion of construction while the plaintiffs were occupying the said property', as tenants. It appears that the defendants deliberately in order to accommodate the predecessor-in-interest of the plaintiffs did not object to the excess area and issued revised plan showing the area of the "said property" within the prescribed boundaries as 2600 Sq. Yards and by their such conduct led the plaintiffs to believe that the "said property" comprises of the area prescribed in the lease, therefore the contention of .
19. Ms. Minhas learned counsel for the plaintiffs that since the plaintiffs have purchased all that piece and parcel of land described within the boundaries given in the second and third site plans as well as in the lease deed therefore, it becomes immaterial as to whether the area withinthe said boundaries is 2600 Sq. Yards or 3728 Sq. Yards cannot be ignored.
20. ' In support of her intention she has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Rasheedur Rehman v. Akram Khan (1989 SCM R 1982), wherein the petitioner after selling an area of 5 Kanal to the respondents brought a suit on the ground that if a Marla is equal to 260 Sq. Ft., he would be able to retain some area over and above 5 Kanals so counted. The respondents contended that a Marla is equal to 272 Sq. Ft., in the concerned locality. The Hon'ble Supreme Court refused the leave on the ground that since the petitioner had sold the entire plot, therefore, there was no scope for him to retain any part thereof on the basis of calculation ignoring the other.
21. ' In the like manner since the defendants have sold the entire land within the boundaries described in the site-plan as well as in the lease deed and their plea that the plaintiffs or their predecessor- in-interest have trespassed over the extra land has proven false, as the defendant were even not able to show that the existence of any extra land within the island, therefore, the plaintiffs have all the right to retain all that piece and parcel of land within the boundaries described in the lease may it be 2600 Sq. Yards or 3,728 Sq. Yards. However since it has been established from the record that the defendants either deliberately to extend favoritism or through a mistake calculated the area of the suit plot as 2600 Sq. Yards instead of its actual area of 3,728 Sq. Yards at the time of leasing out the said plot to Col. Sultan Muhammad Khan while granting sub-lease by way of "Form A" and have charged premium on the basis for per square yard, therefore, the defendants at the best could be entitled to the premium for the extra land at the same rate as was charged at the time when the sublease by way of Form A was granted along with all other proportionate development charges as were charged by the defendants in respect of 2600 Sq. Yards for the reason that the defendants had handed over and parted with the possession of the entire plot on 12-3-1963, therefore, they have no legal or moral justification to charge for the extra land at the present market value.
22. ' In view of what has been recorded above, the suit of the plaintiff is decreed as prayed with no orders as to costs within the direction that the plaintiff shall pay to the defendants proportionate premium and development charges for the extra area of 1128 Sq. Yards within 30 days from the demand raised by the defendants at the same rate which was charged by the defendants at the time of granting lease in respect of 2600 square yards.