1. ' ATTA-UR-REHMAN, J.--- C.M.A.6681 of 2004. This is an application under Order I, rule 10, C.P.C., filed by 39 persons for joining them as interveners in the plaint. By consent, and subject to all just exceptions, this application is granted to be joined as plaintiffs in addition to the existing plaintiffs.
2. Learned counsel for the plaintiff to file amended title of the plaint and pay the fees, if necessary within 15 days. No notice is required to the newly added plaintiffs, as they are being represented by their counsel. The newly added plaintiff to pay court-fees in accordance with law within 30 days.1-
2. Civil Miscellaneous Applications 4356 and 6680 of 2004. These are two applications under Order XXXIX, rules 1 and 2, C.P.C. Filed by plaintiff and newly added plaintiffs respectively, seeking an order restraining the defendants from dispossession them from the disputed property.
3. ' The plaintiffs filed this suit for declaration that they are lawful owners of the suit property comprising 16-00 acres of land (the property), direction to the defendant No,1 to regularize the same in their favour, damages and permanent injunction.
4. ' The case of the plaintiff is that they are lawful owner of Goth Yousuf Khan situated at Deh. Bitimari, Taluka and District Malir, Karachi comprising of 16 acres of land, granted under sections 3, 8 and 10 of Sindh Goth Abad (Housing Scheme) Ordinance, 1987, vide, order dated 9-5-1998 (the order is available at page 177). On the basis of this letter they were issued Sanads and their name were brought on record of rights (see Annexures "A-1", "A-3" at pages 17 and 19 of the file). The Province of Sindh, by Ordinance III of 2001, cancelled all the allotments granted from January, 1985 at the rates lower than the market value and constituted a Committee for determining the amount of loss caused to the Government and called upon the person concerned to pay such amount within a specified period. The plaintiffs approached the said Committee which had already determined the value and the demand notice was to be issued to that effect.
5. ' The case of the defendants is that Goath Yousuf Khan is a dummy village and it never existed at the site as alleged by the plaintiffs. The Sindh Goth Abad (Housing Scheme) Act, 1987 was promulgated on 26-3-1987 whereafter a directory of existing villages was prepared in 1990. The alleged village of the plaintiffs does not appear in the said directory. By the order dated 27-11-1998 (this order is annexed with the W.S.), the D.C./Collector Malir, as he was then, withdrew/ cancelled the order of Village Yousuf Khan. They also referred to the judgment dated 14-9-2004 passed in C.P.No,D-356 of 2004 and submitted that the claim of the plaintiffs pertaining to said land has already been decided.
6. ' From the facts and material on record, it appears that a total area for the Goth was 45-00 acres allotted in two phases i,e, one measuring 25-00 acres in 1997 and 20-00 acres in 1998 including four acres for graveyard. The order passed in 1997 and 1998, for grant of 25-00 and 20-00 acres of the land respectively, were examined and the D.C. On 27-11-1998 concluded that it was a dummy village and the orders in favour of the plaintiffs were passed in connivance with the. Mukhtiarkar at the time. The order dated 27-11-1998 passed by the D.C. Is Annexure "B" to the written statement.
7. ' From the order dated 27-11-1998, it transpires the formalities in respect of 25-00 acres of land allotted in 1997 were completed but not for the additional area of 20-00 acres of land. The D.C./Collector Malir ordered withdrawal of the orders passed in 1997 and onward and restored the property to the Government.
8. ' According to the plaintiffs the order dated 27-11-1998 passed by the D.C. Pertains to 25-00 acres of the land allotted in 1997 and not 16-00 plus 4-00 acres of land allotted to them in 1998. In C.P. No,D- 356104 10 persons led by Fakir Muhammad claiming to be Chairman of Goth Yousuf Khan claimed ownership in respect of 25-00 acres of land and questioned notice dated 10-12-2003 issued under sections 141, 144 and 145 of S.L.G.O. 2001 by the office of the District Officer (Revenue Enforcement), City District Government Karachi, directing the petitioners therein to vacate the plot. The Court after examining the documents relied upon by the petitioners dismissed the petition by order dated 14- 11-2003.
9. ' Mr. Shah submitted that the present plaintiffs have no concern with the petition or the subject- matter thereof. The plaintiffs are only concerned with 20-00 acres of land allotted to them by order dated 9-5-1998 as referred above.
10. ' I have considered the submissions of the learned counsel for the parties. The Scheme of Sindh Goth Abad Act, VII 1987 applies to all the rural areas in the Province of Sindh except the areas, which may be excluded by the Government. (see section 1(3) (ibid). Section 2(m) defines the village which includes Goth, Wahan, or Tando, excluding urban area. Section 3 pertains to the allotment of land in a Goth and section 6 applies to the cancellation of allotment for the reasons disclosed therein. The order dated 9-5-1998 which is crux of the present matter was issued by D.C., as he then was under sections 3, 8 and 10 (section 3 however has not been printed therein) of Act VII of 1987.
11. Examination of section 3 (ibid) reveals that on recommendation of the Allotment Committee the Collector may allot a piece of land to an applicant not exceeding 2 Ghuntas for construction of the house. The proviso thereof provides that the limit of two Ghuntas shall not apply to the land or Asaish where upon a deserving person had built a house before coming into force of the Act. While examining the order dated 5-9-1998 vis-a-vis section 3 (ibid), with respect I am unable to understand how this order is in consonance with this proviso in view of section 3. It had allowed allotment of 20 acres of land at one and same time which apparently is in contravention of section 3 (ibid). The order dated 9-5-1998 does not even disclose names of the persons who had applied for allotment of the land nor it discloses as to what area of land of plot is being allotted to each of the applicant. Similarly on what consideration the D.C. Had allowed allotment of land of 20- 00 acres to alleged applicants is also not clear from the said order: ' Mr. Shah's submission that under the proviso the D.C. Could have allotted the plot of any size to the applicants is not sustainable. He has not taken into consideration the words of the proviso which disclosed that the limit shall not apply to the land or Aasaish whereupon a deserving person has built a house before coming into force of this 1987 Ordinance. Nothing has been placed on record of this Court to show that the plaintiffs were covered by this proviso. The directory which was issued in 1990, listing the existing villages does not disclose the name of this village, therefore, the Act would not be applicable to the claim of the plaintiffs. This Act will come into play only in respect of the existing villages but if there is no such village no question of allotment under section 3 or proviso thereto arise.
12. ' Mr. Shah's further contention that it was perhaps due to omission that village of the plaintiffs could not be listed in the said directory is also not sustainable. In that event, it was incumbent upon the plaintiffs to have first challenged the directory and get their village listed and thereafter should have proceeded further. Learned counsel though has very vehemently relied upon some order passed by the Committee constituted under Ordinance, III of 2001, which according to him determined the rates of the property and only challan by Board of Revenue has to be issued, however, he has not been able to place before the Court the orders of the said committee nor it is being shown as to what were the finding of the committee. Even otherwise, the committee under said Ordinance is not competent to decide the title of the parties. It is only for determination of the market value at the time when the lands were allotted to the parties. It is not correct assertion of the plaintiffs that 20-00 acres of land has no concern with 25-00 acres of land earlier allotted to the said village. The order, dated 9-5-1998 in fact is .... In continuation of the earlier order dated 6- 5-1997 and 20-00 acres of land granted in 1998 was the extension to the 25-00 acres land already granted to Goth Yousuf Khan. It was, therefore, incorrectly contended that the order, dated 11-11- 1998 does not cover the order, dated 9-5-1998.
13. ' In such prevailing circumstances, I find that the plaintiffs have failed to establish a prima facie case for grant of injunction under Order XXXIX, rules 1, 2, C.P.C. It is the case of the defendants that they are developing the public project namely Inter City Bus Terminal which is being hampered due to the proceedings before this Court and other cases, therefore, the balance of inconvenience is in favour of the defendants rather than the balance of convenience in favour of the plaintiffs. The plaintiffs have also claimed damages to the tune of Rs,5 (M), therefore, there, is no likelihood of irreparable loss to be caused to them.
14. ' In view of the above the two applications are dismissed.