1. ' MRS. QAISER IQBAL, J.---The plaintiff has filed suit for declaration and injunction against defendant.
2. ' Precisely the facts leading to the case are that plaintiff had purchased land measuring 8.20 Acres bearing Survey No,100 Deh, Deh Dih, Tappo Ibrahim Haideri, Karachi from its recorded. Owner Messrs Al-Hamra Trading Corporation having their office at Federal "B" Area, Karachi through registered sale-deed, dated 12th November, 1996 for a consideration of Rs, 5,226,000 for the purpose of setting up educational institution. Consequent thereupon physical possession was handed over upon which 145 coconut trees were grown, the plaintiff constructed boundary wall by making huge expenditure. The plaintiff being a bona fide purchaser had made inquiries from the Government functionaries including the Deputy Commissioner East and field staff, they confirmed that the suit-land was not handed over to KMC or KDA for any purpose. On 2nd December, 1992 suit-land was transferred by the grantee in favor of Messrs Al-Hamra Trading Corporation under a registered sale-deed. Physical possession was handed over, however in the. Year, 1996the Government of Sindh had imposed ban on transfer, sale and mutation, approval of layout plan.
3. Suit-land was also included within the purview of Enquiry Commission (Land) constituted by the Government of Sindh which was later released vide order, dated 7-4-1996 permitting transfer, sale, mutation, registration, approval and layout plan. Messrs Al-Hamra Trading Corporation had filed C.P. No,D-2508/ 1994 which was subsequently withdrawn in view of the order referred above. After 5 years, on 8th September, 2001, officers of the defendant come to the suit-land with police escort, directed the bulldozer operator to demolish the boundary wall constructed around the suit-land.
4. Later, defendant's employees had orally communicated that the suit-land was owned by the defendant consequently notice under Article 131 of the KDA Order, 1957 was served by the plaintiff and plaintiff has proceeded to file the suit for declaration, injunction and damages amounting to Rs,2.5 million.
5. ' The defendant resisted the suit by filing written statement contended that land of Na-Class 24 out of which Survey Nos. 97, 98, 99 and 100 have been formed, falls within the KDA Korangi Scheme notified in the Government Gazette, dated 3-3-1959, Na-Class 24 Deh Dih is a big Chunk of Revenue land falls within the Korangi Township, KDA has prepared a development plan and created infrastructure having incurred expenses. The suit-land is vested in KDA. Its subsequent allotment by the Board of Revenue including conversion of lease to 99 years is illegal, ultra vires and has no legal effect. Therefore KDA was fully justified to protect its land being illegally occupied by unauthorized elements.
6. ' Upon the pleadings of the parties following issues were framed by the Court:-- ' Whether cause of action has ever accrued to the plaintiff for filing suit against the defendant KDA?
7. ' Whether the land bearing Survey No,100 (carved out of NaClass No,24) Deh, Tapo Ibrahim Haidri, Karachi, vests in the defendant under Government Notification, dated 3-3-1959?
8. ' Whether the plaintiff is lawful transferee/lessee of land bearing Survey No,100, Deh Dih, Tapo Ibrahim Haideri, Karachi?
9. ' Whether the Goverment of Sindh/Board of Revenue could / can make allotment/grant lease of the suit-land? Its effects.
10. ' Whether land in question belongs to the defendant KDA and falling in KDA Korangi Township Scheme duly notified in the Government Gazette, dated 3-3-1959?
(6) Whether the land under NC. 24 Deh Dih has been vested inKDA for the last more than 41 years which is confirmed by the Mukhtiarkar Karachi/Deputy Commissioner Karachi through letter, dated 11-1-1973 and 24-1-1973.
(7) Whether defendant created the basic infrastructure thereby incurring heavy expenditure on the land in question?
(8) Whether any lease, transfer, mutation, exchange during the period of ban imposed by the Government of Sindh from August, 1990 to November, 1996 including plaintiff case is legal and justified? If not what is its legal effect?
(9) Whether the Vendor Messrs Al-Hamra Trading Corporation including the Government of Sindh is proper party for just and equitable decision and they are proper party to be included in the proceedings?
(10) What should the decree be?
(11) Was the defendant authorized and acted lawfully in carrying out demolition of boundary wall around the suit-land on 8-9-2001?
(12) Is the plaintiff entitled to damages/compensation from the defendant? If so, to what extent.
11. ' I have heard learned counsel appearing for the, parties, perused the record of the case. The plaintiff in support of the case examined P.W.1. Naseemul Haq Exhibit 5/A, P.W.2 Malik Muhammad Gulistan Exhibit 6/1, Accountant of the plaintiff, P.W.3 Anwar Hussain exhibit 7/1, P.W.4 Israr Ahmed exhibit 8/1, whereas on behalf of the defendant D.W.1 Jamil Ahmed exhibit 9/1 was examined. Upon examination of the record my findings on the issues are as follows:-- ISSUE NO.1.
12. ' The controversy relates to the disputed land purchased by the plaintiff from Messrs Al-Hamra Trading Corporation for the purpose of running the educational institution, physical possession thereof was delivered but after five years the defendant's employees in violation of the law proceeded to demolish the boundary wall constructed thereon by incurring expenses. Cause of action as specified under the law pertains to the totality of the facts embodied in the plaint therefore on appraisal of the contents of the plaint a specific cause of action accrued to the plaintiff against the defendant. Issue No,1 is answered accordingly. ISSUES NOS.2 & 5 ' The plaintiffs have claimed entitlement on the disputed plot by way of title documents produced by P.W.1 Naseemul Haq while thedefendant's witness Muhammad Jamil has set-up the case that KDA had acquired all rights in the disputed land on the basis of the notification exhibit 9/2 issued by KDA.
13. ' A notification issued by. KDA as exhibit 9/2 is in the followingterms:-- "Whereas a Township for the settlement of displaced and other persons is being set up at Korangi and whereas it is expedient to provide for its future expansion.
14. ' Now, therefore, the Karachi Development Authority in exercise of the powers conferred on it by Article 12 of Karachi Development Authority Order 1957 (President's Order No,5 of 1957), hereby declares with effect from the date of issue of this Notification the area bounded and abutted as under to be the controlled area for the purpose of prevention of haphazard growth of colonies, buildings and other operations in that area:-- ' On the North: By Malir River and the western and southern boundaries of Deh Saphro.
15. ' On the East: By the boundary of Karachi Administration area eastern boundaries of Dehs Khanto and Gangiaro.
16. ' On the South: By the Kandiro Creek, Kornagi Creek and the P.A.F. Kornagi, (Arabian sea)
17. ' On the West: By Gizri Creek and the mouth of Malir River.
18. ' This land includes the whole of Deh Dih, Deh Phihai, Deh Ibrahim Hydri, Deh Rehri, Deh Sharabi, Deh Ganglaro, Deh Khanto, and parts of Deh Landhi and Deh Drigh Road.
19. ' A map of the area will be fixed on the Notice Board of the Karachi Development Authority and may be seen by all interested."
20. ' It is evidently clear from the above notification that his land includes the whole of Deh Dih where plot of land in dispute is situated.
21. ' Mr. Mushtaq Memon learned counsel for plaintiff has contended that only notification (Exhibit 9/2) relied upon by the defendant's witness Jamil was issued under Article 12 of the Karachi Development Authority Order, 1957 and declared the land of the area as controlled area for the purpose of prevention of haphazard growth of colonies. It is urged that Article 12 can only control the area and there is nothing in Article 12 that any right in respect of such disputed area has been acquired by Karachi Development Authority upon being declared as controlled area.
22. ' It has been held in. Unreported Suit No,605 of 1992. (Messrs Apparels (Pvt.) Ltd. v. Karachi Development Authority and another) that the notification did not have the effect of vesting the land in Karachi Development Authority as the land was a Government land and had not been transferred to Karachi Development Authority. The view expressed A by Single Judge was confirmed in High Court Appeal No,103 of 1994 filed by Karachi Development Authority as well as by Hon'ble Supreme Court of Pakistan in C.Ps. Nos.383-K/94 and 384-K/94. Since Karachi Development Authority had failed to prove the ownership of disputed plot, leave was refused.
23. ' The plaintiff has purchased the suit-land from Messrs Al-Hamra Trading Corporation through registered sale-deed exhibit 5/1 which was resurveyed as per Survey map Exhibit 5/2 whereas lease agreement Exhibit 5/3 was executed on 22nd September, 1992 between Government of Sindh and one Abdul Latif. The consequence thereto two entries were recorded in Deh Form No,2 Exhibit 5/4 in the npme of Abdul Latif who had sold the suit-land including other surveys to Messrs Al- Hamra Trading Corporation as is vouchsafe from conveyance deed Exhibit 5/8. Pursuant upon the removal of ban being imposed by the government, no objection certificate for sale of land was awarded to Abdul Latif through Exhibit 5/18.
24. ' Mr. Qaiser Jamil learned counsel for KDA has contended that the documents relied upon by the plaintiff do not confer any right upon the plaintiff. The land stood transferred to Karachi Development Authority but no document has been produced by the defendant to establish the entitlement in the suit-land, it was ever transferred to Karachi Development Authority. It is abundantly clear from Exhibit 9/2 that the suit-land was not vested with the defendant under KDA Notification, dated 3rd March, 1959. Issues Nos. 2 and 5 are answered accordingly. ISSUE NO.3 ' The plaintiff has claimed ownership in Survey No,100 Deh Dih, Tappo Ibrahim Haideri, Karachi and has placed reliance on the documentary evidence comprising of Exhibits 5/1 to 5/22 which suggests that the land was initially granted to Abdul Latif S/o Muhammad Bux later transferred to Messrs Al-Hamra Trading Corporation from them the plaintiff has derived lawful rights in the disputed land. In rebuttal defendant has only placed reliance on exhibit 9/2 which does not confer any right upon the Karachi Development Authority to claim the suit property. I am constrained to hold that plaintiff is lawful transferee/ lessee of suit-land. Issue No,3 is answered accordingly.
25. ISSUES NOS.4, 6 & 7 ' The defendant did not examine Mukhtiarkar of the area as well as the then Deputy. Commissioner Karachi who had allegedly written letter, dated 11-1-1973 and 24-1-1973 which pertains to the comparative statement showing Government land acquired by the Karachi Development Authority in various schemes. Adverting to issue No,7 no document has been produced by the defendant that expenditure for basic infrastructure over the suit-land was incurred by Karachi Development Authority. Documents produced by the plaintiff explicitly reveal that land was owned by Government of Sindh and was allotted to Abdul Latif. Above issues are answered accordingly. ISSUE NO.8 ' It is averred by the learned counsel for defendant that from August, 1990 to November, 1996 on account of ban imposed by the Government of Sindh plaintiff had no legal right or character to purchase the suit property. On behalf of the plaintiff reliance have been placed on C.P. D- 2508/1994 filed by' Messrs Al-Hamra Trading Corporation against the Government of Sindh and another, consequent thereto no objection certificate for the sale of the land was issued to Abdul Latif vide Exhibit 5/18, issued by the Secretary land Utilization Department consequent thereupon the disputed land was sold to Messrs Al-Hamra Trading Corporation and then to the plaintiff because after the withdrawal of above referred C.P. The land was purchased by Messrs Al-Hamra Trading Corporation therefore question of ban is not attracted to the facts of the present case.
26. Issue No,8 is answered accordingly. ISSUE NO.9 ' Learned counsel for the parties did not press this issue therefore it has become redundant. ISSUES NOS.11 & 12 ' The plaintiff has claimed a sum of Rs,25,00,000 as damages caused to the boundary wall demolition by the Karachi Development Authority officers as well as humiliation and mental torture sustained by him. P.W. Naseemul Haq has deposed that on 8th September, 2001 three officers of the Karachi Development Authority escorted by police workforce with bulldozers came in the disputed land and demolished the boundary wall constructed by spending huge amount. Defence is only suggested that the claim of damages is baseless and malafide, such suggestion was denied by the plaintiff. In support of the above contention P.W. Malik Muhammad Gulistan Accountant of the plaintiff and P.W. Anwar Hussain Chowkidar of the plaintiff have specifically stated that coconut trees were grown up for the last 10 years and boundary wall waserected around the land, defendant's witness Jamil Ahmed has primarily denied the demolition of the boundary wall on the plaintiff's land however stated that the boundary wall which was coming on 300 feet road was demolished. The admission itself suggests that there exists boundary wall on plaintiff's land. It was demolished as a consequence thereto plaintiff is entitled to the damages. In order to compensate the plaintiff Court is required to determine the proper damages in view of the nature of the wrong done and loss caused as is held in 2005 SCM R 1950 and PLD 1996 SC 737.
27. Consequently plaintiff is entitled to the damages amounting to Rs,2,000,000 (Rupees Two Million).
28. Issues Nos.11 and 12 are answered accordingly.
29. ISSUE NO.10 ' In view of the above discussion the plaintiff's suit is decreed in terms of prayer against the defendant and a sum of Rs,2,000,000 (Rupees Two Million) is awarded to the plaintiff as damages with cost.