C.M.A. No,7112 of 2005 ' KHALID ALI Z. QAZI, Js--- This is an application under Order XXXIX, Rules 1 and 2, C.P.C. Read with section 151, C.P.C. Filed by the plaintiff. Through listed application plaintiff seeking interlocutory injunction restraining defendants Nos.1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 their subordinates, workers, officers, persons acting under or through them from interfering in any manner whatsoever with the peaceful physical possession, enjoyment, use and ownership of the plaintiff suit property bearing Nos.12, 13, 22, 23, 31, 32, 35, 36 each measuring 4 acres and Plot No,34, measuring 2 acres totalling 34 acres in all situated in K-28, Phase II, Trans Lyari Quarters, Karachi, situated on main Hawksbays Road, Karachi and further restrain defendants Nos.2, 3, 4, 5, 6, 7 and 8, their subordinates, workers, officers, persons acting under or through them from creating any third party right, title or interest in the suit property and or interfering in the construction including of boundary wall on the suit plot.
' Brief facts of the case requisite for disposal of this application are that upon payment of the occupancy value and other relevant charges/dues in respect of the suit property by the plaintiffs predecessor in interest who thereafter executed registered Indenture of Lease with the plaintiff for the suit property in respect of Plots Nos.12, 13, 22, 23, 31, 32, 35, 36 each measuring 4 acres and Plot No,34, measuring 2 acres totalling 34 acres in all situated in K-28, Phase II, Trans Lyari Quarters, Karachi, situated on main Hawksbays Road, Karachi on 5-9-1993. The Indenture of Lease the plaintiff was provided all original documents in respect of the plaintiffs suit property. It is further stated that the plaintiffs name was duly recorded/mutated in the record of rights, dated 18-11-1993 based on the registered Indenture of Lease executed in his favour for 99 years by the plaintiff's predecessor in interest/original grantee of the suit property. The plaintiff was also provided copy of the plan of Industrial Area in K-28, Trans Lyari confirming the suit plots.
2. It is urged by Mr. Abid S. Zuberi learned counsel that upon execution of the lease agreement in favour of the plaintiff the plaintiff was handed over all original documents in respect of the suit property i,e, Plots Nos.12, 13, 22, 23, 31, 32, 35, 36 each measuring 4 acres and Plot No,34, measuring 2 acres totalling 34 acres in all situated in K-28, Phase-II, Trans Lyari Quarter, Karachi, situated on main Hawksbays Road, Karachi and has remained in absolute vacant physical possession of the suit property without any hindrance from any quarters to date. Learned counsel further stated that the land in the area i,e, Phase II vest in the Government of Sindh and which has been allotted to various individuals. On a number of plots factories have been constructed and a petrol pump is also existing thereupon.
3. It is stated by the learned counsel that plaintiff's name had been duly mutated in the record of rights as the registered owner of the suit property, the plaintiff undertook to construct a semi permanent boundary wall around the entire suit premises i,e, Plots Nos.12, 13, 22, 23, 31, 32, 35, 36 each measuring 4 acres and Plot No,34, measuring 2 acres totalling 34 acres in all. The cost incurred by the plaintiff in raising such construction to safeguard their property from trespasser/encroachers was around Rs,10,00,000 (ten lac) in the year 1993. It is further urged that upon completion of construction of the plaintiff's boundary wall on the suit premises the plaintiff continues to enjoy total peaceful vacant possession and no objection has been raised to date from any quarter including defendants for the construction/erection of the boundary wall around the plaintiff's suit premises. It is stated that there is no litigation in any Courts whatsoever in respect of the suit property i,e, Plots Nos.12, 13, 22, 23, 31, 32, 35, 36 each measuring 4 acres and Plot No,34, measuring 2 acres totalling 34 acres in all situated in K-28, Phase-II, Trans Lyari Quarter, Karachi, situated on main Hawksbays Road, Karachi.
4. It is further contended by Mr. Abid S. Zuberi learned counsel that in the year 2001 the Government promulgated the Sindh (Government Land) (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2000 (Sindh Ordinance No,III of 2001). The plaintiff's suit property also came within the ambit of the said Ordinance. A Committee was constituted by the Government to fix the rate for the purposes of land affected by the said Ordinance. The Committee fixed the rates and persons affected under the Ordinances have applied for the regularization of the lands under the Ordinance. The plaintiff also vide letter, dated 10-12-2002 addressed to the defendant No,1 for regularization of the suit-land and requested for the issuance of challan for payment of the differential amount. However, to date no challan has been issued and the case is pending with the defendant No,
1. The defendant No,1 is bound to issue the challan and after payment the suit plot be regularized as the plaintiff has given its acceptance. The non-issuance of challan is illegal, arbitrary, mala fide and without jurisdiction. The defendant No,1 and its subordinate officers are under lawful duty to issue challan and regularize the suit plot. The Chief Minister has no authority to sit over the decision of the Committee constituted under the Ordinance.
5. It is urged that on 8-9-2005 the officials of defendants Nos.2 and 3 along with their security staff and defendant No,6 came to the plaintiff's suit property and illegally attempted to trespass therein and dispossess the plaintiff from the suit property. That despite plaintiff's resistance they demolished portion of the semi permanent boundary wall constructed by the plaintiff around the suit property. The plaintiff in vain tried to persuade the representative of defendants Nos.2, 3 and 6 not to take any illegal action or encroach/trespass on the suit property and showed them all the relevant title documents but to no effect. The said illegal action on the part of the said persons were without any notice or lawful authority as the plaintiff is the lawful owner of the suit property. It is further submitted that the whole action on the part of the officials of defendants Nos.2 to 6 in collusion with the other defendants are mala fide, arbitrary and without jurisdiction and in violation of the rules of natural justice and Article 23 of the Constitution of Pakistan.
6. It is contended that the defendant left the suit premises after hurling dire threats to the plaintiff that they have express order from defendants Nos.2, 4 and 5 to demolish boundary wall and take over possession as they have been directed by the superiors that the said property belonging to the plaintiff is to be used by the establishment for a Training Centre by the Central Board of Revenue. The plaintiff thereafter made all endeavours to reason with the officials of defendants Nos.2, 5 and 6 and even left copies of all title documents but to no avail. The plaintiff fearing illegal action once again by the defendants Nos.4 and 5 addressed a legal notice, dated 1-8-2005 which was duly received by defendants Nos.5, 6, 10 and 11 but no reply todate has been received from any of the defendants in regard to the above mentioned legal notice.
7. Learned counsel for the plaintiff urged that despite service of the legal notice, dated 1-8-2005 the defendants Nos.2 and 3 along with defendant No,6 and their security staff/guards/officers in collusion with the area police once again on 9-9-2005 came upon the plaintiff's suit property and physically threatened him of dire consequences if he did not hand over possession of the suit property to the said defendants. It is only due to the intervention of the area representative/elders/neighbours of the plaintiff's suit property who prevailed upon the said defendants not to take the law in their hands and in the time the plaintiff's representative arrived on the suit property, the defendants thereafter left stating inter alia that they will take possession of the suit property for their required purpose come what may. Learned counsel further stated that the plaintiff apprehends illegal physical dispossession from their suit property by the defendants Nos.2, 3, 4, 5, 6, 10 and 11 in collusion with the area police.
8. Learned counsel contended that the plaintiff has made out a good prima facie case for the grant of injunction and the balance of convenience is also in his favour.
9. Mr. Salman Hamid learned counsel for the defendant No,2 K.P.T. In reply to the application filed counter-affidavit and parawise reply disputing the allegations levelled against'him, wherein defendant No,2 stated that before parawise rebuttal to the so-called affidavit is given, it may be submitted that defendant No,2 were incorporated in or about 1886 by the Karachi Port Trust Act, 1886 (the Act). To enable the defendant No,2 to carry out the purposes of the Act, the properties specified in Schedule "A" to the Act, were transferred to and vested with it. Part III of the said Schedule includes:-- "... All other lands, buildings, harbour works, railway lines, machinery plant, other property whatsoever not here before in the charge of the Port Officer of Karachi, the Port Engineer of Karachi or of the Karachi Harbour Board..."
10. Mr. Salman urged that by virtue of Part III of Schedule "A" to the Act, all properties which were not particularly described in the Schedule but were in the charge of the Port Officers of Karachi, the Port Engineer of Karachi or of the Karachi Harbour Board were also transferred to the defendant No,2 which, inter alia, include the bed of the sea below the high water mark falling within the limits of the port as determined by the Government vide Notification, dated December 21, 1875, published in the Sindh Official Gazette dated January 11, 1876. In 1887 a fresh Notification was published in the Bombay Gazette, dated March 24, 1887 at page 244 which defined the boundaries as follows:-- "No,14. With reference to sections 3 of Bombay Act VI of 1886, the Governor in Council, with the approval of the Governor-General in Council, directs that the following shall be the limits of the Port of Karachi, viz.--- ' From the extreme end of Manora point to the end of breakwater and from it in a line due to east to the shore of Gizri and thence by high water mark up to the China Greek and round the head of all the Creeks in the eastern, northern and western parts of the Harbour by Baba point and along the shore of Manora Spit to Manora point..."
11. It is stated by the learned counsel that the Port limits, thus, remained the same as they were in 1875, and no alternation was made. The defendant No,2 from 1887 onwards have been exercising full and undisputed rights of ownership over all the above land. The Government of Pakistan as well as Province of Sindh had acquiesced such ownership. This established by the fact that even when the Government of Pakistan was in need of land it purchased it from the defendant No,2 at no stage of time the answering defendant No,2 have conveyed the ownership of the disputed land in favour of any of the defendants or the plaintiff who can enter into any contract of sale to any third party, be it the plaintiff.
12. It is urged that in the light of the factual and legal background, stated above, it is submitted that defendant No,2 never parted with the ownership of the plot in question and therefore, the question of transferring the same by any defendants other than answering defendants to third party or to the plaintiff does not arise. All the transactions reached between the parties are null and void and are not enforceable under the law. It is further stated that some of the area i,e, Survey No,K-28 Trans Lyari Quarters was conveyed by the defendant No,2 to the defendant No,1 for salt works. This land too is in dispute and is the subject-matter of Suit No,510 of 1977 Habib Ocean Industries v.
Khursheed Salt Works (Pvt.) Ltd. Wherein the learned Official Assignee has been appointed as Receiver, who had sought injunction after experiencing encroachments from various grabbers and or land mafia. Learned counsel shown the photocopy of stay order, dated 26-5-1996 along with all the Notifications filed with the written statement and marked as Annexures "D/1" to "D/5" respectively.
13. Mr. Salman Hamid learned counsel for the defendant No,2 contended that in the light of actual/factual background of the case, entire narration of the plaint and the narration of the so- called supporting affidavit to the captioned C.M.A. Are specifically and vehemently denied, save few. It is clear from the above narration of facts that at no stage of time, the defendant No,1 was the owner of the plot in question and therefore, it could have not conveyed the title of the plot in favour of the plaintiff or in any body's favour. The allegations those have been raised are therefore, specifically and vehemently denied. The document marked as Annexure "A" to the plaint is not lease, as alleged. It is merely a letter of allotment. Clause (2) of such letter shall clearly show that the order under which the alleged allotment of the plot was made was conditional i,e, if the same was without any stay/status quo. Learned counsel stated that annexed documents to the written statement shall clearly show that status quo is operating in regard to the plot in question. It is further stated that various petitions in respect of the lands located at K-28 Area, where the present land is also located were filed before this Honourable Court, which after hearing were disposed by means of an order, dated 31-8-2004, wherein, among others, it was held that the lands which fall within the Notifications, issued under section 3 of K.P.T. Act cannot be allotted to anyone.
14. Learned counsel further submitted the parawise reply stating therein that it is not as such inasmuch as that neither it is on the stamp paper of the value prescribed nor it is for,... Immediate use only ... Present so-called affidavit offends the mandatory provisions of Order XIX, C.P.C. Coming specifically to the two paragraphs under reply, it is denied that the manager of the plaintiffs is authorized to these proceedings and that he is well-conversant with the facts of present case and the so-called resolution is net a proper legal authorization to file the present suit, besides it is defective in law for the following reasons which reads as under:--
(i) it fails to state whether it is an ordinary meeting or emergent meeting;
(ii) whether notice of the alleged meeting was issued to all the directors and whether it was served upon all the Directors;
(iii) the alleged extracts does not mention number of proposed agenda or the number of the minutes of the meeting;
(iv) it does not mention whether it is a certified copy of the minute book;
(v) it does not bear the seal of the company.
15. Learned counsel stated that the Indenture of Lease annexed to the plaint does not carry any legal value inasmuch as that defendant No,1 did not ever had the marketable title on the land to convey the same to Mst. Ayesha and she in turn to the plaintiffs. Similarly the site plan of the land also could have not been prepared by the defendant No,1 as the same does not belong to them and is a property in ownership of the defendant No,2 and is included in their Schedule prepared under section 3 of their parent statute. Learned counsel denied the content of paragraph.
16. Mr. Salman learned counsel stated that it is once again denied that the defendant No,1 had or have any right or authority to convey the land in the area which is exclusively owned by the answering defendants.
17. Learned counsel with regard to the contents of paragraph 5 of the so-called counter-affidavit, stated that since the plaintiffs raised the wall on the land in dispute unauthorizedly and illegally, and that they are encroacher on it, the defendant No,2 in order to protect their land from unauthorised occupation demolished the same in the past and also tried to demolish it again, which shows nothing but their vigilance in protecting their lands from encroachments.
18. Learned counsel stated in reply to paragraph 6 of the so-called counter-affidavit would show nothing but a clear admission on the part of the plaintiffs that the land was acquired by them illegally and unlawfully from the defendant No,1, who even otherwise had no authority to convey the land to the plaintiffs. Learned counsel stated that the contents of paragraph would also clearly establish the fact that at the time of filing of the present case, the plaintiff had no title in the land and that the suit was/is not maintainable under the provisions of the Specific Relief Act and denied the contents of paragraph.
19. Learned counsel with regard to the contents of paragraphs 7 and 8 of the so-called affidavits, stated that since the plaintiffs were, in unauthorized and unlawful occupation of the land and the answering defendants being its exclusive owner had no choice but to act within the parameters of the law in safe-guarding their interest in the land. The notice that was allegedly caused, according to the plaintiffs own showing was never received by the answering defendants and/or it was not addressed to them. Learned counsel urged that the contents of such notice the same are specifically and vehemently denied.
20. Learned counsel with regard to contents of paragraph 9 denied of the so-called affidavit, firstly on the ground that no notice was ever served on the answering defendants and secondly the answering defendants did not ever connive with any other defendants as there was no occasion for the same inasmuch as that the land exclusively belongs to the defendant No, 1.
21. Learned counsel in reply vehemently denied the contents of paragraphs 10 and 11 of the so- called affidavit and stated that injunction application merits dismissal with costs.
22. Learned counsel stated suit of the plaintiff suffer from the following:--
(i) That the suit is not maintainable as framed and filed, the resolution has been passed incompetent.
(ii) The suit is liable to be dismissed for want of notice under section 87 of the K.P.T. Act.
(iii) The suit is barred under various provisions of the Contract Act specifically under Chapter II thereof for want of execution of contract with answering defendant.
(iv) That suit is liable to be dismissed under various provisions of Transfer of Property Act for want of execution of proper conveyance deed.
(v) No cause of action has accrued to the plaintiff and the plaint is liable to be rejected under the provisions of Order VII, rule 11, C . P. C .
(vi) The suit is barred under the provisions of section 42 of the specific Relief Act as no legal character or right as to the suit plot has been established by the plaintiff in the present case.
(vii) The suit also merits dismissal under sections 5 to 7, 10, 19 and 36 of the Colonization of Government Lands (Punjab) Act, 1912.
(viii)That the suit is also hit by various provisions of Sindh Ordinance III of 2001.
22-A. Mr. Abid S. Zuberi learned counsel for the plaintiff in reply to the arguments advanced by Mr. Salman Hamid learned counsel for the defendant No,2 rebut the same and stated that affidavits filed by defendant No,2 are misconceived and contrary to the actual facts and law. The defendant No,2 has raised false and frivolous pleas which are unsubstantiated. The counter-affidavit has failed to give specific denial to the contents of the plaintiffs affidavit in support of the application under Order XXXIX, rulcs 1 and 2, C.P.C. It is however, stated that no document showing the authority of the so-called Manager Legal Affairs has been annexed with the counter-affidavit The counter- affidavit has been filed by the incompetent person.
23. Learned counsel for the plaintiff stated that the defendant No,2 has failed to produce any document with its counter-affidavit to substantiate any of its allegations. The defendant No,2 has no right to the suit-land in question. The plaintiff is the owner of the suit property and is in peaceful possession of the same. The suit plot does not fall within the limits prescribed in the K.P.T. Act The plaintiff further denies the contents of the counter-affidavit regarding the acquiescence of the GOS in the alleged ownership of the defendant No,2 over the suit plot. It is stated that the defendant No,2 has no right to the land in question. The plaintiff is not party to the legal proceedings mentioned in the counter-affidavit. It is however, stated that even otherwise, and without prejudice to the plaintiffs' assertion that the cases referred to in the counter-affidavit have no bearing on the plaintiff's case. Even otherwise, the suit plot does not fall within the limits of K.P.T. And no claim can be raised in respect of the same. It is stated that defendant No,1 was entitled and fully empowered to lease out/allot the land and the plaintiff derives its title, right and interest to the defendant No, 1.
The land in question does not fall under section 3 of the K.P.T. Act or the schedule annexed therewith. The defendant No,2 has failed to show as to how the suit property vests in the Board. The suit property did not belong to and were never in charge of the Port Officer of Karachi, the Port Engineer of Karachi or of the Karachi Harbour Board.
24. Learned counsel for the plaintiff stated that the objection raised by the defendant No,2 is frivolous and of no consequence. The plaintiff has authorized the deponent and he is competent to represent the plaintiff in the present suit. It is clarified that the proper authority in shape of extract of the Board resolution. It is stated that the plaintiff is the owner of the suit-land and the same has been leased, allotted to the plaintiffs predecessor by the Government of Sindh who was the owner of the suit plot and entitled to dispense with the same. Learned counsel stated that the defendant No,2 cannot challenge or question the title of the defendant No,1 as the plaintiff derives title through the competent and legally entitled authority. The land in question does not fall under section 3 of the K.P.T. Act.
25. Mr. Abid S. Zuberi learned counsel contended that the defendant No,2 has no right, title or interest in the suit property and cannot question any transaction entered into in respect of the same. The defendant No,2 has admitted its illegal attempts to dispossess the plaintiff and the demolition of the wall built by the plaintiff around the suit plots. It is submitted that the application under Order XXXIX, rules 1 and 2, C.P.C. Merits grants as the defendant No,2 has submitted its illegality. The defendant No,2 has no right, title and interest in the suit property. The plaintiff is the owner of the suit plots and is in lawful and vacant possession of the same. Further stated that the plaintiff suit property falls within the jurisdiction of the Ordinance III of 2002 and for which the plaintiff is willing and ready to deposit differential amount, if any. The constitution of the Committee and the pendency of the plaintiffs' case before the said Committee in respect of the suit property is ample proof of the plaintiffs' title. The defendant No,2 has admitted its illegal and mala fide actions and its illegal attempts to interfere with the plaintiffs possession of the suit plots. The application under Order XXXIX, rules 1 and 2, C.P.C. Should be granted as prayed. The defendant No,2's mala fide is apparent from its own statement on oath. The land in question belongs to the plaintiff. The defendant No,2 has no right therein.
26. Learned counsel stated that plaintiff has made out a prima facie case and balance of convenience is also in favour of the plaintiff. The plaintiff will suffer irreparable loss to its proprietary rights if the application, under Order XXXIX, rules 1 and 2, C.P.C. Is not granted. I say that the defendant No,2 has admitted its illegal. Actions and the fact that the defendant No,2 has demolished the plaintiff's boundary wall surrounding the suit plots. The defendant No,2 has no right, title or interest in the suit property and therefore, has no locus standi to challenge the suit under the provisions of section 42 of the Specific Relief Act as well as Order VII, rule 11, C.P.C. The other contention regarding want of notice under section 87 of K.P.T. Act is also denied. The defendant No,2 has acted with mala fide intentions. The application of provisions of Colonization of Government Lands (Punjab) Act, 1912 as well as Sindh Ordinance III of 2001 is denied and it is reiterated that the defendant No,2 has no right to raise the aforementioned assertions. The same are beyond the jurisdiction of defendant No,2.
27. Learned counsel for the plaintiff stated that if the listed application is not granted, the plaintiff shall suffer irreparable loss and prejudice to its rights.
28. Mr. Abid. S. Zuberi learned counsel for the plaintiff also placed on record certified copy of the judgment, dated 22-2-2008 passed in Suit No,843 of 2004 titled as Muhammad Zahid Shah v.
Province of Sindh and others in the similar circumstances the Honourable Court has been pleased to pass judgment and decree in favour of the plaintiff, which is also applicable in the present case.
The relevant concluding portion of the judgment, dated 22-2-2007 passed by my learned sister Justice Mrs. Qaiser Iqbal as under:-- "That plaintiff has admittedly approached the Committee formed under Ordinance, 2001 and accepted the offer and undertaken to pay the differential amount determined by such a Committee. In view of the matter the defendant No,2 has not been able to establish that the suit plot stands vested in K.P.T. Even otherwise on account of receipt of high tides in consonance with section 3 of the Act, VI of 1886 the proprietary rights and limits does not stand established. The case of the plaintiff has been supported by defendant No,1 in respect of grant and subsequent cancellation by the Provincial Government of Sindh. The entitlement of the plaintiff in the subject plot stands established, the allotment/lease given by Government of Sindh to the plaintiff is lawful and Karachi Port Trust is not the owner of the suit property situated in K-28, Trans Lyari, Karachi. The plots shall be regularized in terms of the Ordinance, 2001.
' In view of the above discussion the plaintiff's suit stands decreed in terms of prayer with no orders as to costs."
29. Mr. Ahmed Pirzada learned A.A.-G. Has not disputed and conceded to the arguments of Mr. Abid S. Zuberi learned counsel for the plaintiff. He has further stated that the land in question belongs to Province of Sindh and not to the K.P.T. Mr. Ahmed stated that Honourable High Court of Sindh has already decided that the land in dispute belongs to Province of Sindh and not K.P.T. Latest judgment in respect of adjudication of ownership of the area K-28 Phase II, Trans Lyari Quarters, Karachi situated on main Hawks Bays Road, Karachi, has been decided by my learned sister Justice Mrs. Qaiser Iqbal in Suit No,843 of 2004 on 22-2-2008 (supra).
30. I have heard the arguments of the learned counsel for the parties and perused the record.
31. At present, a presumption as required under illustration (e) of Article 129, Qanun-e-Shahadat Order, 1984, can be raised that official acts have been regularly performed. However, all these contentions, require deeper appreciation of evidence, which can properly thrashed out at the time of trial. From the tentative assessme nt of the material available on the record, I am of the considered view that the plaintiff has a good prima facie case at this stage. The balance of convenience is also in favour of the plaintiff. No irreparable loss will be caused to the defendants, if the injunction is granted because the loss, if any, can be compensated in the shape of damages.
32. In consequence, the application is allowed and the interim order earlier passed on 12-9-2007 is confirmed.
33. C.M.A. No,7113 of 2005. This is an application under section 151, C.P.C. Filed by the plaintiff.
Through listed application plaintiff seeks permission to reconstruct the boundary wall and other adjoining walls and other rooms at the cost of the plaintiff around their suit property i,e, Plots Nos.12, 13, 22, 23, 31, 32, 35, 36 each measuring 4 acres and Plot No,34, measuring 2 acres totalling 34 acres in all situated in K-28, Phase-II, Trans Lyari Quarter, Karachi, situated on main Hawksbays Road, Karachi as the same has been illegally demolished by officers and staff of defendant No,2.
34. Mr. Abid S. Zuberi learned counsel for the plaintiff has pointed out that in Suit No,833 of 2000 on similar application by consent height of the boundary wall was allowed to be raised upto 6 feet and the similar order has also been passed in Suit No,843 of 2004. Mr. Ahmed Pirzada learned A.A.- G. And Mr. Salman Hamid did not dispute the fact.
35. In view of the above facts and circumstances plaintiff is allowed to reconstruct the boundary wall and other adjoining walls and other rooms at the cost of the plaintiff around their suit property to the extent 6' (six feet).
' Application disposed of in the above terms.