1. ' ARSHAD NOOR KHAN, J.---Urgency application is allowed.
2. By this C.M.A. The plaintiff and defendants Nos.1 to 5 have, prayed to accept the compromise arrived at between the parties.
2. ' The facts leading to the present application in brief are that the plaintiff filed suit for declaration, injunction and directions against the defendants stating therein that agricultural Naclass land No,309 situated at Deh Joreji, Bin Qasim Town, Karachi, was initially allotted by the Board of Revenue to defendants Nos.1 to 4, vide letter dated 5-9-1992, admeasuring 48 acres of land. After allotment of the land in question the plaintiff entered into sale agreement for the purchase of land in question from the defendants Nos.1 to 4, vide agreement of sale dated 1-11-2003. The said agreement subsequently could not be specifically performed by the defendants as the defendant No,6 has cancelled the allotment. The defendants Nos. 1 to 4 were served with the notice of the suit wherein they assented the land in question was cancelled by the Government, vide Ordinance-III of 2001 and that no malkhano was thereafter issued by the Government, therefore, the suit was not maintainable.
3. ' The defendant No,6 also filed his affidavit stating therein that the land in question was cancelled, vide Ordinance-Ill of 2001 and the grantees had not been regularized the land in question. The issues were framed on 14-4-2007 and the matter was posted for evidence. Meanwhile, the parties have filed the present application. Notice of the application has also been served on the defendants Nos.6 to 9.
4. ' Mr. Muhammad Farogh Naseem, learned counsel for the plaintiff, contended that the matter regarding transfer of the property remains in between defendants Nos.1 to 4 and 6 but by virtue of the terms and conditions of the settlement, the plaintiff will pursue the matter before the defendant No,6 as such the terms and conditions of the compromise application may be accepted.
5. ' Mr. Khawaja Muhammad Zahir, Advocate for defendants Nos.1 to 5 conceded the arguments advanced by Mr. Muhammad Farogh Naseem, Advocate.
6. ' Mr. Ahmed Pirzada, Advocate for defendants Nos.6 to 9, states that the right of the Government may not be affected in case the private settlement is accepted by the Court.
7. ' I have considered the arguments advanced on behalf of the parties and have gone through the contents of this application as well as material available before me.
8. ' It is an admitted position that the Naclass Survey No,309, Deh Joreji, Bin Qasim Town, Karachi, was initially allotted to defendants Nos.1 to 4 by the defendant No,6, vide letter dated 5-9-1992 and perusal of the allotment letter dated 5-9-1992 shows that the agricultural/industrial/residential land was allotted to Abdul Haq son of Ali Muhammad, Manzoor Ahmed son of Sher Muhammad and Abdullah son of Muhammad Saleh in relaxation of conditions Nos.12 and 14 as . Well as existing ban. After allotment of the said land, it transpired that the land in question was allotted much below the market price of Rs,2,42,t00 per acre and also in violation of law/rules and policy of the Government, in relaxation of the ban which strictly prohibited transfer/exchange of title by way of mutation, lease, mortgage and registration of gifts etc. Thereafter, the land in question was cancelled, vide Ordinance-III of 2003. The record also shows that after cancellation of the land in question, defendant No,6 has so far not issued any challan for payment regarding transfer of the property in question. It is, therefore, crystal clear that the defendants Nos.1 to 5 were not the owners of land in question at the time when the sale agreement dated 1-11-2003 was executed in between the, parties. Since allotment Hand in question admittedly has already been cancelled by the Government and no fresh allotment order has so far been issued in favour of the defendants as such it could not be said that the defendants are the lawful owners of the land in question having all the rights, title, or interest to transfer it to any other transferee.
9. ' During the pendency of the suit, the plaintiff had also filed application under Order XII Rule 6, C.P.C.
10. For passing the decree on the basis of admission of the private defendants, which was also dismissed, vide order of this Court dated 15-5-2007 and the plaintiff had challenged the said dismissal of their application under Order XII Rule 6, C.P.C. In the High Court Appeal No,185/2007 and legality and validity of the sale agreement as well as cancellation of the land by the defendant No,6 was also considered by the learned Division Bench of this Court and while dismissing the appeal filed by the plaintiff, vide judgment dated 2-2-2009, the learned Division Bench was pleased to observe as under:-- "In view of the above mentioned terms as contained in the sale agreement, the meaning of which is not certain, the same agreements may be termed as void and not capable of being executed/ enforced. Even otherwise, it was pleaded by respondent/defendants Nos.1 to 5 that both the parties, in view of the cancellation of allotment of subject land, and prevailing uncertainty regarding regularization of allotment as well as regarding exact time-frame, had mutually revoked the contract, and the said defendants were prepared to refund part payment made by the plaintiffs; there was no question of handing over the physical or constructive possession of subject land to appellants, as an agreement did not amount to sale of property."
11. ' In spite of the observations made by the learned Division Bench of this Court, the plaintiff and defendants Nos.1 to 4 are still insisting the allotment in their favour though after cancellation of allotment in question by the defendant No,6, the defendants Nos.1 to 4 in any way could not be treated as owners of the land in question and since they are not the owners of the property in dispute, therefore, they could not settle their dispute with regard to the property for which they are no more owners of the property in question. The compromise application appears to be a collusive application and an attempt to obtain the land in question by way of decree of this suit. The compromise arrived at between the parties is, therefore, not accepted. The application was dismissed in the morning after hearing the learned counsel for the parties for the reasons to be recorded later on and these are the reasons for the same.