MIAN SAQIB NISAR, J. --- The instant Writ Petition No. 610/2002, Writ Petition No. 776/2002, Writ Petition No. 2186/2002 and Writ Petition No. 1444/2CO2, are being decided together as common questions of law and facts are involved in all these matters.
2. The petitioners in the above cases, from time to time were recruited as the Chowkidars on daily wages by the respondent, Food Department; whereafter their services were dispensed with; they brought the grievance petitions claiming to be the permanent employees and also asking for the benefits which such employees are entitled to; the petitions were allowed by the Labour Court, vide judgment dated 22.4.2000; however, on appeals of respondents Nos. 3 and 4, which were accepted vide judgment and decree dated 30.11.2001, the Punjab Labour Appellate Tribunal, has held that the judgment of the Labour Court is erroneous therefore, the orders of the department terminating the services of the petitioners were upheld; however, the department was directed to re-employ the petitioners during the next procurement season. Both department and the petitioners challenged the above-said judgment, by invoking the Constitutional jurisdiction of this Court; the petitions filed by the department have been dismissed, vide orders dated 6.6.2003 passed in Writ Petition No. 7670 of 2003 etc. Whereas in the present petitions challenge has been made by the employees to the extent of their termination orders being upheld by the Punjab Labour Appellate Tribunal
3. Learned counsel for the petitioners by relying upon the judgments reported as Executive Engineer, Central Civil Division, Pak P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 SC 610), lzhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (NLR 2001 Labour 147), Municipal Committee, Gojra through Administrator v. Mst. Tasneem Akhtar and 2 others (NLR 2001 Labour 135), has argued that as the petitioners were working against the permanent posts and the nature of their duties was also of permanent character, therefore, in such circumstances, they for all intents and purposes were the permanent employees, and could not be terminated.
4. Replying to the above, learned Assistant Advocate General appearing on behalf of respondents Nos. 3 and 4, states that the petitioners were not employed as Chowkidars on any godown of the Food Department, against a regularly sanctioned permanent post, rather they were recruited at the procurement centers, where the wheat or grain was kept for custody, for onward transportation either to the mills or to the godowns of the respondent. Food Department, therefore, it is only for such period, that when the grain or wheat is lying in the centers, the services of the petitioners were needed on temporary basis; therefore, such daily wagers cannot be held and considered as the permanent employees; in support of his contentions, he has relied upon the judgment reported as Muhammad Yaqoob v. The Punjab Labour Court Nos. 1 and 5 others (1990 SCM R 1539).
5. I have heard the learned counsel for the parties. As far as the question, whether the employee is working on permanent or temporary basis, two important factors are to be kept in view, whether he has been working against a permanent post for the requisite period of time and if the nature of his duty was of permanent character.
6. Learned counsel for the petitioners, when questioned to point out from the record, if the above criteria has been established through the petitioners' evidence, he has not been able to show, if the posts against which the Date of hearing: 11th August, 2008.
KHALID ALI Z. QAZI, J. --- CMA No. 5910/2007. This is an application under Order 39, Rule 1&2, C.P.C.
Filed by the Plaintiff stating therein that defendants Nos. 1 to 3 may be restrained from alienating, leasing and transferring 7,500 sq. Yards of and or any part thereof out of 14 acres land, already regularized by Board of Revenue vis-a-vis in possession of the plaintiff, situated at Mussa Ghado Goth, Deh, Khari LaKi, Tapoo Manghopir, District Karachi Central in the midst of Block "B" North Nazimabad, Karachi, in any manner to any person/persons and further restraining the defendants Nos. 1 to 3 from leasing out the above mentioned 7,500 sq. Yards of and to the defendants Nos. 5 to 16 and furthermore restraining the defendants Nos. 1 to 3 from issuing any challans, lease, title or any letter/documents in favour of the Defendants Nos. 5 to 16 creating any right, charge, lien or third party interest over the piece of land measuring 7,500 sq. Yards, as mentioned above. The defendants Nos. 1 to 3 be restrained from issuing any letter, order direction or declaration nullifying the lawful title, right, lien and interest . Of the plaintiff over this piece of land, measuring 7,500 sq.
Yards and restraining the defendant No. 4 from registration, bringing on record or accepting any lease, title, document whatsoever in favour of the defendants Nos. 5 to 16 regarding the said piece of land, measuring 7,500 sq. Yards and encroaching on the piece of land, or any part thereof from causing any disturbance in the peaceful possession of the plaintiff over the piece of land, mentioned above, either directly or indirectly till the final disposal of this suit.
2. Brief facts of the case as per plaint for disposal of this application are that plaintiff is the transferee from the successor in interest of Messrs. M.Y. Corporation, a partnership firm, since dissolved and assets transferred to plaintiff, and the plaintiff is the owner with legal possession of ancestral land, measuring 14 acres, situated at MUSSA GHADO GOTH, Deh Khari Laki, Tappo Manghopir, District Karachi Central. The Goth is surrounded by surveys Nos. 60, 61, 63, 64, 65, 68 and 70 of Deh. It is spread over the area of Block IV, Nazimabad and Block 'B' North Nazimabad. Part of Goth situates across railway line and road in Block IV, Nazimabad. Goth Khando situates far away from Mussa Ghado Goth and in the midest of Block 'B' North Nazirnabad, Karachi.
3. It is pleaded that the plaintiff is the Managing Director of M.Y. Corporation (Pvt.) Ltd., having place of business at 201, Second Floor, Aiwan-e-Sanat Building, Sector 23, Korangi Industrial Area, Karachi.
The total plots of land, measuring 30 acres, all situated in Mussa Goth, Block 'B' North Nazimabad, Karachi, were purchased by the Plaintiff through a Sale Agreement dated 15th February, 1975 from Abdus Sattar Bhai and others for a sum of Rs. 4,50,000.00 this document was merged subsequently into a decree dated 29.1.1980 passed by Mr. Anis Tahir Hussain, XVIIlth Civil Judge, Karachi, showing the plaintiffs firm. M/s. M.Y. Corporation (Pvt.) Ltd., Karachi, as assignee of the entire said land. It is contended that there are two suits, pending before this Court, bearing suit No. 1/1993 and suit No. 557/1994. So far as the suit No. 1/1993 is concerned the evidence is being recorded in respect thereof and that the same has been consolidated with suit No. 557/1994, wherein the order of restraint dated 10.12.1995, passed by this Court is still holding the ground.
4. It is further contended by the Plaintiff in plaint and in affidavit of Aftabur Rehman's that the defendants Nos. 5 to 16 in C.P No. D-518/2006 approached this Court pressing the same into service, claiming various plots without mentioning any number out of an area of 7,500 sq. Yards of land, out of the plot of land measuring 14 acres, belonging to the plaintiff, which was regularized in favour of the plaintiff as far back as on 10.11.1980 by virtue of letter No. LU.11/4-1-80/G(K)III/Board of Revenue, Sindh, Hyderabad dated 10.11.1980, issued by the Board of Revenue, Sindh and subsequently confirmed in favour of the plaintiffs firm M/s. M.Y. Corporation (Pvt.) Ltd., Karachi, by the Secretary to Government of Sindh, Land Utilization Department, Karachi vide their letter dated 28.2.1982 and further confirmed recently in terms of their letter dated 21.4.2006. It is further stated that said C.P. No. 518/06 was disposed of in terms of the order dated 24.1.2007 as the same was not pressed by the petitioner with a direction to settle the rights of the petitioners, if any, as the Intervener M/s. M.Y. Corporation (Pvt.) Ltd., are also claiming the rights and interests in the subject-matter of the suit.
5. In support of this application Mr. Syed Sami Ahmed learned counsel for the Plaintiff submits that it is further made clear to the petitioners in the same order that the maximum time of two months was allowed for determining their rights within the stipulated period, as mentioned therein. It is stated that nothing was done within the stipulated period of two months. It was clearly pointed out in the said petition by this Court in its order dated 20.3.2007 that it was evident from the record that M/s. M.Y. Corporation (Pvt.) Ltd., was also claiming their rights in the same subject-matter of the suit and that their matter was sub-judice before this Court. It is contended that there are three orders dated 24.1.2007, 1.3.2007 and 20.3.2007 passed by this Court in this behalf which are quite relevant.
6. It is further alleged by Mr.Syed Sami Ahmed that Katchi Abadis Authority, the defendant No. 3 is meddling as well as encroaching upon the suit property, belonging to the plaintiff, despite the fact that in Suit No. 557/1994, relating to the same land, had stated in clear words that Sindh Katchi Abadis Authority has no concen and that they would not interfere with the possession of the plaintiffs, in said suit had given no objection to striking of the name of Sindh Katchi Abadis Authority from the array of the parties. In view of the said statement. In view of the above said stand taken by the present defendant No.3, this Court by his order dated 25.2.1996, granted the prayer of the defendant No.3, with a clear direction that the name of the Katchi Abadis Authority as defendant No. 15, in suit No. 557/1994 be struck of from the array of the parties with red ink by the office.
7. It is further pleaded by Mr. Syed Sami Ahmed that in spite of the order dated 25.2.1996, the defendant No. 3, in the present suit is treating an area of 7,500 sq. Yards, of the plaintiff, as part of Katchi Abadi which, on the face of it, as a part and parcel of 14 acres of land, already regularized in the name of the Plaintiffs company M/s. M.Y.
Corporation (Pvt.) Ltd., as elaborately mentioned above on the basis of documentary evidence. It is urged that they had done this in active connivance of Katchi Abadis Authority, that is the defendant No. 3 but the entire exercise proved futile and false when the bailiff, Shahbaz Ahmed on 2.5.2006 visited the site with notices. This act of defendant No. 3 on a private piece of land is a flagrant violation of the Court order, as pointed out. It is further urged that it was in the month of May, 2006 that the defendant No. 3, cancelled all the Provisional Challans, issued in the month of May, 2005, by giving notices of cancellation, pointing out therein that the defendants Nos. 5 to 16 had committed a fraud by submitting fictitious documents, they were, called upon to explain their conduct for hiding the facts and misleading the authority within seven days from the date of the receipt of notices. In the C.P. No. D-518/2006, this Court was pleased to appoint the Deputy Nazir of this Court to inspect the site of the disputed piece of land. The site was inspected accordingly, and the report was submitted. Since the report of the Deputy Nazir was far from the truth, the Director Sindh Katchi Abadis Authority filed his objection to the Deputy Nazir's site inspection wherein it was brought to the notice of this Court that the jughies had been planted a day or two days before the site inspection with the object to prove possession. The said objection dated 24.5.2006, is already on record of C.P. No. D-518/2006.
8. It was further pleaded by Mr. Sami Ahmed urged that after the regularization of plaintiffs 14 acres of land by virtue of the letter dated 10.11.1980 the same was mutated in the record. Of rights dated 8.12.1980 since then the plaintiff is in physical possession in respect thereof.
9. In reply to the contentions raised by the Plaintiff Mr. Khawaja Shamsul Islam learned counsel for the Defendants Nos. 5 to 16 filed counter affidavit to the listed application of one Muhammad Javed Khaskheli defendant No. 5 wherein it is stated that he denied the contents of CMA No. 5910/2007. In the counter affidavit he has taken the Preliminary Legal Objections that the suit as well as the application as framed is not maintainable bearing hopelessly time-barred and also barred under Sections 11 and 12, C.P.C. As well as Order 2, Rule 2, C.P.C. And in terms of Sections 41, 53., 54, 55 and 105 of the Transfer of Property Act as well as barred under Sections 42 and 56 of the Specific Relief Act, and is liable to be dismissed with exemplary cost and also suffering from !Aches, acquiescence and principle of res judicata. It is further urged that plaintiff company is a non-entity and no such company exists, moreover, neither any averment has been made in the plaint nor in the application or its affidavit nor any resolution has been placed to show that the Board of Directors of Plaintiffs company has ever authorized Aftabur Rehman's to file the suit or the application, the suit are totally misconceived, incompetent and liable to be dismissed with exemplary cost.
10. It is further stated on oath by the defendant No. 5 in his counter affidavit that contents of paras 1 to 12 of the supporting affidavit filed by Aftabur Rehman's s/o Haji Muhammad Younus, are totally misconceived, misleading, false and fabricated hence vehemently specifically contumaciously and categorically denied in toto. It is further submitted that in view of the admitted position recorded and examined by this Court that the plaintiff or its predecessor were never in possession of the suit property at any stage of time , the statement given on oath by the plaintiff stands proved to be false and the said Aftabur Rehman's, claiming himself to be the director of the plaintiff company, is liable to be punished by this Court under the law- of perjury. It is further urged that plaintiff or their so-called predecessor are/were neither the owner nor at any point of time, remained in possession of the suit property, and the sale agreement is inadmissible in law, as it is a well-settled principle of law that the agreement of sale does not confer any title. Moreover, the sale agreement is a classic example of forgery or fraud, therefore, no suit can be filed on the basis of such sale agreement. It is urged that it is a matter of record that the plaintiff claimed stay in his earlier suit No. 1/93 but the application was dismissed by this Court on 16.6.1994 against which an.Appeal bearing No. 91/1994 was preferred but the same was also dismissed by the Division Bench of this Court the same was in respect of the land allotted by the Government of Sindh to Hayat Khan and others measuring 4 acres and 20 ghuntas, besides, number of strictures were passed against the plaintiff as well as its predecessors. More particularly, the so called Mukhtiarkar was also convicted by the Military Court in the year 1969 for issuing wrong, false and fabricated letter.
11. In para-7 of counter affidavit it was stated that on 4.1.1966 the Mukhtiarkar Karachi allegedly issued a letter to one Mst. Halima in the following terms in the following terms:--- "This is to inform you that from the record of this office it appears that the village Moosa Gado is privately owned and it stands in the name of your grand father Moosa Gado. Village land is not assigned with any survey numbers."
The said letter, does not confer the right of ownership either by inheritance or otherwise acquiring any legal title to the said land. No Succession Certificate and/ or Letters of Administration and/or the Revenue record has been relied, referred or produced in favour of the said Mst. Halima, admittedly, the letter in itself does not in law, confer or establish any right, title and ownership of the land in Moosa Gada or any part thereof in the name of said Mst. Halima. It is contended that the alleged letter dated 4.1.1966 is fraudulently and collusive manipulated in as much as according to the record/report filed in earlier legal proceedings, the Mukhtiarkar who is alleged to have issued the said letter was convicted on this charge and was also dismissed from service.
12. Mr. Khawaja Shamsul Islam vehemently contended that solely and entirely on the basis of the said alleged letter dated 4.1.1966 Mst. Halima admittedly an illiterate lady is alleged to have sold 30 acres of land, by an alleged Deed of Conveyance dated 21.3.1996 to Abdus Sattar Bhai & Others. A bare reading of the said documents clearly indicates and asserts the alleged title in the name of Mst. Halima in the words:- "AND WHEREAS the property concerned is a private non-agricultural land, fully vesting in the Vendor vide Mukhtiarkar Karachi's letter No. HM/2095/66, dated 4.1.1966"
13. Mr. Khawaja Shamsul Islam further submitted that no other documents of title is referred, mentioned or produced. The submission, is that Mst. Halima having no legal title to the said land in favour of the alleged Vendee, nor they had any right, title or authority to further sell or transfer the land in favour of any other person including the plaintiff or its so-called predecessor- in-interest. It is further submitted that the plaintiff has not produced any document, agreement or deed whereby they and/or their alleged predecessor purchased the suit land or any part thereof from Abdus Sattar Bhai and others. He vehemently contended that reliance has been placed by Plaintiff on some collusive suits and alleged compromise, regularization and entry in the record.
14. Mr. Khawaja Shamsul Islam further contented that this is also a matter of record that the mutation recorded in favour of M/s. M.Y. Corporation was finally cancelled on 16th March, 1982 vide letter issued by the Deputy Commissioner, Karachi West, addressed to Mukhtiarkar Karachi West, which fact has been with mala fide intention's,. Concealed by the plaintiff. Nor the plaintiff have produced any further letter, order or directions in contradiction of the letter dated 16.3.1982. His submission therefore was that all and each letter, document and entries relied upon with the plaint are of no avail and does not confer any title in the plaintiff. It is further stated that M/s. M.Y.
Corporation had also filed a suit bearing No. 2073/1993 for declaration of their title in respect of the land which is the subject-matter of the present suit, in the Court of 1st Senior Civil Judge, Karachi, against the Government of Sindh & Others, which suit was dismissed by an order dated 3.3.1988 by the said Court for non-compliance and no further proceedings were taken by the said plaintiff in the matter, therefore, the order has attained finality. The present suit, is clearly barred under Order 9, Rule 9 C.P.C.
15. Mr. Khawaja Shamsul Islam further contended that the above concealment on the part of the plaintiff proves beyond any doubt that the plaintiff has approached this Court with dirty and soil hands, concealing the material facts as well as the afore-said litigation, orders and strictures passed against the plaintiff. It was further contended that in compliance with the orders dated 24.1.2007 passed by the Division Bench of this Hon'ble Court in C.P. No. D-518/06 titled Muhammad Javed Khaskheli & others v. Sindh Kutchi Abadis Authority & another, the official Defendants Nos. 1 to 3 held the enquiry and after hearing all the parties, on 31.5.2007, wrote a letter to the defendant No. 4 and apprised them about the factual as well as legal aspects of the case, whereafter 13 leases have been issued and registered, and 10 remaining leases are pending and held up due to grant of status-quo orders by this Court in the instant suit . It is further contended that in the order dated 14.11.2002 dismissing the appeal No. 91/1994 the Division Bench of this Hon'ble Court made the following observation:- "The letter of Mukhtiarkar certifying the predecessorin-interest of the Appellants (Plaintiff) as owner ex facie has no value in the eyes of law. We have ourselves examined the record of rights produced by Mr. Abdul Qadir Javed, Mukhtiarkar, North Nazimabad, Karachi (Central) and we found no entry has been effected in favour of Moosa Gado prior to 1966 which could establish Moosa Gado as owner of the land at any point of time. In view of these admitted facts, the Appellants (plaintiff) do not have any prima facie case. The facts as reflected show that the land belongs to Government of Sindh. Balance of convenience was also not in favour of the Appellants (Plaintiff) who were admittedly not in possession at the relevant time and had too claimed mesne profit. The Respondents Nos. 1 to 4 (answering defendants) who are in possession of the land would be put to more inconvenience in the event if they were deprived enjoyment and/or utilization of the land of the injunction is allowed."
16. It was further submitted by the learned counsel for defendants against dismissal of the order of the Division Bench of this Court, the Plaintiff preferred C.P.L.A. No. 94-K of 2003 but the same was also dismissed on 29.12.2004 by the Hon'ble Supreme Court of Pakistan.
17. Mr. Khawaja Shamsul Islam, advocate for defendants Nos. 5 to 16 further contended that the afore-. Said suit bearing No.1/1993 is still pending and Aftabur Rehman's, the person who filed the suit on behalf of M.Y. Corporation, has already been partly cross-examined by the defendants but thereafter, he is avoiding to appear and completing his cross-examination. It is further contended that in compliance of the order dated 9.8.2006 passed in C.P. No. D-518/2006, the Nazir of this Court also carried site inspection of the suit lands on 12.8.2006 and submitted his report dated 7.9.2006 pointing out that the defendants are in possession and residing in the attached sheds and the entire area is in possession of the answering defendants, whereas the plaintiff or its so-called predecessor were never in physical possession of the same, the plaintiff has made a totally false statement on oath in support of his misconceived application. It is further contended that the plaintiff has not made out any prima facie case and the balance of convenience also does not lie in his favour as observed by the Division Bench of this Hon'ble Court, the listed application is liable to be dismissed with exemplary cost.
18. To controvert, the contents of the pleadings of the Plaintiff, Mr. Muhammad Jamil ,learned counsel for official defendant No 3 filed counter affidavit to the listed application of one Muhammad Shaheryar Khan Afridi, XEN of Sindh Katchi Abadis Authority, Karachi Field office, wherein it was stated that M/s. M.Y. Corporation (Pvt.) Ltd., had claimed entire area of village Moosa Goth, Block-B, North Nazimabad, Karachi measuring 30.00 acres of land on the basis of agreement of sale with Mr. Abdul Sattar 8hai and his co-owner who himself executed a registered deed of conveyance dated 21.3.1966 with Mst. Halima for transferring 30.00 acres of land on the basis of a letter issued by the then Mukhtiarkar of Karachi vide letter No. HM/2095/66, dated 4.1.1966 confirming that the land under Moosa Gada Goth is privately owns and stands in the name of grand father of Mst. Halima and that the village land is not assigned with any survey number.
19. It is further contended by Mr. Jamil learned counsel that on an application from the residents and referring copy of letter No. L.A. 698/65, dated 6.5.1965 from Deputy Commissioner, Karachi, an enquiry was conducted by the then Deputy Collector and Land Acquisition Officer, Karachi (Mr. M.M.
Qureshi) and decision made as; "I had summoned Mst. Halima and have heard her, she could not show any document before me to indicate that the land was obtained by her and the land of village was owned by Moosa.
Apparently the land was Government property as recorded at the time of survey. She claims adverse possession as she claims to have remained in occupation of 60 years. As they remain license only, the question of adverse possession would not raise. There is, therefore, no force on the application and it may be rejected."
20. Mr. Muhammad Jamil learned counsel further contended that vide letter No. DCCIACR/332/91, dated 23.10.1991, the then Deputy Commissioner and D.M. Karachi Central cleared the position that Moosa Gado village is although a sanctioned village but the villagers have not paid any Malkano hence they enjoyed only occupancy rights. The title of the land still vests in the Government. All sale proceeds in past have no locus standi. The land is included in KDA Scheme 2, Taimoria.
21. It was further urged by Mr. Muhammad Jamil learned counsel for the defendant No. 3 that vide letter dated 16.3.1980 the then Deputy Commissioner informed the then Mukhtiarkar that the order issued vide letter No. ACW/SCM/389, dated 15.3.1982 are withdrawn and mutation in favour of M.Y.
Corporation (Pvt.) Ltd. Should not be effected and if effected already, it may be cancelled and land brought on the Khatto of Government.
22. It was further contended by Mr. Muhammad Jamil that on an appeal by M/s. M.Y. Corporation (Pvt.) Ltd., bearing H.C.A No. 91/1994 for suit No. 1 of 1993, this Court has passed judgment reads as under:- "For reasons to be recorded, this appeal, is dismissed. The Respondent No. 8 is however, free to take appropriate action under the Ordinance III of 2001. It is clarified that any construction raised or transfer effected by the Respondents Nos. 1 to 4 would be entirely at their on risk and subject to final order that may be passed in the suit or action that may be taken by the Government. We expect that the learned Single Judge to decide the suit as expeditiously as possible. K.B.C.A. Is also free to perform its duty."
23. Mr. Muhammad Jamil further urged that on the orders of this Court for suit No. 1/93 filed by M/s. M.Y. Corporation (Pvt.) Ltd. v. M/s. Erurn Developers and others to carry out survey of the land measuring 14.00 acres claimed by Plaintiff and 4.20 acres claimed by the defendants Nos. 1 and 2, following position was, forwarded by Mukhtiarkar, Karachi, Central, vide letter No. ACR/Mukhtiarkar/Central/87/93, dated 11.2.1993, which reads as follows:--- "Out of 14.00 acres, an area of 7.00 acres is under occupation of villagers of village Moosa Goth as pointed out by Plaintiff (M.Y. Corporation (Pvt.) Ltd.) but he did not pointed out the exact location of that area. The remaining piece of 7.11.2004 acres consisting of 4.20 acres allotted 'and in possession of the defendant (M/s. Erum Developers & other), 1-2703 under occupation of villagers and an area of 1-4- 01 acres is lying vacant. The excess area i.e. 11-4- Ghuntas claimed by the Plaintiff relates to S.No. 67 which belongs to KDA. It is also mentioned that at -present no piece of land in Moosa Goth is in possession of the Plaintiff M/s. M.Y. Corporation (Pvt.) Ltd."
24. It is further contended by Mr. Jamil learned counsel that Moosa Goth, Block-B, North Nazimabad, Karachi is an old settlement included in the Master list of Sindh Katchi Abadis Authority. The then Karachi Development Authority (KDA) vide letter No. 2- 38/DPUD/79/149, dated 4.6.1998 communicated NOC for 15.00 acres of land and further vide letter No. CDGK/MPGO/8(*2)-3/TP/58/Post/04/L, dated 4.2.2005 was forwarded Joint Demarcation plan for 14.06 acres of land under Moosa Goth being part of KDA Scheme-2 North Nazimabad (Taimuria), Karachi. It is further contended that Section Office-II, Land Utilization Department vide letter No. 04-03-02/SO-11/1016/06, dated 26.12.2006 forwarded the detail report, concluded that the area in possession within ancestral/old establishment sites of Moosa Goth and Khando Goth were regularized with the approval of the then Chief Minister, Sindh, at the rate of Rs. 1/- per sq. Yard vide letter No. PS/MBR/LU/96/92, dated 14.1.1992. This order is hit by the Sindh Government Land Ordinance-III of 2000, hence whole area of village stands cancelled.
25. It is further stated by the learned counsel Mr. Muhammad Jamil that in view of the above factual position it is clear that the .Plaintiff is neither the owner of the land in question nor it is in possession thereof and the C.P. No D518/2006 filed in this Court with regard .To the land in question the same was disposed of on the statement of this authority/defendant No 3. This Court was pleased to direct this defendant to consider the case/claim of the Plaintiff, who at that-petition had appeared as an intervener.
26. It is further contended that the claim of the Plaintiff was considered and after detailed enquiry the claim of the Plaintiff was rejected, the facts has been concealed suppressed from this Court mala finely and the. Plaintiff has failed to make out a prima facie case in his favour nor he proved his possession over the suit land. The balance of convenience is also not in favour ,of the Plaintiff and no irreparable loss/injury would be caused to the Plaintiff in case his application for interim relief is dismissed.
27. Mr. Khizer Asker Zaidi learned A.A.G adopted the arguments of Mr. Khawaja Shamsul Islam Advocate. .28. I have given due consideration to the arguments advanced by the learned counsels for the parties, gone through the material available on the record, relevant laws, case laws cited at the bar.
29. In my view following facts are not in dispute:---
(a) No execution application in Court was filed in respect to the decree passed on 29.1.1980 in Suit No. 1202/1968 in the Court of VIII Civil Judge, Karachi by the predecessor-in-interest of Plaintiff.
(b) On 19.7.1984, the concerned SDM sealed the land in question measuring 14 acres under M.L.O., 2002 and land was not in possession of Plaintiff.
(c) C.P. No. D-583 of 1984 in this Court was filed by the Plaintiff in respect of same disputed property and was dismissed for non-prosecution.
The Plaintiff's stay application in earlier suit No. 1/93 was dismissed by this Court on 16.6.1994 against which High Court Appeal No. 91/1994 was preferred but same was also dismissed by Division Bench of this Court, the same was in respect of the land allotted by Government of Sindh to Hayat Khan and others.
(e) Letter dated 4.1.1966 written by Mukhtiarkar Karachi to Mst. Halima does not confer the right of ownership of the land in Moosa Goth. The said Mukhtiarkar was convicted later on by material law authority for this act.
(f) There was no formal registered Sale-Deed between the Plaintiff and Abdul Sattar Bhai & others.
(g) The land in question was cancelled by Deputy Commissioner on 18.3.1982 and order issued on 15.3.1982 in favour of Plaintiff were withdrawn and land brought on the khato of Government.
(h) . As per survey report dated 11.2.1993 filed by Mukhtiarkar Karachi in this Court for Suit No. 1/93 filed by Plaintiff against M/s. Erum Developers & others no piece of land in Moosa Goth was in possession of the Plaintiff.
(i) The Plaintiff on 11.1.1993 filed Suit No. 1 of 1993 in this Court titles as "suit for declaration, restoration of possession, recovery of mesne profit and permanent injunction" in respect of the same disputed land.
(i) In compance of order passed by this Court in C.P. No. D-518'2006 the Sindh Katchi Abadis Authority, Government of Sindh the defendant No. 3 has rejected the application of the Plaintiff for regularization of suit property on 11.5.2007 on the grounds; (i) failed to prove physical possession; (ii) failed to produce valid documentary evidence in support of the claim.
(k) The Moosa Goth is a notified Katchi Abadi. The KDA has issued NOC for its regularization and joint demarcation, therefore, Director Katchi Abadis prepared leases and forwarded for execution to Sub-Registrar North Nazimabad on 31.5.2007 for plot beming No. 392 to 414 in the light of decision of this Court in C.P. No. 0518 of 2006.
30. It is well-settled proposition of law that a party would be entitled to relief under Order XXIX, Rule 1&2, C.P.C. Provides that it satisfied the Court that it has a prima facie case, that balance of convenience is in his favour and the irreparable loss and injury could be caused to him if interim relief is not granted. The afore-said three phrases are not rhetoric phrases but elastic words to meet a were range of situation in a given circumstances. The burden is always on the Plaintiff/applicant to satisfy the Court that a prima facie case exists in his favour. The Court must further satisfy itself that non-interference by Court would result in irreparable injury to a party seeking relief. Irreparable injury means that the injury must be a material one, one that Court cannot adequately compensate by way of damages. The Court is expected to exercise sound judicial discretion to find out the amount of substantial mischief or injury which is likely to be caused to the other party if the injunction is granted.
31. In present case the entries in favour of the Plaintiff produced in the record of rights were cancelled in the year of 1982 admittedly the predecessor-in-interest were dispossessed in 1984 and the suit, which was tiled by them was also dismissed. No stay was granted in Suit No. 1/1993 and HCA No. 91/1994 was also dismissed by a Division Bench of this Court on 14.11.2002. It appears from the record that the entire case of Plaintiff is based on the letter dated 4.1.1966 written by Mukhtiarkar Karachi Mst. Halima this document prima facie has no legal sanctity. The letter of Mukhtiarkar certifying the predecessor-in-interest of the Plaintiff as owner exfacie has no value in the eyes of law. In view of the admitted facts as mentioned in preceding paras, the Plaintiff do not have any prima facie case. Balance of convenience is also not in favcur of the Plaintiff who were admittedly not in the possession at the relevant time and had too claimed mesne pofit in suit No._ 1/1993. The defendants who were in possession of the and would be put to more inconvenience in the event if they were deprived enjoyment and or utilization of the land if the injunction is granted. No irreparable loss would be caused to the Plaintiff in such circumstance as the Plaintiff were not in possession, therefore, question of irreparable loss does not arise. On the other hand, Sindh Katchi Abadis Authority have prepared leases and referred to Sub-Registrar North Nazimabad, Karachi for execution of leases after compliance of mandatory provision of law.
32. For the forgoing reasons and discussion the application bearing CMA No. 5910/2007 is dismissed and ad-interim order passed earlier on 25.6.2007 is recalled. .