' MUHAMMAD TASNIM, J.---Through this order I shall dispose of (1) C.M.A. No, 1468 of 2009 (Suit No, 209 of 2009) (2) C.M.A. No,1470 of 2009 (Suit No, 210 of 2009), (3) C.M.A No, 1472 of 2009 (Suit No,211 of 2009), (4) C.M.A. No, 3650 of 2009 (Suit No,511 of 2009), (5) C.M.A No, 3652 of 2009 (Suit No,512 of 2009), (6) C.M.A. No, 3654 of 2009 (Suit No,513 of 2009), (7) C.M.A. No, 3656 of 2009 (Suit No, 514 of 2009) and (8) C.M.A. No, 3658 of 2009 (Suit No, 515 of 2009) under Order XXXIX Rules 1 and 2 C.P.C.
Whereby the plaintiffs have prayed for grant of interlocutory injunction against the defendants, their employees, officers, servants, agents, persons acting under or through them and their police force restraining them from interfering in the peaceful physical possession, use and enjoyment and construction of boundary wall around the suit property and further from dispossessing the plaintiffs therefrom or carrying out any construction of any nature over the suit property and/or establishing park or creating third party right, title or interest therein.
Facts of Suit No,209 of 2009:--
2. The plaintiff in Suit No,209 of 2009 claimed that she is owner and in physical possession of residential/commercial Plot No, 25/1, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 3-20 acres (Survey/Challta No,42 now 47 pursuant to sub-division plan, dated 11-9-2008) (hereinafter called the suit property). It is further claim of the plaintiff that she has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Omer Hayat Chohan son of Abdul Hakeem for a total sale consideration of Rs,8.75 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessors in interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956.
' It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of the claimant's name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the Defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered her name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No,D-1315 of 1997 before this Court. The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C. For recalling of order, dated 7- 7-1997 was filed by defendant No, 1 on 28-10-1998. On such application Court had ordered that no third party right shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be filed vide order, dated 24- 11-1998 and such list was filed in Court. Finally, the application under section 12(2), C.P.C. Was disposed by order, dated 12-12-2001. Against the aforesaid order C.P.L.A. No, 1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders passed by the High Court on 12- 12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff filed an application before the Hon'ble Supreme Court of Pakistan being C.M.A. No,1674 of 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Omer Hayat Chohan the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 25-00 acres, Queen Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub-division of said 25-00 acres of land through order, dated 1-8-2006. The name of Omer Hayat Chohan was entered into Survey Register/Form-II, as Survey/Challta No,43, previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Omer Hayat Chohan obtained NOC for sale in respect of his 5-00 acres of land out of 25-00 acres owned by other persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Omer Hayat Chohan sold the suit property to the present plaintiff through conveyance deed, dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No,47 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to her which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
3. On or about 13-2-2009 certain persons allegedly the officers and employees of Defendants Nos.
2 and 3 along with police force including the S.H.O. Of the area came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No,1468 of 2009.
Facts of Suit No,210 of 2009:--
4. The plaintiff in Suit No,210 of 2009 claimed that he is owner and in physical possession of residential/commercial Plot No,25/2, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 1-20 acres (Survey/Challta No,46) (hereinafter called the suit property). It is further claim of the plaintiff that he has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Omar Hayat Chohan son of Abdul Hakeem for a total sale consideration of Rs,3.75 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessors in interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of the claimant's name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered his name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No,D-1315 of 1997 before this Court. The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C. For recalling of order, dated 7- 7-1997 was filed by defendant No,1 on 28-10-1998. On such application Court had ordered that no third party right shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be filed vide order, dated 24- 11-1998 and such list was filed in Court. Finally, the application under section 12(2), C.P.C. Was disposed of by order, dated 12-12-2001. Against the aforesaid order C.P.L.A. No,1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders passed by the High Court on 12- 12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff filed an application before the Hon'ble Supreme Court of Pakistan being C.M.A. No, 1674 of 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/ respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Omer Hayat Chohan and the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 25-00 acres, Queen Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub-division of said 25-00 acres of land through order, dated 1-8-2006. The name of Omer Hayat Chohan was entered into Survey Register/Form-II, as Survey/Chalta No,43, Previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Omer Hayat Chohan obtained NOC for sale in respect of his 5-00 acres of land out of 25-00 acres owned by other persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Omer Hayat Chohan sold the suit property to the present plaintiff through conveyance-deed, dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No,46 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to him which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
5. On or about 13-2-2009 certain persons allegedly the officers and employees of defendant No,2 came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No,1470 of 2009.
Facts of Suit No 211 of 2009:--
6. The plaintiff in Suit No,211 of 2009 claimed that he is owner and in physical possession of Plot No,25/3, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 20 Guntas (Survey/Chalta No,44) (hereinafter called the suit property). It is further claim of the plaintiff that he has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Muhammad Riaz son of Bostan Khan for a total sale consideration of Rs,2.5 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessors in interest of the plaintiff MA. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of her name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered her name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No,D-1315 of 1997 before this Court. The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C. For recalling of order, dated 7-7-1997 was filed by defendant No,1 on 28-10-1998. On such application Court had ordered that no third party right shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be filed vide order, dated 24-11-1998 and such list was filed in Court. Finally, the application under section 12(2), C.P.C. Was disposed by order, dated 12-12-2001. Against the aforesaid order C.P.L.A.,No,1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders passed by the High Court on 12-12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff filed an application before the Hon'ble Supreme Court of Pakistan being C.M.A. No, 1674 of 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme 'Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Muhammad Riaz and the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 25-00 acres, Queens Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub-division of said 25-00 acres of land through order, dated 1-8-2006. The name of Muhammad Riaz was entered into Survey Register/Form-II, as Survey/Chalta No,44, previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Muhammad Riaz obtained NOC for sale in respect of his 2-20 acres of land out of 25-00 acres owned by other persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Muhammad Riaz sold the suit property to the present plaintiff through conveyance deed, dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No,44 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to him which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
7. On or about 13-2-2009 certain persons allegedly the officers and employees of defendant No,2 came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No,1472 of 2009.
Facts of Suit No, 511 of 2009:
8. The plaintiff in Suit No,511 of 2009 claimed that he is owner and in physical possession of Plot No,25/4, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 1-00 acres (Survey/Chalta. No,44) hereinafter called the suit property). It is further claim of the plaintiff that he has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Muhammad Riaz son of Bostan Khan for a total sale consideration of Rs,2.5 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessors in interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of her name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered her name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No, D-1315 of 1997 before this Court.
' The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C. For recalling of order, dated 7-7-1997 was filed by defendant No,1 on 28-10-1998. On such application Court had ordered that no third party right shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be filed vide order, dated 24-11-1998 and such list was filed in Court. Finally, the application under section 12(2), C.P.C. Was disposed by order, dated 12-12-2001. Against the aforesaid order, C.P.L.A. No,1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders passed by the High Court on 12-12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff filed an application before the Hon'ble Supreme Court of. Pakistan being C.M.A. No, 1674 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Muhammad Riaz and the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 25-00 acres, Queen Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub-division of said 25-00 acres of land through order, dated 1-8-2006. The name of Muhammad Riaz was entered into ,Survey Register/Form-II, as Survey/Chalta No,44, Previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Muhammad Riaz obtained NOC for sale in respect of his 2-20 acres of land out of 25-00 acres owned by other persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Muhammad Riaz sold the suit property to the present plaintiff through conveyance-deed dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No,49 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to him which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
9. On or about 13-2-2009 certain persons allegedly the officers and employees of defendant No,2 came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No, 3650 of 2009.
Facts of Suit No, 512 of 2009:--
10. The plaintiff in Suit -No,512 of 2009 claimed that he is owner and in physical possession of Plot No,25/5, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 01-00 acre (Survey/Chalta No,44) (hereinafter called the suit property). It is further claim of the plaintiff that he has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Muhammad Riaz son of Bostan Khan for a total sale consideration of Rs,2.5 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessors in interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee. Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of her name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered her name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No,D-1315 of 1997 before this Court. The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C. For recalling of order, dated 7-7-1997 was filed by defendant No,1 on 28-10-1998. On such application Court had ordered that no third party right shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be filed vide order, dated 24-11-1998 and such list was filed in Court. Finally, the application under section 12(2), C.P.C. Was disposed by order, dated 12-12-2001. Against the aforesaid order C.P.L.A. No, 1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders, passed by the High Court on 12-12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff filed an application before the Hon'ble Supreme Court of Pakistan being C.M.A. No, 1674 of 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Muhammad Riaz and the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 25-00 acres, Queen Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub-division of said 25-00 acres of land through order, dated 1-8-2006. The name of Muhammad Riaz was entered into Survey Register/Form-II, as Survey/Chalta No,44, previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Muhammad Riaz obtained NOC for sale in respect of his 2-20 acres of land out of 25-00 acres owned by order persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Muhammad Riaz sold the suit property to the present plaintiff through conveyance deed, dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No,49 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to him which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
11. On or about 13-2-2009 certain persons allegedly the officers and employees of defendant No,2 came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No, 3652 of 2009.
Facts of Suit No, 513 of 2009:--
12. The plaintiff in Suit No,513 of 2009 is a private limited company registered under the Companies Ordinance, 1984. The plaintiff claimed that it is owner and in physical possession of Plot No,25/6, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 02-20 acres (Survey/Chalta No,42) (hereinafter called the suit property). It is further claim of the plaintiff that he has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Abdul Naveed Qureshi son of Abdul Rasheed Qureshi for a total sale consideration of Rs,6.25 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessor in interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of her name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered her name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No, D-1315 of 1997 before this Court.
The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C.
For recalling of order, dated 7-7-1997 was filed by defendant No,1 on 28-10-1998. On such application Court had ordered that no third party right shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be field vide order, dated 24-11-1998 and such list was filed in Court. Finally, the application under section 12(2), C.P.C. Was disposed by order dated 12-12-2001. Against the aforesaid order C.P.L.A. No, 1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders passed by the High Court on 12-12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff filed an application before the Hon'ble Supreme Court of Pakistan being C.M.A. No, 1674 of 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Abdul Naveed Qureshi and the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 25-00 acres, Queen Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub-division of said 25-00 acres of land through order, dated 1-8-2006. The name of Abdul Naveed Qureshi was entered into Survey Register/Form-II, as Survey/Chalta No,42, Previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Abdul Naveed Qureshi obtained NOC for sale in respect of his 17-20 acres of land out of 25-00 acres owned by other persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Abdul Naveed Qureshi sold the suit property to the present plaintiff through conveyance-deed, dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No, 53 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to it which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
13. On or about 13-2-2009 certain persons allegedly the officers and employees of defendant No,2 came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No, 3654 of 2009.
Facts of Suit No, 514 of 2009:--
14. The plaintiff in Suit No,514 of 2009 is a private limited company registered under the Companies Ordinance, 1984. The plaintiff claimed that it is owner and in physical possession of Plot No,25/7, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 01-00 acres (Survey/Chalta No,42) (hereinafter called the suit property). It is further claim of the plaintiff that it has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Abdul Naveed Qureshi son of Abdul Rasheed Qureshi for a total sale consideration of Rs,2.5 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessors in interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of her name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered her name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No, D-1315 of 1997 before this Court.
The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C.
For recalling of order, dated 7-7-1997 was filed by defendant No,1 on 28-10-1998. On such application Court had ordered that no third party right shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be filed vide order, dated 24-11-1998 such list was filed in Court.
' Finally, the application under section 12(2), C.P.C. Was disposed by order, dated 12-12-2001. Against the aforesaid order C.P.L.A. No,1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders passed by the High Court on 12-12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff. Filed an application before the Hon'ble Supreme Court of Pakistan being C.M.A. No, 1674 of 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Abdul Naveed Qureshi and the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 25-00 acres, Queen Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub- division of said 25-00 acres of land through order, dated 1-8-2006. The name of Abdul Naveed Qureshi was entered into Survey Register/Form-II, as Survey/Chalta No,42, Previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Abdul Naveed Qureshi obtained NOC for sale in respect of his 17-20 acres of land out of 25-00 acres owned by other persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Abdul Naveed Qureshi sold the suit property to the present plaintiff through conveyance deed, dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No,52 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to it which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari- Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
15. On or about 13-2-2009 certain persons allegedly the officers and employees of defendant No,2 came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No,3656 of 2009.
Facts of Suit No, 515 of 2009:
16. The plaintiff in Suit No,515 of 2009 is a private limited company registered under the Companies Ordinance, 1984. The plaintiff claimed that it is owner and in physical possession of Plot No,25/8, situated in Queens Quarters, Main Mai Kolachi Road, Keamari Town, Karachi, admeasuring 02-35 acres (Survey/Chalta No,42) (hereinafter called the suit property). It is further claim of the plaintiff that it has purchased the suit property pursuant to registered lease/conveyance deed, dated 7th July, 2008 from one Abdul Naveed Qureshi son of Abdul Rasheed Qureshi for a total sale consideration of Rs,7.1875 million and plaintiff further claims to be in physical possession of the suit property. It is further claim of the plaintiff that predecessors in interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. It is further case of the plaintiff that on 5-5-1996 the Secretary (RS&EP), Board of Revenue Sindh, ordered the allotment vide allotment letter, dated 5-5-1996 through Deputy Commissioner, Karachi-West, allowed the allotment of 25-00 acres of land in Queens Quarters, Southern Bye-Pass, to the claimant and directed mutation of her name in the record of rights. It is further claim of the plaintiff that vide letter, dated 28-10-1996 the defendant No,1 directed the Deputy Commissioner, Karachi-West, to implement the orders passed earlier in respect of claimant and entered her name in the record of rights. It is further claim of the plaintiff that the order was not implemented, claimant filed C.P. No, D-1315 of 1997 before this Court.
The said petition was disposed of by consent on 7-7-1997. An application under section 12(2), C.P.C.
For recalling of order, dated 7-7-1997 was filed by defendant No,1 on 28-10-1998. On such application Court had ordered that no third party shall be created. On 19-11-1998 the counsel for petitioner made a statement before the Court that prior to the passing of the orders third party rights had already been created. In compliance of Court order the list of new purchasers was directed to be filed vide order, dated 24-11-1998 and such list was filed in Court. Finally, the application under section 12(2) C.P.C. Was disposed by order, dated 12-12-2001. Against the aforesaid order C.P.L.A. No,1841 of 2001 was filed before the Hon'ble Supreme Court of Pakistan wherein the orders passed by the High Court on 12-12-2001 were suspended. It is further case of the plaintiff that thereafter predecessor in interest of the plaintiff filed an application before the Hon'ble Supreme Court of Pakistan being C.M.A. No, 1674 of 2001 and the Hon'ble Supreme Court of Pakistan vide order, dated 12-7-2001 passed order against the defendants/ respondents for implementation of order, dated 19-11-1998 of the High Court of Sindh. The order of Hon'ble Supreme Court of Pakistan was complied with and report compliance was made to the Hon'ble Supreme Court of Pakistan. It is further case of the plaintiff that Abdul Naveed Qureshi and the other two partners of Messrs IBBT applied to the District Officer (Revenue), CDGK, for sub-division of an area of 22-00 acres, Queen Quarters, Keamari Town, Karachi. The DO (Revenue), allowed the sub-division of said 25-00 acres of land through order, dated 1-8-2006. The name of Abdul Naveed Qureshi was entered into Survey Register/Form-II, as Survey/Chalta No, 42, Previous Entry No,39 in respect of 25-00 acres of land. It is further case of the plaintiff that Abdul Naveed Qureshi obtained NOC for sale in respect of his 14-20 acres of land out of 25-00 acres owned by other persons which was issued to him by the Mukhtiarkar (Revenue), Keamari Town, Karachi, on 2-7-2008. Abdul Naveed Qureshi sold the suit property to the present plaintiff through conveyance deed dated 7th July, 2008. Form-II was duly issued in favour of plaintiff and Survey/Chalta No,51 was assigned. The property was mutated in the record of rights in favour of the plaintiff and vacant possession was handed over to it which is being enjoyed by the plaintiff. The plaintiff applied on 31-1-2009 to Mukhtiarkar (Revenue), Keamari Town, Karachi, for permission to construct boundary wall around the suit property. The Mukhtiarkar (Revenue) vide letter, dated 4-2-2009 granted the said permission for raising boundary wall around the suit property.
17. On or about 13-2-2009 certain persons allegedly the officers and employees of defendant No,2 came to the plaintiff's suit property and demolished the pillars erected thereon and attempted to trespass on the suit property and dispossess the plaintiff. The plaintiff resisted such illegal act on the part of KPT. In the circumstances the present suit was filed along with C.M.A. No,3658 of 2009.
18. Upon service of notice only defendant No,2 filed counter-affidavits in all the suits disputing the claim of the plaintiff and further claimed that the suit property belonged to KPT under the provisions of KPT Act and notification issued in this behalf. KPT further claimed that Government of Sindh had no authority to allot the suit land to predecessor-in-interest of plaintiffs.
19. Since common facts and law are involved in all the above matters hence all the above referred C.M.As. Are being disposed of by this common order.
20. Mr. Abid S. Zuberi, learned counsel for the plaintiffs, submitted that plaintiffs' predecessor in interest have obtained the land under the Evacuee Laws. Learned counsel for the plaintiffs further submitted that plaintiffs hold the suit properties under the registered sale-deeds executed in their favour by the respective owners of the properties. He further submitted that after purchase of the suit properties by the present plaintiffs properties have already been mutated in the name of respective plaintiffs. He further submitted that after transfer of the suit properties in the names of plaintiffs vacant possession of the suit properties was handed over to the plaintiffs. He further contended that right from the handing over the vacant possession to the plaintiffs same is being under the possession of present plaintiffs. Learned counsel for the plaintiffs further submitted that defendants have not challenged the registered sale-deeds through which suit properties were acquired by the respective plaintiffs. Due to illegal threatening act on the part of defendants Nos. 2 and 3 the plaintiffs were forced to file the present suits before this Court to protect their interest and their properties. Learned counsel for the plaintiffs has- further submitted that mere falling of land in the Port Area KPT will not become owner of the land automatically. He referred to the provisions of sections 3, 25, 26 and 27 of KPT Act, 1886. He further invited my attention to the schedule "A" of the aforesaid Act. Learned counsel for the plaintiffs has further submitted that no title document conferring any right in favour of KPT in respect of suit properties has brought on record.
21. Mr. Abid S. Zuberi, learned counsel for the plaintiffs further argued .That plaintiffs, in all the suits, hold properties in their own right as under:-- Suit No. Plaintiff's Name (Owners)Plot No. Area (in Acres)
209-09 Aqeela Hai 25/1 3-20 210/09 Shaikh Khalil ur Rehman25/2 01/20 211/09 Muhammad Hanif25/3 00/20 511/09 Muhammad Hanif25/4 01-00 512/09 Muhammad Jamil25/5 01-00 513/09 Messrs RPS Business Estate (Pvt.)
Ltd.25/6 02-20 514//09 Messrs RPS Business Estate (Pvt.)
Ltd.25/7 01-00 515/09 Messrs RPS Business Estate (Pvt.)
Ltd.25/8 02-35
23. Learned counsel for the plaintiffs while elaborating his arguments has mentioned in history of the title of the plaintiffs by submitting that predecessor-in-interest of the plaintiff Mst. Faiz Un Nissa Begum were claimants under the Evacuee Laws and were displaced persons in terms of Registration of Claim (Displaced Persons Act) 1956. The said claimants had submitted their claim under section 5 thereof. It is also submitted that claim of predecessors-in-interest was prior to 1975. He has further submitted that on 5-5-1996 the Secretary (RS&EP) Board of Revenue, Sindh ordered the allotment vide order, dated 5-5-1996 the Deputy Commissioner Karachi West who allowed the allotment of 25-00 acres of land in Queens Quarters Bye-Pass to the claimant and further directed mutation of her name in the Record of Rights. Learned counsel for the plaintiffs further submitted that the defendant No,1 directed the Deputy Commissioner, Karachi West to implement the order passed earlier in respect of claimant and entered her name in Record of Rights. Since the name of the claimant was not entered in the Record of Rights, she was forced to file the constitutional petition being C.P. No,D-1315 of 1997 before this Court against the Board of Revenue. Said petition was disposed by consent vide order, dated 7-7-1997, and defendant No,1 was directed to implement the directions contained in letter, dated 28-10-1996 within fifteen days time. He has further argued that an application under section 12(2), C.P.C. Was filed by defendant No,1 for recalling order, dated 7-7-1997. While dealing with the application the honourable Court was pleased to pass order that no third party right shall be created. On 19-11-1998 learned counsel for plaintiff made statement before the Court that prior to the passing of the order third party right had already been created. Learned Division Bench ordered the petitioner to file list of such persons in whose favour third party rights have been created prior to order by 24-11-1998. The matter was adjourned to 25-11-1998 with observation that "Interim orders in operation to continue till the next date of hearing subject to what Mr. Sharifuddin Pirzada had stated". The said list of third party interest was filed before the honourable Court including the name of Messrs IBBT, a partnership concern to whom Mst. Faiz Un Nissa Begum had sold the suit property on 2-7-1998. The aforesaid application under section 12(2), C.P.C. Was heard by the learned Division Bench of this Court and vide order, dated 12-1-2001 the order, dated 7-7-1997 was recalled.
23. Against the aforesaid judgment a C.P.L.A. No,1030-K/2001 was filed before the honourable Supreme Court of Pakistan challenging the order of the High Court passed on the application under section 12(2), C.P.C. The honourable Supreme Court of Pakistan suspended the operation of order, dated 12-12-2001 passed by learned Division Bench of this Court. He has further submitted that predecessor in interest of the plaintiffs had earlier filed C.P.L.A. No, 1841 of 2001 before the honourable Supreme Court of Pakistan against the order of High Court, dated 7-5-2001. In the said petition the predecessor in interest of the plaintiffs filed an application before the honourable Supreme Court of Pakistan being C.M.A. No, 1674 of 2001 for implementation of orders in respect of effecting mutation in the Record of Rights in favour of third parties to whom the land had been transferred by predecessor-in-interest. He has further invited my attention that the honourable Supreme Court of Pakistan vide order, dated 12-7-2001 passed orders against the respondent Revenue authorities for implementation of order, dated 19-11-1998 passed by learned Division Bench in C.P. No, 1315 of 1997 in respect of party created third party interest. The h9nourable Supreme Court of Pakistan directed respondent to comply with the orders, The order of the honourable Supreme Court of Pakistan was implemented and compliance report was submitted before the honourable Supreme Court of Pakistan. The properties were mutated in the name of third parties including predecessor-in-interest of the plaintiffs.
24. Learned counsel for the plaintiffs further invited my attention to the report, dated 13-11-2003 by Mukhtiarkar Keamari Town C.D.G.K. Detailed the background of the case orders passed by the Revenue Authorities, orders passed by the High Court and the honourable Supreme Court of Pakistan and compliance therefore and submitted that the 25-00 acres of land was duly mutated in the name of the partners of the Messrs IBBT. 5-00 acres of land was the share of Mr. Omer Hayat Chohan and others in the name of Mr. Abdul Naveed Qureshi (17.20 acres) and Muhammad Riaz Khan (2.20 acres).
25. Mr. Abid S. Zuberi, learned counsel for the plaintiffs, has argued that the claims of plaintiffs are based upon title documents having issue by the complainant authority and submitted that KPT has no jurisdiction over the suit land. He has relied upon an unreported . Judgments in Suit No, 843 of 2004 and HCA No, 185 of 2009. He has also placed reliance upon (1) Mirza Mehboob Baig and others v. Deputy Settlement Commissioner (Land) and others (2002 MLD 1512), (2) Balagamwal Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. And others (PLD 1990 Karachi 1), (3) S.N. Gupta and Co. v.
Sadanada Ghosh and others (PLD 1960 Dacca 153) and (4) Muhammad Saleem v. Salamatullah Baig (1988 CLC 2313).
26. On the other hand Mr. Shaiq Usmani, learned counsel for defendants Nos. 2 and 3 in Suits Nos.
511 to 515 of 2009, has submitted that Sindh Government had no title in the suit properties, hence had no right to transfer the land to the predecessors in interest of the plaintiffs. He submitted that title of the suit properties vest in the Federal Government. In support of his contention he has relied upon the map available on record showing the suit land within the Port Area. Learned counsel for defendants Nos.2 and 3 has further argued that even if Federal Government had title in the suit land it would not allot the plots to the predecessors-in-interest of the plaintiffs as it lacked jurisdiction to do so. Learned counsel in support of his contention has relied upon the case reported as. Mirza Mehboob Baig and others v. Deputy Settlement Commissioner (Land) and others (2002 MLD 1512). He further submitted that even if Sindh Government had the jurisdiction to allot the suit land no title passed on to the plaintiffs' predecessors in interest or to the plaintiffs as it was not based upon any title document. He submitted that properties were transferred through sale agreements which confer no right in favour of the proposed purchasers, Learned counsel for defendants Nos. 2 and 3 further argued that the suit land falls in the Port Area as notified in the Notifications of 1940 and 1991. Learned counsel further relied upon the following cases:--
(1) Khawaja Ammar Hussain v. Muhammad Shabbiruddin Khan PLD 1986 Karachi 74).
(2) Habibur Rehman and another v. Mst. Wandania and others (PLD 1984 SC 424)
27. Mr. Khawaja Naveed Ahmed, learned counsel for defendants Nos. 2 and 3 in Suits Nos. 209 to 211 of 2009, has mainly relied upon the submissions made by Mr. Shaiq Usmani, Advocate for defendants Nos. 2 and 3 in the above referred suits. However, he further added that Provincial Government which alleged to have passed on the title did not have the ownership right over the suit properties and further submitted that suit properties belonged to KPT. He further submitted that even if the Provincial Government had the title but the same was not passed on to the predecessors in interest of the plaintiffs. He further submitted that since predecessors in interest of the plaintiffs did not have any title he or she could not have conveyed to third person.
28. Learned A.A.-G. For the Provincial Government has supported the case of the plaintiffs and has adopted the arguments of the learned counsel for the plaintiffs.
29. Learned counsel for CDGK-Defendant No,4 has submitted that controversy in the suits does not relate to the CDGK and adopts the contents of its written-statements.
30. I have heard the learned counsel for the parties and gone through the record available before me so also the case-law cited by the parties counsel.
31. Section 3 of the Karachi Port Trust Act, 1886 (hereinafter called as "Act") provides as under:-- "(3) Power to define and alter limits of Port. Government may by notification in the Official Gazette- --
(a) define the limits of the port for the purpose of this Acts, and
(b) from time to time alter such limits.
' Such limits may extend to any part of the navigable approach to the port, and may include any wharves, tramways, warehouse; sheds and other works made on behalf of the public for convenience of traffic, for safety vessels or for the improvement, maintenance and good government of the port, whether within or without high-water mark, and subject to any right of private property therein, any portion of the shore within fifty yards of high water mark."
32. The perusal of the above quoted section would show that government may by notification in the Official Gazette define the limits of the port for the purpose of this Act and from time to time alter such limits. Such limits may extend to any part of the navigable approach to the port, and may include any wharves, tramways, warehouse; sheds and other works made on behalf of the public for convenience of traffic, for safety of vessels or for the improvement, maintenance and good governance of the port, whether within or without high-water mark, and subject to any right of private property therein, any portion of the shore within fifty yards of high water mark.
33. Section 25 of the Act provides that the Board shall, for the purposes of this Act, have power to acquire and hold moveable and immovable property within or without the limit of the port or city of Karachi.
34. Section 26 of the Act further provides that when the Board are unable to acquire, by agreement, any immovable property required for the purpose of this Act, the Federal Government may, order proceedings to be taken for acquiring the same on behalf of the board as if such property was land needed for a public purpose within the meaning of the -Land Acquisition Act, 1894. The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall be forthwith defrayed by the Board, and thereupon the said property shall vest in the Board.
35. Section 27 of the Act further provides that the property specified in schedule A shall vest in the board provided that if any question arisen between the Federal Government and the Board as to the boundaries of any portion of such property, Government may define and demarcate such boundaries, and the decision of Government in respect to such boundaries shall be conclusive. It is also provided that any portion of the land specified in the said schedule which shall be required by the Federal Government for a public purpose may be resumed by the Federal Government, without claim to compensation on the part of the Board, except for Building or other permanent structure erected thereon. It is further provided that nothing in clause (ii) of the proviso to subsection (1) 'shall apply to land reclaimed from harbour water, and the Board shall be compensated for any improvement effected by it on any land resumed under that clause. The Railway now under construction between the Bandar station and the Keamari station may be constructed by Government along the foreshore or on reclaimed land and any other work which the Federal Government may consider necessary in the public interests may be executed by Government in or compensation on the part of the Board except for building or other permanent structures which it shall be necessary to clear away for the purpose of such railway or work.
36.Similarly subsection (1) of section 18 of the Act provides that the Board shall be competent, subject to the restrictions contained in subsection (2), to lease, sell or otherwise transfer any moveable or immovable property which may for the purposes of this Act, have become vested in or been acquired by them and so far as is not inconsistent with the provisions and purposes of this Act, and subject to the restriction contained in subsections (3) and (4), to enter into and perform all such contract as they may consider necessary or expedient in order to carry into effect the said provisions and purposes. Schedule-A of the section 27 of the Act declares the limits of the Ports of Karachi start from Splendid Hotel, Hawksbay, Manora Breakwater, mainland Gizri, Keamari Groyne Cargo Complex, China .Creek Breakwater, Juna Bunder and West Wharf.
36. From the perusal of record and the provisions of the Act quoted hereinabove, it is clear that defendants Nos. 2 and 3 have not been able to establish that the suit land stands vested in K.P.T.
The section 3 of the Act does not create any proprietary right in K.P.T.
37. Similar question has arisen for consideration before this Court in the case of Muhammad Zahir Shah v. Province of Sindh (Suit No, 843 of 2004), dated 22-2-2007, wherein the learned Single Judge after examining the notification relating to the K.P.T. Area as also provisions of the Act has held as under:-- ' In view of the matter the defendant No,2 has not been able to establish that the suit plot stands vested in KPT. 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 do 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."
38. Learned counsel for plaintiffs has further submitted that against aforesaid judgment of the learned Single Judge an appeal is pending decision.
40. The contentions of the learned counsel for the defendants Nos. 2 and 3 that Sindh Government had no title in the suit properties hence had no right to transfer the land to the predecessor in interest of the plaintiffs. The submissions of the learned counsel cannot be decided without recording evidence of the parties. It is to be pointed out that defendants Nos. 2 and 3 had filed H.C.A. No, 185 of 2009 against the order, dated 27-5-2005 passed on C.M.A. No, 4519 of 2009 in suit No,511 of 2009. The learned Division Bench while disposing of the above appeal had observed as under:- "....Let parties file written statement and exchange preliminary documents during vacation. Matter be fixed after reopening of the Court for filing and settlement of the issues, if so agreed by the parties Commissioner may be appointed for recording evidence for early disposal of the matter."
41. I myself, prior to hearing the arguments of the parties, had offered learned counsel for the parties that if they agree consolidated issues in all the suits be framed and Commissioner be appointed to record evidence of the parties within a period of three months. Learned counsel for the plaintiffs had agreed to my proposal, but learned counsel for the defendants Nos. 2 and 3 did not agree for settlement of issues and recording of evidence. However he pressed for hearing of present applications.
42. Since point raised by learned counsel for the defendants Nos. 2 and 3 cannot be decided at this stage when no evidence of the parties has been recorded and the submission of the learned counsel goes to the very root of the matter dealing with the ownership of the land. Such arguments of the learned counsel for defendants Nos. 2 and 3 can be appropriately dealt with once the evidence of the parties are available on record. Learned counsel for the defendants Nos. 2 and 3 placed reliance on the judgment reported as 2002 MLD 1512, as pointed above, such judgment is subject-matter of C.P.L.A. No,1030 of 2001 and operation of aforesaid judgment has been suspended by the Hon'ble Supreme Court of Pakistan hence is of no help to the learned counsel for the defendants Nos. 2 and 3 till the matter is decided by the Hon'ble Supreme Court of Pakistan.
43. Similarly the contention of the learned counsel for the defendants Nos. 2 and 3 that Sindh Government had no jurisdiction to pass on title to the plaintiffs' predecessor-in-interest as it was based upon no title documents. Learned counsel for defendants Nos. 2 and 3 in support of this above has invited my attention to two notifications, dated 2nd May, 1940 and 5th October, 1991. The notification dated 2nd May, 1940 is quoted as under:-- "No, 12-P(85)/39.I,---In exercise of the powers conferred by section 5 of the Indian Ports Act, 1908 (XV of 1908), and in supersession of the notification of the Government of India in the Department of Communication No,12-P(83)/37, dated the 12th April, 1938, the Central Government is pleased to declare that the limits of the Port of Karachi shall, for the purposes of the said Act, be as follows:-- ' From Municipal Boundary Pillar No,1 across to the seaside of Manora spit and thence along High Water Mark to New Karachi Port Trust Pillar No,46 and from thence seawards along the circumference of a circle of 3 miles radius, having its centre at the extreme end of Manora Breakwater until a point on the circumference due cast of the centre of the circle is reached and from thence in a straight line due cast to the shore at Ghizree and thence by High Water to the Northern End of Keamari Groyne, thence Northn following the High Water Mark of the Disinfecting Station, Chemical Analyzer's Laboratory, Boat Basin and East Wharf to the entrance to the Chinna Creek backwater, thence round the Chinna Creek by the High Water Mark and by High Water Mark following the Juna Bandar and West Wharf, and thence by High Water Mark round the West Backwater to Municipal Boundary Pillar No,1 as indicated in Karachi Port Trust Plan No,B-II/V-34, dated the 9th June, 1939 and including all wharves and other. Works made on behalf of the public for convenience of traffic, for safety of vessels, or for the improvement, maintenance or good government of the port and also including all portions of the shore of bank within 50 yards of High Water Mark."
44. The above notification was superseded through another notification, dated 5th October, 1991 which re-defines the boundaries of the Port of Karachi which reads as under:-- "In exercise of the powers conferred by section 3 of the Karachi Port Trust Act, 1886 (Bombay Act, VI of 1886), read with the Sindh Laws, Regulations, 1936 (Regulation, VI of 1936), and in supersession of this notification of the then British Government vf India in the Department of Communications No, 12.P(85)/ 39-II, dated the 2nd May, 1940, the Federal Government of Pakistan is pleased to declare that the limits of Port of Karachi shall, for the purposes of the said Act, be as under:-- "From KMC boundary pillar No,1 near Hotel Splendid at Hawksbay, and thereafter due south to the High Water Mark: and thence due South-West towards point "A" (Lat, 24" 47' 20" North: Long. 66" 45.'
42" East); and from thence seawards along the circumference of a circle of 12 nautical miles radius, having its center at the extreme end of Manora Breakwater; (Lat, 24" 47' 20" North: Long. 66" North-West 58' 48" East); upto point "B" (Lat, 24d 35' 18" North Long 66 57' 54" East) and thence in straight line due to point "C" (Lat. 24 42' 00"
North; Long 66 56 00" East); and thence in straight line due North-East to point "D" (Lat, 24 45' 48"
North; Long 67 03' 36" East) situated on mainland of Gizri;' and thence in the North-West direction along with the High Water Mark to the southern end of Keamari Groyne Cargo Complex; and thence North following the High Water Mark to oil entrance of Chinna Creek backwaters; and thence following the high water marks along the Chinna Creek, backwaters to Juna Bunder and West Wharf; and thence following High Water Marks along northern edge of western backwaters rejoining KMC boundary pillar No,1 at Hawksbay, as indicated on KPT plan No,SS/4630/91, dated 7th September, 1991; and including all wharves and other works made on behalf of the public for the convenience of shipping and cargo traffic, for the safety of vessels, and for the improvement, maintenance and good government of the Karachi Port, and also including all portions of the shore or banks within 50 meters of the High Water Marks".
45. These notifications did not in any manner, whatsoever, grant proprietary rights to K.P.T. In respect of lands falling within the limits.
46. It is to be noted that section 3 of the Act protects the right to private property falling within the limits of port area. Demarcation of the limits of K.P.T. Does not mean that K.P.T. Owns all the property falling within the limits within 50 square yards of High Water Mark or demarcation of the limits of Port of Karachi does not give any proprietary right to K.P.T. To lease, rent or sell of the properties within its limits. Schedule "A" of K.P.T. Act does not confer any ownership right in the K,P.T. Board with regard to suit land. On the other hand K.P.T. Has not been able to show as to how they have acquired the suit properties when suit properties do not find place in schedule-A to the Act.
47. Since it is an interlocutory stage and I am deciding only application under Order XXXIX Rules 1 and 2, C.P.C. For which it is to be seen whether prima facie case has been made out by the plaintiffs for grant of injunction, balance of convenience lies in favour of plaintiffs and if injunction is not granted irreparable loss shall be causal to the plaintiffs. It is admitted position that present plaintiffs in all the suits hold the properties under registered instruments. It is also admitted position that title documents of the plaintiffs have not been challenged by any person before any Court of Law. It is also admitted position on record that when suit was filed possession of the properties was with the plaintiffs. From the perusal of the Nazir report it appears that construction of the foundation of the boundary wall of the suit land was being constructed by the plaintiffs after seeking permission from the relevant authorities and when defendants Nos. 2 and 3 intervened and tried to encroach upon the land of the plaintiffs the approached this Court. This Court after hearing the learned counsel for plaintiffs had directed the parties to maintain status-quo in Suits Nos. 209, 210 and 211 of 2009 on 18-2-2009 and in Suits Nos. 511, 512, 513, 514 and 515 of 2009 on 15-4-2009 and such order of status-quo is in the field.
48. In the case of Balagamwala Oil Mills (supra) a learned Division Bench of this Court while dealing with the provisions of Order XXXIX, Rules 1 and 2 C.P.C. Has observed as under:-- "....We are inclined to agree with Mr. Mansoor Ahmed Khan that in a fit case the Court may grant interim injunction even if the case does not fall within the four corners of the well-settled principles under Order XXXIX, Rules 1 and 2, C.P.C., if the facts of the case so demand, in order to foster the cause of justice. Nasir Aslam Zahid, J. In the case of Mst. Salma Jawaid and 3 others v. S.M. Arshad and 7 others, reported in PLD 1983 Kar. 303, has inter alia held that the Court can grant temporary injunction or appoint receiver by exercising inherent powers in the interest of justice after making reference to sections 94 and 151, C.P.C. The relevant observations are as follows:-- "It is considered necessary to comment separately upon each judgment cited before me. Suffice it is to observe that in some judgments the Superior Courts have exercised powers under section 94 or 151 of the Code of Civil Procedure to grant relief to a claimant or applicant although the case did not fall within the four corners of specific provisions of the Code. In other cases the Courts declined to exercise their inherent powers under section 151, C.P.C. Where they reached the conclusion that the case made out by the claimant or applicant was not covered by a provision of the Code. I have however, no hesitation in rejecting the proposition advanced by Mr. Wajihuddin that inherent powers of the Court are available to grant a temporary injunction or appoint a receiver and such relief can only be granted under Order XXXIX, Rules 1 and 2 or Order XL, rule 1, C.P. I may with respect refer to the observations made by the Supreme Court of Pakistan in PLD 1962 SC 119 to the effect that generally speaking the Code of Civil Procedure does not create new powers but regulates the exercise of powers already possessed by the Court and even before the Civil Procedure Code was enacted, the Civil Court possessed the powers because it has jurisdiction to determine and protect civil rights and for the protection of those rights the exercise of such powers is essential. Supreme Court of Pakistan, elucidating the principle further, observed in H.M. Saya and Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 that the Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for and to give such a meaning to the omission would result in grave injustice. It was further observed that the Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same."
49. In another case of S.N. Gupta (supra) learned Division Bench of Dacca High Court has held as under:- ' To summarise, in the case of a temporary injunction, (a) an applicant must show a fair prima facie case in support of the right claimed; (b) an actual or threatened violation of that; (c) productive of irreparable or at least serious damager; (d) his conduct must be such as not to disentitle him to assistance but it should be fair and honest and in particular there must be no acquiescence or delay; (e) there must be a greater convenience in granting than refusing the injunction, and (f) equally efficacious relief must not be obtainable by any other usual mode or proceeding."
50. In the case of Muhammad Saleem (supra), learned Single Judge of Lahore High Court has held as under:- "(2) The allegation of the respondent is that the document on which the petitioner bases his claim is in itself a forged document. However, this aspect will be gone into and finally settled when the case is decided on merits. For the present it is sufficient to say that admittedly the petitioner is in possession of the property in dispute. It is commonly said that possession in itself is a strong evidence of title. Only on this account the temporary injunction should have been allowed in favour of the petitioner."
51. In view of above factual and legal position, it is apparent that plaintiffs hold properties under the registered instruments and the same have not been challenged by any party till date before any Court of Law. It is also established on record that plaintiffs were in possession of suit land at the time of filing suits. It is plaintiffs who have approached the Court or seeking the relief to protect their proprietary right in the suit property. The plaintiffs have successfully made out a case for grant of injunction as balance of convenience lies in their favour. From the conduct of defendants Nos. 2 and 3 it is apparent that if injunction, as prayed for, is not granted serious prejudice shall be caused to the plaintiffs.
52. The judgments cited by learned counsel for defendants Nos. 2 and 3 do not apply to the cases in hand for the reasons that in the reported judgments it was held that agreement to sale does not confer any right upon the purchaser. There is no cavil to the above legal proposition. In the present case plaintiffs hold the property under registered sale-deeds hence aforesaid judgments cited by learned counsel for the defendants Nos. 2 and 3 have no application in the circumstances.
53. For the foregoing reasons interim order passed in Suits Nos.209, 210 and 211 of 2009 on 18-2- 2009 and interim order passed in Suits Nos. 511, 512, 513, 514 and 515 of 2009 on 15-4-2009 are hereby confirmed and all the C.M.As.' being (1) C.M.A. No,1468 of 2009, (2) C.M.A. No, 1470 of 2009, (3)
C.M.A. No, 1472 of 2009, (4) C.M.A. No, 3650 2009, (5), C.M.A. No, 3652 of 2009, (6) C.M.A. No,3654 of 2009, (7) C.M.A. No, 3656 of 2009 and (8) C.M.A. No, 3658 of 2009 are allowed in the above terms.
54. The observations contained in this order are tentative in nature and shall not affect the final adjudication of the cases.
55. Since the parties are contesting with regard to the ownership of the suit land, it would be appropriate that issues be settled at the earliest and evidence of the parties be recorded through Commissioner. In the circumstances office is directed to fix the matters for settlement of issues, immediately on reopening of the Courts after Summar Vacation.