' SHAHID ANWAR BAJWA, J.--- For reasons to be recorded later this High Court Appeal was disposed of by short order dictated in open Court on 17-5-2011 in the following words:- "Arguments heard. For reasons to be recorded later, the judgment and decree dated 15-8-2006 are set aside and the High Court Appeal is disposed of in the following terms:--- i) It is hereby declared that the respondents/plaintiffs are lawful owners of suit plot i.e. Residence Bungalow No,A-2-A, situated at Sunset Boulevard, Phase II, Defence Housing Authority to the extent of 2600 sq. Yds. Only. Ii) It is hereby further declared that respondents/plaintiffs are entitled to mutation of the suit Plot to the extent of 2600 sq. Yds. Only. Iii) Appellants/defendants are directed to carry out mutation in favour of respondents/plaintiffs in their record and record transfer of suit plot together with construction thereon in favour of the respondents/plaintiffs to the extent of 2600 sq. Yds. Only. Iv) Appellants/defendants are directed to demarcate area of 2600 sq. Yds. Out of the entire plot in such a way that least amount of disturbance/demolition, if any, required, in respect of construction standing thereon. This exercise must be completed within one month. They shall also determine exact area in excess of 2600 square yards and prepare site plan also. After completion of demarcation the appellants/defendants shall within 30 days thereafter serve a notice upon present respondents giving them option of purchasing area in excess of 2600 sq. Yds.
At the rate prevailing on the date of this judgment. Appellants/defendants shall in their notice specify price in respect of such area and enclose a copy of site plan specifying contours of 2600 square yards as also of area in excess of 2600 square yards. Vi) Within 15 days of the service of notice plaintiffs/respondents may accept option of purchasing the remaining area i.e. Area in excess of 2600 square yards. Vii) If the respondents/plaintiffs accept offer of the appellants/ defendants they shall have a further a period of two months to pay the requisite amount. If respondents/plaintiffs do not accept offer given by the appellants/defendants within above stated period of 15 days or if after having accepted offer they do not make payment within requisite period of two months the appellants/defendants shall forcibly take possession of the area in excess of 2600 sq. Yds. They may resort demolition if any, required in this regards. Viii)
Appellants/,defendants shall not, in the event of taking possession of excess area, sell this area to anyone and shall only use it for the purpose of open space/ park. Ix) Parties are left to bear their own costs."
2. The piece of land in respect of which suit was filed is Plot No,A-2-A, situated at Sunset Boulevard, Phase II, Defence Housing Authority, Karachi (hereinafter referred to as the suit plot). The suit plot was leased and the lease was executed on February 6, 1967 between President of Pakistan on the one hand and Defence Housing Society and one Mst. Suraya Sultan wife of late Col. Sultan Muhammad on the other hand. Property described in the lease deed is as under:--- "AA-2-A Sunset Boulevard, Survey No,26, measuring 2600 square yards."
3. Delineation and boundaries of the plot were described as under:--- On the North by 40' wide South Park Street On the South by 120' wide South Park Avenue On the East by 60' wide South Park Avenue On the West by 40' wide South Park Street
4. The said Mst. Suraya Sultan through registered Conveyance Deed made on August 13, 1995 sold and conveyed the suit plot together with house standing thereon to the present respondents. It was again stated in the conveyance deed that plot measured 2600 sq yards in the Schedule of Property boundaries were as have been stated above. When the plaintiffs/respondents applied for mutation of the property they/their predecessor-in-interest received letter dated 3-11-1999 which is in the following words:--- Date 3 Nov., 99 REGISTERED ' MRs, Surraya Sultan A-2-A, Sunset Boulevard Phase-II, DHA, Karachi.
Subject: Mutation of Property No,A-2-A, Sunset Boulevard, Phase-II, DHA Karachi ' Dear Madam, ' Reference is made to our letter No,A-13-3/ PD dated 17 Aug. 99 and your legal advisor's letter No,F/MOT-99/ 30899/DHA/Rep dated 30 Aug.
99.
' It is to inform you that DHA is not in a position to process mutation of the subject property unless the discrepancy of area in occupation i.e. 3728 sq. Yds instead of 2600 sq. Yds allotted/transferred and leased to you is resolved.' You can either vacate the additional area measuring 1128 sq. Yds or agree to pay the cost of extra land, which would work out to more than ' Rs,7 million as per rates approved by the Executive Board of DHA.
' In case you choose to pay the cost of extra land, which is still 'lower than market value, the case for extra land may be processed to the Executive Board.
' Thanking you, ' Yours faithfully, ' (Sd.)
' Col (Retd.) Director Planning ' (Albert Nasim)"
5. Aggrieved by this letter Civil .Suit No,1830/1999 was filed by present respondents and the following prayers were made:--- "The plaintiffs pray for Judgment and decree as under::--- a. For a declaration that the plaintiffs are lawful owners of the Suit plot measuring 3728 square yards, which has been purchased by the plaintiffs for valuable consideration; For a declaration that the plaintiffs are entitled to mutation of the Suit plot; For a declaration that the letter dated 3-11-1999 issued by the defendant is null, void ab initio, illegal, without jurisdiction and has no legal effect and the said letter has been issued by the defendant malafidely, in violation and in contradiction of the sub-leases dated 12-3-1963 and 6-2-1967 (Annex P-2 and P-4a) as well as the site plan dated 4-12-1975 (Annex P-8), wherein the boundaries of the suit plot are clearly delineated; d. For a permanent prohibitory injunction restraining the defendant, its agents, representatives, assigns, officers or any other person/persons acting directly or indirectly through it, jointly and severally from acting upon the illegal letter dated 3-11-1999 (Annex P-7b) and from interfering with its possession of the land and construction within the following boundaries; North : 60 feet wide South Park Avenue South : 120 feet wide Sunset Boulevard East : 60 feet wide.
South Park Avenue West : 40 feet wide South Park Street e. Permanent mandatory injunction directing the defendant to carry out mutation in favour of the plaintiffs in its record and complete the transfer in its records of the suit plot together with the construction thereon in favour of the plaintiffs; f. For any other, further or better relief(s) that this honourable Court may deem fit and proper in the facts and circumstances of this case;
6. The following issues were framed:--- Whether the Defence Housing Authority can determine the lease in Form-B executed by the Military Estate Officer on behalf of the President of Pakistan or resume any portion of land for which such lease has been granted?
2. Whether mutation before the Defence Housing Authority is mandatory and if so, whether the Defence Housing authority can refuse to mutate a transfer where the lease has been granted by the President of Pakistan?
3. Whether the Defence Housing Authority in law has the power to question the right and title of the lessee i1; respect of the lease, issued by Military Estate Office?
4. Whether the plaintiff is in illegal possession of extra area measuring 1128 Sq. Yards in addition to his own plot measuring 2600 Sq. Yards?
5. Whether the plaintiff has purchased suit property measuring ' 2600 Sq. Yards or 3728 Sq. Yards?
6. What should the decree be?
7. Suit came up for hearing of arguments on 11-5-2006 and after hearing of arguments on 15-8- 2006 following decree was passed:--- it is hereby ordered that plaintiffs' suit is decreed against the defendant as prayed with no orders as to cost as under:- It is hereby declared that the plaintiffs are lawful owners of the suit plot i.e. Resident Bungalow bearing No,A-2-A situated at Sunset Boulevard, Phase 11 Defence Housing Authority, Karachi measuring 3728 Sq. Yards which has been purchased by the plaintiffs for valuable consideration. b) It is hereby further declared that the plaintiffs are entitled to mutation of the suit plot. c) It is hereby further declared that the letter dated: 3-11-1999 issued by the defendant is null, void ab initio, without jurisdiction and has no legal effect and the said letter has been issued by the defendant mala fide, in violation and in contradiction of the sub-leases dated 12-3-1963 and 6-2- 1967 (Annex P-2 and P-4a to the plaint) as well as the site plan dated 4-12-1975 (Annex P-8 to the plaint), wherein, the boundaries of the Suit plot are clearly delineated. That the defendant, its agents, representatives, assigns, officers or any other person/ persons acting directly or indirectly through it, jointly and severally be and are hereby permanently restrain from acting upon the illegal letter dated 3-11-1999 (Annex P-7b) and from interfering with its possession of the land and construction within the following boundaries. North : 60 feet wide South Park Avenue South : 120 feet wide Sunset Boulevard East : 60 feet wide South Park Avenue West : 40 feet wide South Park Street e) That the defendant is -hereby directed to carry out mutation in favour of the plaintiffs in its records and complete the transfer in its records of the Suit plot together with the construction thereon in favour of the plaintiffs. It is hereby further ordered that the plaintiffs are hereby directed to pay to the defendant proportionate premium and development charges for the -extra area of 1128 Sq yards within 30 days from the demand raised by the defendants at the same rate which was charged by the defendant at the time of granting lease in respect of 2600 Square yards."
8. Being aggrieved by the judgment and decree dated 15-8-2006 this appeal has been filed by the appellant/defendant.
9. Learned counsel for appellant submitted that the Defence Housing Authority had actually leased out and sold an area of 2600 square yards of the suit plot and Authority is prepared and willing to sell balance part of the property to respondents but at the rate prevailing now rather than the price prevailing in 1967. He further submitted that if plaintiffs/respondents are not willing to purchase balance piece of land i.e. Piece of land in excess of 2600 square yards the Defence Housing Authority be allowed to take over excess land. However, he categorically stated that, the land thus taken over by the Authority shall not be sold out to anyone but shall be used only for park/open space. He further submitted that actual area of plot is 4083 square yards and the respondents are thus in occupation of an excess area of 1483 square yards.
10. Ms. Sana Akram Minhas learned counsel for the plaintiffs/ respondents submitted' that suit plot was originally leased out to MRs, Surraya Sultan. Respondents purchased from MRs, Surraya Sultan the suit plot together with house standing thereon and, therefore, respondents are bona fide purchasers and are entitled to the same. She relied upon Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53). She referred to Guide Map of Defence Housing Authority available at page 333 and submitted that plot is half elliptical in shape and has road all around it. She also referred to letter available at page 273 by the Revenue Superintendent, Clifton Cantonment Board bearing date of July 27, 1995. Letter is under the title as "No DEMAND CERTIFICATE" and she stated that when it was obtained from the. Clifton Cantonment Board at the time of purchase by the respondents there is no statement whatsoever in the letter regarding any excess land in occupation of, them. She also referred to document at page 329 (reproduced above) and stated that in 1999 Defence Housing Authority demanded an amount of Rs,7 million and in statement filed in suit in November 2, 2005. They.Demanded Rs,48,3 million. The entire statement in the following words:--- "1. That in pursuance to the directions of this honourable Court, the Executive Board of DHA has processed the case of plaintiff to determine reasonable cost of extra area measuring 1728 sq. Yds.
' That the Executive Board of defendant has assessed Rs,48.3 million as reasonable cost of extra land. (Copy of resolution of Executive Board is enclosed as ready reference).
' That the resolution is placed on record for consideration of this honourable Court for further ordeRs,
11. Learned counsel for plaintiffs/respondents submitted that appellant/defendant has been adopting contradictory and inconsistent stands. She submitted that every document must be read in its entirety. In this regard she relied upon A.R. Khan v. P.N. Boga through legal heir (PLD 1987 SC 107) and submitted that when lease deed is read in its entirety, the plaintiffs/respondents purchased land bounded by four described characteristics. She further submitted that property consisted of built-up house and respondents purchased it in built-up condition. Regarding rate at which payment should be made she relied upon Arshad Abdullah and others v. Government of Sindh through Secretary, Housing and Town Planning Department and others (2006 YLR 3209).
Learned counsel also relied upon Rashid-ur-Rehman v. Akram Khan and 2 others (1989 SCM R 1982).
12. We have considered submissions made by the learned counsel and have also gone through record as well, as case-law cited at the bar.
13. From arguments of the parties the following two issues arise for determination:-- i) What is the area that was leased out to the predecessor-in- interest of the plaintiffs/respondents and was subsequently purchased by the plaintiffs/respondents from his predecessor-ininterest? ii) What should the decree be?
14. Relevant documents in this regard are: (1) "B" lease executed on February 6, 1967; (2)
Conveyance Deed dated August 13, 1995; (3) Site Plan available at Page 309 of the file issued on 4- 12-1975; and (4) Guide Map of the area.
15. Guide Map of the area indicates that suit plot is in the shape of a half elliptical Island surrounded by roads on all the four sides. There is no dispute between the parties on this point. Site plan again shows the suit plot surrounded by roads on all sides. It is stated to be 120 feet wide at one end. Its depth is 174 feet and is 150 feet wide before the ellipse rather quickly flattens. If average of 120 and 150 is taken as width with depth of 174 feet the area comes out to be 2615 square yards.
Assuming same area is lost in rounding corners, the area of the plot as indicated in the Site. Plan not only in terms of what is written there but also in terms of dimensions of plot given there is 2600 square yards. As far as conveyance deed and "B" lease are concerned, the boundaries of property are described as stated in Para 3 above; size of plot is stated to be 2600 square yards. For example, in the conveyance deed it is stated as under:--- "WHEREAS the Vendor above named is at the date of these presents seized and possessed of and is otherwise well and sufficiently entitled to all that Residential Bungalow built on plot of land bearing No,AA-2/A Sunset Boulevard, Defence Officers Housing Society, Karachi measuring 2600 sq. Yards or thereabout with all fittings and fixtures situated in Pakistan Defence Officers Housing Authority Karachi."
16. Similarly in "B" lease executed in favour of MRs, Suraya Sultan it is stated as under:--- 'And whereas in pursuance of clause 14(1) of the lease document the Society by a deed dated 12- 3-63 (hereinafter called the sublease form 'A') granted upto the sub-lease to enter upon a plot of land bearing No,AA-2/A, Sunset Boulevard (Survey No, ) measuring 2600 square yards or thereabout."
17. MRs, Suraya Sultan, predecessor-in-interest of plaintiffs/ respondents was actually given land measuring 2600 square yards. She was not given lease in respect 9f any area in excess of 2600 square A yards. Since she did not have right to this excess area, therefore, all that she could sell to plaintiffs/respondents or plaintiffs/respondents could have purchased from her and indeed purchased from MRs, Suraya Sultan, is 2600 square yards of area.
18. Contention of Ms. Minhas was that in the lease deed, "B" lease, Guide Map and Site Plan the boundaries of the plot are specified and, therefore, plaintiffs/respondents purchased whatever was bound by these boundaries. She relied upon Rashid-ur-Rehman's case (supra). In Rashid-ur- Rehman case sale of 5 Kanals of area was affected and boundaries of land were also specified in the sale-deed. The question was whether a Marla is equal to 260 square feet or 272 square feet and Court has held that since boundaries were specified the entire plot was sold and there was no scope for petitioner to retain any part thereof on the basis of "one calculation ignoring the other."
Fact that the Supreme Court used word "calculation" when coupled with fact that Marla is variously &scribed as comprising of different areas depending upon where the land is. In Punjab, for example, in Lahore a Marla is treated to be equal to 225 square feet, (500 square yards is stated as one Kanal) and in rural area of Punjab it is stated to be 260 square feet, as well as stated 272 square feet. In the present case, area leased is specified in square yards and a square yard is exact universally. And in fact in the Site Plan exact dimensions are also specified. Therefore, plaintiffs/respondents purchased exact area and exact dimensions and nothing more.
19. In the decree in appeal in this matter, in the last part of it, learned Single Judge has himself directed the plaintiffs/respondents to pay to the defendant/appellant proportionate premium and development charges for the extra area of 1128 square yards within 30 days of the. Demand raised by the defendant/appellant at the same rate which was charged by the defendant/appellant at the time of granting lease in respect of 2600 square yards. This clearly indicates that even to the learned Single Judge it was abundantly clear that area of suit plot leased to the plaintiffs/respondents was 2600 square yards. If they were leased area of 3700 square yards or 4082 square yards (because it was contended by learned counsel for appellant that actual area is 4082 square yards) then there was no need for requiring plaintiffs/respondents to pay premium and development charges in respect of what is described in the impugned judgment and decree as "excess area". It may be noted that the plaintiffs/respondents have not challenged any part of decree and, therefore, it can be safely presumed that they even accepted this part of the judgment and decree. Therefore, conclusion is inescapable: the plaintiffs/respondents purchased only 2600 square yards and nothing more.
20. Ms. Minhas referred to A.R. Khan's case (supra) in .Support of her contention that the plaintiffs/respondents are bona fide purchaseRs, Indeed they are bona fide purchasers but bona fide purchasers of only 2600 square yards. Ms. Minhas candidly stated that her clients are prepared to pay in respect of excess area but at the rate prevailing in 1967. She relied upon Arshad Abdullah's case (supra). In that case three owners of the plot in Dehli Mercantile Muslim Housing Society got four plots amalgamated into one and then they approached the respondent with a request to commercialize the same. N.O.C. Was issued and commercialization was recommended.
Requisite fee was paid by the petitioneRs, During the pendency of application for commercialization the Government of Sindh imposed ban on conversion from residential to commercial on plots which were located on Shahra-e-Faisal. Petitioners knocked many doors and ultimately City District Government consented to commercialize it at enhanced rate. Division Bench of this Court observed that as the petitioners applied for commercialization some time ago their request should be processed by the concerned authorities at the rate prevailing at the time when such application was made. Contention of Ms. Minhas was .That in view of this judgment rate charged should be the rate of 1967. Her contention would have been correct and maintainable had the plaintiffs/respondents at any time applied for regularization of excess land. They have not done so even till today. What they claiming is that though the area leased to them was 2600 square yards and though in the Site Plan dimension was written and area of 2600 square yards was also specified,. But since in lease deed and conveyance deed boundaries were specified, they are entitled to whatever is bound within those boundaries completely ignoring dimension in the Site Plan and area mentioned in "B" lease as well as in the Conveyance Deed. Therefore, facts of this case are totally distinguishable from the case of Arshad Abdullah.
21. Ms. Minhas also relied upon Kanwal Nain's case (supra). Facts of that case were that dispute in the case concerned 2/3rd share in the urban property consisting of house and shop. Fateh Khan was father of Fazaldin and Allahyar and other two respondents. Property-in-question stood in the names of three equal shares purchased by them in 1957: Applicant Kanwal Nain purchased 2/3rd share from sons of Fateh Khan by means of two sale-deeds in 1973 leaving 1/3rd share with Fateh Khan. In 1973 Fateh Khan filed suit in Court of Civil Judge for declaration that sale by original owner in 1957 showing his two sons as Vendees was in reality a Benami and he was real owner of the entire property and, therefore, subsequent sale by his sons was invalid. Trial Court found issue in favour of Fateh Khan that it was Benami ownership of his sons but held in favour of the petitioners that they were bona fide purchasers for value. Appeal failed but revision succeeded. Section 41 of the Transfer of Property Act was referred and thereafter it was observed as under:- "Mulla has pointed out that the foundation of this section is the-following passage from the judgment of the Judicial Committee in Ramcoomar v. Macqueen (I):--- "It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice; of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."
' The section is a statutory application of the law of estoppel and makes as exception to the rule that a person cannot confer a better title than he has. The principle underlying the provisions of the section is "whenever one of the two innocent persons has to suffer by the act of a third person he who has enabled the third person to occasion the loss must sustain it."
22. In the present case plaintiffs/respondents purchased property on the basis of conveyance deed. Deed specified area but at the same time it specified boundaries but then there was Site Plan which specified dimensions. When plaintiffs purchased particular amount of area, they cannot claim benefit of description in terms of boundaries particularly so when exact dimensions of the area are also specified in the Site Plan.
23. Learned counsel for plaintiffs/respondents argued that respondents are prepared to pay amount at, the rate prevailing in 1967. This would neither be equitable nor fair nor just. If they want to purchase the area in excess of 2600 square yards they can do it only at the prevailing market rate. Since there is dispute and confusion as to how much is the actual area in present occupation of the plaintiffs/ respondents it would be fair and reasonable to give an opportunity to D.H.A. To first determine the Area and then to demarcate area of 2600 square yards in such a way that least amount of disturbance is caused and least amount of demolition, if any, is required. In any case after demarcation has been made and the area proposed to be resumed is identified option should be given to the plaintiffs/respondents to purchase excess area at prevailing market rate.
However, if plaintiffs/ respondents do not want to purchase the excess area, it must be taken over by the appellant. Learned, counsel for appellant categorically stated that they will not use this area for any purpose other than for the open space/park.
24. Above are our reasons for the short order announced in open Court on 17-5-2011 by which order impugned judgment and decree were set aside and this appeal was disposed of in the terms stated above.