' ABDUL HAYEE KURESIH. J.-By this single judgment we propose to dispose of Letters Patent Appeals Nos. 186, 187, 188, 189 and 201 of 1970, arising out of five separate suits filed by the 5 appellants on the Original Side of this Court bearing Nos. 97 to 101 of 1967, disposed of and dismissed by a learned Single Judge of this Court by a consolidated judgment, dated 25th May, 1971. The 5 suits as well as the present five appeals arise from similar transactions and involve common questions of law and fact. Before the learned Single Judge all the five suits were consolidated by an order, dated 2nd April, 1970 and the evidence was common.
2. We have heard Mr. Mohsin Tayabally and Mr. Nafisuddin for the appellants. While the respondent Karachi Port Trust was represented before us by Mr. Zahiruddin Khan, the remaining two respondents, namely, the Deputy Commissioner and Assistant Custodian of Enemy Property as also the City Deputy Collector, Karachi, were represented before us by Mr. Usman Ghani Rashid, the Advocate-General.
3. The brief facts of the cases are that the Karachi Port Trust (hereinafter referred to as the Trust) owned among others 5 plinths on plots located in T. P. X. Yard. Such plinths bore Nos. B/I I, B/18, C/6, C/10 and D/6. On each one of these plots some plinths had been constructed by the Trust and let out to various firms which were declared to be enemy firms after the 1965 War between Pakistan and India. Plinth B/11 was on lease with Messrs Naraindas Rajaram & Company Limited for a period of 10 years beginning from April 1964. Plinth B/18 was let out to Messrs Kotak & Company on 1st November, 1952, but its lease had already expired on 31st March, 1964, Plinth C/6 had been let out to Messrs Kilachand Devchand & Company on a 10 years lease beginning from April, 1964. Plinth C/10 was let out to Messrs Patel Cotton Company for a period of 10 years beginning from April, 1964 and Plinth D/6 was leased out to Messrs Ramanarain Sons Limited for a period of 10 years beginning from April, 1964. The enemy firms had constructed some sheds on the said land at their own cost.
On the enemy firms being declared as such the leasehold rights in the plinth and their rights in the sheds were declared to have vested in the Custodian of Enemy Property. With a view to dispose of the interest of the enemy firms in the sheds and the leasehold rights in regard to the plinths a notice was published in a local newspaper that the same would be auctioned on 21st December, 1965. The plaintiffs/ appellants were the highest bidders at the auction. Plinth Bill fetched a bid of Rs, 30.000, Plinth B/I8 fetched a bid of Rs, 60,000, Plinth C/6 fetched a bid of Rs, 61,000, Plinth C/10 fetched a bid of Rs, 30,G00 and Plinth D/6 fetched a bid of Rs, 45,000. Such auctions were confirmed so that the respondent City Deputy Collector wrote letters to each one of the plaintiffs/appellants intimating that the bid having been confirmed they should pay the balance of the auction price and execute an agreement on the usual terms with the Trust. Such agreements were executed. It is the case of the respondents that the auction concerned only a year's leasehold_ rights of the enemy firms and it is the case of the plaintiffs/appellants that they had purchased the sheds completely and in regard to the plinths they are liable to pay rent to the Trust.
In short, the case of the plaintiffs/ appellants is that by the auction the Custodian of Evacuee Property has completely divested himself of all the rights in respect of the property of the enemy firms. It was on 31st December, 1966, viz. After a little over one year from the first auction that the Assistant Custodian of Enemy Property again caused to be published another notice for auction of the sheds and leasehold rights of the plinths. The plaintiffs/appellants raised a dispute in terms of what they considered to be their own property. Letters were exchanged between the parties but the auction scheduled to be held on 7th January, 1967, proceeded and each one of the plaintiffs/ appellants gave fresh bids at this auction though the amounts offered were in the neighbourhood of Rs, 5,000 i,e, roughly about 1/10th of the offer made in the previous year. The Assistant Custodian of Enemy Property wanted to take steps for recovery of higher amounts but in the meantime the suits were filed claiming the following reliefs :-
(1) A declaration to the effect that the plaintiffs/appellants had purchased the sheds, and/or the materials of the sheds over the plinths and that they had also purchased leasehold rights in respect of the plinths so that they had become lessees of the Trust on year-to-year basis ; and
(2) An injunction to restrain the City Deputy Collector and the Deputy Commissioner from recovery of any rent from the plaintiffs/ appellants.
4. The case of the plaintiffs/appellants is that what they had obtained at the auction held in December, 1965, was the full ownership of the shed and the right to occupy the plinth subject to payment of its rent to the Trust. The that contention of the Trust and the functionaries of the Custodian of Enemy Property was that only the leasehold rights in respect of the shed and the plinth had been auctioned for a period of one year and therefore, they had a right to re-auction the same for the coming one year.
5. On the pleadings of the parties the following 6 issues were framed :-
(1) Is the suit not maintainable in law as it is barred by sections 16 and 17 of the Defence of Pakistan Ordinance, 1965 and the rules made thereunder, and under sections 12, 21, 42 and 56 of the Specific Relief Act ?
(2) What was auctioned by defendant No, I
(3) Did the plaintiff attend the auction for the second year and also offer his bid which was not accepted by the defendants ?
(4) Whether the defendants are entitled to recover the outstanding amount from the plaintiff as arrears of Land Revenue under West Pakistan Government Dues Recovery Ordinance, 1962 and under Revenue Recovery Act, 1890 ?
(5) Has the plaintiff paid sufficient court-fee in the above suit ? If not, what is the effect ?
(6) What should the decree be ?
6. By consent of the parties the Issues Nos. 1, 4 and 5 were not pressed and in fact the only issue that engaged the attention of the learned Single Judge or invited arguments of the learned Advocates was issue No,
2. Issue No, 3 posed no substantial dispute on facts as the plaintiffs/ appellants admitted having taken part in the subsequent auction, though, according to them, it was by force of circumstances and with a view to protect their possession. The main plank in the rival cases of the parties is determination of the point as to what was auctioned by the Custodian of Enemy Property in December 1965. Even before us the parties have pressed this issue only and in or view the dispute in the case concerns the determination of this issue alone.
7. On a reading of the judgment of the learned Single Judge we found that he had taken into consideration and relied on two circumstances emerging out of the declaraction made by the auctioneer at the time of auction and the reasons underlying the bid submitted by Messrs Mughal and Sons, a stranger to these suits, of Rs, 13,000 for half portion of plinth No, A/4 measuring 1,053 square yards. Mr. Mohsin Tayabally had pointed out that the auctioneer was not produced by any party for giving evidence and all such statements as are attributed to him as having been made by him at the time of auction would for such reason be inadmissible. Additionally, it was contended by Mr. Mohsin Tayabally that no representative of the firm Messrs Mughal & Sons who had made a bid for plinth A/4 had been examined and therefore, the learned Single Judge had acted wrongly in taking into consideration the auction bid made by Messrs Mughal and Sons for determination of the question that the amount offered by the plaintiffs/appellants was to their knowledge the amount that could be reasonably expected from them for obtaining leasehold rights in respect of the shed or the plinth for a year only. In these circumstances, we had passed an order for calling additional evidence and had issued summons to the City Deputy Collector who was present at the time of auction and the auctioneer who had made certain statements clarifying that only leasehold rights for one year were being auctioned. We had also summoned Messrs Mughal and Sons to ascertain what might have pursuaded them to offer a sum of Rs, 13,000 for obtaining leasehold right of plinth A/4, which measured 1053 square yards. We had also summoned Mr. Kabraji, an officer of the Trust because the evidence disclosed that he was present at the time of auction and had written certain letters which had been exhibited on the record. On the date of hearing none of these witnesses were available and in fact the summons could not be served as they were untraceable except that the summons on the City Deputy Collector had been served but he was not present. On reading through the evidence and the several documents on the record we were of the view that additional evidence would not be necessary and therefore, we invited the Advocates to address us on the material that was available on the record. Such order summoning additional evidence therefore, stands vacated and recalled.
8. The learned Single Judge had considered the original notice of auction and several other documents that were on record to arrive at the conclusion that what was the intended to be auctioned were leasehold rights and not the shed itself or the plinth. In arriving at such finding the learned Single Judge had also relied on the evidence of Mr. Abdul Rahim Tejani who was examined as a witness. The learned Single Judge has also taken note of some statements or declarations made by the auctioneer in regard to the property that was being auctioned and he has also taken into consideration the fact that Messrs Mughal and Sons had given a bid of Rs, 13,000 to acquire leashold rights in respect of a plinth measuring 1,053 square yards. While the statements made by the auctioneer at the time of auction are clearly inadmissible ; in regard to the circumstances of Messrs Mughal & Sons having given a bid of Rs, 13,000, we must say that this firm was only acquiring leasehold rights for one year in respect of the shed but that may have been the reason for offering a price which appears to be on a higher side could be attributable to several other factors and not necessarily relatable to the reason that they thought the price offered was reasonable. We have also got evidence on record that while the plaintiffs/appellants were established cotton exporters who were in occupation of the sheds. There is nothing on the record to indicate that Messrs Mughal & Sons were also occupying the shed for which they offered the bid.
The reason may well be that this new firm wanted to obtain the plinth and the shed and may have given higher bid for such reason. We would advert to this aspect of the case later, but wish to make it clear that the statements attributed to the auctioneer are clearly inadmissible.
9. The most important document on the record is the notice of auction. The same has been produced as Exh.
7. It reads as follows "Notice of Auction : The following sheds of the K.P.T. Will be put to open auction and shall be rented out on year to year basis. The auction will take place in front of the office of Traffic Inspector of T. P.
X. Yard K. P. T. On Tuesday, the 21st December 1965 from 10.00 a. m. Onwards through Mr. Saleem Qureshi, Government Auctioneer (Phone No, 44950) under the supervision of the City Deputy Collector, Karachi.
Details of Sheds
(1) B/11 Messrs Naraindas Rajaram and Company (Private) Limited.
(2) C/6 Messrs Kilchand Devehano and Company (Private) Limited.
(3) D/6 Messrs Ramnarain and Sons (Private) Limited.
(4) C/10 Messrs Patel Cotton Company (Pak.) Limited, West 1/2.
(5) A/4 Messrs Patel Cotton Company Only temporary licence will (Pak.) Limited. Be auctioned as the plinth and the structure is owned by the K. P. T.
Conditions !
(1) The Traffic Manager K. P. T. Will furnish to the prospective bidders full particulars about the sheds, if so desired.
(2) The highest bidders shall be required to pay the 1/4 of the bid money on the spot.
(3) The balance is to be paid on confirmation of the bid, if the bidder fails to pay the balance the 1/4 deposit will be forfeited to the Government and the sheds re-auctioned at the bidder's risk.
(Sd.) Hasibullah Khan Sherani, City Deputy Collector, P. C. S."
10. Although, this document is not the only document indicating the particulars of the property that was to be auctioned still the document is of importance because the parties would be bound by the same. On a reading of the first sentence in the document an ambiguity becomes patent.
The first sentence is divisible in two separate parts. The first part relates to sale of the sheds and the second part relates to rent of the sheds on year to year basis. We have already stated that what was or could be auctioned was the interest of the enemy firms and nothing more. The enemy firms were paying rent to the Trust on year to year basis and some of them had 10 years advance lease in their favour. Such rent was payable to the Trust and not to the Custodian of Enemy property. The cluster of the clause pertaining to rent for year to year with the sale of sheds in the very first sentence of Exh. 7 creates confusion. It would be very clear that the auction purchasers, who, admittedly are exporters of cotton etc. Would not be interested in purchase of the sheds unless they had an assurance or at least an understanding that the area would also be rented out to them. Such area could be rented out only by the Trust and not by the Custodian. It seems to us that the latter words in the first sentence of Exh. 7 viz. "rented on year to year basis" have been inserted solely with a view to assure or to give the auction-purchasers an understanding that they would be able to obtain the plinth and the area on rent from the Trust in case the sheds were purchased by them in the auction. In that context it has become necessary to examine some other documents which are available on the record. One letter was written by Mr. M. A. Raymond, Traffic Manager of the Trust to the City Deputy Collector (the auctioning authority) on 10th December, 1965, viz. About 10 days before the date of auction. This letter clearly states that the Trust had no objection to the sheds being auctioned which were enemy property nor had it any objection to the leasehold rights of the plinths being auctioned as the same were also enemy property. Further in this letter it is stated as follows :- "You will kindly note that in the case of the above for properties the land belongs to the Port Trust whereas the sheds have been erected by the tenants. Thus the land has been leased out to the tenants and the rent of which is payable to the Port Trust. It will therefore have to be decided first whether-
(1) the new tenant should pay the ground rent directly to the Port Trust, or
(2) the Deputy Commissioner would pay the same in the capacity of the Assistant Custodian for enemy property to the Port Trust."
' It would appear from this letter that the Trust wanted to differentiate and make the sheds distinct from the leasehold rights of the plinth as the Trust did not lay any claim to the sheds which had been erected by the enemy firms who were interested in obtaining the rent in respect of the plinths. The Trust therefore, wanted that the new tenants should be clearly given to understand that they had to pay the ground rent directly to the Trust and they further wanted the Custodian to pay such ground rent to them. Further in this very letter Mr. Raymond has referred to plinth No, B/I8 which had been leased out by the Trust in favour of Messrs Kotak and Company and such lease had expired so that the Trust had terminated the tenancy. In regard to this shed Mr. Raymond had written as follows :- `'Under the circumstances, in this case only the shed is the enemy property and should be auctioned with the condition that the purchaser shall remove the shed within a week or fortnight.
As regards the leasehold rights it is stated that the learned Deputy Commissioner cannot auction the same or he cannot authorise any one to auction the same on his behalf as the leasehold rights had extinguished on 1st April, 1965 when there was no law in respect of enemy property."
' The above passage from the letter of Mr. Raymond would clearly indicate that the shed or rather the material with which the shed was constructed could be auctioned by the Custodian so that the auction-purchaser could remove the shed without laying any claim to a right to occupy the plinth of the land. Another letter (admitted document) is again written by Mr. R. D. Kabarji, Deputy Traffic Manager of the Trust to the City Deputy Collector on 20th December 1965, is also revealing in that respect. This letter (Exh. 282/10) was written by Mr. Kabarji after a meeting had taken place at which Mr. Kabarji alongwith the Legal Adviser of the Trust had met the City Deputy Collector. It seems this meeting had been convened to resolve certain points which arose from the notice of auction (Exh. 7). The letter states that an agreement had been arrived at in the meeting so that certain points could be clarified and specifically mentioned to the auction bidders. Such points were as follows - "(i) That only leasehold rights for the use of the plinth were being auctioned,
(ii) That the premises would be used only for storage of cotton, and
(iii) That the ground rent would be payable directly to the Karachi Port Trust by the auction- purchasers. Some decisions had been taken at that meeting and the same have been incorporated in this letter in the following words :- "(1) That the shed on B-18 belonging to Messrs Kotak & Company would be kept out of the auction since the leasehold rights had already extinguished prior to the issue of the law in respect of Enemy Property. The shed would be jointly assessed by the Chief Engineer, K. P. T., with the Custodian of Enemy Property and be taken over by the K. P. T. For subsequent disposal,
(2) Since the promulgation of the Enemy Property Ordinance the K. P. T. Have not recovered ground rent from the enemy tenants. The City Deputy Collector kindly agreed that the ground rent in respect of the enemy plinths for the month of September 1965 to the date when they are auctioned and transferred to Pakistani tenants would be payable to the K. P. T. From the amount received from the auction of the sheds."
' It would seem from this letter that the thinking of the Trust as well as the functionaries acting on behalf of the Custodian of Enemy Property, was clear that the sheds belonged to the enemy firms and would be disposed of as such. It is further clear from this letter that the ground rent in respect of the plinths previously in occupation of the enemy firms was payable to the Karachi Port Trust.
Such ground rent was indeed agreed to be paid by the City Deputy Collector to the Karachi Port Trust and it was also agreed at the meeting that the shed initially put up by the enemy firm Kotak & Company was to be kept out of the auction and taken over by the Trust for subsequent disposal. It is, therefore, very clear that the words "rented out on year to year basis" appearing in the very first sentence of the notice of auction (Exh. 7) were either superfluous or designed to reassure the auction-purchasers that on the shed being purchased in the open auction the plinth shall be rented out on year to year basis. Keeping this notice in juxtaposition with the other two documents such conclusion is inescapable. This conclusion is also highlighted by an endorsement appearing in the notice of auction opposite the entry in regard to Shed No, A/4 of Messrs Patel Cotton Company Limited. Such entry states that this shed or the right to occupy this shed shall be auctioned only on temporary basis and the auction-purchaser shall have no right in the structure of the shed which was ownen by the K, P. T. It would seem that a distinction needed to be drawn as between the sheds of the enemy firms and the shed which had come to be owned by the Trust.
In regard to the latter shed which was owned by the Trust the notice of auction stated that only a temporary licence would be auctioned. Antonym of "temporary" would he permanent or at least for such period for which the shed will be in use. This is an additional reason for coming to the conclusion that the shed was sought to be auctioned wholly and with all the rights to it. If only leasehold rights in respect of the shed for a year were being auctioned in the case of the 5 other sheds (also the name of Messrs Patel Cotton Company would not have been necessary. Disposed of by the same auction) then the endorsement appearing opposite
11. In this context it is also necessary to examine another document subscribed by the City Deputy Collector in favour of the plaintiffs/ appellants. This document (Exh. 8) is a letter dated 24th Decemuer, 1965, written after the auction showing that auction bid by the appellants/ plaintiffs had been confirmed and they were asked to pay the balance of the auction price. A copy of this latter was endorsed to the Traffic Manager of the Trust asking him to "execute the agreement on usual terms of the K. P. T. And conditions specified at the time of auction". In pursuance of this letter the balance of the auction price was paid by the appellants/plaintiffs and an agreement was executed between the Trust and the auction-purchasers. Pro formas of this agreement are on the record and the same show the appellants/plaintiffs as having obtained the status of tenants on payment of rent. On the other hand, no document was executed between the parties, viz. The Custodian on the one hand and the appellants/plaintiffs on the other denoting that the appellants/plaintiffs had only obtained leasehold rights in respect of the shed. On payment of the balance of auction price the City Deputy Collector by another letter directed the Traffic Manager of the Trust to hand over the possession of the shed to the appellants/plaintiffs as they had "cleared the entire bid money". On the agreement being executed and possession being delivered Mr. Kabraji, the Deputy Traffic Manager of the Trust wrote another letter to the Railway Authorities stating that the plinths, repeat the plinths, had been leased out for one year in favour of the appellants/plaintiffs. Such letter also carries the following text at its bottom :- ' As per the announcement made at the time of auction, plinth No, C-6 has been leased to them for one year only at a rental of Rs, 1,452 per month. They should forward a cheque for Rs, 2,904 being two months rent as security deposit. The lease money for one year in respect of the shed has already been paid by them to the City Deputy Collector, Karachi. The lease agreement will be sent to them in due course. They should contact Inspector, T. P. X. And take over possession of the plinth.
' As per the announcement made at the time of auction plinth No, B-11. T. P. X. Has been leased to them for one year only at a rental of Rs, 618 per month. They should forward a cheque for Rs, 1,236 being two months rent on account of security deposit. The lease money for one year in respect of the shed has already been paid by them to the City Deputy Collector, Karachi, The lease agreement will be sent to them for execution and registration in due course. They should contact Inspector, T. P. X. And take over possession of the plinth."
' This endorsement also clearly shows that at the time of the auction it was stated that the plinth had been leased for one year only. This letter does not show that even the sheds had been leased for one year. It was only on 18th March, 1966 viz, after 3 months of the auction that the City Deputy Controller wrote a letter to the appellants/plaintiffs stating that the auction related only to leasehold rights in respect of shed for a period of one year only. By this letter the appellants/plaintiffs were asked to pay the ground rent directly to the Trust and an intention to put the shed to fresh auction after a year was expressed and that too not categorically, It would be profitable to reproduce the actual words which read as follows "After expiry of one year the Government will decide whether the shed be put to auction again.
' Even these words exhibited a doubt as to whether the City Deputy Collector himself was of opinion that the shed was to be auctioned afresh after one year.
12. At this stage it is necessary to examine the oral evidence in regard to the auction. The plaintiffs/appellants examined Sham S. Elavia (P. W. 1), Abdul Sattar Qureshi (P. W. 2), Mohammad Shafiq (P. W. 6), while the respondents/defendants examined Abdul Rahim Tajani (D, W. 1), and Reza All (D. W. 21 but wrongly- shown as D. W. 10) Raza Ali in fact was examined as a Court witness although the Deposition Sheet shows that be was examined by the defendants. While, Sham S. Elavia and Abdul Sattar Qureshi are the employees of some of the plaintiffs/ appellants.
Mohammad Shafiq is a Director of Dost Mohammad Cotton Mills, one of the plaintiffs. D. W. Abdul Rahim Tajani is an officer of the Karachi Port Trust and D. M. Raza Ali is also a Clerk in the same organization. The evidence of the witnesses is revealing in regard to the nature of the transaction.
Sham S. Elavia stated as follows :- 'The auctioneer announced that the sheds would be put to auction and the land lease rights would be renewable every year . It was never announced that the tenancy rights of the sheds were being auctioned for one year. I gave bids for the outright purchase of the sheds. In the notice Exh. 7 the auctioneer specifically mentioned the item No, 6 (Plinth No, A/4) only temporary licence will be auctioned as the plinth structure were owned by the K. P. T. The announcement about the contents of the notice were made by the auctioneer."
' Not even a suggestion was made in the cross-examination to discredit the witness in relation to the portion of his deposition that has been reproduced above. However, a faint attempt was made in cross-examination to show that the auction notice (Exh. 7) spoke about auction of leasehold rights. Further in his evidence, this witness has clearly stated that the bids were given for purchase of shed. P. W. Abdul Sattar Qureshi has also stated that the structure was purchased outright while the plinth was taken on year to year lease and he further stated that an announcement was made at the time of auction by the City Deputy Collector to the same effect.
On such aspect of the case there is hardly any cross-examination. P. W. Mohammad Shafiq has also taken similar stand whilst under his examination-in-chief he has stated as follows :- 1 attended the auction in December, 1965 personally. As I then understood, it was only the structure, that is the shed which was being auctioned, the plinth belonging to the K. P. T. This was the impression I got from the announcement made by the auctioneer at the time of the auction. l did not bid for the year leasehold rights but only for the price of the shed, and I was told that leasehold rights would follow in favour of the successful bidder."
' In cross-examination for the Custodian not even a suggestion was made to discredit the witness on that point. The learned Single Judge seems to have relied on the evidence of Abdul Rahim Tejani in preference to the evidence of plaintiffs' witnesses for arriving at a finding against the appellants/plaintiffs. The evidence of Abdul Rahim Tejani therefore. Deserves to be scrutinized with care. This witness was the Deputy Secretary of the Karachi Port Trust and claimed to be present at the time of auction although his presence at the auction was disputed by some of the witnesses of the plaintiffs/appellants. This witness was asked a question as to what were the bidders told at the time of auction and his answer was as follows :- "The bidders were clearly told that leashold rights for only one year were being auctioned."
' It must be stated that the respondents/defendants did not venture a question as to whether the shed was not completely sold but only the right to use the same was auctioned for one year.
Further in his evidence he has stated voluntarily that it was actually an auction of leasehold rights.
However, he was shown the auction notice ( Exh. 7) and was asked a question in regard to the endorsement appearing opposite the name of Kotak and Company. The witness made a reply in the following words :-- "I see Exh. 7 and say that the note against Item No, 6 was inserted because the shed itself belonged to the Karachi Port Trust and had been based to the enemy firm. There was no intention to sell this particular shed."
' The next following question was whether this endorsement opposite the name of Kotak & Company had become necessary in respect of that shed because the shed itself belonged to the Trust and he answered the question in the affirmative. Reading the evidence of this witness as a whole it appears to us that the shed of Kotak & Company, which was not owned by the enemy firm, was not intended to be sold but intended only to be leased out for a year. Such statement reveals that the remaining sheds which were owned by the enemy firms were indeed sold in favour of the auction-purchasers. The other witness for the defendants respondents, namely Raza Ali, has hardly anything pertinent to state on this aspect of the case.
13. The learned Advocate-General has adopted the same process of reasoning as the learned Single Judge. Mr. Zahiruddin Khan has also supported the Advocate-General. According to the learned Single Judge, there was no ambiguity in the notice of auction (Exh 7). We have already adverted to the language that is employed and we must state that if the intention was to lease the sheds for a year only the language employed to portray such intention would have been vastly different from what it is. It would have been more comforting and less confusing if the notice was couched in the words following or the like of them :- "Leasehold rights in respect of the shed for a period of one year shall be auctioned, so on and so forth."
' The involved language clearly shows that the sheds were to be auctioned outrtght and the purchase of the shed would carry as an appendage the rights of leasehold in respect of the plinth.
The learned Single Judge in that context has also observed as follows :- "Now, if I were to accept the contention of Mr. P. D. Ramchadeni that the preprietary rights in the superstructures were sold together with one year's leasehold rights, with the further privilege to the plaintiffs to obtain further leases from year to year from the K. P. T. Then two difficulties would arise. Firstly, the words "and shall be rented out on year to year basis" will be redundant. Secondly, the leasehold rights having vested in the Custodian of Enemy Property, the K. P. T. Was not competent to grant any further leases, as long as the leasehold rights continued to vest in the Custodian, either to the Plaintiffs or to any other persons. Thus, to me the language of Exh. 7 itself is clear and it is to the effect that what was auctioned was one year's leasehold rights in the shed and not the proprietary rights in the superstructures. Nor the right of obtaining year to year leases thereafter from the K. P. T. Direct."
14. We feel no difficulty in repelling this process of rensoaing on the hypothesis that the sheds had value only because the same enable the auction-purchasers to obtain even the leasehold rights.
The last few words in the opening sentence of the notice of auction clearly show that the right to obtain lease was involved in the purchase of sheds. It is difficult to believe that the appellants/plaintiffs who are exporters would be interested in obtaining lease of sheds and the words that the sheds were to be auctioned convey no further effect except that the appellants/plaintiffs have purchased sheds completely. The learned Sigle Judge also took into consideration the price paid by M/s. Mughal & Sons in arriving at the conclusion that the auction money was commensurate to the leasehold rights in respect of the area of sheds. On that point the appellants/ plaintiffs have led evidence. Sham S. Elavia (P. W. 1) stated that at the time of auction he had examined the books maintained by the Custodian of Enemy Property and he found that the value of the sheds was R. 5,000. The appellants/plaintiffs also examined Habib Hyder Kazmi (P. W. 3). Ghulam Hussain (P. W. 4), Abdul Qadir (P. W. 5), Mohammad Jafar (P. W. 7), Abdul Qadir (P. W. 8) and Jafar All (P. W. 9). Each one of these witnesses in an architect and has given evidence in regard to value of the sheds. Their evidence is that the sheds were old and rusty and the total value of the sheds was far less than the amount of auction. The intention of the appellants/plaintiffs in examining these witness was to show that if the total value of the sheds was also less than the amount which they paid it would be inconceivable that they would pay such huge amount just to obtain leasehold rights for use of the sheds for one year only. It is also on record that these sheds were erected before partition and that would show that the sheds were nearly 20 years old. The learned Single Judge took into consideration the fact that M/s. Mughal and Sons who had purchased leasehold rights of the plinth and the shed standing on plot No, A/4 had paid Rs, 13,000. The learned Single Judge then adopted a process of calculation by reference to the area which was obtained by Messrs Mughal and Sons and arrived at a finding that for the area which the appellants/plaintiffs came to occupy by virtue of auction purchase the amount paid was proportionaly commensurate. This process of reasoning was adopted on the basis of evidence of Raza Ali, who was called as a Court witness. This witness, as stated above, has, in his deposition been shown to be a witness for the defendants/respondents, but a note appearing on the deposition as a consequence of a statement of Mr. Ajmal Mian, Advocate for the Trust, exhibits that he had been examined as a Court witness. The witness was asked questions in regard to the transaction as between the Trust on the one hand and Mughal and Sons on the other. And he stated that Mughal & Sons had paid an amount of Rs, 13,000 as rent for the ground and shed and that the area of the plinth in their occupation was 1,053 square yards. No one representing Messrs Mughal & Sons has been examined and there is no means of knowing as to why Messrs Mughal and Sons paid a higher amount. It cannot however, be overlooked that Messrs Mughal & Sons was a new firm in the trade and may well have paid a higher price in order to start business. There is also no means of knowing as to whether Messrs Mughal & Sons gave a bid in the following year. In any case, the transaction as between Messrs Mughal & Sons on the hand and the Trust on the other was completely unconnected with the auction price offered by the appellants/plaintiffs. Messrs Mughal & Sons may well have given a higher price because they had to deal only with the Trust and the Custodian. In any case, the terms of the auction notice (Exh. 7) are interpreted and we are not inclined to take into consideration this transaction which is foreign to the transactions in question and this case as a rule of guidance. If some representative of Messrs Mughal & Sons had been examined there was a good reason underlying the higher payment being explored by the appellants/plaintiffs but such course was not adopted so that the consideration of such evidence has resulted in positive prejudice to the appellants/plaintiffs.
15. Even the evidence in regard to statements of the auctioneer at the time of auction would be inadmissible but since evidence had been brought on record without objection by the parties same can at least he put in scales.
16. The learned Advocates for the respondents/defendants have pointed out that the appellants/plaintiffs had taken part in the auction fo the following year and therefore. They are estoppel from raising the plea that they are auction-purchasers in respect of the shed. There is abundant evidence on the record that the appellants/plaintiffs had protested against subsequent auction and have set up a case that they took part only t protect their interest and to avoid complications. In any case, the bid at the second auction was only for Rs, 5,000 and the same was not accepted. We are of the view that it was only by force of circumstances and under compulsions that they had taken part in the subsequent auction and such circumstance by itself cannot operate as an estoppel.
17. On consideration of all the aspects of the case, we are respectfully of the view that the finding on Issue No, 2 needs to be displaced and we hereby reverse the finding and hold that what was auctioned were the sheds of the enemy firms in their entirety and property together with leasehold rights as an appendage. Such leasehold rights were of course to enure in favour of the appellants/plaintiffs on payment of rent to the Trust. We are also of the view that the appellants/plaintiffs are entitled to a declaration that they are the tenants of the Karachi Port Trust in respect of the plinths in their possession and for which they have given the. Bid at auction, subject to payment of rent. We further grant an injunction to restrain the respondents/defendants from making any recoveries from the appellants/plaintiffs in respect of the sheds which they had already purchased at the auction. The suit is decreed in favour of the appellants/ plaintiffs with costs,