' SHAHID ANWAR BAJWA, J.---A suit for Declaration, Cancellation and Permanent Injunction was filed by the present respondent No,1 (hereinafter referred to as the plaintiff) against various official respondents and present appellants (hereinafter referred to as the defendant). In the plaint of suit it was stated that leasehold rights in respect of land measuring 5 acres from N.C. No, 92 situated in Deh Mochko, Keamari Town Karachi were subject of the suit. Plaintiff had given power of attorney to one Ashiq Hussain in respect of suit property who has filed the suit. It was stated that plaintiff acquired property by way of transfer of leasehold rights for 30 years commencing from 1983/84 granted by District Revenue Officer. Consequently, Ijazatnama was issued in favour of plaintiff and plaintiff paid requisite money. Vacant physical possession was delivered to the plaintiff and the plaintiff renovated poultry sheds. Thereafter plaintiff moved application for grant of 99 years lease, this application was endorsed by lower departmental functionaries. Some persons tried to occupy the land which was resisted by the plaintiff. It was stated that plaintiff came to know that vide order dated November 27, 2011 lease of plaintiff was cancelled. Plaintiff filed appeal under section 161 of the Land Revenue Act. Then plaintiff came to know that lease had been granted to defendants. This Constitution Petition was filed for declaring that petitioner was absolute owner/ allottee of suit property, declaring that lease deed in favour of defendant was void and to cancel the same and to declare that petitioner was entitled to grant of 99 years lease. Written statement was submitted on behalf of defendant. Civil Miscellaneous Application No,755 of 2012 was filed with Suit for Restraining the defendant from creating third party interest and Civil Miscellaneous Application No,1850 of 2012 was filed for restraining the defendant from raising further construction. Both these applications were allowed vide impugned order.
2. Learned Single Judge earlier ordered the Nazir to inspect premises and the Deputy Nazir submitted the following report:-- "3. The suit land is within the boundary wall having main gate facing East. Inside the boundary wall there are built seventy shops without plaster, without flooring, without doors and windows and some of the shops are having shutters and remaining premise is without shutters, without intervening wall, doors and windows. At the site, 15 to 16 labours were doing construction work swiftly and some armed persons were also present. During inspection some photographs were snapped from different places and angles. It was further noted that the roof of shops appears freshly casted and labourer was watering the roof. At the site, two persons were present on enquiry about construction; they disclosed that construction work is being carried out by Shah Muhammad and Faiz Muhammad. It was further noted that from western side some portion wherein the shuttering work was found in progress. All the shops are incomplete and unoccupied.
The said construction is built on the front portion and its rear part of the land found lying vacant except Eastern portion structure of that portion open towards vacant portion of which was built without door and windows, without plaster and flooring, structure appears incomplete and masonry blocks in large quantity, Iron bars, hill sand, cement were lying there. During inspection some photographs were taken which are annexed with this report and marked P/ 1 to Park)
3. Objections to the Nazir's report have been filed by the appellant. Learned counsel for appellant made following submissions:-
(i) That through impugned order entire suit has been decided.
(ii) Defendant has been in possession as bona fide purchaser.
(iii) In the suit no relief regarding stoppage of construction was sought and yet through interlocutory application such relief has been allowed.
(iv) Defendant has completed 90 per cent construction. (It may be pointed out that C.M.A. No,1851 of 2012 has been filed by the plaintiff praying for certain amendments in the plaint as well as in prayer clause including amendment that mandatory injunction be granted directing the defendant to remove illegal and unlawful construction).
(v) Learned counsel candidly conceded that he has no challenged grant of C.M.A. No,1851 of 7012 when he undertook that he shall not create any third party interest.
(vi) Learned counsel submitted that appellant shall suffer irreparable loss if injunction is allowed.
He stated that if suit is decreed benefit of construction may be allowed to go to the plaintiff.
4. Learned counsel for respondent No,1 referred to Para 26 of the impugned order and submitted that learned Single Judge has categorically observed, that his observation was tentative in nature.
As far as relief in respect of construction is concerned, learned counsel submitted that application under Order VI Rule 17, C.P.C. Has been moved wherein he has prayed for mandatory injunction in respect of construction. Learned counsel referred to Page 311 which is letter dated 8-1-2011 written by Mukhtiarkar (Revenue) Keamari Town Karachi which evidences that on application order was passed by Chief Minister on 4-1-2011 directing the authority to examine and put up request of the defendant for allotment of the suit property and report was submitted by the Mukhtiarkar. Learned counsel submitted that even before his lease was cancelled process of allotment to defendant was initiated.
5. Learned counsel further submitted that when he filed suit on 3-2-2012 the following order was passed:- "(2) Exemption is granted subject to all just exceptions.
(3) Counsel contends that defendants without fulfilling pre-requisite of section 24 of Colonization of Government Lands (Punjab) Act, 1912 have directed resumption of plaintiff's land, which was leased out for thirty years. Let notices be issued to the defendants for 15-2-2012.
' Till then parties to maintain status quo."
6. He submitted that Nazir's report indicates that when Nazir inspected premises on 22-2-2012 construction was going on and in view of this situation on 29-2-2012 defendant gave undertaking that they would on that date cease all construction activity. Learned counsel submitted that C.M.A.
No,2078 of 2012 was filed by the defendant No,8 in which they prayed that status quo order passed in Civil Miscellaneous Application Nos.755, and 1850 of 2012 on the basis of undertaking given by the advocate for defendant, be discharged. He submitted that this application was dismissed by the Single Judge vide impugned order. Dismissal of this application has been suppressed in the memo of appeal.
7. Learned Assistant Advocate General submitted that lease granted was for 30 years with effect from 1984 and no vested right has been created in favour of plaintiff. He submitted that government has absolute right to resume land at any time. More so, land was granted to plaintiff for the purpose of setting up poultry form but he never set up the same on the land in question.
8. We have heard arguments of learned counsel for the parties and have also gone through the record.
9. First contention of the learned counsel for appellants was that learned Single Judge has, through interim order, decided the entire matter. Submission or apprehension as I see, of the learned counsel appears to be misconceived because in Para 26 of the judgment (at Page 103) it has been observed by the learned Single Judge as under:-- "26. Before concluding, I would emphasize that the foregoing observations are tentative in nature and only for purposes of the present order. The suit will of course be tried and decided strictly on its own merits and on the basis of the evidence led by the parties."
10. Next contention of the learned counsel was that the defendant has been in possession as bona fide purchaser. The question in the suit is whether plaintiff has been deprived of his right in respect of property in accordance with law or not. What the respondent/appellants purchased was a piece of land and in respect of such piece of land it is yet to be decided in the suit whether plaintiff has been deprived of his right without authority of law or in violation of any of his legal rights.
Contention of learned counsel, at this stage when only interlocutory application has been decided is, therefore, premature. Obviously, such contention is to be fully and exhaustively considered when the suit is finally decided.
11. Next contention of learned counsel was that no relief regarding construction was sought in the plaint and that through interlocutory application such relief has been allowed. The contention is misconceived. An application under Order VI, Rule 17, CPC was also moved by the plaintiff and that application being C.M.A. No,1815 of 2012 has been allowed vide impugned order and in the memo of appeal nowhere this aspect has been challenged. Since the said CMA has been allowed, obviously question of construction has been raised by the plaintiff in the plaint after such amendment and, therefore, relief could be, at the interlocutory stage, granted in this regard.
12. Learned counsel for appellant submitted that appellants have completed 90% of the construction on the suit land and, therefore, interim relief in respect of construction should not have been granted because if construction is completed benefit of such construction the appellant has no objection, may be allowed to go to the plaintiff. Contention cannot be accepted for two reasons.
Firstly; the kind of construction and type of structure raised by the appellant may or may not be in accordance with need of the plaintiff. Secondly, Deputy Nazir's report says as under:-- "The suit land is within the boundary wall having main gate facing East. Inside the boundary wall there are built seventy shops without plaster, without flooring; without doors and windows and some of the shops are having shutters and remaining premise is without shutter, without intervening wall, doors and windows. At the side, 15 to 16 labours were doing construction work swiftly and some armed persons were also present. During inspection some photographs were snapped from different places and angles. It was further noted that the roof of shops appears freshly tasted and labourer was watering the roof. At the site, two persons were present on enquiry about construction they disclosed that construction work is being carried out by Shah Muhammad and Faiz Muhammad. It was noted that from western side some portion wherein the shuttering work was found in progress. All the shops are incomplete and unoccupied. The said construction is built on the front portion and its rear part of the land found lying vacant except Eastern portion structure of that portion open towards vacant portion of which was built without door and windows, without plaster and floor, structure appears incomplete 'and masonry blocks in large quantity, Iron bars, hill sand, cement were lying there. During inspection some photographs were taken which are annexed with this report and marked P/ 1 to P 6."
13. That about 70 shops have been found have been built and they were without plaster, without flooring, without doors and windows and most of them without shutters and without intervening walls. Therefore, it is rather presumptive to state that 90% of the construction has been completed and even if it has been completed to the extent of 90%, then if a shop is let out a third party interest would be created.
14. Result of the above discussion is that this appeal is disimissed in limine Listed application is disposed of.