' SADIQ HUSSAIN BHATTI, The plaintiff, Syed Zubair Ahmed Hashmi, has filed this suit, through his attorney Iftekhar Ali Osto, for declaration, cancellation of documents and permanent injunction with the following prayer:--
(a) Declare that the plaintiff is lawful owner/transferee and is in possession of suit property i,e, Plot No,6, Category C, Block 3-A, Scheme-36, Gulistan-e-Jauhar, Karachi East, measuring 620 Sq. Yds., ands the defendant No,1 has no powee/right to cancel the allotment order dated 20-4-1998, possession order dated 20-4-1998, acknowledgment of possession dated 20-4-1998, site plan dated 20-4-1998 and transfer letter dated 14-11-1998 without notice to the plaintiff arbitrarily.
(b) Declare that the cancellation, of Plot No,6, Category C, Block 3-A, Scheme 36, Gulistan-e- Jauhar, Karachi East, measuring 620 Sq.' Yds., and its division into Plot No,B 1/1, measuring 280 Sq..
Yds, Plot No, A-19/1, measuring 220 Sq. Yds. And plot No, R-12/1, measuring 120 Sq. Yds and its allotment in the name of defendants Nos.3 and 4 and any other person is illegal, unlawful and arbitrary and have no legal effect upon the plaintiff.
(c) Direct the defendants Nos.], 3 and 4 to produce the original allotment orders, acknowledgement of possession, site plan and part plans of Plot No, B 1/1, measuring 280 Sq. Yds, Plot No, A-19/1, measuring 220 Sq. Yds. And Plot. No, R-12/1, measuring 120 Sq. Yds., situated in Block 3-A, Scheme No, 36, Gulistan-e-Jauhar, Karachi East, and 'this Honourable Court may kindly be pleased to cancel the same.
(d) Restrain the defendants, their agents, employees, representatives, agents, co-agents, servants, administrators or any other person or persons through or under them from dispossessing the plaintiff from the suit property, demolishing the construction work being carried out by the plaintiff at Plot No,6, category C, Block 3-A, Scheme-36, Gulistan-e-Jauhar, Karachi (East), measuring 620 Sq. Yds., and also be restrained from creating third party interest over the above suit property without adopting due course of law. Cost of the suit.
(f) Any other relief/reliefs which this Honurable Court may deem fit and property in the circumstances of the case.
2, Brief facts of the case, as per averments made in the plaint, are that Plot No, 6, Category C, Block 3-A, Scheme 36, Gulistan-e-Jauhar, Karachi East, admeasuring 620 sq. Yards, (hereinafter the "the suit plot"), was allotted to one Anwar Muhammad Ahmed son of Muhammad Mehmood Ahmed.
The plaintiff purchased the plot from the said Anwar Muhammad Ahmed and the same was transferred in his name on 14-11-1998 by the defendant No,1 vide Transfer Letter No, 409 dated 14-11- 1998. Possession of the plot was handed over to the plaintiff along with all legal documents. The plot was actually 620 sq. Yards but it had been shown in the allotment order, possession order and transfer letter as 600 sq. Yards and 590 sq. Yards respectively due to clerical mistake. The plaintiff applied for approved building plan to defendant No,2 (since deleted) who wrote a letter dated 16- 12-1998 to Assistant Director Land Management, KDA, the defendant No 1, for re-confirmation of the plot who confirmed the same vide his letter dated 18-12-1998 whereafter approved building plan was issued by defendant No,2 (since deleted) in favour of the plaintiff on 24-12-1998 The plaintiff started construction in accordance with the approved building plan and when it was near completion the defendants Nos.1 and 2 (Deputy Controller Buildings, KBCA) started disturbing the plaintiff and pressurizing him for monetary benefits. The plaintiff filed Suit No, 965 of 2005 before VII:Senior Civil Judge, Karachi East against defendant No,1 and others in which status quo was granted but in spite of such status quo by the said Court defendant No,/ demolished a major portion of the structure. The plaintiff approached the defendant No,1 and obtained copies of allotment orders in respect of Plots No, B-1/1, A-19/1 and R-12/1, Block 3-A, Scheme 36, Gulistan-e- Jauhar, Karachi. For the first time, on 30-9-2005, the plaintiff came to know regarding the cancellation of the suit plot and its re-allotment to the defendants 3 and 4. The defendants tried to dispossess the plaintiff on 9-9-2005 and 12-9-2005 and, therefore, he filed the present suit.
3. In response to the summons issued to the defendants, written statements were filed by the defendants wherein they denied the averments made in the plaint. It was their unanimous stand that the allotment order in favour of Anwar Muhammad Ahmed stood cancelled as long back as 16th April, 1999 and, therefore, the suit plot cannot be sold by him to anybody else including the plaintiff. It was also stated that all the documents filed by the plaintiff are forged and fake.
4. On the basis of the pleadings of the parties, the following issues were framed for determination:- -
(1) Whether the plaintiff has any right to 'Plot No,C-6, Block 3-A, Scheme No, 36, Gulistan-e-Jauhar, Karachi East?
(2) Whether the allotment of Plot No,C-6, Block 3-A, Scheme No,36, Gulistan-e-Jauhar. Karachi East was cancelled, it was taken on vacant Pool and sub-divided into three units as detailed in para 1 of the written statement of the defendant No,4 who has been allotted subdivided Plot No,A-19/1, measuring 220 Sq. Yds., in lieu of Plot No,A-349, Block 11, Scheme No, 36, if so, what is the effect?
(3) Whether the plaintiff is not in possession of Plot No, C-6, Block 3-A. Scheme No,36, Gulistan-e Jauhar, Karachi East, if so, what is the effect?
(4) Whether the plaintiff filed Suit No,695 of 2005 in the Court of Iind Senior Civil Judge. Karachi East, and the present suit is barred under Order II, Rule 2, C.P.C. As well as section 42 of Specific Relief Act?
(5) To what relief, if any, the plaintiff is entitled?
(6) What should the decree be?
5. Later on, defendant No, 3 filed an application under Order XIV, Rule 5 read with section 151, C.P.C., praying for framing of an additional issue which was heard and decided on 24-5-2010 and the following issue was added as Issue No 5:-- "Whether the defendant No,3 was allotted and transferred a portion of land measuring 280 sq.
Yards out of the suit property, if yes, its effect?"
6. Thereafter, an application under Order XXVI, Rule 2, read with section 151, C.P.C. Was filed seeking appointment of commission for recording evidence. This application was allowed on 6-2-2012 and M. Dilawar Hussain, Advocate was appointed Commissioner to record evidence of the parties.
7. On 10-11-2012, the Commissioner submitted his report wherein he stated that the advocate for the plaintiff failed to file the affidavit-in-evidence of the plaintiff. However, Abdul Faiz Khan Durrani and Sbamim Arif filed their affidavits in evidence. Their examination-in-chief was conducted by Mr. Muhammad Asif Mufti wherein they produced their respective documents as Exh. D/1 to D/12 and D/13 to D/22 respectively. They were not cross-examined by counsel for the plaintiff. Affidavit-in- evidence was also filed by witness of the defendant. No,1 and during his examination-in-chief by Mr. Muhammad Idrees Alvi, Advocate for the defendant No,1, the said, witness produced documents as Exhibits D/1 and D/2.
8. On 6th February, 2012, when this case was fixed. In Court for hearing of C.M.A. No,11236 of 2010 seeking appointment of Commissioner for recording evidence, counsel for the plaintiff was not present, however, another counsel was holding his brief and by consent of the counsel present Mr. Dilawar Hussain, advocate was appointed Commissioner to record evidence. Thereafter,. On 17-12- 2012, 27-2-2013, 18-4-2013, 12-9-2013 and 19-9-2013, none appeared on behalf of the plaintiff. Finally, on 26-9-2013, it was decided to hear the counsel for the defendants, who were present in Court, and to decide the case on merits as evidence of the parties has already been recorded.
9. The first issue is with regard to the right of the plaintiff in relation to the Plot No, C-6, Block 3-A, Scheme No 36, Gulistan-e-Jauhar, and Karachi. Learned counsel for the defendants submitted that the suit plot was allotted to one Anwer Muhammad Ahmed but later on it was cancelled and another plot was allotted to him in lieu of the suit plot Therefore, he has no right or title in the suit plot as the same was taken into vacant pool and was subdivided into three plots which were allotted to defendants No, 3 and 4 as well as one Abdul Sattar, who has not been made party to this suit because he has already constructed his house and is living there for a long time. The plaintiff has not produced any evidence in support of his claim. However, the defendants have produced evidence in this regard. Witness of defendant No,1 has stated in his deposition that "Plot No, C-6, Block 3-A, Scheme-36, was cancelled and taken on vacant pool, however, under the orders of the POS letter No, 1115/91-A dated 4-11-2000 and POS No,5026/94/1-A and the same plot has been sub-divided into three units viz (a) No, B-1/1, measuring 280 sq. Yards (1) Plot No,A-19/1, measuring 220 sq. Yards (c) Plot No,R-12/1, measuring 120 sq. Yards vide drawing No, PB-36/358 dated 6-12-2000.. Attorney of defendant No,3 Mst. Shamsa Khanum, stated in his deposition that "Plot No,C-6, Block 3-A Scheme No, 36, was cancelled by the order of the then DirectorGeneral/KDA vide office order No, KDA/DLM/99/503 dated 16th April, 1999 on the basis of enquiry conducted by the then Addl. Director Vigilance, KDA and lot No,MC-18, Sector G-B, measuring 600 yards, Mehran Town Scheme, Korangi tied as an alternate Plot to Anwar hmed son of M. Maudood his original plot No, C-6 ..." that the said plot i,e, C-6, does not exist. He also stated that the alleged Building Plan dated 16-12-1988 (1999) referred to by plaintiff was based on forged and fabricated documents as such WI June, 2005 no construction was raised on the basis thereof nor the same was renewed/revised by Karachi Building Control Authority whereas as submitted on a portion of the plot meas.., ing 120 sq. Yards the allottee Abdul Sattar got his Building Plan approved in the year 2000 and raised construction and has been living there since then. " Thus, it is clear that the plaintiff Is neither in possession of the said plot nor he has raised any construction on the said plot.
This witness also stated that in June, 2005 he visited the suit plot with defendant Mst. Shamsa Khanum and observed that the boundary wall raised by them around their plot was demolished and someone was raising construction on the said plot. They immediately approached the KBCA who demolished the construction raised on the said plot. The plaintiff also filed a suit before the VII Senior Civil Judge, Karachi East but did not succeed in occupying the said plot. The witness also produced Exh. D/3 which shows that defendant Shamsa Khanum was directed by KDA to surrender all the original documents of Plot No,B-196, Sector 11-A, North Karachi Township so that alternate plot may be allotted to her. Thereafter, Plot No,B-1/1, Block 3-A, Scheme 36 was allotted to her. He also produced Exh. D/7 which is a Part Plan showing re-planning of Plot C-6, Block 3-A, Scheme 36 into three plots.
10. Defendant Shamim Arif also stated in his deposition that the said Plot C-6, Block 3-A, Sector 36 was cancelled and was taken on vacant pool and sub-divided into three plots. He produced the drawings in respect thereof. Out of the sub-divided plots, Plot No,A-19/1 was allotted to him. ' He also stated that he was allotted the said plot as an alternate for Plot No A-349, Block 11, Schenie 36.
This witness has also stated that the suit plot was originally allotted to one Anwar Muhammad Ahmed which was cancelled and in lieu of this plot another Plot bearing No,MC-18, Sector GB, measuring 600 sq yards in Mehran Town Scheme, Korangi was allotted to him.
11. In view of the above facts/evidence, this suit is not maintainable on another ground also. It has come on record that the suit plot was divided into three plots. One plot each was allotted to the defendants Shamsa Khanum and Shamim Arif while the third plot has been allotted to one Abdul Sattar, who is stated to have constructed a house on his plot and is residing therein since long. In such view of the matter, this suit is bad for misjoinder of the parties also as said Abdul Sattar has not been arrayed as a defendant in the present suit. Therefore, if any decree is passed in favour of the plaintiff the same would not be capable of execution as the third person holding a piece of land being claimed by the plaintiff in this suit has not been made a party to this suit.
12. A perusal of the documents filed by the plaintiff with his plaint shows that the allotment letter of Plot No,C-6, Block 3-A, Scheme 36, in favour of Anwar Mohammad Ahmed shows the plot to be 600 sq. Yards. However, the possession order dated 20-4-1998 is in respect of the same plot but it shows the area to be 590 sq. Yards. The transfer letter also shows the area of the plot to be 590 sq.
Yards. However, as per annexure A-4 to the plaint, a corrigendum was issued and it was clarified that area of plot No,C-6, Block No,3-A, Scheme 36, Gulistan-e-Jauhar, Karachi, after demarcation, is 620 sq. Yards. No document has been filed to show that for the additional area any challan was issued or any sum has been paid. Then the plaintiff has not filed any sale deed to show as to when he purchased the said plot from Anwer Muhammad Ahmed.
13. Thus, it is crystal clear that originally the suit plot was allotted to one Anwer Muhammad Ahmed.
The said allotment was cancelled and in lieu thereof another plot was allotted to him. Thus, said Anwer Muhammad Ahmed has no right, title or authority to sell/transfer Plot No,C-6, Block 3-A, Scheme 36, Gulistan-eJauhar, Karachi to any one. This position was also confirmed by the witness of defendant No,1/ CDGK. This clearly shows that the plaintiff has no right in relation to the Plot No,C-6, Block 3A, Scheme No,36, Gulistan-e-Jauhar, Karachi. This issue is accordingly answered against the plaintiff and in favour of the defendants.
14. In view of my above discussion and finding, on issue No,1, I answer issue No,2 in the affirmative by holding that the allotment of Plot No C-6, Block 3-A, Scheme No, 36, Gulistan-e-Jauhar, Karachi East was cancelled, and it was taken on vacant Pool and sub-divided into three units as detailed in para 1 of the written statement of the defendant No,4 who has been allotted sub-divided Plot No,A- 19/1, measuring 220 Sq. Yds., in lieu of Plot No,A-349, Block 11, Scheme No,
36. Since the plaintiff is claiming his rigt through Anwer Muhammad Ahmed and suit plot allotted in favour of Muhammad Ahmed was cancelle new plot in lieu thereof was therefore, Anwer Muh no title, right or inter which was taken in vacant pool and was sub-divided into three plots and allotted to the defendants.
15. Issue No, 3 is also decided on the basis of above discussion in the affirmative by holding that the plaintiff is not in possession of the said plot as the construction raised by him was demolished and the suit filed by him was returned to him. The result of this is that he is not entitled to possession of the said plot.
16. The next issue, that is whether the plaintiff filed Suit No,695 of 2005 in the Court of IInd Senior Civil Judge, Karachi East, and the present suit is barred under Order II, Rule 2, C.P.C. As well as section 42 of Specific Relief Act. The plaintiff has stated in para 3 of the plaint that he had filed Suit No,695 of 2005 for permanent injunction. It is also stated the plaintiff had obtained status quo order in that suit and despite such status quo order construction raised by him was demolished by defendants Nos.1 and 2 on 3-9-2005. Surprisingly, it is noted that no contempt proceedings were filed against the said defendants Nos.1 and 2 as the plaintiff has not stated anything about the fate of this suit.
However, defendant Shamim Arif in his deposition has stated that this suit was returned to the plaintiff for presentation before proper Court. However, nothing has come on record to show whether the same was presented before proper Court or not. In case there was any threat to the title of the plaintiff in respect of the suit plot, the same could have been raised in the said suit. It seems that he did not follow his earlier suit and never presented the same before proper Court.
Copy of the plaint in Suit No,965 of 2005 is available on record as the same was filed by defendant No, 4, Shamim Arif, who was a party to that suit, and para 1 thereof shows that it was in respect of the suit plot but the relief claimed therein was only in respect of the demolition of the construction and in respect of the ownership of the suit plot and only defendant No,1 was a party therein and the private defendants herein were not parties to that suit. Therefore, I am of the view that the earlier suit would not bar this suit. This part of the issue is answered accordingly.
17. So far as impact of section 42 of the Specific Relief Act on this suit is concerned, it has been held that the plaintiff has no right or title in respect of the suit plot. Thus the plaintiff has neither entitled to any legal character nor to any right as to the said property, therefore, the suit is hit by provisions of section 42 of the said Act. This part of the issue is answered accordingly.
18. Issue No, 5 (newly-added). This issue was added vide order dated 24-5-2010 on an application filed by defendant No,3. It has been held that the suit plot was taken into vacant pool and was divided into three plots such drawing is also available on record as well as was produced during evidence. In view of my such finding under issue No,1 above, issue No,5 is answered in the affirmative. The effect thereof would be that the defendant No,3, Shamsa Khanum is entitled to her plot and the plaintiff is restrained from raising any hindrance in her possession.
19. Under Issues Nos. 6 and 7 (old Nos. 6 and 6), it is held that the plaintiff is not entitled to any relief and, accordingly, the suit is dismissed with costs.