1. This is an application under Order XXXIX, rules 1 and 2, C.P.C. For restraining the defendant from interfering with the Plaintiff's possession of the plot in question and/or demolishing the construction raised thereon. The suit has been filed for declaration and permanent injunc--tion for rectification of 99 years lease and declaration that the plaintiff is entitled to the lease of plot of land measuring 189 Sq Yds. And perma--nent injunction. The Plaintiff purchased a property bearing No. 160-A in respect of which conservancy tax, and water and fire taxes were paid to K.M.C. By her. The Plaintiff applied to the defendant No. I on a prescribed form for regularization. On the reverse side of the form certain questions were printed which were replied by the Plaintiff. The question No. 8 was to the effect "Whether you have purchased the house built on this plot". The reply was given in the affirmative but no documents seem to have been produced in support thereof. However, defendant No. 1 issued a provisional letter advising that the Corporation has approved to issue a 99 year lease in her favour in respect of plot No 160-A measuring 189 Sq. Yds. Defendant No. I called upon the Plaintiff to pay Rs. 1.494.20 towards development charges rent for the year 1978 to 1980, advance rent for 1980-81, survey fee and sanad fee. The Plain--tiff paid the required charges in respect of the said plot and on 13th October, 1980 the lease was executed by KMC which was duly registered. In the lease deed the plot number was mentioned as 160-A but the area was shown as 89 Sq. Yds. The schedule to the lease deed contained a sketch plan of the plot in which area was shown as 50.0 x 16.0 equivalent to approximately 89 Sq. Yds. Defendant No. 2 served a notice dated 23-12-1981 on the plaintiff stating that the ground floor with R.C.C. Structure is encroaching upon Government land f. e. Shah Waliullah Road which the plaintiff was asked to remove within 2 days.
2. The Plaintiff by her letter dated Nil replied that no encroachment has been made and the construction is being carried out within the boundary wall which is still existing. It was maintained that the area of the plot is 189 Sq. Yds and it was by mistake that KMC has mentioned only 89 Sq.
3. Yds. It was further stated that she is approaching K.M.C. For rectification of mistake and further construction was totally stopped. The defendant No. 2 KDA by notice dated 18-1-1981 objected to the Plaintiff putting in the roof slab on first floor in contravention of the undertaking. The Plaintiff was asked to remove the unauthorised construction. Finally a notice dated 18-1-1981 was served by defendant No. 2 calling upon the Plaintiff to remove the structure within 25 days. The Plaintiff, therefore, filed the suit.
4. Mr. Khalid Anwar, the learned counsel for the Plaintiff has conten--ded that the construction existed even prior to the execution of the lease deed. He has pointed out that provisional order for grant of lease is in respect of 189 Sq. Yds. On the basis of which rates and charges were demanded and have been paid to K.M.C. The area of 89 Sq. Yds. Mentioned in the lease deed is merely a mutual mistake which should be rectified by the K.M.C. Or by the Court.
5. Mr. Muslim Naqvi, the learned counsel for defendant No. 1 and Mr. Yaqoob Baig have entirely relied upon the lease deed which is a registered document and provides that only 89 Sq. Yds. Were leased out. According to the learned counsel for the defendants it was executed by the Plaintiff without any objection.
6. The main question for determination is whether the Plaintiff was granted lease for 189 Sq. Yds, or 89 Sq. Yds. And whether there could be any mistake. The learned counsel for the defendants have stated that the area of the disputed plot cannot be 189 Sq. Yds. As in that event it will about on the Shah Waliullah Road which they claim to be 60' were at the material point. The Plaintiff has filed with the plaint a sketch plan which shows that the width of the road at the material place is 50' and 52' The learned counsel for defendant No. 1 has stated that the width of the road at the material place has to be 70' and if the Plaintiff's construction exists it will about on the road and will reduce its width. The Plaintiff has also filed with rejoinder one site plan in which it is shown that at the end of the plot the width of the road is 52'-6". The learned counsel for the Plaintiff has attempted to show that opposite to the Plaintiff's plot there exists a construction which is abutting on road by 16.5' and if it is added to 52.6' the existing width then it comes to 65'. According to him it is this plot on the opposite side which is encroaching upon the road. The learned counsel for the defendants have not accepted the correctness of the sketch and has not admitted it. However, he has not filed any sketch plan to demonstrate the correct position. The Plaintiff bad filed a sketch plan with the plaint of which the defendants had sufficient notice for rebuttal but no plan has been produced by theta. One significant aspect of this plan (annexure F to plaint) is that the plaintiff's construc--tion does not seem to about on the road because it is line with the plot and construction which exist on its northern side on Shah Waliullah Road. The learned counsel for the Plaintiff "has, therefore, argued that it is the plot opposite to plaintiff's plot which has encroached on road to the extent of about 16. This prima facie seems to be reasonable if not accurately correct. However, I am not impressed with this part of the argument as firstly sketch plan filed with the plaint does not clearly show any encroach--ment by the plot on the opposite side. The second sketch plan- was filed with the rejoinder and therefore the defendants did not have any opportunity to look into it or to file any document in rebuttal. It is possible that the Plaintiff's plot which is on the crossing of two roads may be partly required for the purposes of widening the road. But no such material has been produced even for establishing a prima facie case.
7. The important aspect of the case which has impressed me is that the learned counsel for the Plaintiff contended that the lease was granted in terms of resolution No. 169 of 1980 dated 8-10- 1980 as mentioned in the lease deed itself. It has been contended that in the resolution the area of the plot has been mentioned as 189 Sq. Yds. And it is by mistake that 89 Sq. Yds. Has been mentioned in the lease. In spite of this assertion defendant No. I did not produce a copy of the resolution. I enquired from the learned counsel for defendant No. 1 to produce copy of the said resolution but it has not been produced by him. As the document is in possession of defendant No. 1 and it has not been produced in spite of definite assertion being made prima facie the presumption has to be drawn against defendant No. 1. If by resolution the lease is to be granted for 189 Sq. Yds. Then prima facie the Plaintiff cannot be an encroacher. In view of these facts it prima facie seems that there are material which may support the plaintiff's case for rectification of the lease and as the said material is being withheld by defendant No. 1 the K.M.C. The plaintiff has prima facie established her case.
8. Mr. Yakoob Baig, the learned counsel for defendant No. 2 has pointed out that the construction raised by the plaintiff is unauthorised, without permission of defendant No. 2 and without obtaining necessary certificates. It has been occupied and rented out to certain tenants which is incomplete contravention of provision of the Building Control Ordi--nance. In these circumstances, the learned counsel has contended that the notices issued by defendant No. 2 are valid and legal. It has also been pointed out that even in the plaint itself the legality of the notices issued for demolition by defendants No. 2 has not been challenged. The learned counsel has further contended that as defendant No. 2 has issued notice under article 72 and 75 of K.D.A. Order and the Plaintiff has not served any statutory notice under Article 131 the suit against defen--dant No. 2 is not maintainable.
9. The contention raised by the learned counsel for defendant No. 2 have force. The notice requiring the plaintiff to remove the construction and threat to demolish it has been issued by defendant No. 2, the K.D.A. The plaint does not show that any notice under Article 131 was served on defendant No.
2. The Plaintiff has failed to make out a prima facie case against defendant No. 2. The plaintiff has alleged in the plaint that as she is entitled to the plot and has raised construction the defendants are not justified in seeking to demolish the construction. No averment has been made that the construction was erected according to the approved plan or that the notice issued by defendant No. 2 is illegal and unlawful. In these circumstances the question of balance of convenience and irreparable injury does not arise. In the facts and circumstances of the case I restrain K.M.C. From disturbing the plaintiff's possession of the premises i.e. Plot No. 160-A which is in her occupation measuring 189 Sq. Yds. But the prayer against defendant No. 2 is rejected.