' AJMAL MIAN, J.-This L. P. A. Is directed against the judgment/decree, dated 30-10-1968 passed by a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, in Suit No, 80 of 1950.
2. The brief facts leading to the filing of the above appeal are that the appellant/plaintiff namely, Muhammad Ibrahim son of Khamiso filed the aforesaid suit on 28-1-1950 for self and for other members of the Brohi Jamat of Sher Shah Village for declaration and injunction against the Sind Industrial Trading Estates Limited (hereinafter referred to as the S. I. T. E.) and Umedally Shah son of Sher Shah. In the plaint it was averred that about 150 years ago the ancestors of the plaintiffs migrated from Khurasan and came and settled down in Sind. It was further averred that the Mirs, who were the rulers of Sind at that time granted to the Jamat free of rent a tract of land in perpetuity near Karachi and the Jamat settled down on the land and made a village of their own. It was also averred that respondent No, 2 defendant No, 2 was also a member of the said Jamat and his ancestors also settled down in the said village. It was also asserted that respondent No, 2's/defendant No, 2's father, Sher Shah was a saintly person and, therefore, Jamat named the village after his name and that the village is now known as Sher Shah Village. The boundaries of the village were also given in para. 5 of the plaint. It was also averred that the attempt on the part of the Corporation co recover rent in 1900 and thereafter in 1930 proved to be abortive in view of the opposition made by the Jamat. It was further averred that the appellants/plaintiffs were the owners of the village by reason of grant rent free in perpetuity and in the alternative they had acquired ownership of the village by adverse possession. It was also-asserted that the S.I.T.E.
Claiming to be the allottee from the Government a portion of the land in the village was threatening to occupy the land and respondent No, 2/defendant No, 2 claiming to be the descendent of Sher Shah was claiming to be the exclusive owner of the village and threatened to lease out the land in the village.
' The S. I. T. E. In its writer statement had denied the various averments contained in the plaint. It was averred that the said defendant under the direction of Government of Sind was incorporated on 29-11-1947 with the object, inter alia, to promote industrialization of Karachi by building, constructing and managing sites, roads and buildings etc. It was further averred that the land in suit was originally vested in the Karachi Municipal Corporation but by a Government Resolution No, 147-A/47, dated 10-9-1947 of the Department of Education, Health and Local Government, the Government of Sind in exercise of the powers conferred upon them by section 271(3) of the Karachi Municipal Act, 1933 excluded the said land from Karachi Municipal limits and reverted the same to the Government and subsequently by Government Resolution No, 2566-F/47, dated 2-6-1948 of the Revenue Department and No, 24-1-B/47-1 of the Agricultural and Industries Department, the Government of Sind transferred the same to respondent No, 1/defendant No,
1. It was also averred that thereupon the respondent No, 1/defendant No, 1 went into possession of the land in suit and invested on the land a sum of Rs, 75 lacs in railways to the estate, water, power, telephones and general site development. It was also averred that private industries invested about Rs, 10 crores by the time of the filing of the written statement. It was averred that the suit was not maintainable and the suit was also barred under section 42 of the Specific Relief Act.
' Defendant No, 2/respondent No, 2 in his written statement had also denied the averments contained in the plaint. It was denied that the appellant/plaintiff was representative of Brohi Jamat or that the suit was Maintainable. It was also denied that the Mirs who were the rulers of the Sind granted land free of rent in perpetuity. It was averred that defendant's father Syed Sher Shah was the absolute proprietor in season and possession of the lands and that he allowed his disciples, consisting of all classes of people namely, Sindhis, Brohis, Makranis, Pathans and others to build their huts on portions thereof free of rent at will. It was also averred that respondent No, 2/defendant No, 2 and his father have had continuous, uninterrupted and adverse possession of the entire land of the village for over 100 years and had acquired indefeasible right and title thereto.
It was also averred that in pursuance of a rehabilitation scheme the said respondent/defendant after wide publicity leased out over 2500 plots to diverse persons without any hindrance from anybody.
3. It may be observed that the appellant/plaintiff had not impleaded the Government of Pakistan or the Karachi Municipal Corporation as the parties to the above suit but on 12-5-1952 the Court had ordered that the Government of Pakistan and the Karachi Municipal Corporation should be impleaded as defendants Nos. 3 and 4, respectively.
' Defendant No, 3 in its written statement had denied the various averments contained in the plaint.
It was averred that the suit land belonged to defendant No, 4 and its predecessors in title since the date the land was handed over by the Government of Bombay subject to the proprietary right of the Government in the soil.
' Defendant No, 4 in its written statement also denied the averments contained in Vie plaint. It was averred that Plots Nos. 81, 82, 83, 84, 85 and 88 of Sher Shah Village were held by certain individuals on temporary lease commencing from 10-10-1907. It was further averred that the Government by Resolution excluded some of the land of Sher Shah village from Karachi Municipal Limits and subsequently by Resolution, dated 2-6-1Q48 transferred the land to respondent No, 1/defendant No, 1.
4. That it seems that during the pendency of the suit respondent No, 2!Defendant No, 2 Umedally Shah expired and in his place his legal representatives including Mst. Khadija Bai, his widow and his two nephews Syed Swaleh Shah and Ismail Shah i,e, respondents Nos. 2(c) and 2(d) were brought on record in addition to some other legal heirs. Mst. Khadija also expired and in her place Yar Muhammad, Mst. Mehtab and Mst. Dadi were substituted. On the basis of the pleadings of the parties as many as 23 issues were framed. By consent of the learned counsel for the parties the following four issues were to be heard and decided first and the evidence was to be led on the same :- "(1) Has the plaintiff any right to sue on behalf of Brohi community ? (2) Is the suit maintainable ?
(10) Is the suit barred by section 42 of the Specific Relief Aet ?
(11) Is the plaint properly stamped ? "
5. The appellant/plaintiff in support of the issues examined one Ali Muhammad (Exh. 16), Superintendent Education Department, Government of Sind, who produced the record of resolution dated 10-9-1947 Exh. 17, the appellant P.W. 1 Muhammad Ibrahim Exh. 18, P.W. 2 Faiz Muhammad Exh.
21 a retired labourer, resident of Sher Shah Village, P. W. 3 Ghulam Hussain Exh. 22 working in Police Department resident of Sher Shah Village, P. W. 4 Qadir Bakhsh Exh. 37, a donkey-cart driver, resident of Sher Shah Village, P. W. 5 Muhammad Exh. 38, a labourer resident of Sher Shah Village.
' The S.I.T.E. i,e, respondent No, l /defendant No, 1 examined D. W. 1 Nazir Ahmad Exh. 39, Estate Engineer in the S.I.T.E., D. W. 2 Abdul Razza Exh. 92 ex-employee of the S.LT.E. During the period from April, 1948 to June, 1950. Respondent No, 1(c)/defendant No, 2(c) examined D. W. 3 Exh. 112, Uzair Ahmad, a clerk in the office of the Registrar at Karachi, D. W. 4 Gul Muhammad Exh. 114, Supervising Tapedar Manghopir D. W. 5 Muhammad Suleman Exh. 115, Assistant City Survey Officer, City Deputy Collector Office.
' Defendant No, 4 Karachi Municipal Corporation examined D. W. 6 Exh. 120, Aftab Ahmad Jafri, Land Surveyor, K. M. C., D. W. 7 Ghulam Jilani, Exh. 124, Production Manager, Grand Trunk Tanneries, Sher Shah.
' The suit was dismissed by judgment/decree, dated 23-4-1959 by a learned Single Judge of the erstwhile High Court of West Pakistan, whereby Issues Nos. 1 and 11 were decided in favour of the appellant/plaintiff but Issues Nos. 2 and 10 were decided against the appellant/plaintiff. It was held that in view of section 42 of the Specific Relief Act, the plaintiffs' suit was not competent as he failed to claim further relief which he might be entitled to. The appellant/plaintiff being aggrieved by the above judgment and decree filed L. P. A. No, 19 of 1959 which was dismissed by a Division Bench on 5-12-1961. The appellant went in appeal before the Supreme Court namely, C. P. K-29 of 1963, which was allowed by a judgment dated 19.12-1963 and the case was remanded to the learned Single Judge with the following direction :- "The conclusions which are reached from the above discussion are-
(a) that so far as the property included in the warrant of attachment is concerned the suit as framed was maintainable ; and
(b) that the suit would also be maintainable in respect of other property of which the plaintiff may be in possession.
' The proper course under the circumstances is that there should be a determination in the first instance of the property which was in eustodia legis and of the property which is in possession of the plaintiffs. The case will now, therefore, go back to the learned Single Judge who will determine what property was included in the warrant of attachment and what other property is in the possession of the plaintiffs. The suit will be allowed to proceed only in respect of the property in the possession of the plaintiffs.
' This appeal is accepted. The judgment and decrees of the Courts below are set aside and the case is remanded to the learned Single Judge for fresh decision in accordance with what has been stated above. Costs of this appeal will be costs in the cause."
6. After the remand order the appellant/plaintiff produced the documents pertaining to the complaint under section 145, Cr. P. C. And also produced as many as 17 witnesses namely P. W. 7, Asadullah, City Surveyor, P. W. 8 Ishtiaq Ahmad Siddiqui, Assistant Executive Engineer, K. D. A. P. W. 9 Khawaja Farooq Ahmad, a clerk in the record office, City Courts, Karachi, P. W. 10 Zakir Ali Khan, Executive Engineer, K.M.C. P. W. 11 Muhammad Farooq Dada, Director Dadabhoy Industries, P. W. 12, Sultan Ahmad a businessm an, P. W. 13 Abdul Sattar, a shop-keeper, P. W. 14 Shamsuddin' a businessm an, P. W. 15 Akhtar Hussain a businessrman, P. W. 16 Haji Abdul Karim, a timber merchant, P. W. 17 Abdul Bakir, a timber merchant, P. W. 18 Rafiq Ghulam Hussain the owner of E. M. Oil Mills, P.
W. 19 Pir Muhammad, a Hari P. W. 20, Din Muhammad, a businessman dealing in iron scrap, but prior to that a Hari, P. W. 21 Dildar, an agriculturist, P. W. 22 Abdul Hadi Khan, Executive Engineer, K. D.
A., and P. W. 23, Abdul Sattar, a licensed Architect.
' Mr. Zaheeruddin Pathan a consultant/architect was appointed as the Commissioner with the consent of the parties for submission of his report in respect of the land in dispute. He was examined as P. W.
24. Apart from submitting his report as Exh. 155 he also produced the plans, Exh. 151, equivalent to Z- 1, Exh. 153 equivalent to Z-2 Exh. 154 equivalent to Z-3 and Exh. 154/1.
' Defendant No, 2(c) Syed Swaleh Shah also examined himself.
' The learned Single Judge after hearing the parties by his aforesaid judgment and decree, dated 31-10-1968, under appeal again dismissed the suit in holding that the appellant/plaintiff failed to prove any land in possession of the Jamat and also for the reason that there was no land in custodia legis by virtue of the attachment order dated 27-8-1949 Exh. 125 in terms of the Supreme Court judgment. The appellant being aggrieved by the above judgment and decree has filed the present L. P. A.
7. In support of the above appeal Mr. Iqbal Kazi learned counsel for the appellant has urged as follows : (i)That the judgment/decree is liable to be set aside on the ground that the same was pronounced after more than one year after the hearing of the arguments of the counsel for the parties.
(ii) That the learned Single Judge erred in disallowing the appellant to file 101 documents on the ground of delay.
(iii) That the learned Single Judge erred in holding that since the appellant had not filed any rejoinder to the written statement of the defendants, it could be presumed that he admitted the averments contained therein as to their possession.
(iv) That the findings of the learned Single Judge that the appellant failed to prove the possession and that there was no land in custodia legis are contrary to the evidence on record."
' Mr. Syed Tariq Ali learned counsel for respondent No, 1/ defendant No, 1 has supported the judgment and has submitted that if the judgment cannot be sustained on the ground that the suit could not have been dismissed under section 42 of the Specific Relief Act for the reason that the appellant was admittedly in possession of some land, this Court may decide the case on the above point afresh and may also record evidence, if necessary.
' Mr. Afzal Nabi for respondent No, 2(c) has candidly submitted that the judgment cannot be supported in the form in which it is as the suit could not have been dismissed under section 42 of the Specific Relief Act.
' Mr. Nasrullah Awan, who was appearing for the Federal Government and Mr. Muslim Naqvi, who represented the Karachi Municipal Corporation submitted that factually the appellant/plaintiff had not prayed for any relief against the above respondents/defendants and factually they were not impleaded in the suit and they were impleaded at a subsequent stage in pursuance of the order passed by the Court and, therefore, the appellant/ plaintiff had not disputed the title of the respondents/defendants in respect of the portions of the land which are in their possession in the form of Sewage Farm K. M. C. Schools, K. M. C. Lavatories, roads, railway crossings, police training schools etc.
8. Adverting to the first contention of Mr. Iqbal Kazi, it may be observed that it is true that in the suit the arguments were concluded on 27-9-1967 and the judgment was pronounced on 30-10-1968 i,e, after the expiry of more than one year. In this regard, it may be stated that under Order XX, rule i, C.
P. C. It has been provided that the Court after hearing shall pronounce the judgment in open Court either at once or on some future date of which due notice is to be given to the parties or their pleaders. In view of the above provision, it has been held in some of the cases that the inordinate delay in pronouncing a judgment after hearing may be a ground for setting aside the judgment.
Mr. Iqbal Kazi learned counsel for the appellant has candidly stated that by virtue of clause 5 of rule 3 of Order XLIX, C. P. C. The application of the above provision of Order XX, rule 1, C. P. C. To the High Court has been expressly excluded and, therefore, the above rule cannot be pressed into service.
However, he has further submitted that rule 5 of. Chapter IV-F of the Rules and Orders of the High Court of Judicature at Lahore Volume V, which is applicable to this Court, is a parallel provision to rule 1 of Order XX, C. P. C. And, therefore, the ratio decidendi of the cases on Order XX, rule 1 C. P. C.
On all fours shall be applicable to the present case. It may be observed that above rule 5 provides that the judgment shall be delivered in open Court either at the close of the case or on some future date of which due notice shall be given to the parties or their counsel. It seems that the above rule is identical to rule 1 of Order XX, C. P. C. Mr. Iqbal Kazi has referred to the following cases :- "(i) Pathana v. Mst. Khandal PLD 1952 B J 38, in which the respondent had filed a suit for declaration that the marriage of the appellant was invalid. The suit was decreed. Appeal against the above decree was also dismissed. A second appeal was filed in the Lahore High Court. The above second appeal was allowed on the ground that the learned District Judge pronounced the judgment about five months from the date of the hearing of the arguments. It was held by a learned Single Judge that it is well-settled that no valid judgment could be given without hearing the parties and that since the learned Judge delivered judgment after five months after hearing the arguments, it was no judgment in the eyes of law.
(1i) R. C. Sharma v. Union of India and others AIR 1976 SC 2037. In the above case the judgment of a Division Bench of Allahabad High Court was assailed, inter alia, on the ground that the High Court had given its judgment eight months after it had heard the arguments, while dealing with the above contention the Indian Supreme Court observed as follows :- "Learned counsel for the appellant said all that could possibly be said on behalf of his client. He pointed out that the High Court had given its judgment eight months after it had heard arguments.
He urged that the result was that the High Court did not deal with a number of submissions made because they had, apparently, been forgotten. The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgment. Nevertheless, we think that an unreasonable delay between hearing of arguments and delivery of a judgment unless explained by exceptional or extraordinary circumstances is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Justice, as we have often observed, must not only be done but must manifestly appear to be done."
' The Supreme Court of India though made the above-quoted observation but did not allow the appeal of the appellant and dismissed the same. Inter alia, it was observed that the appellant failed to file an affidavit to point out that any argument was not dealt with by the High Court.
We are inclined to hold that a judgment cannot become invalid merely for the reason that the same was given after the expiry of several months from the date of hearing of the arguments as neither Order XX, rule 1, C. P. C. Nor the above rule 5 of Chapter IV-F of the Rules and Orders of the High Court of Judicature at Lahore, Volume V prescribes time for pronouncement of judgment.
However, it is desirable to deliver judgment without any inordinate delay so that justice must not only be done but must manifestly appear to be done. We are also inclined to hold that if a party can manifest that on account of the inordinate delay in pronouncement of the judgment, the Court concerned has overlooked the material pieces of evidence arguments, this may be a ground for setting aside the judgment. In the present case the appellant/plaintiff has not filed any affidavit nor demonstrated in the memo. Of appeal that any material piece of evidence arguments has not been considered by the learned Single Judge. It may further be stated that the instant case has voluminous evidence, oral as well documentary and, therefore, some delay is explainable on the face of it. We are, therefore, not impressed by the above contention of the learned counsel for the appellant.
9. As regards the second contention of Mr. Iqbal Kazi learned counsel for the appellant that the learned Single Judge was not justified in refusing to accept 101 documents produced by the appellant/plaintiff during the trial of the suit, it may he pertinent to quote herein below the order passed by the learned Single Judge in this regard, which reads as follows : "For the first time originally time was granted on the 24th of November, 1964 to the parties to indicate in writing the details of the evidence which they wish to produce. On the 1st of December, 1964 counsel for the plaintiff produced two documents along with a list of witnesses and asked for month's time to produce the plan. He was allowed to supply copies to the other side. This was extended for 15 days by an order of this Court, dated the 6th of May, 1965. No documents were produced on behalf of the plaintiff in spite of repeated extension of time and clear warnings to do so during the second half of 1965 and the entire year of 1966. In about middle of 1967 that is to say the 4th of May, 1967 a bunch of 101 documents has been produced on behalf of the plaintiff with an application under section 148, C. P. C. For extension of time to do so. It was supported by a medical certificate as follows :- ' This is to certify that Mr. Muhammad Ibrahim Brohi has been under my treatment for Cardic Asthma and Diabetics for the last 4-5 months. He is also indoor patient for three months in my clinic. He is advised to continue the treatment and rest etc. For some time more."
' The affidavit which was produced in support of the application said as follows : "That while I was collecting and arranging the documents I fell seriously ill and remained confined to bed for about 7 months and hence the document could not be collected and supplied to my counsel. Medical Certificate, dated 24-4-1977 is annexed herewith."
' The illness is disclosed in the medical certificate which was issued by Mr. Murtaza Khan who is described as Surgeon Specialist. Mr. Hamid Masood says that the plaintiff was an indoor patient in the clinic of Mr. Murtaza Khan.
' The point for consideration is whether the medical certificate is to be considered a sufficient reason for not producing documents and whether besides that certificate there is any excuse for not doing so. As explained above, the delay in not producing the documents is about two years. It is not said in the certificate as to when the plaintiff was admitted to the hospital but it merely says for three months. This shows that if at all real obstacles in the way of the plaintiff arose three months before the date of the certificate which is dated 24th of April 1967, the above excuses are not sufficient for granting the application, dated the 4th of May, 1967. It is accordingly dismissed.
Another application was made under section 148, C. P. C., dated the 11th of August, 1967 which according to Mr. Muhammad Akram is a mere repetition of the previous application. It is also dismissed for the same reasons : "The consequence is that the documents summoned through the witnesses and forming a bunch of 101 documents are disallowed."
' Mr. Iqbal Kazi in furtherance of his above submission has referred to the following cases : "(i) Kumar Gopika Raman Roy v. Attal Singh and others AIR 1929 P C 99, in which the Privy Council while construing the provision of Order XIII, rule 2, C. P. C. Held that .The Court should not ordinarily refuse leave to file documents where the documents or official records of undoubted authenticity are involved which may assist the Court to decide rightly the issue before it. It was also observed that where on the date of first hearing certain document was not in the possession or power of the plaintiff and he and his Advocate did not know of their existence, such document cannot be excluded.
(ii) The Lahore Improvement Trust v. Messrs Khuda Baksh-Merajdin, PLD 1956 Lah.
252. In the above case Kaikaus, J. While sitting singly at the Lahore High Court while dealing with the expression "unless good cause is shown for the non-production thereof" employed in Order XIII, rule 2, C. P. C. Observed that :- ' Although I am unable to find any case where the interpretation of the words "unless good cause is shown for the non-production thereof" may be discussed, there are a number of cases wherein it has been held that if the documents to be produced are public records about the authenticity of which there can be no doubt They should ordinarily be admitted in evidence in spite of non- compliance with a procedural provision relating to their production. Vide Rameswami Chettiar and others v. Tyagaraja Pillai and others AIR 1928 Mad. 516, Chidambara Chettiar v. Parvathi Achi AIR 1925 Mad. 744, Naraini Koer and others v. Gena Missir and others AIR 1929 Pat. 324, Jagdip Pandey and others v. Mst. Taibunnisa and others AIR 1924 Pat. 208, Sm. Buchibai v. Nagpur University AIR 1946 Nag. 377, Kamod Singh v. Khernkaran A I R1927 Nag. 269, Muhammad Tabarak Ali Khan v. Dalip Narain Singh Bahadur and others AIR 1927 Pat. 117 and Narendra Narain Roof v. Jnanda Dassi AIR 1937 Cal.
537. In almost all these cases documents were admitted at a late stage on account of their being authentic and without reference to the reasons for non-production."
In the present case, we have examined the above 101 documents which were not taken on record by the learned Single Judge and we find that most of the documents are simple plain copies of some letters or agreements. There are some alleged agreements of granting leases of the years 1961, 1962, 1964 and few are certified copies of the proceedings before the A. C. M. At Karachi in criminal complaint Abdul Qadir v. Amanat Ali etc. It cannot, therefore, be said that the above documents8 were of such nature authenticity or genuineness of which cannot be doubted or that they were not in existence and were not within the knowledge of the appellant at the time when the documents were to b filed by the appellant. The learned Single Judge in his above-quoted order has given cogent reasons for declining to accept the above document and, therefore, no exception to the above rejection of the documents can be taken in this appeal.
10. Reverting to Mr. Iqbal Kazi's third contention that the learned Single Judge erred in holding that since the appellant plaintiff had not filed any reply to the written statement of the S.I. T.E. And Umedally Shah, it must be presumed that the averments contained therein remained uncontroverted and that the appellant/plaintiff failed to prove the possession. In this regard, it may be pertinent to reproduce herein below paras. 5 and 6 of the judgment under appeal, which read as follows :- "5. Nothing is alleged in the plaint against the Federation of Pakistan and the Karachi Municipal Corporation with regard to the use by the K. M. C. Of a part of the land as a sewage farm since 1939, the construction of roads and a rail tract across it by the Government, the construction of quarters and schools and demarcation of a big area by the K. M. C. For municipal purposes, construction of mosques, Military and Police Posts, existence of dozens of factories and thousands of houses which do not belong to the Jamaat, and the transfer of a large part of the allegedly gifted land by the Government to the Sind Industrial Trading Estate in 1948. The allegation simply is that defendant No, 2 Umedali Shah wrongfully claimed to be the owner of the village and threatened to lease out land as such. The Federation of Pakistan and the Karachi Municipal Corporation were originally not even impleaded as parties and were made defendants in pursuance of an order of this Court made on the 12th of May, 1952. This negative aspect of the plaintiff's pleadings has remained unchanged, although the plaint was amended twice thereafter, in March, 1953 and in March, 1958. The Umedali Shah and the Federation of Pakistan have not only denied the title and possession of the Jamaat, but have pleaded that they are in possession of the land (See paragraph 9 of the written Statement of S.I.T.E., paragraph 7 of the written statement of Umedali Shah and paragraph 4 of the written statement of Federation of Pakistan). The Jamaat could deny these allegations by submitting a rejoinder to them under Order VIII, rule 9, C. P. C. But it did not choose to do so, with the result that the allegations have remained uncontroverted in the pleadings.
(6) Since the above allegations have not been denied, and the case of the plaintiff merely is that the Jamaat is in possession, it follows, therefore, that in case the Jamaat is not proved to be in possession, the defendants must on the basis of the pleadings be taken to be in possession of the land. This is an important aspect of the case which should not be ignored. The evidence of the plaintiff has not improved the case in this respect. On the contrary it has weakened the plea of the possession of the Jamaat. This weakness has been created by a diffusion of the identity of the Jamaat on the one hand and by admissions to the effect that the land is in possession of the defendants on the other hand. Let me explain these points of view."
It may be pertinent to refer to rule 9 of Order VIII, C. P. C. Referred to in the above-quoted paras. Of the judgment. It may be stated that rule 9 of Order VIII provides that no pleading subsequent to the written statement of a defendant other than by way of defence to a set off shall be presented except by the leave of the Court upon such terms as the Court thinks fit, bat the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
' It may be noticed that under the aforesaid rule no pleading subsequent to written statement can be tiled by a party as a matter of right but only with the permission of the Court, or the Court may require the filing of a written statement or additional written statement by any of the parties within the time specified by it ' Mr. Iqbal Kazi has relied upon the following cases ; in furtherance of his aliove submission
(i) Fakir Sahibdino v. Court of Wards, Sind PLD 1959 Kara (W. P.) 777, in which a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, while hearing an appeal against the judgment of the first Assistant Judge, Hyderabad, arising out of a suit for declaration, observed that the rule of pleading is that all adverse allegations in the written statement are deemed to have been denied by the plaintiff.
(ii) Chima wa Rachaya v . Gangawa Ganga Dharaya and others AIR 1928 Born.
430. In the above case the trial Court had ordered the plaintiff to file a counter-written statement which was not filed. Thereupon, the suit was dismissed under Order VIII, rule 10. A learned Single Judge of the Bombay High Court while hearing an appear held that Order VIII, rule 10 in terms apply only to a written statement and a set off but a plaintiff cannot be called upon to put in a counter- written statement and, therefore, the dismissal of the suit on the ground of non-filing of it was not justified. It was further held that the proper course open to the trial Court was to press into service Order X, rule 1, C. P. C. And to call upon the pleader or party by examination to admit or deny the allegations.
(iii) Nankin v. Sell and others AIR 1958 Mad. 383, in which a learned Single Judge of the Madras High Court while construing section 107 and Order VIII, rule 9, C. P. C. Held that under the C. P. C. Only written statement on record can be taken notice of by Court whether it is the trial Court or the appellate Court and if a party wants to file an additional written statement he has to file a petition stating the reason why he failed to state the facts/things in the original written statement and what excuse there is in allowing him to file an additional written statement."
We are inclined to hold that a plaintiff is not required under the C. P. C. Or under the rules/practice of pleading to file a reply or a counter-statement to a written statement filed by a defendant unless in the written statement the defendant has claimed set off or a counter-claim, to which the plaintiff is entitled to file a written statement. We are further inclined to hold that since a plaintiff is not required by law to file a reply or counter-statement to a written statement filed by a defendant, it will be presumed that the plaintiff has denied all adverse averments contained in the written statement.
' We are, therefore, of the view that the learned Single Judge was not justified in raising any presumption against the appellant/plaintiff in the C instant case for the reason that he failed to file a reply to the written statement of defendant No, 1 or to the written statement of respondent No, 2(c)/defendant No, 2/(c) or to the written statement of any other respondent, defendant and, therefore, the conclusion that the appellant/ plaintiff had admitted the possession of the respondent No, 1/defendant No, 1 and of respondent No, 2(c)/defendant No, 2(c) is not warranted by law, as even under rule 9 of Order VIII, no pleadings subsequent to the written statement of a defendant other than by way of defence of a set off can be filed by a party as a matter of right but only with the permission n of the Court after making out a case for filing the same or the Court may' direct a party to file a written statement or an additional statement. It is not the case of any of the parties before us that the appellant/plaintiff was directed by the learned Single Judge to file a written statement or additional statement.
11. Adverting to the last contention on merits, it may be pointed out again that in terms of the judgment of the honourable Supreme Court, dated 19-12-1963 the learned Single Judge was required to determine what property was included in the warrant of attachment and what other property was in possession of the appellant/plaintiff and that the suit was to proceed only in respect of the property in possession of the appellant/ plaintiff. In other words, the learned Single Judge was directed to determine what property was in custodia legis and what property was in possession of the appellant plaintiff. The learned Single Judge as pointed out hereinabove has held that no land was factually attached by the learned Magistrate by order dated 27-8-1949 Exh. 125 and that the appellant/ plaintiff has failed to prove that Jamaat was in possession of any land.
' Taking at the question of custodia legis, it may be pertinent to reproduce the above attachment order Exh. 125, which reads as follows :- "Order under section 146(1), Cr. P. C.
' To ' The Police Officer-in-charge of the Baghdadi Police Station, Karachi.
' Whereas it has been made to appear to me that a dispute likely to induce a breach of peace exists between party No, 1.
(a) Ibrahim son of Khamiso.
(b) Ismail son of Edul Khan.
(c) Haji Baxan son of Ghazi Khan.
(d) Lal Muhammad son of Araz Muhammad.
(e) Ahmad Shah son of Ghulam Shah. Party No, 2.
(a) Syed Umed All Shah son of Sher Shah Syed.
(b) Saleh Shah son of Syed Kasim Ali Shah. And Party No,
3. Sind Industrial Trading Estate, Karachi. concerning a piece of land (in front of Sher Shah Village) bounded on the North by Sher Shah Village, East by Dhori, South by Lyari river and West by Hub Road, situate within the limits of my jurisdiction and the said parties were. Therefore, duly called upon to state in writing their respective claims as to the fact of an actual possession of the said land and whereas I consider the case as one of emergency ; ' This is to authorize and require you to attach the said land described above by taking and keeping possession thereof and to hold the same under attachment pending my decision under section 145, Cr. P. C. And to return this warrant with an endorsement certifying the manner of its execution.
' Given under my hand and the seal of the Court this 27th of August, 1949.
(Sd.) Illegible.
2nd Additional City Magistrate, 27.8-1949 Karachi."
' It may be noticed that by the above attachment order the entire village Sher Shah or the land around Sher Shah Village was not attached but only a piece of land in front of Sher Shah Village, bounded on the North by Sher Shah Village, East by Dhori, South by Lyari river and West by Hub Road was attached.
' The learned Judge on the basis of para. 3 of the learned counsel for Syed Umed Ali Shah Mr. H. T.
Raymond's (as he then was) application, dated 19-9-1949 Exh. P/9 (at page 741 of the paper book) filed in the Court of 2nd Additional City Magistrate, Karachi in 145, Cr. P. C. Proceedings, has held that factually no land was attached for the reason that there could not be any land of the description given in the above attachment order. In our view, this conclusion is not sustainable for more than one reason. Firstly, that the above application, dated 19-9-1949 was filed by Mr. H. T.
Raymond on behalf of the private party Syed Umed Ali Shah, who was represented in the suit by Syed Swaleh Shah who has stated that factually the land attached was about 200 yards North- South and by about 600 yards East-West. Secondly, according to P. W. 24 Zaheeruddin Pathan, Architect who was appointed as the Commissioner by the Court, the land lying to the south of the biggest rectangular figure marked 'm' in Exh. 151 (i,e, one of the plans submitted by him along with his report), can be said to be the land lying to the south of Sher Shah Village. The above attached triangular piece of land with its base measured on the plan about li" with its two sides each measuring about 1" and its height about i". On the basis of the scale of the plan namely 1" equivalent to 800 feet, it works out about 2,646 square yards. There seems to be no reason to reject the above evidence of Mr. Zaheeruddin Pathan. . It may be pertinent to reproduce herein below the relevant portion of P. W. Zaheeruddin Pathan's statement which reads as follows :- "Q. Now I refer to you the order of the 2nd Additional City Magistrate, Karachi, dated the 27th of August, 1949 which is at page 275 of the Supreme Court paper book. In that order the piece of land which was taken into custody by the Court is described as follows :- ' In front of Shershah village on the north by Shershah village, east by Dhori, south by Lyari River and West by Hub Road." ' please indicate on Exh. 151 or Z-1 these boundaries ?
A. Shershah village as it was originally is shown on Exh. 151 or Z-1 by three lines of houses. This was the situation of the village in 1874-75 and upto 1894. The village expanded later and it at present is shown on Exh. 154 or Z-3 by small scattered squares near the cause way on the north of Lyari River and is described on the plan by the words 'Cloth Shershah'. The words in front of indicate the site towards Chakiwara road which means that the area between the village and the road is mentioned as the north boundary of the disputed piece of land. The word boundary is described in the above paragraph to be Dhori which means a water-course. In the plan Exh. 151 or Z-1 the Dhori is shown by double dotted lines which begins from the Lyari River near the cause way and goes to the north. This is the eastern boundary of the disputed piece of land. The southern boundary is indicated by the words Lyari River which is obvious on the plan. The Hub road. There is no Hub road as such now. There was and is no such road of this name, but the reference obviously is to the road which connects the Chawkiwara road and cause way and goes to north. Q. I put it to you that the Hub road to which reference is made in the order of the Magistrate is not the road which connects the Chawkiwara road and cause way and goes to north but is the road which is shown by dotted lines on the plan Exh. 151 or Z-1.
A. The order of the Magistrate is dated the 27th of August, 1949. In that year the roads shown by dotted lines on Exh. 151 or Z-1 were not existing. The reference in that order, therefore, could not be to non-existing roads. In this view the road to which reference is made in that order is the one to which I have referred to above. Q. What is meant by the expression non-existing roads, or there are no traces of the roads now ?
A. Traces can of course be found even now but there are no roads. I believe that after I prepared the plans Exhs. 151 and 154 pucca roads have been constructed at the places where kutcha roads are shown in Exh. 151 or Z-1 by dotted lines. The traces of Kutcha roads which are shown on the plan Exh. 151 by dotted lines or is indicated on the plan Exh. 154 by a single dotted line which is in continuation of the Tannery road."
' We are, therefore, of the view that in the custodia legis was the land mentioned in the attachment order, dated 27-8-1949 measuring about 2,646 square yards. Reference may be made to ground
(d) of the appeal page 1064 regarding area 2,649 square yards.
12. Reverting to the second limb of the above question namely, what area was in possession of the appellant/plaintiff at the time of the institution of the suit, it may be observed that the appellant/plaintiff Ibrahim has claimed possession over the Shershah Village and the land around it. The case set up by the appellant/plaintiff has already been referred to herein-above para.
2. In order to prove the above possession the appellant/ plaintiff has relied upon Exh. 126 which is a plan prepared by P. W. 23 Muhammad Abdul Sattar, a licensed Architect who was in the service of Government of Sind in 1940 and had surveyed the area. He was engaged by the appellant/plaintiff in 1964 as a private Architect who prepared the above Exh. 1215 in February, 1965. The above witness has stated that he had prepared the plan as per instructions of the appellant/plaintiff and, therefore, the above plan cannot be accepted as a piece of evidence proving the factum of possession of the appellant/plaintiff. Furthermore, with consent of the learned counsel for the parties, Mr. Zaheeruddin Pathan, P. W. 24 was appointed as the Commissioner who had submitted his report along with various plans referred to hereinabove.
' As pointed out hereinabove the appellant/plaintiff had examined himself and five other witnesses at the first round of litigation culminating in the above first judgment of the learned Single Judge, dated 23-4-1959 and thereafter after the remand by the honourable Supreme Court, he produced 17 more witnesses. The appellant's/plaintiff's statement as to the possession of the area does not inspire confidence. The learned Single Judge has rightly pointed out the contradictions, in the judgment under appeal, as to the actual possession of land in the deposition of the appellant/plaintiff. I His other witnesses, prior to the remand order and after the remand order do not improve his case. P. W. Ali Ahmad was examined only to produce K. M. C. Resolution, dated 10- 9-1947 Exh. 17, P. W. 2 Faiz Muhammad P. W. 3 Ghulam Hussain, P. W. 4 Qadir Bux and P. W. 5 Muhammad have attempted to corroborate, the statement of appellant/ plaintiff that the Mirs had given the land in dispute as a gift to Meero and other Brohis when they came from Khurasan about 150 years back. No document whatsoever was produced to prove the alleged gift in support of the above statement nor the alleged gift was reflected in any Government record. On the contrary appellant/plaintiff had made statement before the learned Additional City Magistrate in the aforesaid 145, Cr. P. C. Proceedings which belies the averment as to the gift, as no reference was made to any gift. (Reference may be made to page 725 of the paper book). The witnesses who were examined after the remand order have not identified any particular land which can be said to be in possession of the appellant/plaintiff at the time of the. Filing of the suit except the land on which the huts or houses of the appellant/plaintiff and the other members of the Brohi Jamaat existed. P.. W. 7 Asadullah from the City Survey Office was summoned to produce a Letter No, C- 1996 of 1893, dated 16-3-1893 which he was unable to trace out, Similarly, P. W. 8 Ishtiaq Ahmad Siddiqui, Executive Engineer (Development) K. D. A. Was unable to produce the record and so also P.
W. 9 Khawaja Farooq Ahmad, a clerk from the record office of the City Courts was unable to bring the record of application under section 145, Cr.P. C. Crown v. Muhammad Ibrahim. P. W. 10 Zahir Ali Khan, Executive Engineer, K. M. C. Was examined inter alia in order to prove that the appellant had given 200 square yards land in 1964 to enable the Government to extend the facility of water supply to all the occupants of Shershah Colony, Baldia Colony, Pathan Colony, whether they were in occupation legally. P. Ws. 11, 12 and 18 Muhammad Farooq Dada, Sultan Ahmad and RafiLl Ghulam Hussain, respectively have deposed that they have paid certain amounts to the General Manager of Shershah Estate and also to the S.I.T.E. For taking the land. It may be stated that General Manager of Shershah Estate had nothing to do with the appellant/plaintiff but the above Estate Agency was started by Umed Ali Shah the predecessor inter alia of respondent No, 2(c)/defendant No, 2(c) who claimed adverse interest to the appellant/plaintiff's Jamaat as well as to the S.I.T.E. P.
Ws. 13 to 16 have stated that they had taken on rent plot/ godown from the appellant/plaintiff, whereas P. Ws. 19 and 20 have deposed that they cultivated some land before 1948 after taking the same from the Jamaat. Furthermore, P. W. 21 has stated that he had taken a piece of land temporarily from the appellant/plaintiff for using it as a milkman. P. W. 22 Abdul Hadi Khan was unable to produce any record and therefore his testimony is of no value and so also the deposition of P. W. 23 Muhammad Abdul Sattar who had prepared Exh. 126 the plan which cannot be relied upon for the reason referred to hereinabove. The above witnesses, who have stated that they had taken land for using as godown etc. From the appellant/plaintiff, have not identified the land or the actual date of taking the same. Their testimony cannot be accepted for holding that the appellant/plaintiff was in possession of the entire Shershah Village or the land around. Similarly, the statement of the witnesses who have allegedly cultivated some land prior to 1948 lacks material particulars as to the survey number or the area or the actual period. On the contrary there is sufficient evidence on record to negate the appellant's/plaintiff's claims as to the possession about the entire village or the land around. In this regard reference may be made to the testimony of D.
W. 1 Nazir Ahmad Exh. 39, Estate Engineer, who had taken over the possession of land on behalf of the S. I. T. E. In 1948 in pursuance of the Government of Sind Resolution dated 2-6-1948 Exh. 45, reflected in plus Exhs. 49, 49/1, 49/2. According to P. W. 24 Mr. Zaheeruddin Pathan the area in possession of S.I.T.E. Was 4,428 acres. It has also come on record that in 1948 Government constructed roads across the industrial estate at the instance of S.I.T.E. Which passes through the area of Shershah, railway line was also constructed in 1948. M. E. S. Laid pipe lines in 1943. The police line and police training schools were also constructed much before 1947, Sewage farm on an area of more than 100 Acres was also constructed by the Karachi Municipal Corporation prior to 1947.
' We have also the evidence on record of D. W. 5 Muhammad Suleman, Assistant Surveyor, Exh. 115, whose testimony is very material. He had brought three registers maintained by the City Survey Office, Karachi, one relating to 1873 and the other two pertaining to 1921-22 and 1941-42. He has deposed that Village Shershah was surrounded by certain plots of land which were agricultural land, bearing Survey Nos. 81, 82, 83, 84, 85, 88, 89, 91, 92 and 93 and which were given on lease for cultivation by the Government to various individuals beginning from 1873 to 1920 and thereafter. He has further deposed that according to the entry in the register these plots were leased temporarily for five years in 1997, the leases of which were extended four times bringing the period of the leases upto 1930. He has further deposed that he knows which area is claimed by the appellant/plaintiff as the property of his group and that Plots Nos. 81, 82 Parts of 83, 84, 85, 88, 89, 90, 91, 92 and 93 fall within the area claimed by the plaintiff. He has also deposed that the above land was leased out upto 1940 and that in 1939 the Government resumed the possession of Plots Nos. 81, 82, 83, 84, 85 and 88 from the lessees and transferred the possession of Plots Nos. 82, 83, 84 and 85 to the Corporation for the extension of the Sewage farm. He has further stated that the possession of Plots Nos. 81 and 88 were transferred to the Military authorities for laying water pipelines in 1947. He has also stated that in 1947 the Plots Nos. 1-9, 76, 77, 80, 86 and other municipal waste land which did not bear any Nos. As well as Plots Nos. 81-85 were excluded from the Municipal limits by resolution dated 10-9-1947 and subsequently all the above land and some additional land were transferred to S.I.T.E. Which were about 5,040 acres and that some of the land transferred to the S.I.T.E. Was taken back from them. He has also referred to the enquiry conducted under section 37(2) of the Bombay Land Revenue Code by Mr. D' Souza Exh. 47 in respect of the claim made by Umed Ali Shah which was decided against him and his appeal against the above report was dismissed.
' The testimony of the above witness is corroborated by D. W. 6 Aftab Ahmad Jalri (Exh. 120), Land Surveyor, K. M. C. Who has also given the history of Shershah and the factum of leasing out of the agricultural land by the Government etc. ' Before parting with the above discussion, we may observe that reliance was also placed on Exh. 19, order dated 31-1-1950 passed by the 5th A. C. M., Karachi in section 145, Cr. P. C. Proceedings referred to herein-above, in which while raising attachment it was held that the appellant and Syed Umed Ali Shah were in actual physical possession of the land under dispute. The above order does not change the complexion of the instant case, firstly the land in dispute was 2,646 square yards only and, secondly, and finding recorded in a summary proceeding under section 145, Cr. P. C. Is not binding in a civil proceedings.
13. On the basis of the evidence on record, we are, therefore, of the view that the appellant/plaintiff has failed to prove his possession or the possession of Brohi Jamaat on any land other than which is actually occupied by them in the form of the huts/houses etc. However, we are not inclined to agree with the learned Single Judge that as the appellant/plaintiff has failed to prove his Jamaat's possession over any other land other than what is in his occupation for his house, the suit was liable to be dismissed. It may be observed that Issue No, 1 quoted hereinabove namely, "has the plaintiff any right to sue on behalf of Brohi community ? ", was decided in favour of the appellant/plaintiff in the first judgment/decree, dated 23-4-1959 passed by the learned Single Judge, the above judgment was upheld in L. P. A. No, 19 of 1959 through the judgment, dated 5-12- 1961. The finding on the above issue was not reversed by the honourable Supreme Court while remanding the case through the aforesaid judgment dated 19-12-1963. The suit was filed in representative capacity and therefore the possession of the appellant/plaintiff and other members of his Jamaat shall be deemed to be in possession for the purposes of maintainability of the suit and also in terms of the honourable Supreme Court direction contained under the above judgment dated 19-12-1963.
14. For the aforesaid reasons, we are inclined to hold that the learned Single Judge in terms of the honourable Supreme Court's direction was required to examine the merits of the appellant's/plaintiff's claim in respect of the land which was in custodia legis i,e, land measuring 2,646. Square yards and the land which was in actual possession of the appellant/ plaintiff and his other members of the Jamaat and not in respect of the remaining land.
' We, accordingly, allow the appeal to the above extent and remand the case to the learned Single Judge to decide the appellant's/plaintiff's case on merits in respect of the above piece of land measuring 2,626 square yards, which was the subject-matter of custodia legis and the land actually in possession of the appellant/plaintiff and other members of Brohi Jamaat on the date of filing of the suit.
' In the circumstances of the case there will be no order as to costs.