' The present suit has been filed by the plaintiff for declaration and recovery of Rs. 2,85,000.
Defendant No. 1 is the Deputy Settlement Commissioner, defendant No., 2 is the Chief Settlement and Rehabilitation Commissioner, defendant No. 3 is the Additional Custodian, defendant No. 4 is the Deputy Commissioner Karachi, and defendant No. 5 is Addullah Saleh Al-Basam.
2. The plaintiff purchased the property in suit from the Settlement Department in public auction for Rs. 6,05,000, which was the highest bid. The property measured 1,676 square yards. Subsequently, however the area of the property transferred to the plaintiffs was reduced to 1,158 square yards as an area of 518 square yards was already in possession of the Post and Telegraph Department, and consequently the purchase price was reduced from Rs.6,05,000 to Rs.4,18,013. Documents of transfer were also issued in favour of the plaintiffs. Plaintiffs' names were entered in the Record-of- Rights as the owners. It may be observed here that the property transferred to the plaintiffs comprised two survey numbers. In 1969, Deputy Commissioner Karachi (defendant No. 4) by an order cancelled the mutation in favour of the plaintiffs in respect of one Survey number i.e. SR 2/11/2-2 measuring 285.6 square yards on the ground that it belonged to defendant No. 5, a non- evacuee owner. The plaintiffs have claimed a declaration that they are the lawful owners of the properties SR-2/11/2-1 and SR-2/11/2-2 admeasuring 872.6 square yards and 285.6 square yards. In the alternative the plaintiffs have claimed Rs.2,85,000 being the proportionate refund of price of 285.6 square yards and interest and damages.
3. In the Joint written statement filed on behalf of defendants Nos. 1, 2 and 3, it is averred that only Property SR-2/11/2-1 was put to auction and later on through mistake number of Property SR-2/11/2- 2 was wrongly included in the transfer documents issued to the plaintiffs. Defendant No. 4 filed a separate written statement in which it has been admited that Property SR-2/11/2-2 measuring 285.5 square yards had been transferred (to the plaintiffs) by P.T.D. dated 11-4-1966 and later on the entry in the name of the plaintiffs was cancelled as this property was found to be non-evacuee in view of its sale in favour of defendant No. 5 and its confirmation by the Custodian Department.
Defendant No. 5 had also filed his written statement claiming to be the owner of Property SR-2/11/2- 2, a non-evacuee property.
4. On the pleadings of the parties, 16 issues suggested by consent of the learned counsel appearing for all the parties, were adopted. Only two witnesses gave evidence. Misbahuddin, son and attorney of the plaintiffs, was the solitary witness on behalf of the plaintiffs as Exh.
6. He produced various documents. On behalf of defendant No. 5, one Abdul Wahid son of Abdul Jalil, attorney of defendant No. 5, gave evidence, as Exh.
7. Defendants 1 to 4 did not lead any evidence.
5. On 12-3-1985, when this suit was fixed for arguments before me, Mr. A.H. Mirza, learned counsel for the plaintiffs dropped the claim in so far as that part of the property is concerned which had been purchased by defendant No. 5, i.e. 285.6 square yards, and submitted that he was pressing only his claim for recovery of Rs.2,86,000.
6. I have heard Mr. A.H. Mirza, learned counsel for the plaintiffs and Mr. A. Sattar Shaikh, learned Additional Advocate-General, who appeard for defendants Nos. 1 to 4. From the evidence of P.W. 1 and the documents produced by him, which are official documents of the Government, it has been established that property measuring 1,676 square yards had been purchased by the plaintiffs in auction of the Settlement Department for Rs.6,05,000 and as such the price per square yard comes to Rs.360.70. It had also been established that this area was reduced by 518 square yards on account of acquisition by the Post and Telegraph Department. The balance area came to 1,158 square yards for which P.T.O. and P.T.D. were issued in favour of the plaintiffs. P.T.O. (Exh. 6/4) and P.T.D. (Exh. 6/7) refer to both SR.2/12/2-1 and SR.2/12/2-2. Even if the Settlement Departments' claim to the effect that only SR-2/12/2-1 was auctioned is accepted, the area of the property auctioned was 1,676 square yards for which the price agreed to be paid was Rs.6,05,000 i.e. Rs.360.70 per square yard. In fact adjustment at this rate was granted by the Settlement Department for the area of 518 square yards of land acquired by the Post and Telegraph Department and after reducing the area from 1,676 square yards to 1,158 square yards (by deducting 518 square yards), the price recovered from the plaintiff was Rs.4,18,012.12. As the propert bearing SR-2/12/2-2 measuring 285.6 square yards was by mistak transferred to the plaintiffs, this area of 285.6 square yards was deleted from 1,158 square yards reducing the area of plaintiffs on 872.6 square yards. As the plaintiffs paid for 1,158 square yards, they are entitled' to refund of the price of 285.6 square yards. It may be observed here that the evidence of P.W. 1 has gone uncontroverted as far as defendants Nos. 1 to 4 are concerned no one from their side being present when P.W. 1 was examined. And then, defendants Nos. 1 to 4 have not led any evidence.
7. On issues Nos. 1 and 2, nothing was shown for the contention that the present suit for refund of excess price is not maintainable. Issue No. 1 is decided in the negative and issue No.2 in the affirmative. Issue No. 3 was not pressed by the learned Additional Advocate-General. In view of the discussion in para. 6 of this Judgment, it is held on issue No. 4 that plaintiffs were transferred property measuring 1,676 square yards for Rs.6,05,000 and later on the area was reduced to 1,158 square yards. Issue No. 5 is decided in the affirmative. P.T.D. (Exh.6/7) and order dated 11-6-1963 of the Deputy Settlement Commissioner (Exh.6/8) prove that a sum of Rs.4,18,012.12 was paid by the plaintiffs for the property measuring 1,158 square yards.
' On issue No. 6 my finding is that the plaintiffs are entitled to refund of Rs.1,03,059 with interest @ 9% per annum from the date of the filing of the suit till realization as against defendants Nos. 1 and 2.
Plaintiffs are not entitled to damages and as such issue No. 7 is decided in the negative. In the facts of this case it is not necessary to decide issues Nos. 8, 9 and 10. On issue No. 11 my finding is that defendant No. 4 was a proper party having cancelled the mutation in favour of the plaintiffs. Issues Nos. 13, 14 and 15 have become redundant as plaintiffs have dropped their claim against defendant No. 5.
8. Suit No. 424/72 is decreed against defendants Nos. 1 and 2 for Rs. 1,03,059 with interest @ 9% per annum from the date of the filing of this suit till realization. Suit as against defendants Nos. 3, 4 and 5C is dismissed. There will be no order as to costs.
' Under section 82, C.P.C. defendants Nos. 1 and 2 are granted time till 30-6-1985 to pay the decretal amount.