This order will dispose of Miscellaneous Applications Nos. 494/83 and 24/84, both filed by the petitioners.' Miscellaneous Application No.494/83 has -been filed under section 151, C.P.C. By the petitioners for modification of demarcation of 1-18 Acres done by the. Commissioners appointed by this Court and for making permanent bondary marks around the lands before delivery of possession- of the lands to the petitioners. By the other application (Miscellaneous No.24/84), the petitioners seek appointment of a receiver with full powers to take over possession, control and management of the lands allotted to the petitioners pending resolution of the question of demarcation and delivery of peaceful possession of the lands to the petitioners. I have heard at length the arguments of Mr. Z.U. Ahmad, learned counsel for the petitioners Mr. Manoharlal, learned counsel for the respondent No.1 and Mr. Sattar A. Shaikh, learned Additional Advocate-General, Sind for respondent No.2 (.Deputy Commissioner, Karachi East).
2. History of the case is given in the judgment, dated 3-9-1980 allowing this Petition. Survey No.194 (area 2-3 Acres) and undivided portion (area 1-18 Acres) of survey No.205 situate in Deh Sharabi, Tappo Landhi Taluka and District Karachi (East) was allotted to Mrs. Hashmi Nazar by Settlement Authorities. She expired in 1976 leaving the three petitioners (husband and two daughters) as her legal heirs. At the request of the allottee, area of 1-18 Acres was partitioned vide order, dated 3-6- 1974 but no steps were taken for demarcation and delivery of possession of the allotted lands to the allottee. The said lands were in unauthorized possession of respondent No.1 (Sakhi Dad) and as such the allottee requested the Additional Deputy Commissioner and Additional Settlement Commissioner. Karachi for physical possession to be delivered to her after evicting respondent No.1 under rule 5 of the Displaced Persons (Land Settlement) Rules.
Respondent No.1 challenged this order by way of an appeal to the Settlement Commissioner but the appeal was disinissed. Respondent No.1 then filed a Civil Suit for declaration and injunction which litigation reached this Court in Civil Revision No.160/72 and by judgment, dated 7-5 1975 passed by this Court allowing Revision No.160/72 it was ordered that the plaint of the suit filed by respondent No.1 be rejected. Review application filed by respondent No.1 was dismissed. He then filed a Petition for Special Leave to Appeal but that too was dismissed for non-prosecution.
3. Petitioners' grievance was that in spite of clear orders of the Settlement Authorities and the decision of the High Court allowing Revision Application No.160/72 rejecting the plaint of suit filed by respondent No.1, the trespasser (Sakhi Dad) was not ejected and demarcation not done and possession of their allotted lands not delivered to the petitioners and for redress of their aforesaid grievances, petitioners filed the present Constitutional Petition, which was allowed by judgment, dated 3-9-1980 of this_Court in the following terms:- "The petitioners have prayed that the land be demarcated according to their entitlement in terms of the allotment order and possession delivered to them. 'In view of the foregoing reasons, their prayer is justified and the petition is accordingly allowed for the aforesaid prayer which action shall be taken by or under the supervision of respondent No.2 according to law in the light of this judgment. The petition is disposed of in these terms with no order as to costs."
It may be observed here that during the hearing of the main constitution petition, it had been submitted on behalf of Sakti Dad that the possession of the allotted lands had been delivered to the petitioners through the Patwari and, therefore, this Constitution Petition as well as the proceedings before the Settlement Authorities had become infructuous. In support of this submission of respondent No.1, copy of the statement of the concerned Patwari had also been filed in which it was stated that possession of the land after demarcation had been delivered by the Patwari to the claimant but it was admitted by him that he had not given -possession after ejectment of the tenant. .By judgment, dated 3-9-1980 allowing, the present Constitution Petition, it was observed that it is the obligation of the Settlement Authorities to put the allottee in actual physical possession by evicting the persons for. The time being in occupation of the subject land. After the disposal of this Constitution Petition by judgment, dated 3-9-1980, admittedly there is nothing on record to show that possession had been delivered to the petitioners.
4. By order, dated 12-12-1982 this .Court appoL.Ted Mr. Qadeer Hassan (Retd. Surveyor4eneral of Pakistan) and Mr. Murtaza Shah, Surveyor in the Deputy Commissioner Office, Karachi, to survey and demarcate jointly the land allotted to the petitioners in Surveys Nos.194 and 205, Deh Sharabi, Tappo Landhi, by affixing boundary pillars on the site in the presence of the Petitioner No.1 (Mr. Ali Nazar) and the Nazir of this Court, and on receipt of such joint report, the question of directing the Nazir to supervise delivery of the possession of the demarcated land to the petitioners was to be passed by the Court.
Pursuant to the order, dated 12-12-1982 of this Court joint demarcation of Survey No.194 and portion of Survey No.205 was carried out by the'` two Commissioners and they submitted their report.
Boundary pillars were affixed, but, according to the petitioners, respondent No.1 Sakhi Dad removed the boundary pillars. The fact remains that possession of the land has not yet been delivered to the petitioners.
5. Previously the stand of the respondent No.1. Sakhi Dad had been that he was in occupation of the lands in question as would be evident from the judgment, dated 3-9-1980 allowing the present Constitution Petition and the previous proceedings before the Settlement Authorities as well as civil litigation initiated by Sakhi Dad. However, before me, a clear statement was made by Mr. Manohar Lal, learned counsel for the respondent No.1 that none of the lands allotted to the petitioners is in occupation of Sakhi Dad but Sakhi Dad is interested in the allotment to, him by the Government of 7 Ghuntas of Naclass land which has not been allotted to anyone. On a question from me, Mr. Manohar Lal stated very clearly that this 7 Ghuntas is not within Survey No.205.
6. It was the responsibility of respondent No.2 under the judgment, dated 3-9-1980 of this Court to see to it that vacant possession of Survey No.194 and 1-18 Acres out of Survey No.205 was delivered to the petitioners. Apparently on account of unauthorised' occupation of the lands in question, there has been difficulty in the demarcation, affixation of boundary pillars and then delivery of possession of the lands to the petitioners.
7. It is reported that out of the two Commissioners, Mr. Qadeer Hassan (Retd. Surveyor-General of Pakistan) on account of old age will not be in a position to do any further work but Mr. IVIurtaza Shah, Surveyor, the other Commissioner, is still available. From the record produced before this Court, it is clear that sufficient area is available in Survey No,205 for giving 1-18 Acres of cultivable land to the petitioners. In so far as Survey No.194 is concerned there is no difficulty about delivery of possession as the entire Survey No.194 is to be delivered to the petitioners.
8. It is directed that respondent No.2, Deputy Commissioner, Karachi East, will, under his supervision, get the areas re-demarcated with the help of Mr. Murtaza Shah, Surveyor in the office of the Deputy Commissioner, Karachi in the presence of the Nazir or Deputy Nazir of this Court. At the time of demarcation, boundary-pillars will be affixed and other marks will be made so as to avoid any further complications. After the lands have been demarcated, vacant possession will forthwith be caused to be delivered by the respondent No.2 to the Nazir of this Court and after the Nazir has received possession, he will make a report to this Court whereafter, orders will be passed for delivery of possession of the lands by the Nazir to the petitioners. The above procedure is being adopted to avoid any difficulty, complication or dispute arising in connection with delivery of the possession to the petitioners. The entire exercise of demarcation, affixation of boundary-pillars and delivery of possession to the Nazir of this Court of the lands allotted to the petitioners will be completed by 31-7-1986. If the Deputy Commissioner, East or the Nazir of this Court experiences any difficulty in the completion of the exercise, he may make reference to this Court for further directions. Initially a sum of Rs.2,000 will be deposited within one week by the petitioners towards the fees of the Nazir and the Surveyor to be shared equally by them. Miscellaneous Nos.494/83 and 24/84 stand disposed. #TBS