' SALAHUDDIN MIRZA, J.--This appeal is directed against the judgment and decree dated 31-3-1987 passed by a learned Single Judge of this Court in Suit No.68 of 1981. The case of the respondent/plaintiff was that it had acquired an area of 63.13 acres from Pakistan Railways through a registered sale-deed dated 24th December 1980 and thereafter it had raised a boundary wall around it but on 2nd February 1981 the said wall was demolished by the appellants/defendants. When the respondent contacted the Commissioner Karachi Division and Deputy Commissioner Karachi (East) (appellants Nos. 2 and 3) it transpired that the appellant claimed themselves to be the owner of this land and treated the respondent as an encroacher and, therefore, had demolished the boundary wall without giving any notice to the respondent.
According to the respondent-society, the suit land initially was part of K.D.A. Scheme No.24 Gulshan-e-Iqbal and in the same scheme there was some railway land which had been unauthorisedly occupied by K.DA. Whereupon a dispute arose between Pakistan Railways and the K.D.A.And to settle which a high powered meeting was held on 6-2-1980 under the Chairmanship of Chief Secretary of Government of Sindh and in which the representatives of the Provincial Government, the Railway Administration and of K.D.A. Took part and it was finally decided that since the railway land unautorisedly occupied by the K.D.A. Was no longer available to be returned to the Railways, some other land was to be given to the Railways in lieu thereof and some land was accordingly given to the Pakistan Railways and it was out of it that 63.13 acres of land was given by the Pakistan Railways to the respondent-society. According to the respondents, they were not encroachers or unauthorised occupants and the appellants had no right whatsoever to interfere with their possession and demolish the compound wall erected by them on the land. In their written statement, the appellants/defendants denied that the suit land was ever owned by Pakistan Railways and, therefore, according to the appellant, the transfer of 63.13 acres of land by Pakistan Railways to the respondent-society was illegal. It was also stated in the written-statement that the suit land was an evacuee property and had not yet been transferred by the Provincial Government to anybody. The appellants justified the demolition of the compound wall without serving the. Respondent-society with any advance notice on the ground that a trespasser did not require to be served with a notice. On the basis of the above pleadings, the Court had framed the following issues:-- "(1) Whether the land in suit belongs to the plaintiffs having acquired on lease from Pakistan Railways?
(2) Whether K.D.A. Was not competent to transfer the suit land to Pakistan Railways?
(3) Whether the plaintiffs occupied the land in an illegal and unauthorised manner?
(4) Whether the boundry wall of the plaintiffs was wrongly demolished by the defendants?
(5) Whether the plaintiffs suffered any financial loss on account of demolition of the plaintiffs' wall.
If so, to what extent?
(6) Whether the defendants or any other Government official of the Provincial Government is competent to resume the land treating the plaintiffs as trespassers?
(7) Whether the action of the defendants was illegal, void and without jurisdiction?
(8) To what relief, if any, the plaintiffs are entitled?"
2. Vide impugned judgment, Issues Nos. 1, 2 and 7 were decided in the affirmative whereas Issues Nos.3 and 6 were decided in the negative and under Issues Nos.4 and 5 it was held that the appellants had not acted mala fide in demolishing the compound wall and, therefore, the respondent/plaintiff was not entitled to any compensation and on the basis of these findings the suit was decreed in so far as prayers 'a' and 'b' are concerned and no other relief was granted.
Feeling aggrieved from this judgment the appellants have come in appeal. Learned counsel of the parties have been heard and with their help we have gone through the record of the case.
3. Ex.4/2 is a copy of the agreement of lease of 63.13 acres of railway land in Gulshan-c-Iqbal executed by the Railway Administration in favour of the respondent-society. This is an admitted document. On the basis of this lease agreement, the respondent-society claims to be the lawful transferee and owner of the suit land. The contention of the appellants was that although the Provicial Government had transferred some land to the Railway Administration but it was transferred for a specific purpose, namely, the construction of a railway station and since the Railway had not utilized the land for the purpose, for which it had been trasferred to it, the said land automatically reverted to the Provincial Government and the Railway Administration neither remained its owner nor had any authority to further lease it to the respondents. Ex.4/4 is copy of the minutes of the meeting held on 6th February, 1980 under the Chairmanship of Chief Secretary of the Government of Sindh. This meeting was attended by the following officer s:-- "(1) Mr. M. Masud Zaman, Chief Secretary, Government of Sindh.
(2) Mr. Hasan Zaheer, Secretary, Ministry of Railways, Islamabad.
(3) Mr. Salman Farruqi, Secretary, Housing Town Planning and L.G. Government of Sindh.
(4) Mr.Ghulam Qadir Khan, Member, Board of Revenue, Sindh.
(5) Mr. M.M. Usmani, Commissioner, Karachi Division.
(6) Mr. M. Kaleem, Director-General, K.D.A.
(7) Mr. Z.A.Nizami, Member (Technical), K.D.A.
(8) Mr.M. Siddique, Member Engineering, Railway Board.
(9) Mr. A.A.Khan, Chief Engineer, Survey and Construction, Pakistan Railways
(10) Mr.G.M. Kazmi, Divisional Superintendent, Karachi.
(11) Mr. G.K. Dakhan, O.S.D. Housing and Town Planning.
(12) Mr. Sanaullah, Divisional Engineer, Pakistan Navy, K.Y.C.
(13) Mr. Masood Ahmed, Land Management Officer, Pakistan Railways Lahore.
4. All the three parties gave their viewpoints before the Committee and they are given in paras. 1 to 8 of the minutes. The Committee eventually resolved the dispute and came to an unanimous decision which is given in para. 9 of the minutes (Ex.4/4) which is reproduced below:- "9. It was, therefore, unanimously agreed that:--
(I) The K.D.A should make over to the local Railway Administration about 80 acres of unencumbered land around Karachi, Central Station, the demarcation of which should be taken in hand immediately and that the Railway Administration should take necessary steps to protect the land from encroachments.
(ii) Necessary recommendations will be made by Board of Revenue to the Governor for allotment of 100 acres of land in Scheme No.33 to satisfy the balance demand of Railways.
(iii) The Railway land in Deh Okewari would be leased out by the Board of Revenue to the Railway for 30 years subject to the approval of Governor, extendable at the option of the lessee and the lease would not prejudice the legal position of the two parties in regard to the right of ownership.
(iv) 34 acres of land would be made over to the Railway, in lieu of the land taken over by the K.D.A.
In Deh Safooran, as far as possible in contiguity with the Railway land in Deh Okewari."
5. The land so given to the Railway Department was handed over to it vide letter Ex.4/5 which is dated 5-10-1980 and is from Director Planning K.D.A. Which makes a reference to a previous letter dated 10-9-1980 and to a meeting held on 4-10-1980 between the Executive Engineer and Director K.D.A and discloses that 'in pursuance thereof the area has been handed over to Pakistan Railways on that date on the basis of the 'Plan' furnished by Chief Engineer (Development) K.D.A. Along with this letter Ex.4/5 the handing over and taking over notes were also enclosed. It is thus evident that the land acquired by the Railway Administration in lieu of the land earlier unauthorisedly used and occupied by the K.DA. Was duly handed over to the Railway Administration. Exh.5/1 is copy of S.R.O.
170(1)/83 dated 17th February 1983. This notification conveys the sanction of the President of Pakistan to the revision of the rules relating to the use of surplus Railways land and authorised the Railway Administration to lease out the available plots of Railway land not required for development works in the near future by the Railway on quasi-permanent basis for purposes beneficial to the Railway staff welfare through organizations such as Staff Benevolent Fund Organization or Railway Employees Cooperative Housing Societies. Thus, the Railway Administration was competent to transfer its surplus land to the respondent-society. The minutes of the meeting held on 6-2-1980 (Ex.4/4) do not place any limitation on the title of the Railway Administration in so far as the use of the land is concerned. However, if the appellants considered that the Railway Administration could only utilize the land transferred to it for purposes of the construction of the railway station and for no other purpose, it was incumbent upon them to give notice of their intention to do so and thereafer to formally cancel the allotment in favour of the Railway. Without doing this, they had no right to unilaterally consider the allotment in favour of the Railway Administration as cancelled and forcibly try to take possession of the said land. In this regard it is pertinent to refer to letter dated 16th December 1980 from Commissioner Karachi to the Chief Secretary. Para. 2 of this letter (Annexure 'F' to the plaint which was also later on produced in evidence as Ex.6/1) is reproduced below:-- ' Divisional Superintendent Pakistan Railways Karachi that the land has been unauthorisedly handed over by the Divisional Superintendent to Railway Employees Cooperative Housing Society for inclusion in the Railway Housing Scheme. This is not only against the decision of the meeting but' is also against all rules and laws applicable in such cases. The land was given to Railway for establishment of a railway station and not for private housing societies. In fact conversion of amenity site to residential plot is a punishable offence and the allotment is liable to cancellation. I am therefore directing the Deputy Commissioner East to resume the possession of the land and not to allow the Railways to utilise it for the housing purposes."
6. It is evident from the abovenoted extract from the letter of the Commissioner Karachi Division that the appellants had unilaterally decided to resume the land without giving any notice to the Railway Administration. Besides, it is incorrectly stated in this letter that the land was given to the Railway Administration for establishment of a railway station and not for privat housing societies.
Firstly, it is misleading to say that the land was "given" to the Railway Administration since it was not given as such, by way of gift or otherwise. The Railway Administration owned land in this area since as long ago as 1916. This Railway land was unauthorisedly taken over by K.D.A. In its various schemes and this illegal action on the part of K.D.A. Had given rise to a dispute between it and Railway Administration and this dispute was finally settled in the meeting held on 6-2-1980 under the Chairmanship of the Chief Secretary of the Government of Sindh and was unanimously resolved vide minutes of the said meeting Ex.4/1 an extract from which has already been quoted above. It is, therefore, not correct to say that this land was "given to Railway Administration for establishment of railway station". As a matter of fact, this land was given to Railway Administration in lieu of the land earlier unauthorisedly occupied by the K.D.A. Secondly, it is also incorrect that the land was transferred to the Railway Administration for any specific purpose as no such condition can be found in Ex.4/4.
7. From what has been stated above, it is clear that the respondent-society is a lawful transferee of the suit land from the Railway Administration which also had a valid title to the said land. The appellants had failed to establish their title to the suit land and their solitary witness D.W.1 Nisar Ahmad Mughal Mukhtiarkar Karachi East could not say anything as regards the title of the appellants to the suit land or about its evaucc nature. As such, even if it were to be held that the Railway Administration had no title to the suit land, the appellants can still not claim to be its owners as they failed to establish their title.
8. As such, the following things emerge from the above discussion. Firstly, that the suit land originally belonged to Provincial Government and was later on included in various schemes of K.D.A. Secondly, when it was found that the K.D.A. Had encroached upon sonic land belonging to Railway since about 1916, the Railway Administration raised a dispute about it and a high-powered Committee was formed under the chairmanship of the Chief Secretary of Government of Sindh which, in its meeting held on 6-2-1980, unanimously resolved (vide minutes of meetings Ex.4/4) the dispute and by way of settlement the suit land was transferred to Railway Administration in lieu of its land earlier illegally occupied by K.DA. Thirdly, that this transfer of the suit land to Railway Administration was unconditional and this transfer was not for any specific purpose. This was only natural since the Government of Sindh or the K.D.A. Were not doing any favour to Railway Administration. They were only compensating it for its land illegally occupied by K.DA. Fourthly, Railway Administration was duly authorised by the President of Pakistan (vide SRO No.170(I)/83 dated 17th February 1983 Ex.5/1) to dispose of its surplus land, amongst others, to respondent- society. Fifthly, the Railway Administration acting on the authority of this S.R.O. Did transfer the suit land to respondent-society whose title cannot be questioned by the appellants. Sixthly, the appellants failed to establish their title to the suit land even prior to 6-2-1980 (when the high- powered Committee under the chairmanship of Chief Secretary held its meeting of which Ex.4/4 is copy of minutes). Seventhly, the appellants also failed to substantiate their claim that the suit land was evacuee property and was yet to be properly disposed of.
9. In short, we are of the view that the Divisional Superintendent Pakistan Railways had lawfully transferred the suit land to the respondent-society and the relief granted to the respondent- society by the learned Single Judge was just and proper, under the circumstances, and no exception can be taken to it. As a result we find no merit in this appeal which is accordingly dismissed leaving the parties to bear their own costs.