1. ' By this order I propose to dispose of the plaintiffs application under Order 39, rules 1 and 2, C.P.C.
2. Being CMA 7229/92 whereby the plaintiff prays for restraining the defendants Nos,1 and 2 from carrying on the construction work in connection with their housing scheme known as Mehran City or any other housing scheme on the various survery numbers mentioned in the application situated in Deh Halkani, Tappo Manghopir District West, Karachi, and defandants' application under Order 39, rule 41, C.P.C. Read with section 151, C.P.C. Being CMA 7550/92 seeking the vacation of the status quo order passed earlier.
3. ' It is the case of the plaintiff that he is owner of Survey Nos,51, 52 and 53 measuring about 25 acres 39 ghuntas situated in Deh Halkani, Tappo Mangho Pir, Karachi, and is cultivating the said lands by rain water stored every year during rain fall and the plaintiffs family comprising of about 35 persons depends on such rain water for their survival. It is further submitted that an area of approximately 3000 acres is in the shape of valley and a number of villages are spread over this area. It was explained that around this area there were hillocks from where the rain water flowed and was stored by the village people. The water flows down from the hills in natural nullahs and this facility has been enjoyed by the village people for the last more than hundred years and accordingly they have acquired right of easement to the use of such water stored in hunds spread over private and Government lands.
4. ' It is submitted that defendants Nos,1 and 2 launched a housing scheme, named, Mehran City in the area and proposed to construct buildings on the various survey numbers situated on the South of the plaintiff's land. Such construction, it is asserted, will seriously jeopardise the rights of the plaintiff inasmuch as it will obstruct the flow of water from that side. It is stated that the defendant already commenced ground work of levelling of the area. The. Said housing scheme of the defendants No,1 and 2 covers an area of approximately one hundred acres and falls in the K.D.A.
5. Scheme No, 43 spread over an area of 3,337 acres. It is submitted that the plaintiff had earlier filed Suit No,765/92 against the defendants Nos,1 and 2 in the Court of Civil Judge, Karachi (West), which suit has been withdrawn by the plaintiff.
6. ' Mr. Z.U. Ahmed learned counsel for the defendants 1 and 2 has submitted that the proposed Mehran City Project of the defendants Nos,1 and 2 covering an area of about 100 arcres falls within the KDA Scheme No,43 namely, Halkani Town Scheme covering an area of approximately 38,467 acres. In accordance with the statutory provision public notice of the said Scheme was published in the year 1986 inviting objections from the general public. Admittedly, no objection to the Scheme was made by the plaintiff. He stated that the Mehran City project has been duly approved by the Karachi Building Control Authority and since August, 1992, the development work of the project is proceedings and by now huge sum of over 2 crores have already been spent on the development and publicity. According to him, the entire land in Deh Halkani has been converted to `sikni'. He stated that before this suit the plaintiff had filed Suit No,756 of 1992 against these defendants in the Court of Civil Judge V, Karachi, West, and in that suit no restrait on the construction of the project on defendants' lands was sought. It was contended that the present suit has been filed as an afterthought to extract money from the defendants. He submitted that the fact that the plaintiff did not object to the K.D.A. Scheme No, 43 in the first place and then did not object to the development work undertaken by the defendants for the proposed Mehran City project at the initial stages would go to show that the only purpose of the present suit is to harass the defendants. According to him, by now not only huge amount has been invested by the defendants on the development work but defendants have also carried out booking of houses in the project. With regard to the easement claim his submission was that there were no natural water channel in the area, the area consisted of almost barren land and no regular cultivation was either possible or being done. He referred to the plan being Annexure 'C' to the plaint to show that the land of the plaintiff was not contiguous to the defendants' proposed project and that there was no obstruction to any imagined water flow to his lands. He further submitted that plaintiffs land hearing Survey No,51, which is nearest to the defendants' lands is shown as `KORI i,e, barren, on that plan. He stated that there being no regular rainfall in the area there was no question of their being natural watercourse with regular flow of water or collection of water in the form of pond or tank. His further submission was that the plaintiffs present suit is hit by Order 2, rule 2, C.P.C., in that, claims and reliefs available but not availed in the earlier suit would be deemed to have been given up and cannot now be agitated.
7. ' In reply Mr. Habibullah Samo, learned counsel for the plaintiff did not deny that KDA Scheme No,43 was notified in September, 1986 and that no objection to that scheme was filed by the plaintiff, however, he stated that the said scheme has not yet been put into effect, for, the KDA has not so far acquired any land for the scheme nor requested the Government for land. In this regard he referred to a letter being Annexure 'E' to the plaint. There is no dispute that the defendants Nos,1 and 2's proposed Mehran City project has been duly approved by the Karachi Building Control Authority and the said defendants had started development work in September this year. He admitted that the plaintiff had earlier filed the aforesaid suit and in that suit had not raised objection to the construction of the said project on defendants' lands, but stated that the earlier suit did not preclude him from filing the present suit or from enlarging the scope of relief, as this suit was based on different cause of action. However, as this question is not directly involved at this stage, I will leave it to he taken up later at an appropriate stage.
8. ' As regards easement, the plaintiffs counsel's submission was that, as and when, during rainfall the water flowed down the hills in Nalas (channels) in the area it was stored in artificial ponds for use by the villages. As channels are also located in the area where the defendants' construction is going on these will be destroyed thereby depriving the plaintiff of the water source from that direction to the use of which the plaintiff had acquired easement.
9. ' On the facts of the case, it would appear that the Mehran City project of the defendants Nos,1 and 2 had been duly approved and the defendants had started development work on the project, if not earlier, at least from September, 1992. It was, thereafter that the plaintiff filed Suit No,765/92 against the said defendants and apparently no objection to the project itself, in so far as its construction on defendants' land was concerned, was made. Plaintiff's grievance then was with regard to the encroachment upon and the damage to his lands in execution of the said project, and accordingly the defendants continued to invest further sum on the said project. The main question that arises for determination for purposes of this application is as to whether in the circumstances of the present case the plaintiff can be said to have acquired any easement as claimed by him. From the Map, being Annexure 'C' to the plaint, on which reliance has been placed by the plaintiff, it would appear that the lands of the defendants and the plaintiff are not contiguous and in between these lands lie other lands, that plaintiff's land bearing Survey No,51 which is the only land of the plaintiff falling towards and near the lands of the defendants is `KORI' i,e, barren, and that the supposed watercourse coming from the direction of defendants' lands, as indicated on the Map, does not run through plaintiff's land. The very fact that plaintiff's land nearer to defendants' land is shown as barren on the map would suggest that no water from the watercourse was available on that land., for had water been flowing in the watercourse, as claimed, the land would not be barren.
10. ' It is a matter of common knowledge that the rainfall in Karachi region is scanty. The rainy season usually lasts a few days in a year during which intermittent rain falls in small quantity. Heavy rainfall is seldom. The dry period between the rainy seasons, at times, stretches to beyond one year. Such being the climatic condition of the area, flow of water in the watercourse, if at all, would be rare. It would be natural for the sma ll quantity of rain water to soak into the soil where it falls and only when there is a fairly long period of continuous rainfall that the water that does not sink into the soil would spread in the area or flow down a water course. As such, on the facts of the instant case, it would seem that the flow of water in the alleged watercourse would be just a matter of chance and even when this happened the owners of lands falling on way before the plaintiff's lands would too have the right to use the water from the watercourse. In the process the chances of the water reaching plaintiff's lands would further be reduced. The fact that plaintiff's land nearer to defendants has been shown as barren would also suggest that the water from the watercourse did not reach the plaintiff's land.
11. ' In such circumstances, it is difficult to see how an easement can be claimed on the basis of uncertain happening of this nature. A mere chance flow of water; in a watercourse once in a while cannot, in my view, invest the plaintiff with the easement claimed. Plaintiff's claim would also appear to be hit by clause (c) of Section 17 of the Easements Act. Prima facie, therefore, no case of easement has been made out by the plaintiff.
12. ' Admittedly, apart from Mehran City project of the defendants Nos,1 and 2's other housing schemes are also being developed by other parties in the area. One such scheme referred to by the plaintiff's counsel is that of Nadeem Housing Enterprises against which too some persons of the area had filed Suit No,355 of 1992 but there also, as in the plaintiff's Suit No,765 of 1992 no injunction had been sought against Nadeem Enterprises in respect of construction on their own land. It appears that none of the parties engaged in construction of their projects in the area have been restrained from doing so on their own lands. This again would show that none of the land-owners in the area, including the plaintiff, considered themselves to be entitled to any right over the lands of others, including those of the defendants.
13. ' I am unable to agree that the construction of the proposed Mchran City project would adversely affect the plaintiff. On the contrary, it would seem to benefit the plaintiff in the shape of rise in the price of his barren lands.
14. ' In the result, I find no force in plaintiff's application CMA 7224/92, which is dismissed and correspondingly defendants' application, CMA 7550/92, is granted and the ad interim status quo order passed earlier is vacated recalled.