1. This revision application under section 115, C.P.C. Is directed against the judgment and decree passed by learned IInd Additional District Judge, Karachi (West) in Civil Appeal No.10 of 1989 filed by respondent No.1 against the applicants and respondents Nos.2 to 4, whereby the judgment and decree passed by learned Ist Senior Civil Judge, Karachi (West) dismissing the suit of respondent No.1, has been reversed.
2. The brief facts leading to the filing of this revision application are that respondent No.1 Raheel Ghayas claiming to be in possession of a piece of land measuring 2,300 square yards bearing No.ST-1/2, Sector II-B, Orangi Township, Karachi filed a suit for declaration and injunction seeking the following relief---s?
(i) To declare that the plaintiff has acquired right of possession on the suit property by way of adverse possession and as a right-in-rem and alternatively it may be declared that the plaintiff has a right to be regularized within the meaning of M.L.Os. 110, 183 and also any other rules for regularization of Katchi Abadis for time being in force.
(ii) That a permanent injunction may be granted against the defendant and he may be restrained for interfering into the peaceful possession of the plaintiff.
3. It was case of the respondent No.1 that he had been in possession of the plot in suit since 1973; that his possession was accepted and admitted by the defendants/respondents Nos.1 to 3; that he had moved the competent authorities for regularization and transfer of the plot in his favour from 1973 to 1984; that an area of 2,318.11 acres had been transferred to the applicants by respondent No.3 who had directed the applicants to dispose of the prayer of the respondent No.1 in his favour and waive their right conferred under Article 149 of the Limitation Act; that he had, acquired the property by way of adverse possession and was entitled to its transfer and regularization under M.L.O. 110 substituted by M.L.O.
183. The contesting respondent No.1 having failed in his attempts to get the suit land regularized in his favour by the applicants filed the suit as stated above.
4. Defendants Nos3 to 5, namely, the present applicants and respondent No.4 contested the suit and filed a written statement and averred that the respondent No.1 was a trespasser over an imaginary and self-managed plot; that the lay out plan did not show any number to the, plot in suit; that it was located in the planned area and not included in Katchi Abadi that the said respondent had no case for transfer of the plot and that the area measuring 2,318.11 acres did not include the plot in suit, and that the Board of Revenue had nothing to do with this plot under Katchi Abadi Scheme.
5. They further averred that the contesting respondent had tried to amalgamate the plot in suit with area of different nature; that the boundary wall constructed over the plot was demolished after service of notice under M.L.O. 202; that the suit was undervalued; that the Civil Court had no jurisdiction and that the suit was hit by sections 42 and 56 of the Specific Relief Act.
6. The Board of Revenue as well as the Government of Sindh did not contest the claim of the respondent No.1.
7. Pleadings of the parties were reflected in the following issues: (1)Whether the suit land is situated in planned area or in Katchi Abadi?
8. (2)Whether the plaintiff is in possession of a plot admeasuring 2,300 square yards in Orangi Township since 1973?
9. (3)Whether the defendant No.2 received applications for regularization from the plaintiff but due to transfer of an area measuring 2,318.11 acres to defendant No.3 working under defendant No.5 for the purpose of regularization, he directed the transferee defendants to dispose of applications of plaintiff in his favour and waived his right conferred by Article 149 of the Limitation Act, but due to mala fide such directions have been flouted by defendants Nos.3 and 5?
10. (4)Whether the plaintiff has acquired any legal right to be regularized on the suit plot?
11. (5)What should the decree be?
12. Both the parties before the trial Court adduced oral as well as documentary evidence in support of their respective contentions. Upon consideration of the relevant evidence on record, learned trial Court answered Issues Nos. 2 and 4 in negative while on Issues Nos. 1 and 3 it was held that respondent No. 1 had failed to prove that the disputed area was declared as Katchi Abadi and further that he had failed to establish mala fides on the part of the applicants. Resultantly the suit was dismissed with costs.
13. An appeal was preferred from this judgment and decree which came up for hearing before IInd Additional District Judge, Karachi (West), who upon appraisal of the evidence on record and hearing the parties' counsel, set aside the judgment and decree of the trial Court and decreed the suit in terms of prayer in the suit with no order as to costs.
14. I have heard the learned counsel for the parties. The possession of the respondent No.1 over the disputed plot since prior to 1-1-1978 having been established, the sole point for consideration is whether this area falls within the Katchi Abadi Scheme or planned area of Orangi Township. In case it is found that the disputed plot falls within the boundaries of Katchi Abadi, respondent No.1 must succeed as regards the declaration sought by him and his entitlement to regularization within the meaning of M.L.O. 110 substituted by M.L.O. 183 and a permanent injunction, to protect his possession: It is pertinent to note that this respondent did not press his claim of adverse possession before the first appellate Court but he had emphasised his right to regularization of the plot and its transfer in his favour under Katci Abadi Scheme.
15. Learned counsel appearing for the applicants with reference to the evidence adduced by the parties has submitted before me that the findings recorded by the first appellate Court are contrary to the evidence on record. His argument proceeds or, the premises that the learned first appellate Court omitted to consider the admissions and concessions made by respondent No.1 in his evidence as regards the location of the plot in suit. In his evidence before the trial Court respondent categorically stated that he was in possession of the plot in suit since 1973 and that by had applied to the Board of Revenue as well as Government of Sindh for the regularization of the plot (in his favour). He had produced a number of applications moved by him to the Board of Revenue as well as the Government of Sindh and the letters written by them to the applicants directing them to regularize his possession under the provisions of M.L.O. 110 reconstituted by M.L.O, 183 and presently known as Katchi Abadi Scheme. In his cross-examination, however, he made certain statements, which may be reproduced for the sake of deducing correct conclusions.
16. "I see Exhs.11 and 12 and say that I cannot say how this notification declares the suit plot is within the limits of Katchi Abadi. I cannot say if the suit plot is situated within Scheme No.28. Again says that it is situated in Scheme No.28. It is correct that Scheme No.28 is a planned area."
17. Learned first appellate Court has rightly dealt with this aspect of the evidence and observed that the trial Court had only relied upon the statement of the appellant (respondent No.1) while dealing with the issue that the disputed land fell within the planned Scheme No.28. Upon reviewing the situation, the appellate Court expressed its view that the matter could only be adjudicated from the technical point of view and not on the basis of the alleged admission on the part of the applicant. The lower Court had held that the burden of proof was upon the respondents (present applicants) that the disputed land was situated in Sector II-B of Orangi Township, a planned area While referring to Article 117 of Qanun-e-Shahadat, 1984 the first appellate Court observed that whoever desired the Court to give judgment as to any legal right or liability dependant on the existence of the facts which he asserted must prove that those facts exist. The Court had to decide the issue, in the context of the dispute between the parties. Appellate Court further found that the respondent No.1 had denied the allegation that the plot in dispute fell within planned area while the burden of proof affirmatively to establish the fact was on the applicants who asserted such fact.
18. The appellate Court felt reluctant to place any reliance on the, plan of KDA. As an authenticated document because only a true copy had been exhibited in evidence which did not bear the signature of Town Planner or Deputy Chief of Town Planning in Scheme No.28. The Court further pointed out that a number of opportunities were given to K.M.C. To produce the plan, which had been deliberately suppressed for obvious reasons.
19. Upon reappraisal of the evidence, I am of the view that innocent admission by respondent No.1 who was obviously unaware of the legal implications of his replies to questions put to him during the cross---examination, do not advance the case of the applicants which was .Not established by their own testimony. On the contrary the respondent No.1, apart from his credible oral evidence produced a number of letters from the Government of Sindh in the Local Government Housing, Town Planning, Department as well as Board of Revenue, Hyderabad strongly approving his case and directing the applicants to regularize his possession over the plot in suit in his favour. The first appellate Court has rightly given due weight to these documents and arrived at a just, fair and equitable conclusion that the possession of respondent No.1 -prior to 1-1-1978 having been established beyond doubt, he had acquired a legal right to the regularization of his E possession under the Scheme of Katchi Abadi. By taking this view the lower appellate Court neither committed any material irregularity nor any illegality warranting an inter- ference by this Court in the exercise of its revisional jurisdiction. Needless to point out, the Note Sheets Exh.17 produced from the office of applicant No.2 overwhelmingly do support the case of the respondent that he being in exclusive possession of the plot in dispute long before the crucial date had a good case for regularization of his possession. It was only at the behest of Municipal Commissioner who was the final authority to accord his approval for regularization that the lower authorities in the directorate of Katchi Abadi took a somersault and came out with a self-contradictory stand that the piece of land claimed by this respondent fell within the planned area of Scheme No.28. Indeed, the applicants utterly failed to prove their assertion in declining the legitimate and lawful claim of this respondent. The stand taken by the applicants since the commencement of the litigation between the parties is, self- contradictory and mutually destructive inasmuch as on the one hand they state that in the lay-out plan, no identification number: had been given to the plot in suit so far, while on the other hand they stated that this plot was located within a planned area. In fact, I am unable to comprehend this stand of the applicants and fail to understand as to how a large piece of land consisting of 2300 sq. Feet could be left out without any number in the Lay-Out Map in case it was included within the boundaries of a regular scheme.
20. It was next pointed out that in pursuance of the notice Exh.13 issued by Director, Land and Estate K.M.C. Under the provisions of M.L.O. 202, respondent No.1 had been dispossessed from the plot in dispute and at one stage this respondent also admitted that the boundary wall raised by him was demolished prior to the filing of the suit in response to the notice Exh.13 and that the plot in suit was lying open since then. The fact, however, remains that the actual possession of the respondent remained intact by an order of the trial Court on an application for temporary injunction during the pendency of the suit, which was maintained by the appellate Court in C.MA. No.45/1987, decided on 1-8-147.
21. It was lastly urged that the learned first appellate Court had wrongly discarded the Lay-Out Plan Exh.15 produced by applicants' witness D.W. Muhammad Adil showing Katchi Abadi in Orangi Township. In this document the area shown and marked with red pencil is stated to be planned area while the area marked with blue colour is stated to be unplanned area. At a corner of Sector II-B some area has been' marked w4th red pencil pointing as unauthorized occupation of respondent No.1. I am not impressed by this submission of the learned counsel inasmuch as authenticity of this Lay-Out Map is not free from doubt as it is neither signed nor sealed by the Town Planner of K.M.C., Besides, this document was neither confronted to the respondent No.1 in his evidence nor produced before the trial Court within seven days' time as directed while settling the issues on 13-4-1987. There is thus no merit in the submission of the learned counsel for the applicants, which must fail.