' The facts leading to the filing of this application under Order 39, Rules 1 and 2, C.P.C. Are, according to the plaintiff, as follows:--
2. Survey No, 209 admeasuring 12,221 Sq.Yds. Was declared Evacuee Property and taken over by Federal Government and was put to auction as "building site" on 20-4-1968 and plaintiff's bid was accepted by Additional Settlement Commissioner, Karachi vide his letter dated 26-4-1968 Annexure 'P-1' and after necessary formalities the same was permanently transferred to him vide Transfer Order No,75 of 3-7-1974 (Annexure 'P-4'). The plaintiff obtained the symbolic possession but kept it lying vacant although he often visited the land. In early March 1992 he learnt of an advertisement which appeared in the "Daily Jang" of 29th February, 1992 announcing a building project under the name of "Fahad Garden" floated by defendant No,5. The site of this project was shown as Plot No,209. Alarmed with the advertisement, the plaintiff went to his plot and found defendant No,5 to be in possession who informed him that defendant No,4 had been allotted this Survey No,209 by defendant No,1 and defendant No,3 had granted 99 years' lease to defendant No,4 who had handed over the land to defendant No,5 for construction purposes. The plaintiff then made enquiries which revealed that what defendant No,5 had told him was correct. As a matter of fact, the land never vested in Government of Sindh (defendant No,1). It was evacuee property which was duly purchased by the plaintiff and, therefore, allotment of it by defendant No,1 and grant of its lease by defendant No,3 (Deputy Commissioner Karachi East) to defendant No,4 was without jurisdiction and, therefore, illegal and conveyed no title to defendant No,4 or, through him, to defendant No,5. The plaintiff, therefore, filed this suit in which he seeks declaration as to his title and a permanent injunction against defendants Nos.4 and 5 from in any way dealing with the suit-land.
He also seeks restoration of possession and also demands mesne profits for its unauthorised use and occupation.
3. Through this application under Order 39, rules 1 and 2, C.P.C. (C.M.A. No,1404/92) the plaintiff seeks a temporary injunction restraining defendants Nos.4 and 5 from (i) in any way alienating the suit- land or (ii) encumbering it with liabilities, or (iii) raising any construction thereon, or (iv) booking flats in the proposed project till the decision of the suit.
4. The short defence of defendants Nos.1, 2 and 3 (Government of Sindh and Deputy Commissioner East) is that this survey number was declared as "building site" by Chief Settlement Commissioner West Pakistan vide Notification dated 11-2-1966 which was gazetted on 18-3-1966 and was still lying undisposed of with the Settlement Authorities when the Settlement Laws were repealed in 1974 when all available evacuee land reverted to Provincial Government and vested in it and as such they had lawfully transferred it to defendant No,4.
5. The stand taken by defendant No,4, who is the main contestant, is also the same as that of official defendants Nos.1 to 3. In addition, it was 'stated that the suit was barred by section 2(b) of Permanent Transfer Rules of 30th May, 1961. Defendant No,4 also claimed possession for the last about one hundred years. It is further stated that defendant No,4 has entered into an agreement of sale of this land "with some interested parties" on 19th October, 1991 (the very next month after himself obtaining the same vide annexure 'D-12') and handed over possession to the said parties.
Defendant No,4, therefore, contests the prayer of temporary injunction. Defendant No,5 claims to be merely "booking agent" of defendant No,4 and adopts the defence taken by the latter. Defendant No,4 also stated in his counter-affidavit that till 2-4-1992 when interim stay was granted 172 individuals had booked flats in the project and had acquired vested rights. The plaintiff has filed affidavit-in-rejoinder in which he controverts the averments made by the defendants in their counter-affidavits.
6. Learned counsel of the parties have been heard.
7. To show the prima facie nature of his case and his prima facie title to the suit property, I was referred to Annexure 'P-1' which is a letter of Additional Settlement Commissioner (Land), Karachi, dated 26th April, 1968 addressed to the plaintiff informing him that his bid of 20th April, 1968 for the purchase of Survey No,209 Deh Gujro had been accepted and he was called upon to deposit the one-fourth of the "auction price" within three days and the balance price within 30 days. Annexures 'P-2' and 'P-3' are the bank challans, dated 15th June, 1968 and 16th May, 1969 respectively in respect of the part-payment of the price of the land. Annexure 'P-4' is copy of Transfer Order No,75 issued by the Settlement Department in favour of the plaintiff.. This 'Transfer. Order' was finalised and signed by the Deputy Settlement Commissioner on 30th June, 1974 but was issued on 3rd July, 1974. According to the plaintiff, the land was lying vacant and he came to know about it having been occupied by defendants Nos.4 and 5 and defendant No,4 having secured its allotment from the Sindh Government only through the public notice in the newspapers, including the Daily Jang of 29th February, 1992 (Annexure 'P-7'). The plaintiff then got published a counter-public notice in the Jang of 29th March, 1992 (Annexure 'P-10').
8. On the other hand, learned counsel for the defendants have contested the title of the plaintiff. It is contended on their behalf that suit land was admittedly evacuee property but it was lying unutilised until the time when Evacuee Laws were repealed vide Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975) with effect from 1st July 1974 and in terms of section 3(1) of the said Act, the suit-land being a building-site, and therefore Urban Land, stood vested in Provincial Government. They pointed out that Annexure 'P-4' (the Transfer Order which is the sheet-anchor of the title of the plaintiff) is, dated 3rd July, 1974 and is, therefore; of no effect, notwithstanding that it was completed and signed by he Deputy Settlement Commissioner on 30- 6-1974, a day prior to the target date of 1st July. The suit-land having thus vested in Provincial Government, the latter validly transferred it to defendant No,4 on 23rd September, 1991 vide order Annexure 'D-12'. Thus, according to learned counsel of the defendants, the title-deed of the plaintiff is an invalid piece of document and does not make out a prima facie case for the plaintiff whereas the title of defendant No,4 is perfect. It was also claimed that balance of convenience lay in not confirming the ad interim order because defendant No,4 through defendant No,5 and another party "Fahad Garden Project" (not a party to the suit) had commenced construction activity for a multi-storey flat building and Defendant No,4 had attached with his counter-affidavit a list of 172 persons who had allegedly already booked flats in the project when interim stay order was issued by the Court.
9. I am of the view that the transfer order dated 3-7-1974 (Annexure ' P-4' to the plaint or 'D-11' to the written-statement of defendant No,4) sufficiently proves the prima facie title of the plaintiff.
Learned counsel of the defendants referred to this document as fraudulent or forged but on the face of it looks neither fraudulent nor forged. As stated earlier in this order, the plaintiff was an auction-purchaser of suit-land and Annexure P-1' to the plaint is the letter dated 26-4-1968 from Additional Settlement Commissioner (Land), Karachi accepting the bid of the plaintiff. It is an admitted position that this land was declared by the Chief Settlement Commissioner as "Building site" vide Notification, dated 1 1 the February, 1966, which was gazetted on '18th March, 1966 and which is Annexure 'D-1' to the written-statement of defendant No,4. The main objection of the defendants as to the legality of Annexure ' P-4' is that it is, dated 3rd July 1974 whereas the Settlement Laws stood repealed w,e,f, 1st July, 1974 vide section 1(2) of Act XIV of 1975 and, therefore, the Settlement Department (to be more specific, Deputy Settlement Commissioner (Land) Karachi) was divested of any jurisdiction to deal with the suit-land and pass the Transfer Order on 3rd July, 1974 and, therefore, this Transfer Order Annexure ' P-4') confers no title upon the plaintiff. The reply of learned counsel of the plaintiff in this regard is that this transfer order was in fact made (or passed) on 30th June, 1974 which is the date appearing under the signatures of the Deputy Settlement Commissioner at least FOUR places on it and that for all intent and purposes this order was complete on 30th June, the date "3rd July 1974" being only the date on which this order was "issued" by the office and, therefore, the Deputy Settlement Commissioner had lawfully passed the order. However, in reply to this argument of learned counsel of the plaintiff, learned counsel of defendant No,4 referred me to AIR 1930 Madras 49 (Swami Mathan v. L Chetier) which holds that unless an order is communicated it has no force and that a decision cannot properly be said to be passed until it is in some way pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing that it contains and, further that, an order is not passed so long it is open to the officer to tear it up and write another order. Learned counsel of defendant No,4, therefore, insisted that 30th June, 1974 was not the effective date of the order. On the other hand learned counsel of the plaintiff relied on PLD 1949 Lahore 100 (Karam Ali v. Raja and others) which is in respect of a stay order passed by an appellate Court under Order 40, rule 5, C.P.C. And it was held that such an stay order operates from the time it is made and not from the time it is communicated to the executing Court. Both these judgments appear to be rather inapplicable in the present case because Annexure 'P-4' is not a judicial order but an executive one. Besides, it is debatable whether the Deputy Settlement Commissioner could tear off this order and write another one on 3-7-1974 because according to learned counsel of defendant No,4 himself Settlement Department and Deputy Settlement Commissioner (Land) Karachi had become funct9 officio on 3-7-1974 in term of section 1(2) of Act XIV, of 1975. Thus, apparently, even if the date "3-7-1974" had not been endorsed on Annexure 'P-4' by some obscure clerk of the office of Deputy Settlement Commissioner, Transfer Order itself would still had been complete and valid because it had been completed before the target date of 1st July. Besides, it was no longer open to Deputy Settlement Commissioner "to tear it up and write another decision" (AIR 1930 Madras 49) because on . 3-7-1974 he was 'functus officio'. Besides, Annexure 'P-4' is not a judicial decision which may be written one way or the other; it is an administrative order which must follow the happening of certain facts. An order of transfer must first be passed and in terms thereof certain payments must be made by the transferee and this having been done, certain order (that of final transfer order), and no other order, must of necessity follow. At any rate, this is an arguable point which may be left for final adjudication at the time of the final decision but at the moment a prima facie case has certainly been made out to hold Annexure 'P-4' as a valid transfer order.
10. I may here point out that learned counsel of defendant No,4 said that vide Annexure 'D-1' the suit land was declared as building site and "placed at the disposal of the Government of Sindh". Now, this Annexure 'D-1' to the written-statement of defendant No,4 is Notification of the Office of Chief Settlement Commissioner West Pakistan No,669-66/574-B(L) dated 11 the February, 1966 which was notified in the Gazette of 18th March 1966, which declares certain agricultural survey numbers mentioned therein, including Survey No,209 which is the suit-land, as "building sites" --- and this is an admitted position --- but there is nothing in this notification to suggest that it also placed this land at the disposal of the Government of Sindh.
11, Learned counsel of defendant No,4 referred the Court to Annexure 'D-3' which is letter dated 22- 4-1969 from Rehabilitation Mukhtiarkar to the plaintiff asking him to clear the dues of the auction price in respect of suit-land (Survey No,209). He then referred to Annexure 'D-9' which is an office note (it is not clear how its attested copy was delivered to defendant No,4 since it was not a public document), dated 1st May in which Rehabilitation Mukhtiarkar, after observing that the plaintiff was not inclined to make payment, recommended that the auction sale dated 20-4-1968 in favour of the plaintiff be cancelled whereupon the next higher office ordered on 3rd May for issuance of yet another warning giving him time up to 10th May to clear the dues. This fresh warning was also given (vide Annexure 'D-5' of the same date, the 3rd May) but a fresh office-note of Rehabilitation Mukhtiarkar (date not given) shows that payment was still not made by the plaintiff whereupon the Settlement Commissioner ordered on 14th May to cancel auction.-sale of the plaintiff which was accordingly cancelled vide cancellation order of the same date (14th May, 1968) Annexure 'D-10'.
The Court was then referred to Annexure 'D-7' which is letter, dated 7th October, 1970 from Deputy Settlement Commissioner (Land) to the plaintiff in which it was clarified that the total area of land purchased by the plaintiff in open auction came to 12,221 Sq.Yds. Out of which an area of 4,356 Sq.
Yds. Had been acquired by the Government for purposes of circular railway and, therefore, the plaintiff was left with an area of 7,865 Sq. Yds. Only of which the total cost came to Rs,57,021 out of which he had already paid Rs,47,151 which left an outstanding balance of Rs,9,870 only and the plaintiff was directed to pay it within seven days. It was then pointed out that payments shown at the last page of Annexure 'D-11' do not coincide with the demand made vide Annexure 'D-7'.
Learned counsel of defendant No,4 also pointed out that the plaintiff had allegedly paid Rs,25,000 on 16th May, 1969 towards the part-payment of auction-price of suit-land vide State Bank Challan of which Annexure 'P-3' was a photo-copy and he then produced a letter, dated 9th August, 1992 from the office of Additional Commissioner-II, Karachi (Evacuee Property Branch) certifying that original challans in respect of payment pertaining to Survey No,209 were not available in the office but photostat copies of three challans in the sum of Rs,22,151, Rs,9,584 and Rs,286 deposited by Asif Khan Shamim (the plaintiff) were available. (This letter has been placed on record as Annexure 'D- 21' to written statement). He implied that this indicaed that Annexure 'P-3' was a forged document.
However, learned counsel of the plaintiff produced the original challan, dated 16th May for Rs,25,000. Thus it is evident that the record in the office of Additional Commissioner-II is not in proper shape and a lot of important documents are missing and this payment of Rs,25,000 had in fact been made and Annexure 'P-3' is not a forged document.
12. Learned counsel of defendant No,4 also referred to Settlement Scheme No, VIII and section 3-A thereof and stated that the conditions mentioned therein must be fulfilled before cancellation of auction-sale (vide Annexure 'D-10') could be cancelled and claimed that these conditions were not fulfilled as would appear from Annexure 'D-7' and, therefore, cancellation subsists and, consequently, Transfer Order Annexure 'P-4'. Is void and illegal. He also claimed that the date "30- 6-1974" under the signature of the Deputy Settlement Commissioner at four places on Annexure 'P- 4' is a fraudulent addition to bring Annexure 'P-4' within the jurisdiction of Settlement Authorities. He then argued that, a case of prima facie fraud having thus been made out, the temporary .Njunction may not be granted to the plaintiff and he relied upon the cases of Ismail Brothers v. Kavalram (PLD 1981 SC 545) and tried to distinguish the case reported as 1990 CLC 1299 (Nasim Ahmad Khan v.
Salim Ahtnad Khan) on which learned counsel of the plaintiff had relied.
13. Section 3-A of Settlement Scheme No, VIII is quoted below:-- 3-A(1) Within thirty days of the date of the order of cancellation as aforesaid, the defaulter may apply to the Deputy Settlement Commissioner or the Additional Settlement Commissioner (Industries) as the case may be, to allow him to pay in lump sum the whole of the balance of transfer price payable by him. The aforementioned authorities may then allow him to pay it immediately if by then no other person has applied for the transfer of the same property nor has it been put to auction.
(2) The concerned appellate authority may allow the defaulter to pay the whole of the balance of transfer price payable by him one lump sum within ninety days of the date of order of cancellation as aforesaid, if any, then no other person has applied for transfer of the same property nor has it been put to auction.
(3) When the defaulter makes full payment under sub-paragraph (1) of subpara. (2) the order of the cancellation and any other order made will be withdrawn.
14. I am of the view that, whatever defect or weakness may be in the case of the plaintiff, it is certainly not a case of fraud or forgery. Learned counsel of defendant No,4 could not show on what authority he claimed that the date "30-6-1974" under the signatures of the Deputy Settlement Commissioner on Annexure 'P-4' was a fraudulent addition on the document. On the contrary, it looks quite natural that the document should have been complete at least a couple of days before it was given number and date and delivered to the party.
15. It is evident that the original area of Survey No,209 was 12,221 Sq. Yds. Which was auction- purchased by the plaintiff and in respect of which notices were issued to him to clear the dues but the grievance of the plaintiff was that a substantial portion of the land was acquired by the Government for circular railway but still the price, of the entire 12,221 Sq. Yds. Was being demanded from him and that is why he had not paid the same as a result of which his auction-purchase was cancelled vide order dated 14-5-1969 Annexure 'D-10' but he was all along making representations.
These representations were eventually accepted and on 7th October, 1970 he was informed that an enquiry had revealed that out of the total area of 12,221 Sq. Yds., 4,356 Sq. Yds. Had been acquired for the circular railway which reduced the area of auction-purchase to 7,865 Sq. Yds. The plaintiff was further informed that cost of 7,865 Sq. Yds. Came to Rs,57,021 out of which he had already paid Rs,47,151 leaving a balance of Rs,9,870 and he was ordered to pay it within a week (of 7th October, 1970). This letter is on record as Annexure D-7 and it indicates that the cancellation of auction- purchaser vide Annexure 'D-10' was subsequently cancelled on the ground that the demand earlier raised against the plaintiff was unjustified because it was for the whole survey number whereas a substantial portion of it was acquired by the Government for circular railway. After all the dues were subsequently paid by the plaintiff. Transfer Order Annexure 'P-4' (or 'D-11') was issued and it is an admitted position that it has not been cancelled by any authority and yet a duplicate allotment in respect of 25 Ghuntas in Survey No,209 was made by the defendants Nos.1 to 3 in favour of defendant No,4. It may be noted that out of 2 acres, 10 Ghuntas regularised in favour of defendant No,4 vide Annexure 'D-12', only 25 Ghuntas pertain to the suit-land and the rest of the land falls in other survey numbers with which the suit has no concern.
16. It may also be noted that, besides the fact that Annexure 'P-4' (or 'D-11') has not been cancelled by any competent authority till this day, no arrears were due against the plaintiff when this Transfer Order was issued and even if any arrears were still outstanding the transfer order Annexure 'P-4' could still not be cancelled and vide condition No,7 thereof, the Board of Revenue could effect the recovery of the dues as arrears of land revenue.
17. For the abovenoted reasons, I am of the view that the plaintiff has succeeded in establishing the prima facie nature of his case. Defendant No,4 is, however, at liberty to prove its allegations at the stage of trial when they shall be decided on the basis of evidence.
18. Learned counsel of defendant No,4 also referred to certain corrections in figures on Annexure 'D- 2' which is the bid sheet and argued that these overwritings/corrections were not under the signature of any authorised officer and, therefore, the Bid-Sheet was of doubtful value. These corrections are as follows:-- Total Area 2-21 1-25 Ghuntas Area in Sq. Yards 12,221 7865 Sq. Yds.
' Learned counsel was not justified in raising this objection because these corrections are explained by the following note under the signatures of Assistant Rehabilitation Mukhtiarkar which is dated 21-3-1973: "An area of 4,356 Sq. Yds. Acquired for Karachi Circular Railway vide Mukhtiarkar's Letter No, SCM/2630/70, dated 24-10-1970.
(Sd.) A.R.M.
21-3-1973."
' The corrections are thus well-authenticated and they are also well-explained in the letter, dated 7th October, 1970 from Deputy Settlement Commissioner (Land), Karachi to the plaintiff (Annexure 'D-7'). The objection is thus without any force.
19. Learned counsel of defendant No,5 has raised the objection that it is only an advertisement- agent and only entitled to its commission and that Fahad Garden Builders are in possession of the suit-land but they have not been impleaded and, therefore, no effective relief can be granted to the plaintiff as any order against defendants Nos.4 and 5 shall not be binding on the absentee party. The second argument was that the 172 persons who had booked flats vide Annexure 'C' to counter-affidavit of defendant No,4 were also necessary parties to the suit. Learned counsel then referred to section 51 of Transfer of Property Act and claimed that M/s. Fahad Gardens and the 172 persons were entitled to compensation for the improvements made by them over the property and prayed for the appointment of a Commissioner to assess the value of such improvements. Learned counsel was; therefore, of the view that either stay order may not be granted or else the Court may suo motu implead all the necessary parties as indicated by him. To this, the reply of learned counsel of the plaintiffs that section 51 of Transfer of Property Act applies only when the equitable grounds given in the said section are made out, otherwise the improvements belong to the owner and that this section 51 cannot be made the basis for impleading additional parties in the suit.
20. It appears to me that learned counsel of defendant No,5 was rather mostly pleading the case of the absentee parties.
21. Learned A.A.-G. Is of the view that Survey No,209 was agricultural land from time immemorial and, therefore, it vested in the Board of Revenue' which lawfully allotted it to defendant No,
4. This is not correct. When this land was declared as evacuee property it vested in the Federal Government free from all encumbrance and when it was declared "building site" vide Notification of Chief Settlement Commissioner, dated 11th February, 1966 and gazetted on 18th March, 1966 (Annexure 'D-1') it ceased to be agricultural land. In any case, it was not lying undisposed of on 1st July, 1974 when Act XIV of 1975 came into force and, therefore, apparently, this land did not revert to the Provincial Government.
22. I am of the view that defendant No,4 continues to be the only effective contender of the claim of the plaintiff. He has not in any way alienated the suit property to defendant No,5 or to M/s. Fahad Garden who are no more than his agents and their fortune shall rise or fall with the fate of defendant No,
4. If defendant No,4 has entered into any agreement with a third party for the construction or development of suit-land, such party does not acquire any vested right in the suit land and is, therefore, not a necessary party to the suit. It is inconceivable that M/s. Fahad Garden should not be aware of the pendency of the suit and the fact that they have not cared to apply for being impleaded shows that they do not consider themselves necessary party to the suit. I, therefore, see no justification to appoint any Commissioner to assess the value of the improvements or to implead any party in these proceedings. Besides, only 25 Ghuntas of suit land is involved in the dispute as the rest of the land which has been allotted to defendant No, 4 vide Order dated 23-9-1991 Annexure 'D-12' falls in other survey numbers with which the plaintiff and this suit have no concern.
23. I am also of opinion that if construction is raised on the 25 Ghuntas of Survey No,209, it shall cause irreparable loss to the plaintiff as it will become difficult to separate this construction from the rest of the construction on the remaining land allotted to defendant No,4 vide Annexure 'D-12'.
24. Under the circumstances, I would amend the ad interim order and pass injunction in the following terms: since only 25 Ghuntas of Survey No,209 is included in the allotment order Annexure 'D-12' and since this alone constitutes the suit-land, defendants Nos.4 and 5, and everyone else through them, are restrained from including this land in their building plans till the disposal of the suit and they shall also not book, or cause to be booked any flats in building which is planned to be constructed on this portion. Defendants Nos.4 and 5 are free to proceed with their building activity on the rest of the land allotted to defendant No,4 vide Annexure 'D-12'. This defendant No,4 shall do after ensuring the exclusion of any portion of Survey No,209 from the building activity.
25. Mr. Ahmad Yousuf Ali Rizvi, Advocate is also appearing for defendant No,4 alongwith Mr. S. Sharifuddin Pirzada, Advocate. However, Mr. Pirzada had addressed the Court on behalf of defendant No,4. After learned counsel of the plaintiff had replied to the arguments of counsel of the defendants Mr. Rizvi desired that he should also be heard. I had rejected his oral request on the ground that Mr. Pirzada had already addressed the Court on behalf of defendant No,4 and he (Mr. Rizvi) could not again re-open the arguments on behalf of defendant No,4. Now he has moved this application under section 151, C.P.C. And wants to address the Court in reply to what learned counsel of the plaintiff stated in reply to the submissions of learned counsel of the defendants.
There'is no provision for a reply to the reply. Otherwise, there shall be no end to this exercise. The prayer is uncalled for C.M.A. No,5382/92 is accordingly rejected.
Temporary Injunction granted.