1. ' This Revision Application is directed against the Judgment/Decree passed by the learned 1st Additional District Judge, Karachi (East) dismissing C.A. No, 20 of 1988 preferred against the Judgment/Decree passed by the learned IIIrd Senior Civil Judge, Karachi (East) decreeing F.C. Suit No, 2402 of 1978.
2. ' The respondent No,1 filed a suit against the applicant and the respondent No,2 with the following prayers:
(a) The lease deed executed by the defendant No,1 in favour of the defendant No,2 in respect of the Plot No,D-3/17, Scheme No,24, Gulshan-e-Iqbal measuring 1083.33 sq. Yds. Or there above be adjudged void and cancelled.
(b) That it may be declared that the plaintiff is entitled to get lease in his favour for the land bearing Plot No,D-3/17, Scheme No,24 Gulshan-elqbal area 1083.33 sq. Yds. Which was allotted to the plaintiff by the defendant No,1 and decree accordingly be passed.
(c) That a decree for physical possession against the defendants ordering therein to put the plaintiff into physical possession of land on Plot No,D-3/17, K.D.A. Scheme No,24, Gulshan-e-Iqbal, Karachi, Area 1083.33 sq. Yds. May be passed.
(d) That the costs of the suit may be awarded.
(e) That any other or further relief which the Honourable Court deems fit and proper may be awarded.
3. ' In the abovesaid suit, the plaintiff/respondent No,1 stated that he was allotted Plot No,D-3 Block-17 Scheme No,24, Gulshan-e-Iqbal, Karachi measuring 1083.33 sq.Yds through ballot by the K.D.A.
4. (defendant No,1) vide allotment Order No,KDA/LAND/GUL/D-3/17/535 dated 24-2-1972. He deposited the 2nd instalment so also the difference due to excess area beyond 1000 sq. Yds. Demanded by the K.D.A., but in spite of his repeated demands orally and in writings the possession of the said plot was not handed over to him. In 1977 the K.D.A. Informed the plaintiff that since there is a dispute, further action with regard to the said plot has been stopped. The plaintiff came to know that the K.D.A. Has illegally delivered the possession of the said plot to the defendant No,2 and subsequently executed lease in his favour as disclosed by the K.D.A. In its Written Statement, as such amended plaint was filed. The allotment of the plaintiff was not even cancelled, hence a notice under Article 131 of K.D.A. Rules and Regulations was served on K.D.A. To which evasive reply was given, hence this suit.
5. ' The defendant No,1 (K.D.A.) contested the suit and filed his written statement, while the defendant No,2, though served through publication, remained absent and as such the suit proceeded ex parte against him. The defendant No,1 (K.D.A.) in his written statement admitted the allotment of the disputed plot to the plaintiff and payment of 2nd instalment and the difference due to increase in the area i,e, from 1000 to 1083.33 sq. Yds. So also the demands made by the plaintiff for delivery of the possession. It is also admitted that the disputed plot was subsequently leased out to the defendant No,2. As for sufficient long time, the plaintiff did not turn up and slept over the matter. It is also stated that the plaintiff is neither entitled to the possession of the said plot nor execution of its lease in his favour, as the lease is already executed in favour of the defendant No,2 and the possession is also with defendant No,2. It is also stated that since the plaintiff was allottee, no legal right is created in his favour, hence the suit is liable to be dismissed.
6. ' On the pleadings of the parties the trial Court framed the following issues:--
(1) What is the legal effect of allotment of Plot No,D-3, Block-17, Scheme No,24, Gulshan-e-lqbal, Karachi in favour of the plaintiff and payment of two instalments of its value by the plaintiff to the K.D.A.?
(2) Whether the subsequent allotment and the execution of lease deed in favour of defendant No,2 by K.D.A. Is valid or illegal and void?
(3) Whether the plaintiff is entitled to relief claimed?
(4) Whether the plaintiff has paid full occupancy value of the suit plot?
(5) Whether the plaintiff has approached the defendant and has shown any interest till 15-9-1975?
(6) Whether K.D.A. Is competent to allot and lease the plot in question in favour of the defendant No,2?
(7) What should the decree be?
7. ' In support of his case, the plaintiff examined his father/attorney Syed Zaffaruddin (Exh. 5) who produced several documents (Exh.6 to Exh. 45), while the defendant No,1 examined his Assistant Director (Lands) as Exh.
8. 50.
9. ' On 4-5-1987, the Assistant Director-II, Scheme No,24, Gulshan-elqbal, Karachi on behalf of the K.D.A. Filed a Statement (Exh. 47) stating therein that the K.D.A. Is already considering the case of the plaintiff for alternate plot.
10. ' After hearing the advocates for the contesting parties the learned trial Court, decreed the plaintiff's suit as prayed with costs vide its judgment dated 1-12-1987, and decree dated 14-12-1987.
11. Against which the defendant No,1(K.D.A) preferred Civil Appeal No,20 of 1988, which resulted in dismissal vide judgment dated 21-11-1989 and decree dated 6-12-1989. It is worth to note that the defendant No,2 also remained absent in the Appellate Court though served through publication in daily Mashriq dated 11-8-1989. Hence the K.D.A. Has filed this Revision Application against the concurremt findings of two Courts below while the respondent No,2 (defendant No,2) did not file any appeal or revision.
12. ' I have heard Mr. Dasti Muhammad Ibrahim, Advocate for the K.D.A. (applicant). Mr. Malik M. Saeed, Advocate for respondent No,1 and Mr. M.G. Dastagir, Advocate for the respondent No,2.
13. ' Mr. Dasti Muhammad Ibrahim argued that since the plot in dispute has already put in possession and the lease is also executed in favour of the defendant No,2 (respondent No,2), the K.D.A. Has no power to reconsider the case of the respondent No,1. The plot has also changed many hands and the defendant No,2 has also raised huge construction thereon, as such the plaintiff is not entitled to any relief as prayed by him. He can only sue for damages or for alternate plot from the K.D.A. In the end he submitted that grant of an allotment of a plot by K.D.A. Is simply a favour which does not create any right in favour of the respondent No,1. In support of his contentions, he relied upon (1)
14. PLD 1975 Karachi 373 (Hait Noor Muhammad and others v. Karachi Development Authority and 2 others), (2) 1970 SCMR 364 (Muhammad Amir v. Member (Colonies), Board of Revenue, West Pakistan) and (3) 1994 CLC 1248 (Haji Muhammad and another v. Government of Punjab through Collector, District Karachi and another)
15. ' Mr. M.G. Dastagir argued that the respondent No,2 is a bona fide allottee and in whose favour Registered Lease Deed is also executed by the K.D.A. And a construction is raised on the said plot. In such circumstances, he submitted that the plaintiff (respondent No,1) is entitled to alternate plot to be given to him by the K.D.A. And such relief can be granted, though not prayed. In support of his contention he relied upon following case-law:
(1) PLD 1985 SC 46 (Muhammad Aslam (through his L.R.) v. (Wazir Muhammad).
(2) PLD 1986 SC 35 (Samar Gul v. Central Government and others).
(3) PLD 1994 Karachi 492 (Muhammad Luqman v. Bashir Ahmed).
(4) AIR 1951 SC 177 (Firm Sriniwas Ram Kumam v. Mahabir Prasad and others).
(5) 1984 CLC 796 (Alvia Tableeghi Trust and 8 others v. Mujeebur Rahman Alvi and 7 others).
16. ' Mr. Malik M. Saeed argued that the concurrent findings of fact given by the two Courts below cannot be set aside by this Honourable Court in Revisional Jurisdiction. He also submitted that the facts of the case which give rise to the filing of the suit are not disputed. He stressed hard on the point that the allotment of the plaintiff (respondent No,1) has never been cancelled by the K.D.A.
17. And neither such assertion or claim is made by the K.D.A. Any where in its written statement or in the evidence, as such the K.D.A. Was not competent to allot the same plot to the Respondent No,2 and to execute its lease deed in his favour, during the subsistence of the allotment of the Respondent No,1. As regards grant of alternate plot , he submitted that right from the very beginning the K.D.A. Is saying that the grant of alternate plot to the Respondent No,1 is under consideration but a period of more than 20 years has passed away but the K.D.A. Could not be able to finalise the same, which shows that the K.D.A. Has no mind to grant the same and wants to keep him on false hopes. As regard the grant of alternate plot though not specifically prayed in the suit, he argued that looking to the circumstances of the case and in order to do complete justice with all the parties, this Honourable Court is fully competent to grant such relief and particularly when the K.D.A. Also desires to do so. In support of his contentions he relied upon (1) PLD 1975 Karachi 373 (Hait Noor Muhammad and others v. Karachi Development Authority and 2 others), (2) 1970 SCMR 364 (Muhammad Amir v. Member (Colonies), Board of Revenue, West Pakistan) and (3) PLD 1964 Karachi 149 (S. Zafar Ahmad v. Abdul Khaliq).
18. ' I have given my anxious thought to the valuable arguments of the learned Advocates for the parties and with their assistance have gone through the record of the suit.
19. Since it is established that the allotment order of the respondent No,1 (plaintiff) was not cancelled by the K.D.A. Nor any such steps were taken by it, it was not within the competence of the K.D.A.
20. (applicant/defendant No,1) to allot the same plot to the defendant No,2/respondent No,2 during the subsistence of the first allotment as such both the Courts below have rightly decided the said point in favour of the plaintiff and the. Advocates for the applicant (K.D.A) and the subsequent allottee (respondent No,2) could not be able to show any reason to disagree with the said finding, as such the grant of the disputed plot in favour of the respondent No,2 by the respondent No,1 is illegal and without any lawful authority and jurisdiction.
21. ' The point which requires consideration is that, when the subsequent allottee had been already put in possession of the plot and the lease deed was also executed in his favour and he also raised constructions thereon, and nothing is brought on record to show that he (respondent No,2) was in knowledge of the allotment of the same plot in favour of plaintiff (respondent No,1) or he was in any way responsible for the said act of the K.D.A. And that the property on the said plot has changed many hands, what should be done, in the said circumstances. In order to do complete justice with the parties, I am of the considered opinion that the grant of alternate plot to the plaintiff/respondent No,1, of the same area and at the old rate at which the disputed plot was allotted to him, is the only solution, for which the K.D.A. Rightly decreed to do so and the plaintiff (respondent No,1) also showed his willingness. The record and the circumstances show that the K.D.A. Is solely responsible in creating the above problem for the plaintiff as well as for the subsequent allottee and also for the persons who got title over the property, one after the other, as such I have no option but to direct the K.D.A. To provide alternate plot measuring not less than i.
22. 1000 sq. Yds. At a suitable place, after consultation and agreement with the plaintiff (respondent No,1) to him at the old rate at which the disputed plot was allotted to him, and the amount already paid by him be adjusted towards price of alternate plot, with a period of 3 (three) months from this judgment, without fail. In case the applicant (K.D.A.) fails to do so, the plaintiff/respondent. No,1 shall be entitled to the recovery of the amount of the current market value of the plot in dispute, to be determined by the Nazir of this Court, in execution of this judgment.
23. ' Under the above circumstances, the Decree of the trial Court confirmed by the Appellate Court is hereby amended in terms of the above directions of this Court, with costs to be paid to the respondent No,1 (plaintiff) by the applicant (K.D.A.) through out.
24. ' It is observed that since the above dispute is more than 20 years old, as such I direct that the execution of this judgment should be given top priority and it should be buried as early as possible without any delay.