' This judgment shall dispose of both the suits as common questions of fact and law are involved in both of them and by an order of this Court by consent these have been consolidated. Evidence has been recorded in Suit No,25/1982 to be considered as evidence in Suit No,108/1985.
2. Suit No,25/1982 was filed for possession, injunction and removal of unauthorized construction from the suit land known as Survey No,52, Sheet No,24, Model Colony, Malir Cantt. According to the plaintiffs this property was purchased by plaintiffs Nos.1 to 4 alongwith Captain Khalid Hamid (since dead) survived by plaintiffs Nos. 5 to 8 in 1954 from Mr. Macci. This transaction was confirmed by the Government being owners of the property in terms of section 133 of the Sindh Land Revenue Code whereupon a Sanad was issued in their favour on 28-5-1975 after payment of Government dues and development charges. The record of rights was mutated in the names of the plaintiffs and construction was raised by them up to the plinth as well as small boundary wall. In 1977 they came to know that the defendant had illegally and unauthorizly encroached upon the suit land and raised unauthorized construction thereon without obtaining approval from the competent authority. They made representations to the Authorities including Deputy Commissioner, Karachi- East and approached Malir Cantonment Authorities to demolish the unauthorized construction and remove encroachment but no action was taken for ejectment of defendant hence this suit.
3. Defendant contested the suit and filed a written statement on the averments that he had purchased the suit land from Mian Khan by way of an agreement to sell, dated 29-5-1965. He claimed to be in physical possession of the plot in suit since then. According to the defendant in August, 1979 he came to know that the plaintiffs are claiming ownership of the plot in suit illegally.
He denied construction on the plot in suit by the plaintiffs and claimed to have raised construction by himself. He claimed ownership of the plot in suit by virtue of agreement to sell in his favour followed by delivery of possession. At the same time he claimed to be in adverse and uninterrupted possession of the plot in suit.
4. Subsequently defendant filed Suit No,108/1985 for declaration and cancellation of Sanad issued in favour of the plaintiffs. It is his case that in 1951 Government of Pakistan declared Model Mohajir Colony as controlled area for rehabilitation and resettlement of Displaced Persons through the Ministry of Works and Rehabilitation but such scheme could not be implemented, as a result of which land in Model Colony was encroached upon and occupied by the people; Some times in 1952-1953 Mian Khan s/o Allo Khan occupied plot in suit and raised construction thereon for his residence. Later, he agreed to sell the plot in suit to him for a consideration of Rs,21,700 and put him in physical possession of the property in pursuance of agreement to sell, dated 29-5-1965.
According to the defendant, he made substantial investment towards reconstruction, renovation, addition, alteration and extension to the structure standing on the plot and obtained utility service connections from different agencies. Claiming to be in continuous and uninterrupted occupation and enjoyment of the property in suit he claimed his entitlement to ownership of the plot. He had applied for regularization of his possession and confirmation of ownership rights which remained pending with the Revenue Authorities but without any fruitful result. He challenged the issuance of Sanad, dated 28-5-1975 issued by Mukhtiarkar, Karachi-East, in favour of plaintiffs as fraudulent, collusive, without lawful authority. And of no legal effect. He maintained that he gained knowledge about the said Sanad in 1982 when he was served with the summons of Suit No,25/1982. He seeks declaration of his entitlement to right of ownership of the plot in suit and judgment that the Sanad, dated 25-5-1975 is void and its cancellation.
5. Private defendants filed written statement taking more or less same pleas as raised by them in the suit filed by them. Defendants Nos.6 to 9 did not contest the suit and a statement to this effect was filed by Additional Advocate-General, Sindh. By order, dated 14-11-1991 both the suits were consolidated and evidence recorded in one suit was ordered to be treated as evidence in the other suit. Following issues were struck by consent for determination:
(1) Whether the defendants have illegally and unauthorisedly trespassed upon the land of the plaintiffs?
(2) Is the plaintiff entitled to a decree for possession?
(3) Whether the suit as it is, is maintainable and not hit by the provisions of section 184(2) of the W.P. Land Revenue Act, 1967?
(4) Whether the suit is under valued hence hit by the provisions of Order 7, Rule XI, C.P.C.?
(5) Whether the suit is bad and not maintainable for want of non joinder of necessary parties?
(6) Whether the documents Annexures ' A', 'F' and 'G" are valid documents and whether the same has any validity being obtained/managed on the back of the defendant?
(7) Whether the plaintiff is entitled for the Sanad' or the defendant in respect of the alleged plot?
(8) Whether the defendant is in continuous and undisturbed possession of the plot since 29-5-1965 or the plaintiff and what is the effect?
(9) What is the total amount spent on the construction and who has spent the same?
(10) To what relief the parties are entitled to?
6. In support of their case plaintiffs examined Major Akbar Hameed Lodhi, P.W.1 and Ghulam Murtaza Shah, Surveyor in the Office of Deputy Commissioner, Karachi-East, P.W.2 whereas defendant besides examining himself adduced to evidence of Muhammad Yousuf and Muhammad Younus.
7. I have heard learned counsel for the parties and with their assistance gone through the evidence on record. My findings are as under for the following reasons.
REASONS
8. Issue No,1.---It is the case of the plaintiffs that for the first time towards the end of 1977 they came to know with regard to illegal and unauthorised occupation of the defendant over the plot in suit. Consistent with their pleadings there is ample evidence on record to show that they remained in possession of the plot in suit with construction up to plinth level duly confirmed and approved by Additional Commissioner, Karachi as well as Deputy Commissioner, Karachi (when it was unified District) vide their orders, dated 28-3-1970 Exh. 6/2 and 1-9-1971 Exh.6/3 respectively. They were also found to be in physical occupation of the plot in suit as a result of survey conducted by the Enquiry Officer, Model Colony, Malir under the provisions of sections 189 and 190 of the Sindh Land Revenue Code, 1879. Plaintiffs' prior possession over the suit land is also strengthened by the payment of Rs,2,700 as Malkana to the Revenue Authorities as far back as 4-3-1974, issuance of Sanad, dated 28-5-1975 by Mukhtiarkar, Karachi and Enquiry Officer, Model Colony, Malir, payment of Rs,9 towards Sanad fees and deposit of Rs,1,865 on 5-8-1979 and first instalment of development charges.
9. After acquiring knowledge of wrongful possession over the plot in suit at the hands of the defendant, deceased Akhtar Hamid Lodhi as well as Mrs. Ansar Fatima represented to the Deputy Commissioner, Karachi-East and Deputy Martial Law Administrator, Karachi as evidenced by copies of complaints Exts.6/8 and 6/11. It may be observed that in the enquiry notice as well as the orders passed by the Additional Commissioner, Karachi and Deputy Commissioner, Karachi plot in suit was shown to be in the name of plaintiff Ansar Fatima and others including Captain Khalid Hamid Lodhi who was martyred on 6th September, 1965 during the war with India whereafter his share in the property devolved on his legal representatives. Consequent upon the complaints lodged by the plaintiffs with regard to encroachment upon the plot in suit, there was exchange of correspondence between the Malir Cantonment Authorities and Deputy Commissioner, Karachi- East as well as Station House Officer, Model Colony Police Station which tend to show that there was a controversy between the parties in relation to the possession of the plot in suit at the initiative of the plaintiffs.
10. On the other hand, defendant solely relied upon agreement to sell, dated 29th May, 1965 between Mian Khan and himself transferring the plot in suit to him for a consideration of Rs,21,700.
To my mind agreement of sale, on the face of it, does not confer any right, title or interest in favour of the defendant as the alleged transferor himself had no right and title to the property which comprised of State land vesting in the Federal Government. To this extent Mr. Manohar Lal, learned counsel for the defendant fairly conceded that the defendant did not acquire any right, title and ownership in the plot in suit but he vainly argued that consequent upon the execution of this agreement, the defendant was put in possession of the plot in suit and he raised construction thereon from time to time by investing a sum of Rs,1,00,000. There is no evidence worth consideration to support the view that the defendant was put in possession of the plot in suit, or that he raised construction thereon with huge investment of Rs,1,00,000 during the period from 1965 to 1974.
11. Defendant in his evidence stated about building plan prepared by surveyor and produced a lay out map Exh. 7/2 but the document itself is hardly of any evidentiary value as it is simply a sketch map prepared without any authority and with the least approval by any of the relevant agencies.
Receipt of a bill towards estimates for electric connection Exh.7/3 and estimates for provision of Sui gas connection Exh.7/4 to the premises in suit do not by themselves establish the occupation and possession of the defendant since 1965 as asserted by him. It may not be out of context to point out that the bill issued by K.E.S.C. Is, dated 28-10-1978, whereas the bill issued by Karachi Gas Company is, dated 28-10-1981. These dates coincidently support the view of the plaintiffs that the defendant wrongfully and unauthorisedly occupied the plot in suit sometimes in 1977. There is no gainsaying that the defendant miserably failed to adduce any iota of evidence with regard to his continuous possession and occupation of the plot in suit in his own right.
12. Oral evidence of D.Ws. Muhammad Younus and Muhammad Yousuf admittedly, unauthorised occupants of different plots in Model Colony, is of no assistance to the defendant as their evidence is tainted, interested and partisan. Even otherwise oral evidence, in the absence of any strong circumstantial or documentary evidence, is not by itself sufficient to conclude that the defendant was put in possession of the plot in suit by Mian Khan, previous occupant of the plot in suit.
13. Learned counsel for the defendant referred to copies of applications, dated 21-10-1966 and 2-3- 1973 Exhs.7/5 and 7/6 addressed to Commissioner, Karachi by the defendant seeking allotment of the plot in suit. In both the applications while the defendant claimed to be in occupation of the plot in suit, he did not disclose that he was put in possession by the previous occupant, namely Mian Khan. Though copies of these applications purportedly bear rubber stamp seal of the Commissioner's Office, there is no other corroborative evidence to show that occupation of the defendant was accepted by any of the agencies. Learned counsel also referred to joint application addressed to Minister, Revenue Department and Governor M.L.A. Zone-C in the name of 25 and 77 persons respectively including the defendant for allotment of their respective plots to show that the defendant had been agitating for the allotment of the plot in suit in his favour. In the first instance, there is a glaring discrepancy with regard to the name of the defendant inasmuch as in the agreement of sale, the defendant is shown to be Muhammad Karim, whereas, in the joint applications relied upon by him, he was introduced as Abdul Karim. Moreover, no positive action having been taken in favour of the defendant, his possession over the plot in suit cannot be considered as legal, valid and in his own rights. On preponderance of evidence, it would, therefore, be safe, proper and reasonable to conclude that the defendant illegally and unauthorisedly occupied the plot in suit and not in his own right.
14. Issues Nos.3, 4 and 5.---These issues were settled at the instance of the defendant because he raised these points in the written statement but at the hearing, learned counsel for the defendant did not press these issues. The issues are accordingly dropped.
15. Issue No,6.---Annexure A to the plaint is Sanad issued by Mukhtiarkar, Karachi and Enquiry Officer, Model Colony, Annexure F is the judgment passed by Additional Commissioner, Karachi, dated 28-3-1970 in Appeal No,33 of 1970, whereas Annexure G is order, dated 1-9-1971 passed by Deputy Commissioner, Karachi after the remand of the case. At the hearing, Mr. Manohar Lal, learned counsel for the defendant challenged the validity of the orders passed by the Additional Commissioner, Karachi as well as Deputy Commissioner, Karachi and seriously assailed the validity of the Sanad issued in favour of the plaintiffs after necessary enquiries and survey. As regards the judgment passed by the Additional Commissioner, Karachi, it may be observed it was passed on the appeal preferred by Mrs. Ansar Fatima, plaintiff No,4 against the order of the Collector, dated 16-10-1969 turning down her request for the confirmation of the plot suit in her favour. After taking into consideration the grounds which wieghed with the Collector, Additional Commissioner held that after the death of Captain Khalid Hamid Lodhi during the war with India in 1965, who was managing the property in suit and allied affairs, the matter of payment in respect of the plot in suit remained pending. The Appellate Authority being satisfied with the statement of the appellant that she was prepared -to make payment of the Government dues and intending to raise a building on the plinth already existing on the plot, remand of the case to the Collector for reconsideration was neither illegal nor without jurisdiction. Even the exercise of discretion by him does not appear to be arbitrary or in violation of the provisions of law. Likewise order passed by Deputy Commissioner, Karachi after the remand of the case directing the confirmation of the plot in suit in the name of plaintiffs Nos. 1 to 5 on the face of it, is legal and valid and not violative of the provisions of law.
16. It may further be pointed out that the defendant has no locus standi to challenge these orders in collateral proceedings while defending a suit for possession or agitating the validity of Sanad in his suit for declaration and, cancellation of Sanad. In my view, both the orders were passed after due consideration of all attending facts and circumstances of the case as well as on the basis of enquiry conducted in 1959, accordingly these orders cannot be disturbed at this stage in the present suits.
17. Adverting to the validity of Sanad, it is evident that the Sanad was issued as a result of survey and necessary enquiries with a view to the settlement of the land revenue and the record and preservation of the proprietary and other rights connected with the soil under the provisions of the Sindh Land Revenue Code. On the face of it, the Sanad was rightly and validly issued under section 133 of the said Code. No doubt, the said Code was repealed on coming into force of the West Pakistan Land Revenue Act, 1967 but by reason of section 184 of the said Act, Chapters I, IV and VII as in force for the time being in Karachi area together with all enactments modifying or amending the same for its application thereto were saved. Furthermore, under subsection (4) clause (b) the lands granted by the Government to any person on or after the 1st day of January, 1928 who was holder of any land under the provisions of Sindh Land Revenue Code immediately before the commencement of Act XVII of 1967 otherwise than on lease shall be deemed, if he has paid the full price on which the land was granted to him, the owner of such land and be, subject to all the rights and liabilities of a proprietor under the Colonization of Government Lands (Sindh) Act, 1912.
18. In the first instance, my considered view is that the defendant having no title to the plot in suit is not entitled to question the validity of the Sanad for alleged non-fulfilment of the conditions of the grant of land in favour of the plaintiffs, and secondly, the questions raised could only be agitated by the Revenue Authorities who were joined as defendants Nos.6 to 9 in Suit No,108 of 1985 but it was accided not to deer suit. They have not come forward to deny the claim the plaintiffs or to the version of the defendant in the connected suit filed by him. For all hand purposes, the defendant has no locus standi to impugn the validity of ,ne Sanad issued by Mukhtiarkar Karachi on behalf of Deputy Commissioner, Karachi which is legal, proper and valid on the face of it. Needless to reiterate that this Sanad was issued after the payment of Malkana and Sanad fees consequent upon the order passed by Deputy Commissioner, Karachi confirming the plot in suit in favour of the plaintiffs. The issue is, therefore, answered in favour of the plaintiffs and against the defendant.
19. Issue No,7.---In view of findings on Issue No,6, it is held that the plaintiffs are rightly entitled to the issuance of Sanad, whereas the defendant has absolutely no right to the conferment of proprietary rights in his favour.
20. Issue No,8.---This issue is directly connected with Issue No,1 and in view of the findings on the former issue, no other finding is called for in the circumstances.
21. Issue No,9.---In my view, this issue is irrelevant and redundant for the purposes of deciding the controversy between the parties. It is accordingly dropped.
22. Issues Nos.2 and 10.---I have already dealt with the Sanad issued in favour of the plaintiffs at quite some length. Under the Revenue Laws Sanads in respect of properties lying in surveyed areas are issued in the Form H of the Schedule to the like effect. In the present case Sanad in favour of the plaintiffs was issued on this Form prescribed under section 133 of the Sindh Land Revenue Code. It categorically recites and sets out the nature of the tenure and all other proprietary rights vested in the plaintiffs. A Sanad granted under section 133 is not strictly speaking in the nature of a document of title between litigating parties. It is a document affecting rights only between the Government and the person to whom it is granted. A Sanad issued after due enquiry is prima facie evidence of title. In the present suit filed by the plaintiffs for ejectment of the defendant, the defendant could not show any right, title or interest to plot in suit, therefore, the plaintiffs having proved their title, and prior possession of the plot in suit are certainly entitled to the relief sought for.
Unauthorised construction raised by the defendant does not confer any valid or legal right or title to the plot in suit which may be removed at his option.
23. In the light of the aforesaid discussion and findings on the foregoing issues Suit No,25/1982 for ejectment of the defendant and removal of unauthorized construction is decreed while Suit No,108/1985 is dismissed. In the circumstances of the case, the parties are left to bear their own costs.