NAZIM HUSSAIN SIDDIQUI, J.---This appeal by leave of this Court is directed against the judgment dated 29-9-1994, of learned Judge in Chamber, High Court of Sindh, whereby the judgment and decree dated 30-5-1991 of learned II-Additional District Judge, Karachi West, were upheld.
2. The facts relevant for decision of this matter are that Raheel Ghayas, respondent No,1 filed Suit No,795 of 1986 for declaration that he had acquired right of possession on the suit property by way of adverse possession i,e, piece of land admeasuring 2300 square yards bearing No,ST-1/2, Sector II-B, Orangi Township, Karachi, hereinafter referred to as "said plot". In the alternative declaration was sought to the effect that he was entitled to its regularization under MLO No,110/183. The respondent No,1 prayed for the following reliefs:--
(a) That it may be declared 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 the time being in force.
(b) That a permanent injunction may be granted against the defendant and he may be restrained for interfering into the peaceful possession of the plaintiff.
(c) That the cost of the suit may be borne by the defendant.
(d) That any other relief or reliefs as deemed fit by this Hon'ble Court may be granted.
3. The aforesaid suit was resisted by the appellants. They filed a written statement and pleaded that respondent No,1 was an encroacher upon said plot and that the unauthorised boundary wall constructed by him, was already demolished and the said plot was not part of Katchi Abadi, in terms of the above mentioned M.L.Os. It was also urged that said plot was located in a "planned area" and the respondent No,1 was already served with a notice under M.L.O. No,202 and upon expiry of period mentioned therein, the boundary wall was demolished, as such, said respondent was no longer in possession.
4. Learned trial Judge held that respondent No,1 had failed to prove that said plot was declared as Katchi Abadi and the mala fides, as alleged by him against the appellants, were also not proved.
Consequently, the suit was dismissed.
5. First Appellate Court reversed the findings of trial Court and held that the respondent No,1 was entitled to regularization, of the said plot under M.L.O. No,183. Plea of adverse possession was not pressed before First Appellate Court. Revision preferred against the judgment and decree of the First Appellate Court was dismissed by learned Single Judge by the judgment which has been impugned in this appeal.
6. Vide order dated 10-1-1996 leave to appeal was granted to consider that M.L.O. No,110 "intended to cover the unauthorized occupation of A persons, who have raised construction on open Government land either in the form of a house or a shop and not a case where no construction is put up".
7. It is contended on behalf of the appellants that learned High Court failed to exercise jurisdiction vested in it under section 115, C.P.C., for correcting findings of learned Appellate Court, which according to learned counsel are based upon, hypothetical presumption and manifestly contrary to the mandates of the provisions of M.L.O. No,110/183. Learned counsel also argued that the respondent No,1 was not entitled to beneficiary provisions of M.L.O. Nos.110/183. According to him, as per said Martial Law Regulation, the Government may by Notification in an Official Gazette declare that any part of any Urban area owned by the Provincial Government or a Local Authority, which has been partially or totally occupied unauthorisedly since before 1st January, 1978, for residential purposes and continues to be so occupied shall be known as Katchi Abadis. He further submitted that the respondent No,1 was not in possession/occupation of the said plot and the boundary wall raised by him was demolished after serving notice under M.L.O. No,202 and this happened before the suit was filed and that said plot Since then was lying open and was in possession of Karachi Metropolitan Corporation. Learned counsel specifically, referred to the admissions made by the respondent No,1 before trial Court, which are as under:-- "That there was no construction on the suit plot except the boundary wall around the plot. I have not received any notice under MLO 202 in the year 1984. Again says that I have received notice dated 14-10-1984. I produce copy of the same as Exh.13. It is correct that the wall was demolished prior to the filing of the suit in response of the notice Exh.13. It is correct that the plot is lying open since the demolition of the wall. It is situated in Scheme No,28. It is correct that Scheme No,28 is a planned area."
8. Close scrutiny of the evidence brought on record reveals that both First Appellate Court and High Court failed to appreciate the evidence in its true perspective. The deposition of the respondent No,1 was recorded in 1987 and he gave his age as 26 years. Thus, at the time when he allegedly occupied said plot, he was a minor of about 12 years. Neither at that time he could occupy it nor could ask for its regularization. On the contrary, the version of the appellants seems to be true that he had unauthorisedly encroached upon it in the month of October, 1984 and with connivance of the Government functionaries committed fraud by manipulating documents, showing his possession since 1973.
9. Respondent No,1 unequivocally admitted that the boundary wall raised by him was demolished prior to the filing of the suit and that said plot was lying open since then. He further admitted that it is in Scheme No,28, which is a "planned area". Planned area could never be treated as Katchi Abadi.
Martial Law Order No,110 was reconstituted by M.L.O.183, which provides that, save as otherwise provided in this order, the declaration of any area to be Katchi Abadi shall not confer any right on any person in occupation in the Katchi Abadi and that an area which is reserved for any other purpose (planned area) shall not be declared to be Katchi Abadi. Learned First Appellate Court dealing with this respect of the case tried to nullify the effects of above admissions and held that burden of proof was upon the appellants to show that said plot was situated in a planned area and that the appellants were to stand at their own legs, for proving their assertion. On this ground learned First Appellate Court ignored the admissions made by the respondent No,1.
10. Legal position is that facts admitted are not to be proved. After categorical admissions of the respondent No,1 that said plot was in Scheme No,28 the appellants were not required to prove the same, although in spite of above it was proved by the appellants that it was in Scheme No,28, a planned area. Learned High Court brushed aside above admissions of the respondent No,1 categorizing it as "innocent admission". Both First Appellate Court and High Court ignored the fact that the appellants in their written statement clearly stated that said plot was not a part of K.D.A.
Scheme No,2, but it was a part of K.D.A. Scheme No,28. This fact was very well-known to the respondent. No,1 before he entered the witness-box. He was not taken by surprise. He had admitted the facts, mentioned earlier. Under the circumstances, .There was absolutely no justification to ignore the aforesaid admissions of respondent No,1, which by themselves were enough to demolish his case.
11. Both Appellate Court and High Court discarded (Exh.15), which is a plan showing boundary of Orangi Township. According to this map the area in question falls under Scheme No,28. Learned First Appellate Court did not take it as authenticated document as it was only a true copy and did not bear the signatures of the Town Planner or Deputy Chief, Town Planning of Scheme No,28 of Orangi Township, Karachi. Muhammad Adil Abbas, Assistant Director Land, K.M.C. Was examined by the appellants, who stated that as per record the respondent had encroached said plot in October, 1984. Although, the respondent challenged the validity of said plan, but nothing substantial was brought on record to prove otherwise.
12. Learned High Court held that above layout/map was not free from doubt as it was neither signed nor sealed by the Town Planner of K.M.C. Another reason assigned by High Court for discarding said map/document was that it was neither confronted to the respondent No,1 in his evidence, nor produced before trial Court within 7 days, as was directed on 13-4-1987 when the issues were settled. A public document could not be ignored merely because it was not confronted and was not produced in Court within seven days. Its intrinsic value shall be examined on its contents. It is not proved that it is a false document nor it has been shown that governmental functionaries had any special interest to manipulate it as to deprive the respondent No,1 from his property. Since the respondent No,1, in cross-examination, categorically admitted its contents, therefore, there was no need for getting it confronted. It is significant to note that learned Judge (predecessor of the First Appellate Court) had dismissed injunction application in appeal as the respondent No,1 failed to show even his possession on the site at the time of inspection. He was an encroacher of public property, within the meaning of M.L.O. No,202 and the structure of encroachment was removed through a valid order. This- establishes that the appellants are in possession and the respondent No,1 was not in possession of said plot at the time when the suit was filed. The suit at its inception was not maintainable.
13. In consequence, the appeal is allowed. Impugned judgments of First Appellate Court and of High Court are set aside and the judgment of trial Court dismissing the suit of respondent No,1 is restored.