AMIR HANI MUSLIM, J.--- Through this judgment we intend to dispose of both the above High Court appeals. High Court Appeal No. 305 of 1999 impugns the judgment and decree passed in Suit No. 607 of 1998 filed by the appellant against the respondents in this Court whereas High Court Appeal No. 306 of 1999 preferred by the respondent No. 1(a) and 1(b) impugns the judgment and decree passed by a learned Judge of this Court in Suit No. 985 of 1996 dismissing both the suits by common judgment.
2. The facts as it appear from the pleadings of the parties are that the respondent No. 2, Government of Sindh, allotted 4000 square yards of the land to the respondents Nos. 1 (1 a) and 1(b) (appellants in High Court Appeal No. 306 of 1999) from Na-class No. 210 on 31.12.1995 which was subsequently carved out, demarcated and surveyed and was given Survey No. 309 in Deh Okerwari Taluka and District Karachi (East). The land was allotted for the purpose of residential and/or commercial use.
3. The respondents Nos. 1(a) and 1(b) deposited a sum of Rs. 16,00,000/- on 15.2.1996 being the total occupancy value of the subject-land at the rate of Rs.400 per square yard with the respondent No.
2. On 25.2.1996 an agreement for lease was also executed in their favour by the Assistant City Survey Officer, Karachi. The respondents Nos. 1 (a) and 1(b) further claim to have been handed over possession of the land through possession letter in terms of Section 10(4) of the Colonization Act.
The mutation of the plot was effected in the revenue records in favour of respondents Nos. 1(a) and 1(b) in village Form-II where the said plot was shown to have been surveyed and the survey No. 309 was also mentioned in the said Village Form.
4. It appears that on completion of the requist codal formalities the then Deputy Commission Karachi (East) forwarded the lay, out plan for approved to the KDA and in the intervening period responde No. 1(a) and 1(b) started collecting building material the site for the construction of the boundary wa When the construction of the boundary wall was progress, the respondent No. 8 objected to t construction of the boundary wall and on 16.9.19 removed the building material of the respondents No 1(a) and 1 (b) lying at the site and extended threats the staff of the' said respondents Nos. 1(a) and 1(b) restrain them from raising construction.
5. The respondents Nos. 1(a) and 1(b) (appellant in High Court Appeal No. 306 of 1999) filed Suit N 985 of 1996 for declaration and Permanent Injunction in this Court against the respondent No. 8 and Director, with the following prayers:- "(i) Declare that the defendants have no leg right, authority to disturb peaceful possessio of the plot measuring 4000 Sq. Yards of Na class No. 210 now assigned 309, De Okarwai, Karachi East, and disturbing th construction work of the Site Office an Boundary Wall on the said plot;
(ii) Pass decree for permanent injunction restraining the defendants their servants agents from constructing Site Office anc Boundary Wall on the lease hold plot;
(iii) Decree the suit with costs; -(iv) Grant any other relief in the circumstances. Of this suit."
6. The respondent No. 8 filed its written statement denying the appellants' claim in the suit. 11 further claimed that Survey Nos. 39, 40, 41, 187, 188, 189 and 190 in Deh. Okerwari, Survey No. 214 in Del- fooran and Deh Jugro were allotted to the respondent No. 8 by the respondent No. 2 in 1970 and cording to the respondent No. 8 the land in dispute lotted to respondents Nos. 1(a) and 1(b) was integral rt of Survey No. 187, which was allotted to KMC by e respondent No. 2 for Safari Park.
7. During the pendency of the said suit the respondents Nos. 1(a) and 1(b) had entered into an agreement to sell in respect of the said land to the apellant High Court Appeal No. 305 of 1999) and on 2.1997 and the appellant was put in possession of e land in question for a sum of Rs.
2,60,00,000/-. It furrther appears from the record that in the sale agreement the plot of land was shown to have been cated in Survey No. 293. However, the appellant was t in possession of the plot of land located in Survey o. 309 carved out of Na-class No. 210.
8. It further appears from the record that lay out Ian submitted in respect of the said plot to the Deputy commissioner, Karachi (East) forwarded to the KDA as accorded approval after it was given the Survey umber as 309.
9. The appellant after the approval accorded by e KDA sought the permission to advertise and sell the ops and flats proposed to be constructed on the plot f land which permission was granted by the concerned aantonment Executive Officer. The appellant named the project as "Moon Garden" and invited through advertisement and by electronic media applications from eneral public for allotment/booking of the flats and hops.
10. The appellant was served with a notice by the respondent No. 7, Pakistan Railways Employees Coperative Housing Society Limited, contended therein at the plot of land in question was part of the land leased out to them in Survey No. 309 by the Federal Government through Director, Land Management, Pakistan Railways. The appellant replied to the notice disputing the contents. Even the respondent No. 8, the KMC, also was claiming that the subject land was part of the land of Safari Park, which has been carved out from Na-class Nos. 187, 188, 189 and 190.
11. The record further reveals that the appellant owing to the claim of the respondent No. 7 and the respondent No. 8 filed a Suit No. 607 of 1998 for declaration and permanent injunction in this Court against all different respondents including respondents Nos. 1(a) and 1(b) with the following prayers:- "(a) That it be declared that the plaintiff, as purchaser of the plot of land measuring 4000 sq.Yds.
Situated in Survey No. 309 (Old NaClass No. 210) Deh Okerwari, Karachi (East), is entitled to use/occupy and carry on construction on the said plot of land without any disturbance/interference form the defendants or anybody else claiming through or under them and that Pakistan Railways Employees Co-operative Housing. Society Limited or Karachi Metropolitan Corporation have no claim right, title or over the same.
(b) For perpetual injunction restraining the defendants above-named, their servants, agents or anybody else for and under them from claiming any right, title or interest in the abovesaid land and further restraining them from disturbing the peaceful use and occupation and enjoyment of the abovesaid land by the plaintiff and from constructing his project under the name and style of "Moon Garden".
(c) Any other relief which under the facts and circumstances of the case, this Hon'ble Court may deem fit and proper.
(d) Cost of suit."
12. The Sindh Government, the respondent No. 2 and a defendant in the said suit, did not choose to contest the proceedings however, respondents Nos. 7 and 8 filed their written statements. In view of the second Suit No. 607 of 1998 filed by the appellant the Honourable Single Judge of this Court on 10.7.1999 had passed the following orders consolidating both the suits:- "Notice to the counsels for the parties in two suits i.e. 985/1996 and 607/1998 were issued for a clarification as to whether any consolidation order was passed as appears in the order in High Court Appeal No. 164/1998. None appeared for the plaintiff in Suit No. 985/1996 and defendant Nos.
1(a) and 1(b) in Suit No. 607/1998 inspite of notice. Mr. Raja Qureshi for the plaintiff in Suit No. 607/1998, Mr. I.H. Zaidi for defendant No. 7, Mr. Yasin Kiyani for defendant No. 8 in Suit No. 607/1998 and for defendants in Suit No. 985/1996 are present and suggest that by consent these suits be ordered to be consolidated and the issues framed in Suit No. 607/1998 be treated as issues in both suits. They also suggest that the Suit No. 607/1998 be treated as a leading suit and evidence so recorded in Suit No. 607/1998 also be read in Suit No. 985/1996. Order accordingly. The purpose of issuing notice is served. The matter is reserved for judgment."
13. Subsequent thereto following consolidated issued were framed besides two additional issues:- "1. Whether the plaintiff purchased the land measuring 4000 sq.Yds. Carved out from NaClass No. 210, Survey No. 309, Deh Okewari, Taluka and District Karachi (East), from defendant No. 1, which was leased out, to him by defendant No. 2?
2. Whether the defendant No. 5 after due verification and survey bifurcated the plot of 4000 sq.Yds.
From Na-class 210 and the land was assigned new Survey 'No. 309 measuring 00-33 acres (4000 sq. Yards) and issued Ghat Whad Form dated 4.3.1997.
3. Whether the configuration and Lay Out Plain of Survey No. 309 was dully approved b the KDA Master Plan?
4. Whether the Cantonment Board Faisal granted permission to advertise and sell the flats and shops on Survey No. 309 measuring 4000 Sq. Yds?
5. Whether the land leased out to defendant No. 7 by the President of Pakistan includes the land from Na-class 210 or Survey No. 187?
6. Whether any portion of the land in possession of the plaintiff form part of the land leased out to defendant No. 7?
7. Whether the land leased out to defendant No. 8 by the Government of Sindh for Safari Park includes the land from Na-class 210?
8. Whether the land allotted to defendant No. 1 by the defendant No. 2 is situated in Survey No. 187 as claimed by the defendant No. 8?
9. Whether any portion of the land in possession of the plaintiff form part of land leased out for Safari Park to the defendant No. 8?
10. Whether Survey No. 309 falls in KDA Scheme No. 24 of 36?
11. Whether notice under Section 70 of. The Co-operative Societies Act to the defendant No. 7 was necessary prior to the institution of the suit?
12. What should the decree be?" Additional Issues: "1. Whether the suit plot was legally allotted to the plaintiff in Suit No. 985/96?
2. Whether the Suit No. 607/98 is maintainable and so whether the plaintiff have right to construct the building on the suit. Plot?"
14. Since the Suit No. 607 of 1998 was treated to bove the leading Suit, therefore, the appellant examined himself as PW-1 and produced his aff)davit-in-evidence as Ex. P. Photocopy of the allotment letter ated 31.12.1995 issued by the Secretary to Government of Sindh, Land Utilization Department adressed to the Deputy Commissioner, Karachi (East) s Ex.P/A, photocopy of Challan dated 15.2.1996 howing payment of Rs.16,00,000/- as Ex.P/8, hotocopy of agreement of lease dated 25.2.1996 as x.P/C, photocopy of Possession Letter dated 6.2.1996 as Ex.P/D, photocopy of Deh Joh Form No. , dated 23.4.1998 as Ex.P/E, photocopy of Gath adh Form and Deh Site Plan as Ex.P/F, photocopy of agreement to sell dated 4.2.1997 as Ex.P/6, photocopy f paid challan dated 12.2.1998 as Ex.P/H, photocopy t Demarcation Letter dated 5.5.1998 as Ex.P/I, photocopies of Sketch dated 5.5.1998 Ex.P/J. Sketch Na-class No. 210 as Ex:P/K-1, extract of property as :P/K-2, photocopy of letter dated 26.2.1996 as :P/1, photocopy of letter dated 9.2.1998 alongwith otocopy of the approved lay out plan as Ex:P/M, photocopy of NOC for advertisement dated 7.3.1998 as P/M-1, photocopy of NOC for advertisement dated 7.3.1998 as E.x:P/N, photocopy of Municipal Approval of Building Plan of Moon Garden dated 7.3.1998 as Ex:P/O, photocopy of legal notice dated 21.3.1998 as Ex:P/P, photocopy of reply dated 27.4.1998 to the legal notice as Ex:P/Q, photocopy of lease deed dated 16.6.1988 as Ex:P/R, photocopy of deed of ratification dated 8.12:1988 as Ex:P/S, photocopy of letter dated 1.9.1998 from KMC as Ex:P/1 and copy of proposed - plan as Ex;P/U. All the documents produced by the appellant were allowed to be exhibited without any objection from any respondents.
15. The appellant examined Munir Ahmed, Assistant Survey Superintendent as his witness. As PW2 who produced certified copy of the sketch of Na-class No. 210 reflecting that Survey No. 309. Was carved out from it as Ex:P/2-A, Exhibit P/2-A was missing from the original file as a result of which the appellant made in application on 30.11.2001 praying therein to take on record copy of Ex:P/2-A, which application was allowed by the Honourable Single Judge on 20.8.2002 taking on record copy as Ex.D/2-A.
16. The respondent No. 8 examined Fareed Hussain Qadri, Additional Director Sarfari Park, KMC as pw-1 who produced his affidavit-in-evidence as Ex:D/8, copy of Deh Form as Ex:D/8-1, copy of joint survey as . Ex:D/8-2, Officials Assignee's report as Ex:D/8-3 and copy of sketch as Ex:D/8-4.
17. The respondent No. 7 examined Rehmat A.I, Field Officer, as DW-2. He produced his affidavit- inevidence as Ex:D/7, photo-copy of Government of Sindh, Land Utilization Department's letter dated 1.12.1996 as Ex:D-7/1, photo-copy of publication of "Daily Jang" dated 27.10.1997 as Ex:D-7/2, photocopy of plan/sketch as Ex:D-7/3, photocopy of lease deed in favour of Pakistan Railways Employees' Cooperative Housing Society, Karachi, as Ex:D-7/4 and photocopy of deed of ratification as Ex:D-7/5.
18. The respondent No. 7 also examined Nisar Ahmed Memon, Zonal Property Manager/IBU Pakistan Railways, Karachi, as Dw-3 who produced his affidavit in-evidence as Ex:D-7/A, plan showing railways land leased out to Pakistan Railways Employees' Cooperative Housing Society, Karachi, as Ex,D-7/A-1 and copy of Deh Jo Form VII as Ex.D-7/A-2. The documents produced through the witnesses of the respondents Nos. 7 and 8 were also allowed to be exhibited without any objection points authenticity.
19. It has been argued by Mr.. Mansoorul Arfin, learned counsel for the appellant in HCA No 305 of 1999 that the findings given by the Honourable Single Judge of this Court dismissing the suit of the appellant was contrary to evidence brought on record. He submitted that the Honourable Judge has overlooked the fact that after consolidation of both the suits, Suit No. 607 of 1998 was treated as leading suit in which the appellant and his witness was examined and produced documentary evidence establishing their title of the suit land. He argued that the impugned judgment is based on assumptions inasmuch as the Honourable Judge has held that since the land in dispute was adjacent to the land of the respondent No 7, the possibility of encroachment by the appellant could not be ruled out, the learned counsel for the appellant submitted that finding of the nature in absence of material was erroneous. He further submitted that the Inspection Report of the Official Assignee was objected to by the appellant which fact is matter of record. The objections of the appellant' were overlooked and it was observed in the impugned judgment that none of the parties to the suit have filed objections to such report. In fact, the appellant had objected to the inspection report of the Official Assignee. Even otherwise, the map on the bses of which the Official Assignee has submitted his inspection report in which he has stated that, the appellant has encroached upon the land of the respondent No. 8 was not based on the revenue record. The learned counsel for the appellant has submitted 'that the report of the Official Assignee produced by the respondent No. 8 through his witness will have no evidentiary value unless the author of the report was examined.
20. The learned counsel for the appellant has argued that the issue of the Survey No. 293 and of Survey No. 309 as depicted in the impugned judgment has no bearing as predecessors of the appellant were allotted land from Na-class No. 210 portion of which was carved out and given Survey No. 309 by the Survey Department. The Survey No. 293 has no mention in any of the documents or revenue record produced by either parties except that the Assistant Survey Superintendent, who was examined and has produced the map ,mentioned that Survey No. 293 is located in a different area which survey was carved out from Na-class No. 48. He submitted that on account of typing error/mistake in the private document Survey No. 293 was figured but again even this is shown is have been carved out from Na-Class No. 210.. Moreover, this mistake was also rectified by seeking amendment in the pleadings. He argued that there was nothing on record not any of the respondents have claimed to have owned either one of these two survey numbers. Mr. Arfin .Further argued that there was no material available on record to hold that the appellant and or his predecessor-in-interest have encroached upon any portion of the land of the respondent No. 7 or 8. In regard to Suit No. 607 of 1996 it was further held in the impugned judgment that the suit was barred under Section 70 of the Co-operative Societies Act, which finding was also not proper for the purposes of dismissing the entire suit.
21. Mr. Manzoor Ahmed, learned counsel for the respondent No. 8 has argued that the appellants have encroached upon the land allotted to respondent No.. 8 for Safari Park and has supported the findings in the impugned judgment Mr. Arshad lqbal, learned counsel for the respondent No. 7, has argued that the appellant had encroached upon portion of the land of the Society and he has submitted that there is no legal infirmity in the impugned judgment. Mr. Abbas A.I, learned Additional A.-G. Has argued that the land was allotted to the appellant's predecessor-in-interest on a much low price than the market value applicable at the relevant time and by virtue of promulgation of the Ordinance Ill of 2001 all the allotments made between 1985 to 1996 were cancelled. He, therefore, submitted that the appellants have no legal title unless his right is determined under the said Ordinance.
22. We have heard the learned counsel and have perused the record. The points for consideration, in our humble view, appear to be: (a) whether any of the appellants were allotted land in Survey No. 309 carved out in Na-class No. 210 by the respondent No. 27; (b) whether the appellants were put in possession of the said land?; (c) whether the allotment was illegal on account of land having already been allotted to the respondent No. 7 or 8? And (d) whether the appellants had encroached upon any land allotted to the aforesaid respondents Nos. 7 and 8?
23. As regards the first two questions it is pertinent to mention that neither respondent No. 7 not the respondent No. 8 laid any claim to allotment of land in Survey No. 309 or for that matter in survey No. 293. As a matter of fact the respondent No. 7 relied upon the deed of rectification in respect to the lease of 53,634 acres of railway land executed by the President of Pakistan in its favour which explicitly speak of land within Survey No. 41, 40, 39, 38, 202, 33, 34, 213, 28, 45, 185, 118, 211 and 212 in Deh Okewari, Taluka and District Karachi (East). Similarly the respondent No. 8 in their written statement alleged that it was granted 210 acres of land in Survey Nos. 187, 188, 189 and 190 in the same Deh. They were further given an additional 53.11 acres of land in Survey No. 187 by the Provincial Government and 34.02 acres in Survey Nos. 39, 40 and 41 by the Evacuee Trust Property Board. It is, therefore, clear that while the respondents Nos. 7 and 8 had claimed interest in land located in more than a dozen survey numbers in the Deh, no interest in Survey No. 309 or in even Survey No. 293 was asserted by any of them. Therefore, it is quite evident that the appellant's claim with respect to land in Survey No. 3.09 went un rebutted.
24. In any event, since the suits were consolidated and it was also ordered by the Honourable Single Judge that the Suit No. 607 of 1998 would be treated as leading. Suit, the appellant who was predecessor-in-interest of respondents Nos. 1(a) and 1(b), had examined himself and had produced the copy of the allotment order made by the Sindh Government under the Colonization of Government Lands Act as Ex:P/1, the challan showing occupancy value paid by the predecessor of appellant as Ex:P/8. Agreement to lease as Ex:P/C and a sketch from Survey Superintendent as Ex:P/K identifying the land (as Survey No. 309) allotted to the appellant predecessor after the survey. All these documents were exhibited without any objection of any nature raised by any of the respondent. The appellant has also examined the Assistant Survey Superintendent, who on the basis of the record had deposed that the portion of Na-class No. 210 was carved out and was given Survey No. 309 on its survey by the competent department. He further deposed that Survey No. 293 had been carved out of Na-class No. 48. This witness was cross-examined by the respondents counsel at length but was not confronted with any of the sketches and or maps produced and relied upon by the respondent in their evidence.
25. From the above material it stood clearly established that the appellant's claim as to allotment of land in Survey No. 309 and delivery of possession of 4000 square yards from Na-class No. 210 on 25.2.1996 remained uncontested. It is equally correct to say that the respondents never claimed having been allotted any land in Survey No. 309 or for that matter even in No. 293 of Na-class No. 2 in prior to the survey.
26. The learned Single Judge however by one say so with profound respect has rejected the appellant's claim upon the following considerations:-
(1) That the letter of allotment and subsequent possession order in favour of the respondents Nos.
1(a) and 1(b) only described the plot with reference to Na-class No. 210 and not survey No. 309.
(2) That the claim as to survey No. 309 was rightly doubtful inasmuch as the sale agreement between appellant and the respondents Nos. 1(a) and 1(b) refers to Survey Nos. 293 and not 309.
(3) That the plaintiff is required to prove his own case independently and cannot rely on the weaknesses of the defendant's case.
27. The first point, if one may say so with grate respect, can be conveniently explained by the fact that it is not disputed that at the time of allotment, execution of the lease agreement and delivery of possession, the land had not been surveyed and therefore, had to be described in terms of the allotment. However, apart from the evidence of the appellant himself, the Assistant Survey Superintendent clearly deposed with reference to the record that the land allotted to the appellant from Na-class No. 210, neither constituted survey No. 309 nor such evidence was shaken. In cross- examination nor any evidence was led in rebuttal.
28. As regards the reference to survey No. 293 in the sale agreement and power-of-attorney, Mr. Mansoorul Arfin contended that it was purely out of an accidental error taking place in a private agreement between. The two parties and there was nothing in official records to show that the respondents Nos. 1(a) and 1(b) were allotted land in Survey No. 293 which they had agreed to sell to the appellant. Indeed the respondents Nos. '7 and 8 did not get the record summoned for proving that the respondents Nos. 1(a) and 1(b) had been allotted land in Survey No. 293 and not 309. On the contrary the Assistant Survey Superintendent Munir Ahmad in .Cross-examination deposed that Survey No. 293 had been carved out of Na-class No. 48 and not from Na-class 210. This lands support to the contention that the reference in the agreement was only the result of an accidental mistake. In any event since the respondents Nos. 7 and 8 did not even claim an interest in land in survey No. 293 the mistake was entirely inconsequential.
29. As regards the third question referred to in para. 22 the respondent No. 8 in para. 1 of their written statement alleged as follows:- ."Ttit, plaintiff has allegedly been granted 4000 square yards of land by the Board of Revenue the area of Safari Park. Such land has already been granted to KMC in Survey No. 187 "
30. -Obviously the respondent contention and ,the, evidence adduced in its support would be entitled to great weight it the appellant had actually claimed rights' in and in the aforesaid Survey.
No. 187, Nevertheless, when they chose to confine their prayer as to right and consequential relief to such land as actually fell within the Survey No. 309, was fail to see how the respondents' assertion or evidence led in support thereof could defeat the appellants' claim.
31. On the other hand, if the respondent No. 8 was aggrieved by any alleged encroachment upon their property by the appellants in Survey No. 187, it could always prefer a country claim or file an independent suit, though the respondent No. 7 was not a party to Suit No. 985 of 1996 the facility of filing an independent suit against respondents Nos. 1(a) and 1(b) was always available to them in case such proceedings were preferred, the appellants would be required to affirmatively establish that they were not. In fact, in possession of any land falling within Survey No. 187, wherefrom some land had been allotted to respondents Nos. 7 and 8. No issue regarding the appellants' occupation of any land in Survey No. 187 was framed either. In the circumstances, we are constrained to observe with profound respects, and notwithstanding the evidence adduced by the respondent No. 8 that such finding was beyond the pleadings and dismissal of the suit on the said ground was entirely unsustainable. Nevertheless, we leave it open to the respondents Nos. 7 and 8 to raise this question in appropriate proceedings if -maintainable under the law. We have refrained ourselves from commenting on the evidence adduced by the respondent No. 8 in this behalf lest it might prejudice proceedings that may be filed if so advised.
32. While we agree with the learned Single Judge to the extent that mere agreement of sale of property does not create title in favour of the purchaser, we are unable to go to the extent that no interest had passed in favour of the appellants to enable him to file Suit No. 607 of 1998. In Habib- ur-Rehman v. Wandania (PLD 1984 SC 424), the Honourable Supreme Court while holding that though a mere agreement to sell does not pass over title in favour of the buyer in the absence of a registered instrument their Lordships did not acknowledge that it constitute a charge on the property in his favour for the amount paid. Section 42 of the Specific Relief Act on the other hand, does not require existence of title. In favour of the plaintiff but a declaration with respect to any right as to any property could be sought. It could not, therefore, be urged that unless the appellant's title had been perfected Suit No. 607 of 1998 could not have been filed.
33. We for the aforesaid reasons are of the considered opinion that the appellants and their predecessor-in-interes't have established their case being allottees of Survey No. 309 and, therefore, both these appeals were allowed by us by our short order dated 4.11.2003 to the extent that the appellants are the allottees of 4000 square yards of plot located in Survey No. 309, Deh Okerwari, District Karachi (East) and the respondents City District Government, Karachi and Pakistan Railways Co-operative Housing Society are restrained from interfering with their possession in the aforesaid Survey No. 309. However, in case the aforesaid respondents Nos. 7 and 8 are able to show that the appellants have encroached upon any portion of their lands, they would be free to initiate appropriate proceedings (if any) under the law.
34. Nevertheless, the appellants' rights or interests in the subject property would be subject to the provisions of Ordinance III of 2001 and in case they fail to pay the market value in terms of the said Ordinance or any other law, Government of Sindh may take such appropriate action as may be warranted by the law. .