' AMIR HANI MUSLIM, J.-Through this appeal the appellant has impugned the judgment and decree dated 20-5-1990 passed by the Honourable Single Judge of this Court whereby the Suit No.1017 of 1980 filed by the appellant against the respondents was dismissed.
2. The brief facts as they appear from the pleadings are that the appellant was a transferee of Plot No.D-279 in K.D.A. Scheme No.1-A Extension, Karachi, measuring 600 square yards. The said plot was originally allotted and leased out to one Kamaluddin by the Karachi Development Authority, respondent No.1. The said Kamaluddin transferred the plot to one Commander Ghulam Akbar Malik who in turn sold it to the appellant.
3. Adjacent to the plot of the appellant there was open unnumbered triangular area of about 274.67 square yards on its west side. This open area was on the corner of the appellant's plot, which was neither demarcated nor was it assigned any plot number.
4. On 19-6-1973 the appellant applied to the respondent No.1 for the annexation of the said open area. By letter dated 26-9-1973, the appellant was informed that the said area in question was reserved for future utilization and cannot be allotted to the appellant.
5. The appellant made a second application dated 29-10-1974 requesting the annexation of the said open area to the respondent No.l. By letter dated 7-12-1974 the respondent No.1 through its Administrator has informed the appellant that in their previous letter dated 26-9-1973 they have clearly stated that the open area in question was reserved for further utilization and cannot be allotted either to the appellant or to anyone else and, therefore, the request of the appellant for annexation was declined. Again on 29-2-1975 the appellant sought allotment of the open area, which request of the appellant was also declined.
6. By passage of time the appellant gathered that the said open area was being converted into a plot and has been assigned a number. The appellant, realizing that after 'conversion as plot any construction on the said open area would destroy the utility of the appellant's property, inclusive of his privacy and easementary rights on 25-9-1975 filed a Suit No.2214 of 1975 against the respondent No.1 in the Civil Court at Karachi. In the plaint, the appellant has pleaded that he has served statutory notice under section 131 of the Karachi Development Authority Order, 1957, (hereinafter referred to as "the K.D.A. Order") upon the respondent No.1 prior to filing of the suit.
7. The respondent No.1 filed their written statement in Suit No.2214 of 1975 in which they for the first time disclosed that the open area has been carved out as an independent residential Plot bearing No.D-786 and on 9-9-1975 it was allotted to the respondent No.2 besides the issuance of possession order on 27-9-1975. On 24-10-1975 the physical possession of the plot was also handed over to the respondent No.2. In the written statement the respondent No.1 has further pleaded that since the appellant was owner of Plot No.D-279, which is 600 square yards, therefore, he was not entitled to allotment of the newly numbered plot, which was created by carving out the open area.
In the parawise comments which the respondent No.1 had filed to the Suit No.2214 of 1975, it was, however, admitted that the respondent No.1 had received statutory notice dated 5-5-1975 under Article 131 of the K.D.A. Order, sent by the appellant.
8. Since the appellant through the pleadings of the respondent No.1 learnt that the plot was allotted to the respondent No.2, he filed a fresh Suit No.989 of 1976 against the respondents Nos. I and 2 in the Court of Vth Senior Civil Judge, Karachi (East), for declaration. In para 3 of the plaint in the said suit it has been pleaded by the appellant that on 6-5-1975 a statutory notice was given to the respondent No.1 prior to the filing of the suit. In the intervening period the then Director General of respondent No.1 called for a report in which it was shown that since the matter was pending adjudication before the competent Court of law therefore, the matter remained pending.
Subsequently, the Suit No.989 of 1976 was withdrawn by the appellant with the permission to file a fresh suit.
9. On 21-5-1980, Suit No.1017 of 1980 was filed in this Court which was amended at times apparently on the basis of the fact that the property changed hands and the subsequent purchasers were impleaded as defendants. The respondent filed their written statement in which a preliminary objection of the maintainability of the suit was raised on the ground of statutory notice in the said suit besides the other. Pleas. The parties after framing of following consent issues led evidence whereafter the Honourable Single Judge after hearing the arguments was pleased to. Dismiss the suit of the appellant holding therein that the suit was hit by Article 131. Of the K.D.A. Order, besides the findings on merits that the appellant has no right to allotment of open area and the respondent No.1 was authorized in converting it into Plot No.D786 and was empowered to lease out the same to respondent No.2 and subsequent transfers by respondent No.2 to respondent No.3 were valid which findings are impugned in this appeal:-- "(1) Whether the suit is not maintainable under law for want of notice under Article 131 of the K.D.A.
Order 5 of 1957 and/or hit by Article 130 of the K.D.A. Order?
(2) Whether the suit is barred under the provisions of Order 2, rule 2?
(3) Whether the suit is barred by limitation?
(4) Whether the plaintiff has no legal status/character to claim the reliefs sought?
(5) What is the area of the Plot No.D786 transferred to and in possession of the defendant No.4?
(6) Whether Plot No. D-786 was originally intended to be left as an open space but was unlawfully converted into a plot and allotted to defendant No.2? If not whether the plaintiff is entitled to merger of the said plot with the plaintiffs Plot No.D-279 as claimed in the suit?
(7) Whether the defendant No.4 is the lawful transferee/owner of the Plot No.D-786 and is entitled to construction on the said plot?
(8)- What should the decree be?
10. Mr. Lqbal Qazi, learned counsel for the appellant, has argued that the Honourable Single Judge has overlooked the provisions of "Disposal of Lands and Estates Regulations" notified on 27-8-1965 in the Gazette of West Pakistan, which Regulations are framed under Article 15 of the K.D.A. Order. He argued that the Regulation No.6 provides the procedure of allotment of residential plot to an individual and sub-clause (d) of Regulation No.6 provides that the allotment shall be made either by ballot or on first-come first-served basis in the discretion of the Allotment Committee. He submitted that Regulation No.23 deals with the allotment of annexation of adjacent land, which reads as under:-- "Annexation of Adjacent Land:---Annexation of extra land may be allowed to the allottee of the adjacent plot on his making application, provided that:
(i) C.T.P. And A.K.D.A. Has no objection to it from the Town Planning point of view.
(ii) Land cannot be used as independent plot or for any other public purpose.
(iii) The applicant agrees to any terms and conditions imposed by the K.D.A.
11. According to Mr. Iqbal Qazi there were three conditions, which restrict allotment of extra land by way of annexation and if these three conditions are fulfilled, the respondent No.1 is bound to order annexation. The first condition was not material for the purposes of present controversy whereas the second condition lays.Down that the land cannot be used as independent plot or for any other public purpose. The annexation was, however, subject to the terms and conditions imposed by the respondent No. 1 . Mr. Iqbal has argued that the appellant had approached the respondent No.1 with an application for annexation, which application was prior in time and therefore, even under Rule 6 of the said Regulations he was entitled for allotment/annexation of the open area (extra land), which was adjacent to the plot of the appellant and subsequently converted into plot, in order to oblige respondent No.2 under the direction of the then Chief Minister. He further submitted that the plot of the appellant was the last plot in the scheme therefore, the open area (extra land) after his plot of the scheme was subject to annexation. He argued that the allotment on the basis of the orders of the then Chief Minister, Sindh, in favour of respondent No.2, was unlawful as the respondent No.2 in his application requested for allotment of the plot measuring 274 square yards whereas the respondent No.1 with the sole intention to defeat the claim of the appellant had shown the area of the plot as 384.33 square yards which area was more than fifty per cent of the area of the plot of the appellant.
12. He submitted that in this respect the appellant lodged a complaint with the Martial Law Authority on 9-10-1978 and the plot was measured and was found to be less than 400 square yards and, therefore, such plot could not have been carved out from the open area as independent plot in terms of the scheme.
13. Mr. Iqbal Qazi, learned counsel for the appellant, on the issue of statutory notice, argued that in Para.15 of the plaint in Suit No.1017 of 1980 it has been pleaded that statutory notice was served upon the respondent No.l. In para.12 of the written statement the respondent No.1 had pleaded that no notice appears to have been served upon them and such reply was evasive as there was no specific denial. He further argued that even the note sheet of the office of the respondent No.1 produced in the evidence reflects acknowledgement of service of statutory notice. In the alternate, he argued that even otherwise if no statutory notice was served, the plaint of the Suit No.989 of 1976 which suit was withdrawn by the appellant with the permission to file a fresh suit could be treated as statutory notice under Article 131 of the K.D.A. Order. He, however, without conceding to the fact that no statutory notice was served upon the respondent No.1 has drawn our attention to the plaint in Suit No.1017 of 1980 and argued that even in para.15 of the plaint the fact of issuance of statutory notice has been pleaded and the copy of the notice has been filed with the plaint as Annexure 'C' and the Honourable Single Judge has overlooked this material while dismissing the suit of the appellant for want of the statutory notice.
14. It was further argued by the learned counsel for the appellant that additionally the statutory notice was served upon the respondent No.1 before filing Suit No.2214 of 1975. Against respondent No.1 plaint of the suit was rejected and the appellant in view of the changed circumstances had filed fresh Suit No.989 of 1976. He submitted that the appellant filed the first suit without the knowledge that the respondent No.1 has already allotted the plot, the possession of which was handed over to the respondent No.2, therefore, the first suit became defective and even otherwise the rejection of plaint in Suit No.2214 of 1975 was not a decision on merits, the appellant filed second Suit No.989 of 1976 against the respondents Nos.1 and 2. It was argued by the learned counsel that even this second suit was withdrawn by the appellant with the permission of the subordinate Court for filing fresh suit in this Court. On 21-5-1980 Suit No.1017 of 1980 was filed and during the pendency of this suit amendments were sought in view of the fact that the suit property changed hands and the subsequent purchases were impleaded as respondents/ defendants. It was argued by the learned counsel that the copy of the plaint in Suit No.1017 of 1980 mentioned the statutory notice as Annexure C and this fact has been pleaded in para.15 of the pleadings. It was submitted that by Mr. Qazi that the finding on Issue No.1 of the Honourable Single Judge was improper and erroneous as the suit filed by the appellant was not hit under Article 131 of the K.D.A. Order, inasmuch as the respondent No.1 has given evasive reply to the contents of para.15 of the plaint by pleadings in their written statement that it appears that the statutory notice was not served upon the respondent No.l.
15. Mr. Qazi further argued that the permission to withdraw the second Suit No.989 of 1976 in order to file fresh suit in this Court itself was substantial compliance of the notice under Article 131 of the K.D.A. Order and plaint in Suit No.989 of 1976 should have been treated as notice under Article 131 of the K.D.A. Order as according to him no fresh statutory notice under Article 131 was required. He submitted that for the purposes of filing suit against respondent No.1 the law does not contemplate a party to give statutory notice for every suit if such suit has been filed after withdrawal of the earlier suit against the respondent No.1 on identical cause.
16. It was further argued by Mr. Qazi that moreover no statutory notice was required if the respondent No.1 had acted in deviation of the K.D.A. Order and its regulations framed thereunder. In support of his argument he has relied upon the judgment of the Single Bench of this Court in the case of Munawar and Co. (Pvt.) Ltd. v. Karachi Development Authority reported in 1998 MLD 1771 in which it was observed by the Honourable Single Judge that a statutory notice would not be necessary in case the act complained of is prima facie illegal and beyond the sphere of the authority.
17. Mr. Lqbal Qazi, in regard to the entitlement of the appellant has argued that the finding of the Honourable Judge on Issues Nos.4 and 5 in the impugned judgment was also erroneous inasmuch as the open area (extra land) which after it was converted into an independent plot and allotted to the respondent No.2 as according to him the Governing Body of the respondent No.1 in its 22nd Meeting held on 7-9-1960 has passed the following Resolution:-- "22nd Meeting of Governing Body held on 7th September, 1960.
' Allotment of extra land to the occupant of Plot No.B-114, Khudadad Colony, Scheme-19 ' (Item No.18)
' (Item Note was presented by Director (L.M.)
' Resolution ' No.466 resolved that approval be accorded to the inclusion of extra land measuring 17.78 sq. Yards in Plot No.B-114, price to its regularization in the name of the old occupant Mr. Abdus Salam Baig.
' Further resolved that in further allotment of extra land to the allottees of adjacent plots be approved by the following authorities in case no independent plot can be created upon the additional and the same is not earmarked for any specific purpose/use.
(i) In case the area of the extra land does, not exceed 25% of the area of the original plot by the Director (L. M . )
(ii) In the case the area of the extra land exceeds 25% but does not exceed 49% by the Director General.
(iii) Cases involving additional land to the tune of 50% or more be referred to the Government as usual.
(Action: Director (L:M.) K.D.A.)"
18. The procedure for allotment of the plot, which is in dispute, therefore, was violative of the Resolution which is in practice even today and has the status of statutory Regulation. He submitted that the finding of the Honourable Judge in regard to Issues Nos.4 and 5 was in conflict with the observations wherein the Lordship has held that plaintiff was kept in dark. The very fact that such observations imply the mala fides on the part of respondent No.1. He further argued that the judgment is in conflict with the law laid down by the Honourable Supreme Court in the unreported judgment dated 9-4-1991 in Civil Appeal No.83-K of 1987, in the case of Bachan Khan v. Fasahat Ali, in which their Lordships have interpreted the Regulation 23 of the Disposal of Lands and Estates Regulations and have held that Regulation 23 gives preferential right to the allottee whose plot is adjacent to the extra land besides holding that such allottee has a right to maintain a suit against the Karachi Development Authority.
19. Mr. S. Muzaffar Imam, learned counsel for respondent No.1, .Has argued that the impugned judgment has no legal infirmity and the respondent No.1 was never served with the Statutory Notice therefore, the suit of the appellant was barred under Article 131 of the K.D.A. Order. He further argued that since the area of the extra land was 384.33 square yards therefore, no right in favour of the appellant had accrued to file these proceedings as the scheme provided the plots of 600 square yards each and since the area of the plot was more than fifty per cent. Of the area of the appellant's plot, therefore, the appellant was not entitled to the allotment and the respondent No.1 in its discretion was justified in allotting it to the respondent No 2.
20. Mr. Muhammad Sharif, learned counsel for the respondents Nos.2 to 4, has argued that the claim of the appellant in suit was based on the representation which she made to the respondent No.1 and the finding in the impugned judgment that no statutory notice was served upon the respondent No.1 the suit of the appellant as a whole was rightly dismissed against all the respondents. He argued that hi the event the suit against respondent No.1 was dismissed the appellant had no independent cause against the respondents Nos.2 to 4 to challenge their allotment in the absence of respondent No.l. He has relied upon the case of Bhagchand v. SeCy. Of State reported in AIR 1927 Privy Council 176 at 183 in which their Lordships have discussed the ingredients which were required to be incorporated in a statutory notice. He further argued that in reply to para.3 of the plaint the respondent No.1 has in his written statement pleaded that the suit was not maintainable for want of statutory notice. He further submitted that an issue was framed as to whether the appellant had served the statutory notice and the parties have led evidence to the effect. In cross-examination the husband of the appellant had deposed that he did not have copy of the annexure 'C' which was statutory notice nor such notice was ever produced at any point of time in evidence. He submitted that the finding of the learned Single Judge that the suit was hit under Article 131 of the K.D.A. Order does not suffer from any legal infirmity and the suit against remaining respondents . Was also not maintainable against whom the appellant had no independent cause and therefore, no effective decree could have been passed against the respondents Nos.2 to 4. In support of his case, he has relied upon the case of Someshwar v.
Tribhawan reported in AIR 1934 Privy Council 130.
21. It was further argued by the learned counsel for the respondents Nos.2 to 4 that the suit was barred by limitation as provided under Article 131(3) of the K.D.A. Order. For the sake of convenience the relevant provisions of Article 131(3) of the K.D.A. Order are:-- "131. Note of suit against Authority, etc.
(1) No suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the Authority or against any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the authority office or the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought.
(2)
(3) ' Notwithstanding anything in the Limitation Act, 1908 (IX of 1908) no such suit as is described in clause (1) shall, unless it is a suit for the recovery of immovable property or for a declaration or a title thereto, be commenced otherwise than within six months next after the accrual of the cause of action."
22. He submitted that the suit filed by the appellant was neither a suit for recovery of immovable property nor for declaration or title. According to the learned counsel sub-clause (3) of Article 131 is a nonobstante clause which excludes the application of Limitation Act. He argued that since the suit was neither a suit for recovery of immovable property nor for the declaration, therefore, the appellant should have filed such a suit within six months from the date of accrual of cause of action in terms of Article 131(3) of the K.D.A. Order. According to the learned counsel the present suit was filed in 1980 and the conversion of the open area (extra land) into a plot was allotted in 1975, therefore, according to the learned counsel, the suit was barred under Article 131(3) of the K.D.A.
Order.
23. It was further argued by Mr. Muhammad Sharif that the appellant was subject to the terms of lease which was issued to the original allottee by the respondent No.1 and appellant under the terms of the lease cannot challenge the actions of the respondent No.1 in view of the bar contained in the terms of the lease which terms were binding upon the appellant.
24. The learned counsel for the respondents Nos.2 to 4 further argued that there is difference between the scope of appeal and writ. The appeal according to the learned counsel was outcome of pleadings and a new case cannot be introduced at the stage of appeal whereas in writ such an aspect can be considered by this Court. He has relied upon the case of Flour Mills Employee's Union v. Karachi Steam Roller Flour Mills Co. Ltd. Reported in PLD 1964 Karachi 587.
25. We have heard the arguments of the learned counsel and have perused the record.
26. The findings on the first issue as to absence of statutory notice under Article 131 of the K.D.A.
Order were recorded against the appellant. It was admitted by the respondents that the first Suit No.2214 of 1975 against the respondent No.1 only was filed after service of statutory notice under Article 131 of the K.D.A. Order. Upon being informed that the area in question had been allotted to the respondent No.2 they Filed another Suit No.989 of 1976 impleading both respondents as defendants. This suit was withdrawn with permission to file a fresh suit. On account of raise in the pecuniary value of the relief claimed, the third Suit No.1017 of 1980 was filed against all respondents before this Court.
27. Though it could not be affirmatively established that a specific notice under Article 131 of the K.D.A. Order was served upon the respondents, we found considerable force in Mr. Iqbal Qazi's contention to the effect that the object of Article 131(l) was only to enable the K.D.A. To rectify its mistakes before embroiling itself in litigation. Therefore, once a notice had been duly served there was no need to serve fresh notices before institution of any proceedings founded upon the same cause of action. Indeed, we are aware of several pronouncements of the superior Courts where provisions requiring notice to a party as precondition for initiating proceedings have been liberally construed. In several reported cases under section 18 of the Sindh Rented Premises Ordinance, it has been held that institution of proceedings by themselves could be treated as notice of change of ownership. A different construction of Article 131(1) would amount to making a fetish of a technicality.
28. The legal position in this regard has not been adverted to by the learned Single Judge. The question of area is dealt with by the Resolution of the Governing Body of the respondent No.1, which has been reproduced hereinabove in para.7 of this judgment. The different areas dealt therein have no nexus with the allotment-of the extra land to an allottee but only describes the authority, which can order allotment based on the area whereas the Regulation 23 of the Disposal of Land Estate Regulations deals with the allotment/annexation of adjacent land. A perusal of the Regulation 23 indicates that upon an application of an allottee the respondent No.1 may allot extra land adjacent to the plot of the allottee provided:
(i) C.T.P. And K.D.A. Has no objection to it from the Town Planning's point of view:
(ii) Land cannot be used as independent plot or for any other public use; and
(iii) (iii) The applicant agrees to terms and
(iv) conditions imposed by the K.D.A.
29. As has been held by the Honourable Supreme Court in an unreported judgment in the case of Bachal Khan v. Fasahat Ali, (Civil Appeal No.83-K of 1987), their Lordships have held that the- respondent No.1 has the discretion to allot the extra land upon an application of an allottee whose plot is adjacent to the extra land and that an allottee cannot seek allotment through the intervention of the Court. However, it was further observed in the said judgment that if the respondent No.1 decides to allot such an extra land in favour of person other than the allottee whose plot is adjacent to the extra land, the latter will have a cause of action to approach the Court for the relief that he had preferential right under the above. Regulation 23.
30. In the present case what has to been seen is whether an independent plot could have been created upon the extra land in terms of the scheme or not. Admittedly the scheme provided each plot of 600 square yards which fact has been confirmed by the learned counsel for the respondent No.
1. What appears from the record was that the K.D.A. Initially took the stand that the extra land would not be allotted to the appellant or to anyone else. However, on the direction of the then Chief Minister, Sindh, the summary was floated which was approved by the Chief Minister, Sindh, ordering allotment which is impermissible. The scheme as it originally stood did not provide any plot of the area of D-786 therefore, it does not fulfill one of the material ingredients of the Regulation 23 as has been interpreted by the Honourable Supreme Court. The creation of an independent plot of such area, against the spirit of the scheme, with the sole object to deprive and defeat the right of the appellant for allotment of the extra land was without lawful authority and the respondent No.1 or any other authority in law had no discretion to allot such extra land to the respondent No.2 by creating independent plot. Additionally, the allotment was made on the direction of the then Chief Minister, Sindh, after assuring the appellant that the (extra land) open area would not be allotted either to the appellant or to any other person. Moreover, the law does not recognize the allotment of the nature for more than one reasons. In the first place, it is the domain of either of the Allotment Committee or the Governing Body of the respondent No.1 to allot land. Neither the Chief Minister, Sindh, nor Provincial Government are empowered under the K.D.A. Order either to allot or to give direction of the nature. We therefore, in view of the judgment of the Honourable Supreme Court coupled with the fact that the order of allotment in the favour of respondent No.2 was passed by the then Chief Minister, hold that such allotment was bad in law and was violative of the Regulation 23 of Disposal of Land and Estate Regulations. We, therefore, hold that the allotment/lease in favour of respondent No.2 and subsequent transfers in favour of respondents Nos.3 and 4 are without lawful authority.
31. On the question of limitation, Mr. Sharif argued that though the learned Single Judge had held that the suit to be within time he could assail the aforesaid finding without filing a cross-appeal on his being a defendant in the suit which entitled him to support the decree on any ground. Learned counsel appears to be correct to the above extent. On merits he contended that the suit ought to be filed within six months of the Article 131(3) of the K.D.A. Order, which reads as follows:-- "131(3) Notwithstanding anything in the Limitation Act, 1908 (IX of 1908) no such suit as is described in clause (1) shall, unless it is a suit for the recovery of immovable property or for a declaration or a title thereto, be commenced otherwise than within six months next after the accrual of the cause of action."
32. Learned counsel attempted to argue that the suit was neither for recovery of possession nor for title to immovable property to call within the exceptions provided for. Elaborating his contention learned counsel contended that the concept to recovery of possession necessarily entailed 'earlier dispossession whereas admittedly possession had never been delivered to the appellant. In this context, he sought to draw a parallel from section 9 of the Specific Relief Act. We are afraid we are not at all persuaded to accept the contention for recovery of possession must invariably be proceeded by dispossession. In fact section 9 expressly provides that a person dispossessed without his consent may recover possession in a particular manner. On the other hand, section 8 states that a person entitled to possession may recover it in the manner prescribed in C.P.C.
Similarly, the expression "title" has been described in the Black's Law Dictionary as "union" of all elements constituting the legal right to control and dispose off property." We are, therefore, of the considered view that the suit in question related to both title and recovery of possession of immovable property and was clearly piotected by the exception to Article 131(3) and was as such within time.
33. For the aforesaid reasons this appeal is allowed and the judgment impugned in these proceedings is set aside.
' The appellant is entitled to the relief prayed in the suit.