2010 PLP 669 (CLC)

AMIR HANI MUSLIM, J.

Through C.M.A. No.10534 of 2009 under Order XXXIX, rule 1 read with section 94, C.P.C. read with Rule 74 of the Sindh Chief Court Rules (OS), the plaintiff seeks restraining order against the construction and operation of petrol pump claimed to have been constructed on an area of 2500 to 3000 square yards over the suit property by the defendants Nos.11 and

12. This application was filed along with the suit on 9-7-2009. The suit is titled as for declaration, perpetual and mandatory injunction. This Court on 20-11-2009 issued notices and has appointed Mr. Javed Akhtar Qazi, Private Secretary (Protocol), of this Court, as Commissioner to visit the suit land and inspect the fuel station being constructed on a portion thereof and report the status of construction. In the meantime, the parties were directed to maintain status quo with regard to the impugned construction.

2. After service of the ad interim order, Intervenors, Imtiaz Ahmed Memon and Tariq Hussain, moved C.M.A. No.11235 of 2009 under Order I, rule 10, C.P.C., claiming that they are the owners of the land in question, on which construction of petrol pump was being carried out by them. By order dated 2-2-2010, the application of the intervenors was allowed to be joined as defendants. The plaintiff consequently impleaded the intervenors as defendants Nos.11 and 12 on 15-2-2010 by filing amended plaint. The written statement is yet to be filed by the aforesaid defendants. Defendants Nos.11 and 12 along with their intervenors application (C.M.A. No.11235 of 2009) has also filed C.M.A. No.226 of 2010 under Order XXXIX, rule 4, C.P.C., seeking vacation/discharge of the ad interim order and permission to resume construction work of petrol pump on Plot No.193/3-A, Deh Mangopir, Surjani Road, Gadap Town, Karachi. The Injunction Application and Application for vacation of the injunction were listed for hearing on 16-2-2010. On 1-2-2010 the plaintiff has also made application, C.M.A. No.933 of 2010, under section 94 read with Order XXVI, rule 9, C.P.C. seeking direction against defendant No.6 to conduct investigation and survey and determine location of land of defendants Nos. 11 and 12.

3. The learned counsel for the plaintiff in the amended plaint has sought following reliefs:

"(a) Declare that the plaintiff is the absolute owner of the land measuring 10 acres and 22 Ghuntas out of Survey No.98, Deh Babrano, Tapo Mangopir, Taluka Karachi Central (New Karachi Town), Karachi; (b) Declare that the location of the commercial/industrial plots bearing Nos.193/1, 193/2 and 193/18 situated at Deh Mangopir, 'Surjani Road, Gadap Town, Karachi, claimed by the defendant No.7 have been illegally and wrongly claimed and shown to be located on the same location as the plaintiff's land measuring 10 acres 22 Ghuntas out of Survey No.98, Deh Babrano, Tapo Mangopir, Taluka Karachi Central (New Karachi Town), Karachi; or in the alternative, direct the defendant No.6 to clarify and demarcate the boundaries of Deh Babrano and Deh Mangopir; (c) Declare that the location of the Industrial plot bearing No.194/4, situated at Deh Mangopir, Surjani Road, Gadap Town, Karachi, claimed by the defendant No.8 has been illegally and wrongly claimed and shown to be located on the same location as the plaintiff's land measuring 10 acres and 22 Ghuntas out of Survey No.98, Deh Babrano, Tapo Mangopir, Taluka Karachi Central (New Karachi Town), Karachi; or in the alternative, direct the defendant No.6 to clarify and demarcate the boundaries of Deh Babrano and Deh Mangopir; (d) Declare that the location of the industrial plots bearing Nos.193/15 and 193.16, situated at Deh Mangopir, Surjani Road, Gadap Town, Karachi, claimed by the defendant No.9 has been illegally and wrongly claimed and shown to be located on the same location as the plaintiff's land measuring 10 acres and 22 Ghuntas out of Survey No.98, Deh Babrano, Tapo Mangopir, Taluka Karachi Central (New Karachi Town), Karachi; or in the alternative direct the defendant No.6 to clarify and demarcate the boundaries of Deh Babrano and Deh Mangopir; (e) Declare that the location of the Industrial/Commercial plots bearing Nos.193/3-A and 193/3, situated at Deh Mangopir, Surjani Road, Gadap Town, Karachi, claimed by the defendants Nos.11 and 12 has been illegally and wrongly claimed and shown to be located on the same location as the plaintiff's land measuring 10 acres and 22 Ghuntas out of Survey No.98, Deh Babrano, Tapo Mangopir, Taluka Karachi Central (New Karachi Town), Karachi; or in the alternative, direct the defendant No.6 to clarify and demarcate the boundaries of Deh Babrano and Deh Mangopir; (f) Permanently restrain the defendants from interfering in the plaintiff's proprietary rights in the land measuring 10 acres and 22 Ghuntas out of Survey No.98, Deh Babrano, Tapo Mangopir, Taluka Karachi Central (New Karachi Town), Karachi; (g) Restore the plaintiff's possession of that part of the suit property which is in the illegal possession of defendants Nos.7 to 9, 11 and 12; (h) Grant cost of the suit; (i) Grant such further and/or other relief as this honourable Court may deem just and equitable."

4. In the amended plaint, the plaintiff has pleaded that she is owner of 10 acres, 22 Ghuntas in Survey No.98, Deh Babrano, Tapo Mangopir, Taluka Karachi Central (New Karachi Town), Karachi, which she claims to have inherited from her father, Peer Muhammad. It is claimed that Peer Muhammad died on 13-2-1998 and she is the sole surviving heir of Peer Muhammad. The death and heir-ship certificates have also been filed with the plaint. The claim of the plaintiff is that deceased Peer Muhammad has purchased the suit land from one Golo son of Mazar for a sum of Rs.19,

500. On purchase of the suit-land from Golo, on 2-5-1962 Peer Muhammad got the land mutated in his name in the revenue record.

5. The plaintiff further claims that she has approached the Mukhtiarkar, North Karachi Town, Karachi, for mutation of her name in the record of rights by way of "Foti Khata Badal". It appears that the Mukhtiarkar has refused said mutation, inter alia, on the ground that entry kept in the name of Peer Muhammad in the revenue record was suspicious. Against the report of the Mukhtiarkar, the plaintiff preferred appeal No.9 of 2008 before the EDO (Revenue), which appeal was assigned to Additional EDO (II), Karachi by the EDO. In the meantime, Syed Shahzad Ali, defendant No.7 herein, has filed Suit No.912 of 2009 in this. Court for declaration, permanent injunction and damages.

6. The learned counsel for the plaintiff has contended that the plaintiff is the owner of the suit land and the defendants Nos.7 to 12 have encroached upon the suit land by dispossessing the plaintiff. The learned counsel for the plaintiff contended that the inspection report submitted by the Commissioner shows that construction of a fuel pump was carried out by the defendants Nos.11 and 12.

7. The learned counsel for the plaintiff has further contended that the dispute between the plaintiff and defendants is confined to the location of the lands of the parties. According to him, the plaintiff's land is located in Deh Babrano, while the land of the defendants is in Deh Mangopir and they have wrongly taken possession of the plaintiff's land though lands of the defendants are located in Deh Mangopir. The learned counsel has also contended that the defendantsNos.11 and 12 are not the lawful owners and has referred to the schedule of property contained in the sale-deed. According to him, the sale-deed of defendants Nos.11 and 12 shows that the area of land they have purchased bears Survey No.193/3 measuring 1879 square yards. He further contended that in the application under Order XXXIX, rule 4, C.P.C., the defendants Nos.11 and 12 have pleaded that the petrol pump is being constructed on the land bearing Survey No.193/3-A and the area shown is 1100.62 square yards. According to the learned counsel for the plaintiff this discrepancy in the survey number and area, ex facie, creates doubt on the title of defendants Nos.11 and 12 as the petrol pump has admittedly being constructed on Survey No.193/3-A while the title of defendants Nos.11 and 12 as per the sale-deed shows Survey No.193/3 with an area of 1879 square yards. He next contended that the defendants have wrongfully taken possession of the land by dispossessing the plaintiff as even if it is accepted that the defendants' title is perfect, still the location of the land of the defendants is in Deh Mangopir and not in Deh Babrano. He further claims that since the defendant No.7 has filed a separate suit bearing No.912 of 2009 seeking declaration in regard to the suit property pleading therein that he is the owner of lands bearing Survey No.931/1, measuring 2650 square yards, Survey No.931/2 measuring 2528 square yards, Survey No.931/18 measuring 2421 square yards; total 7598 square yards in Deh Mangopir and NA-Class 98 falls within Deh Babrano. The learned counsel for the plaintiff contends that in view" of this situation, the plaintiff has filed the present proceedings as the issues raised in Suit No.912 of 2009 has direct bearing on the plaintiff's claim. The learned counsel for the plaintiff next contended that the construction of petrol pump by defendants Nos.l1 and 12 is unauthorized as the land on which construction is raised is not owned to them as their land falls in Deh Mangopir and not in Deh Babrano, which Deh is far away from the suit land.

8. The learned counsel for the plaintiff has next contended that in the given circumstances, the plaintiff is entitled to for a restraining order as construction of petrol pump by the defendants Nos.11 and 12 on the lands of the plaintiff was unauthorized and therefore a restraining order from raising further construction is sought till the location of land is verified and determined by the Revenue Department.

9. The learned counsel' has further contended that the plaintiff has filed counter affidavit to C.M.A. No.226 of 2010 but the defendants Nos.l1 and 12 have not filed rejoinder, therefore, the contents of the counter affidavit having not been rebutted, the application under Order XXXIX, rule 4, C.P.C. is liable to be dismissed.

10. The learned counsel for the plaintiff has referred to section 52 of the West Pakistan Land Revenue Act, 1967 and contended that an entry in a record of rights shall be presumed to be true unless the contrary is proved or such entry is substituted by another entry. In support of his contention, the learned counsel has relied upon the case of Guahar Rehman v. Jan Ashbi reported in 1990 SCMR 1586.

11. He next contended that entries in the record of rights are strong piece of evidence in support of a person's title to immovable property and ought to be relied upon, in the absence of satisfactory evidence in rebuttal. The learned counsel for the plaintiff has relied upon the case of Nooruddin v. Pakistan reported in 1997 CLC 1971 and the case of Muhammad Hanif v. Sardaran reported in 1989 MLD

401. According to the learned counsel unless an old entry is not changed or substituted in accordance with law, it shall be deemed that such entry continues to hold the field. He in support of his contention has relied upon the case of Misri Khan v. Muhammad Sharif reported in 1997 SCMR 338 and the case of Town Committee v. Mehr Bakhsh reported in 2007 YLR 82.

12. The learned counsel for the plaintiff has further contended that under section 172 of the Land Revenue Act, where a question of title or ownership of land or any immovable property is involved, then civil Court alone, to the exclusion of the Revenue Officer or Revenue Court, is competent to decide. Accordingly, the learned counsel for the plaintiff contended that pendency of appeal before the Revenue Officer would not come in the way of the plaintiff to seek decision through these proceedings. He in support of his contention has relied upon the case of Ahmad Din v. Sughari reported in 1987 SCMR 63, case of Muhammad Yousaf v. Khan Bahadur reported in 1992 SCMR 2334. The learned counsel for the plaintiff has also relied upon the case of Fawad Rehman v. Shakira Nawaz reported in PLD 2003 Kar. 57, case of Hussain v. Faiz Muhammad reported in 1989 MLD 3651 and the case of Ghulam Muhammad v. Muhammad Aslam reported in PLD 1993 SC 336.

13. On the other hand, Mr. Khalid Jawed Khan, the learned counsel for the defendants Nos.11 and 12 has submitted that the defendants Nos.11 and 12 are the lawful owners of the land on which the petrol pump is being constructed in Deh Mangopir, Surjani Road, Gadap Town, Karachi. He contended that originally land on Survey No.193/3 was part of land comprising of 10 acres, which was leased to one Badruddin Sheikh for 30 years in 1986 for commercial, residential and industrial purpose from NA-Class 144 Deh Mangopir. This land was got surveyed by Sheikh Badruddin and was given Survey No.193 by the Survey and Settlement Department. Thereafter, on 31-3-1996, the aforesaid surveyed land was converted into 99 years lease and such entries were kept in Land Register (Ghat Wadh Form). Out of this surveyed land, the defendants Nos.11 and 12 on 22-2-2007 have purchased the land measuring 1879 square yards, which land was numbered as Survey No.193/3. The land Survey No.193/3 was further bifurcated by the Board of Revenue on the application of the defendants Nos.11 and 12 into two portions; one Survey No.193/3 measuring 778.38 square yards and the other Survey No.193/3-A measuring 1100.62 square yards on which the fuel pump after the permission of the requisite authorities is being constructed. According to the learned counsel, on 13-11-2009 the defendant No.11 started raising construction on the suit land, which was stopped after service of ad interim orders. The photocopies of order dated 28-4-2008 passed by the District Officer (Revenue) and permission granted by the Government of Pakistan, are placed on record, which documents are objected to by the learned counsel for the plaintiff. The objection is overruled, as I am hearing interlocutory applications and not deciding the main suit.

4. The learned counsel for the defendants Nos.11 and 12 has further contended that the plaintiff instead of establishing his title to the suit land has raised dispute over location of the suit land. He submitted that the title of the plaintiff is under cloud as the Mukhtiarkar has refused to effect mutation in the name of the plaintiff in the "Foti Khata Badal". According to the learned counsel for the defendants Nos.11 and 12, the plaintiff instead of establishing her title, has created a new situation by pleading that she was dispossessed illegally. He submitted that the plaintiff has obtained ex parte status quo order, which is liable to be vacated/discharged. According to him, the principal object of granting interim relief was to preserve the corpus of the dispute and ensure that in case the suit was decreed in favour of the plaintiff, execution thereof would not become impossible or difficult, which is missing in this case. He, in support of his contention, has relied upon the case of Malak Sultan v. Twin Star (Pvt.) Limited reported in 2003 CLC 695, the case of Avari Hotels Limited v. Hilton International Co. reported in PLD 1985 Kar. 445.

15. The learned counsel for the defendants Nos.11 and 12 has further contended that the plaintiff has failed to make out a prima facie case, nor the balance of convenience lies in her favour. According to him, in case the ad interim order is not granted, the plaintiff will not suffer irreparable loss and or injury but in the event of allowing the injunction would expose the defendants irreparable loss. The learned counsel has further contended that the defendants Nos.11 and 12 be permitted to raise construction of petrol pump at their own risk. He contended that, in case, if the plaintiff succeeds in these proceedings, the defendants Nos.11 and 12 shall hand over the land to the plaintiff with construction thereon. Since this Court is hearing the injunction application, therefore, the learned counsel for the defendants Nos.11 and 12 states that he will not press C.M.A. No.226 of 2010, which was filed for vacation of the ad interim orders and prays for its withdrawal.

16. On 2-2-2010 I have directed the EDO (Revenue) and Mukhtiarkars of Gadap and New Karachi Towns to be in attendance on 16-2-2010 with original revenue record. On appearance, the EDO has informed that the appeal preferred by the plaintiff against refusal of the Mukhtiarkar from keeping entry in Foti Khata/Badal in the name of the plaintiff in record of rights, is presently pending with the Additional EDO-II.

17. During hearing of the matter the above named Mukhtiarkar were in attendance and I have seen the original revenue record in respect of the lands claimed by the plaintiff and the defendants Nos.7 to 9, and 11 and

12. According to the revenue record the suit land, which the plaintiff claims to have inherited from Peer Muhammad is out of the portion of unserveyed NA-Class No.98 in Deh Babrano. The Original Form VII shows that the first entry was kept on 2-5-1962 in the name of Peer Muhammad as purchaser whereas Golo son of Mazar is shown to have sold the said land for Rs.19,

500. This entry is available at serial No.209. However, the fact that from whom the said Golo has acquired title is not available in the revenue record. Admittedly the land is owned by the Government, as it is classified as a NA-Class one. Under the Revenue Laws, if the land is a Government land, an entry can only be kept, if there is an order passed under section 10 of the Colonization Act. The original revenue record shows that the entry of Peer Muhammad only shows that he had purchased the land from Golo son of Mazar. How Golo acquired title is not on record except the entry mentions "Alif, Gaaf Meem", which means prior entry. No number or required detail has been mentioned.

18. Moreover, I, with the help of magnifying glass, have carefully examined signatures of the Mukhtiarkar, who has kept the entry in the name of Peer Muhammad and noticed tremor in the signatures whereas the signatures of the same Mukhtiarkar on the earlier entry appearing on the same page of the Revenue Record do not have tremor. This creates suspicion. The argument of the learned counsel for the plaintiff that under section 52 of the Land Revenue Act, it is to be presumed that the entry appearing on the Revenue Record is genuine and unless such entry is cancelled and or substituted it holds the field. With profound respect, the learned counsel for the plaintiff has read the provisions of section 52 in isolation with the words "in accordance with the provisions of this Chapter" in the said section. In law, the Revenue Officer is required to keep an entry following the procedure laid down in sections 39 to 42 of the Land Revenue Act, which requires a revenue officer to carry forward an entry if it has its original source, which in the present case is missing. Unless the provisions of sections 39 to 42 are followed, the benefit under section 52 of the Act could not be extended to a party who is neither in possession nor has material to spell out original source.

19. The Mukhtiarkar has submitted report refusing mutation against which the plaintiff has preferred an appeal. Therefore, as of today, the plaintiff is neither the owner nor is in possession of the land claimed to be inherited by her from Peer Muhammad as she herself in the prayer clause has sought possession of the land. Moreover, the question whether the disputed land is located either in Deh Babrano or Deh Mangopir is also insignificant in ' the given circumstances. The land, which the plaintiff claims through her father, is a portion of NA-Class No.98 in Deh Babrano whereas the land of the defendants Nos.l1 and 12, which they claimed to have purchased from Sheikh Badruddin, has Survey No.193, which is allotted to Sheikh Badruddin from NA-Class No.144 in Deh Mangopir.

20. Initially, Sheikh Badruddin was granted 10 acres of land on 30 years lease, which he got surveyed and was given, Survey No.193. The land was mutated in the record of rights where after the said Sheikh Badruddin got the said land converted into 99 years lease and a portion of the land leased out to him was purchased by the defendants Nos.11 and 12 against valuable consideration. The land leased to Sheikh Badruddin, as per the Revenue Record, which has been produced before me by the Mukhtiarkar Gadap, is located in Deh Mangopir and is from NA-Class No.144 and an entry to the effect was also kept in the Land Register (Ghat Wadh Form).

21. This Court, at this point of time, is not determining the title of the parties, which require recording of -evidence, but is hearing an injunction application. For seeking injunction a party has to show a prima facie case, balance of convenience and in case the injunction is not granted, it would suffer irreparable loss and injury. In the case in hand, the plaintiff herself is in appeal in regard to her title of the land, which she claimed to have inherited and the said appeal is still pending. Moreover, the plaintiff has failed to plead either in the plaint or in the injunction application as to when she was dispossessed and when she acquired knowledge about the impugned construction, being carried out on the suit land by the defendants Nos.11 and 12.

22. Admittedly, the plaintiff has not disputed the title of the land of defendants Nos.l1 and 12, and or other defendants, which they have acquired through registered instruments from Sheikh Badruddin. She has only disputed the location of the land in as much as according to the plaintiff the land of the defendants Nos.11 and 12 is located in Deh Mangopir and not in Deh Babrano. According to the plaintiff, the lands in possession of the defendants are in Deh Babrano, which is out of NA-Class No.98. The plaintiff claims that NA-Class No.144 is located in Deh Mangopir, which is far away from the suit land. The question of location of land at this point of time, to my understanding, is immaterial. This issue cannot be determined by Survey and Settlement Department, after conducting investigation, as has been prayed in C.M.A. No.933 of 2010 by the plaintiff. Admittedly, the land of the plaintiff is unsurveyed land. On the other hand, the defendants Nos. 11 and 12 are in possession of the surveyed land and, prima facie, have the title of the land- in dispute. The construction being sought on land bearing Survey No.193/3-A is with required permission and objection of the plaintiff's counsel in regard to the measurement of the land appearing in schedule contained in sale-deed of the defendants Nos.11 and 12 is fully answered by their counsel.

23. The learned counsel for the plaintiff has cited a number of reported cases, which have no nexus with the principles of grant of injunction in the given circumstances. The matter is being heard at an interlocutory stage and findings of facts cannot be given on the basis of the documents annexed with the pleadings. Under the circumstances, I am of the considered view that the plaintiff have failed to make out a prima facie case for grant of injunction as she at this juncture is neither owner nor is in possession of the land beside the title of the plaintiff, ex facie, is cloudy. As against this, the defendants Nos.11 and 12 have made out a case for continuing the construction of petrol pump on Survey No.193/3-A. In case if at this point of time the construction is stopped the defendants Nos.11 and 12 would suffer irreparable loss. Accordingly balance of convenience lies in their favour. It is well settled principle of law that the principal object of granting interim relief was to preserve the corpus of the dispute and ensure that in case the suit was decreed in favour of the plaintiff, execution thereof would not become impossible or extremely difficult. Keeping in view this principle of law, the plaintiff for the aforesaid reasons having failed to make out a case for grant of injunction, C.M.A. No.10534 of 2009 made by her is accordingly dismissed. However, the impugned construction raised by defendants Nos.11 and 12 is allowed with the condition that in case, if the plaintiff ultimately succeeds in these proceedings, the defendants Nos.11 and 12 shall hand over possession of the land with construction thereon as proposed by the learned counsel for the defendants Nos.11 and 12.

24. The learned counsel for the defendants Nos.11 and 12 does not press C.M.A. No.226 of 2010, seeking vacation of the injunction order, which is accordingly dismissed as withdrawn. As far as C.M.A. No.933 of 2010 under section 94 read with Order XXVI, rule 9, C.P.C. filed by the plaintiff for appointment of defendant No.6 to conduct an inquiry with regard to location of the lands of the plaintiff and defendants Nos.11 and 12, for the aforesaid reasons being misconceived is accordingly dismissed. The parties have yet to lead evidence to establish their entitlement to the land. The claim of the plaintiff, prima facie, is contrary to the revenue record produced before me. Additionally, appeal of the plaintiff on the issue of title is also pending before Revenue Authorities. The plaintiff in these proceeding has not impugned the order of the Mukhtiarkar against which she preferred appeal before the revenue authorities. Once the plaintiff has approached this Court seeking declaration of her ownership, the Revenue Authorities, in law, have no jurisdiction to entertain the said appeal in view of section 172 of the Land Revenue Act. The observations made herein above are tentative in nature. The aforesaid are the reasons of my short order passed on 17-2-2010. H.B.T./N-15/K Application dismissed.