2006 PLP 1413 (MLD)

NADEEM AZHAR SIDDIQI, J.

The plaintiff has filed suit for declaration, ejectment/possession, injunction and in alternate compensation/damages. The facts as pleaded in the plaint are that the plaintiff was in possession of 1000 Sq. Yds. lying open in Block 6, Gulshan-e-Iqbal, Karachi, which was taken over by Defendant No.l and the Defendant No.2 was posted as Assistant Director (Land authorized officer of Defendant No.l to regularizes/execute leases on behalf of Defendant No.l). The Defendant No.1 agreed to regularize the area in favour of plaintiff and asked the plaintiff to pay Rs.3,14,880 which was deposited. The plot was carved out and given number S.T./16-A, Block 6, Gulshan-e-Iqbal, Karachi. Thereafter, the lease was executed and registered on 5-6-1996, by the defendants in favour of plaintiff which was subsequently rectified on 31-7-1996. In the month of December, 1997 the defendants demolished the construction and dispossessed the plaintiff. The plaintiff claims that the land was lawfully transferred to him and the Defendant No.1 is liable and responsible for all the acts and functions of Respondent No.2 and the Respondent No.1 cannot back out from the commitments made vide lease deed executed by defendants and that the dispossession of the plaintiff is illegal and arbitraty. The plaintiff claimed a sum of Rs.40,00,000 on account of wrong done to the plaintiff. After service of summons Defendant. No.1 filed written-statement. In spite of service the Defendant No.2 has not filed any written-statement and vide order, dated 30-8-1999 declared ex parte. In the written-statement filed by Defendant No.l it was pleaded that the suit plot is in the approved plan of KDA and is reserved for development of park and the land control of Gulshan-e-Iqbal vest with KDA and only amenity sites were transferred to KMC. The Defendant No.2 was never authorized to regularize the possession under Katchi Abadi Scheme. The suit-land is not a Katchi Abadi and is an amenity plot reserved for park and at the relevant time the Defendant No.2 was working as Assistant Director, Katchi Abadi, F.B. Area, but was not an authorized officer. The plaintiff in collusion with Defendant No.2 obtained the bank challan, so-called site-plan and lease. The suit plot is situated in regular KDA scheme and is not a notified Katchi Abadi. The Defendant No.2 was found involved in executing forged leases and was removed from KMC service. The suit plot is a part of amenity plot reserved for development of park and the Directorate of Katchi Abadi has not initiated any demolition action and the Anti-Encroachment Cell of KDA might have taken action. The Defendant No.1 further submits that the Defendant No.1 is not responsible for illegal and unauthorized acts of Defendant No.2 and if at all plaintiff has deposited any money has done so at his own risk and cost and is at liberty to apply for refund of the amount by surrendering original paid challan. From the pleadings of the parties following issues were framed on 27-9-1995:-- (1) Whether the defendant No.1 has received Rs.3,14,880 vide challan, dated 16-5-1996 in Account No. 103 maintained by it in National Bank of Pakistan, K.M.C. Head Office Branch, Karachi from the plaintiff in respect of the suit land i.e. Plot No. ST/16-A, Block No.6, Gulshan-e-lqbal measuring about 1000 sq. yards? (2) Whether the lease executed in respect of suit plot is fake, forged, unauthorisedly executed and fraudulent? (3) Whether the plaintiff is lawful lessee of suit plot? (4) Whether the defendant No.2, as Assistant Director/official of defendant No.l, was incompetent to execute lease and sign other documents which has resulted in transfer of title in respect of suit plot in favour of the plaintiff? (5) Whether on the basis of title documents executed by defendant No.2, the plaintiff is entitled to possession of the suit plot? (6) Whether the defendant No.l is liable for the acts/omissions done on its behalf by defendant No.2 during the course of business, as official of defendant No.l? (7) Whether in case the title of the suit plot is disputed by the defendants, the plaintiff is entitled for damages including refund of the entire amount to the tune of Rs.44,15,512 and interest thereon, for the wrongs committed by the defendants? (8) What should the decree be? My findings on issues are as under:

Issue No.l: The plaintiff in para 4 of the plaint has stated that a sum of Rs.3,14,880 was deposited vide challan, dated 16-5-1996. The Defendant No.1 in its written-statement has not specifically denied the deposit of amount and has submitted that plaintiff obtained the bank challan in collusion with Defendant No.2. The plaintiff in his affidavit-in-evidence has submitted that an amount of Rs.3,14,880 was deposited.. This was not disputed by Defendant No.1 during cross-examination of the plaintiff. The witness of the defendant deposed that "but the payment of challan amount is not in dispute in this case". In view of the above the issue is decided in affirmative and it is held that the Defendant No.1 has received an amount of Rs.3,14,880 from the plaintiff. Issue No.2: The execution of lease is not disputed. The plea of Defendant No.1 is that Defendant No.2 is not authorised to execute the lease and the plot is not a Katchi Abadi but is a part of amenity plot. The plaintiff has not filed any document to show that the plot is part of any Katchi Abadi and can be regularized. The lease was executed for a Katchi Abadi under Martial Law Order No.110, dated 20-12-1979. No notification in this regard has been produced by the plaintiff to show that the plot in suit is a part of duly notified Katchi Abadi. Under MLO 110 the government has to notified the Katchi Abadi which was in existence before 1st January, 1978 for residential purposes. Subsection (v) of section 8 of MLO 110 provides that no Katchi Abadi situated on a land reserved for

, play ground, garden, park,

shall be regularisable. In this case neither any notification was produced nor it is proved that the Katchi Abadi was in existence prior to 1-1-1978. After MLO 110 the Government of Sindh promulgated the Sindh Katchi Abadis Act, 1987 with overriding effect. Section 19(1) of the Act provides that the authority may be notification in the official gazette, declare any area or part thereof which is partially or wholly occupied authorisedly before the 23rd March, 1985 or continues to be occupied to be a Katchi Abadi. Section 19(4) of the said Act further provides that except as otherwise directed by Government no area which is reserved for

play grounds, gardens,

shall be declared as Katchi Abadi. Admittedly the plot allegedly allotted to the plaintiff is a part of park and the park includes play ground and gardens and cannot be regularized under Katchi Abadi Act. The regularization of possession and execution of lease in respect of land, which is part of a park is patently illegal and does not confer any lawful title in favour of plaintiff. In his affidavit-in-evidence the witness of Defendant No.1 states as under: "....The suit-land is not Katchi Abadi. It is an amenity plot reserved for park. Moreover at the relevant time the Defendant No.2 was posted as Asstt. Director Katchi Abadis, K.M.C. in F.B. Area of District Central and even for that area he was not an authorised officer thus the leases executed by Defendant No.2 in favour of plaintiff was an unlawful act of Defendant No.2 and such act is not binding on Defendant No. l . " This piece of evidence has not been controverted by the plaintiff during cross-examination. The above evidence gone unrebutted and amounts to admission on the part of the plaintiff. The witness of Defendant No.1 has also filed photocopy of plan showing Plot No.ST-16 as park. This piece of evidence was neither disputed nor controverted during cross-examination and the same has gone unchallenged. From the evidence it is established that the plot in suit is a part of amenity plot and cannot be regularized under MLO 110, dated 20-12-1979. Since the plaintiff claims that the suit plot is part of Katchi Abadi the burden lies upon him to prove the same but the plaintiff failed to discharge the burden. The plaintiff has also failed to prove that the officer who has executed the lease was duly authorised. From the stamp appearing on the back side of the lease it appears that the officer has executed the lease not in the capacity of Assistant Director Katchi Abadi but executed the lease in his capacity as Assistant Director (Land Lease Gulshan-e-Igbal). The rectification deed was also executed by the same officer, whereas permission to mortgage was issued by same officer on the format meant for Lyari Area. I, therefore, hold that the lease was executed fraudulently and unauthorisedly. Issue No.3: Since while giving finding on Issue No.2, I hold that the lease was executed fraudulently and unauthorisedly the plaintiff is not lawful lessee of the suit plot and no title is conferred upon the plaintiff. Issue No.4: The burden to prove this issue is upon the plaintiff. In spite of specific pleas by the defendant the plaintiff failed to produce any document in this regard. On the basis of my finding on Issue No.2, I hold that defendant No.2 was not competent to execute lease and sign other documents in favour of the plaintiff. Issue No.5: Since I have held that execution of lease is fraudulent, unauthorized and does not confer any title upon the plaintiff the plaintiff? is not entitled to the possession of suit plot. Issue No.6: The plaintiff has failed to prove that the Defendant No.2 has acted legally on behalf of Defendant No.1. Any act of the Defendant No.2 which is fraudulent and unauthorized is not binding upon Defendant No.l and Defendant No.l is not liable for the acts/omissions committed by Defendant No.2. Issue No.7: The plaintiff has proved that an amount of Rs.3,14,880 has been deposited with Defendant No.2 and is entitled to refund of the amount. As far as damages and other charges are concerned it appears that the plaintiff is also responsible for the fraud and had not acted prudently and without proper verification became a party to the fraud. The plaintiff is not entitled to claim other charges from Defendant No.l which he incurred on execution of lease. As for as compensation/damages is concerned it is proved that Defendant No.l has not caused any loss to plaintiff and is not liable to compensate him. From the evidence it is proved that all wrongful acts were committed by Defendant No.2 in the name of' Defendant No.l and he is liable to compensate the plaintiff. The plaintiff has not produced any evidence to show that what pecuniary loss he has sustained. However, it is an admitted position that plaintiff was in possession and raised certain construction which was demolished and the plaintiff has sustained some losses in this regard. The other factor is that an amount of Rs.3,14,880 belongs to the plaintiff was stuck-up with the Defendant No. 1 due to the illegal and unauthorised acts of the Defendant No.2 and in case the Defendant No.2 has not acted illegally and unautorisedly the plaintiff may invest this amount in any other property or profitable scheme. The Defendant No.2 by his illegal acts deprived the plaintiff from using his own money for his benefits and is liable to compensate the plaintiff. The plaintiff is, therefore, entitled to receive reasonable compensation from Defendant No.2. The plaintiff has not claimed any special damages and his case is confined to general or non-pecuniary damages. There is no hard and fast rule and yardstick to calculate the loss sustained by the plaintiff due to illegal acts of Defendant No.2 and to assess or determine the compensation. The principle laid down by various judgments in this regard is that compensation is to be awarded keeping in view that the same should not be exemplary or punitive in nature. Usually it is difficult to assess fair compensation and it is the discretion of Judge who may on the basis of the facts of the case determine the amount to be awarded to a person who suffered such damages. The another factor is that conscience of the Court Must be satisfied that the damages awarded, would if not completely, satisfactorily compensate the aggrieved party. In view of above the plaintiff is entitled to seek refund of Rs.3,14,880 from Defendant No.1 and is also entitled to recover a sum of Rs.5,00,000 on account of damages from Defendant No.2 along with simple interest Q 10% from the date of the suit till realization of amount. Issue No.8: The suit is decreed in the sum of Rs.3,14,800 against Defendant No.1 and Rs.5,00,000 with simple interest Q 10% per annum from the date of suit till realization of the amount against Defendant No.2. M.H./N-17/K????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.